Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issues to be determined are whether Eric Delucia (Respondent or Mr. Delucia) violated sections 1012.795(1)(c), (g), or (j), Florida Statutes, and implementing administrative rules, as alleged in the Amended Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Amended Administrative Complaint, Mr. Delucia held Florida Educator's Certificate 915677, covering the areas of English, English for Speakers of Other Languages, Business Education, and Marketing, which is valid through June 30, 2019. At all times relevant to the Amended Administrative Complaint, Mr. Delucia was employed as a language arts teacher in the Broward County School District. Mr. Delucia stored the documents listed in Petitioner's Exhibit P-2 on his computer, as stipulated by the parties. Mr. Delucia was employed at Cooper City High School during the 2011/2012 school year. Ms. Doll was the principal. Principal Doll testified that Mr. Delucia was in the initial stages of a cycle of assistance during that year. He received a memo outlining expectations and concerns, and was observed by several people. Principal Doll indicated she believed that he had deficiencies in instructional planning, classroom management, lesson plan presentation, and lesson plan delivery. However, Principal Doll confirmed that Mr. Delucia's Instructional Practice Score was a 2.954 for the period January 2012 through May 2012 at Cooper City High School, which was within the "effective" range. Principal Doll stated that there were concerns about his performance based on observations that were done earlier that warranted an outside observer, but those observations were not used for the evaluation. He was never placed on a Professional Development Plan while at Cooper City High School. Respondent requested a hardship transfer and was moved to Ramblewood for the following school year. On January 1, 2013, Mr. Delucia was admitted to the hospital following a series of strokes. Respondent received "effective" scores in both the Student Growth and Instructional Practice components, as well as his overall Final Evaluation for the 2012/2013 school year at Ramblewood. Respondent was subsequently on medical leave of absence during the 2013/2014 school year. On July 1, 2014, Ms. Smith became the principal at Ramblewood. On August 11, 2014, Mr. Delucia returned to Ramblewood from medical leave. On August 14, 2014, Principal Smith was inspecting all of the classrooms at Ramblewood to ensure that they were prepared for the first day of school. She felt that Mr. Delucia's classroom was not ready for students, because it needed a little bit of "warmth." On August 28, 2014, Principal Smith conducted a formal evaluation in Mr. Delucia's classroom. She concluded that the lesson had no clear focus and that it was not on the appropriate grade level for the students he was teaching. In early September, there was a complaint that Mr. Delucia was putting up students' grades on a board in his room. However, Mr. Delucia testified that he posted the grades only by student number, not by name. There was no competent evidence to the contrary. On October 30, 2014, in introducing the genre of mythology to his students, Mr. Delucia made the comment that "[t]he gods viewed humans as pets or sexual toys." While not an appropriate comment for middle school students, there was no suggestion that Mr. Delucia elaborated or pursued this statement further, and this incident did not constitute ineffective teaching. There was no evidence that it caused students embarrassment or harmed students' mental health. There was testimony that on October 30, 2014, Mr. Delucia also spent class time explaining that the fact that a Star Wars' character had no father would have been taboo in 1976 and discussing that the episodes of that movie series were released out of the chronological order of the story. While the discussion may have gotten a bit off track, it was not clearly shown that discussion of fiction was unrelated to the concept of mythology, might not have enhanced students' understanding of the topic, or was ineffective teaching. While it was clearly shown that Mr. Delucia made the statement, "These kids have the memories of gnats," it was clear that this was said when no students were present and in defense of his actions in discussing fantasy and fables. On December 2, 2014, Respondent said to a student in an angry and loud voice, "Don't you even piss me off." This warning, given in response to the student's statement that the student did not understand something, was inappropriate in language and tone, harmful to learning, and harmful to the student's mental health. Mr. Delucia's statement that he was not visibly angry or speaking in a loud voice on this occasion is not credited. On December 8, 2014, Mr. Delucia met with Ms. Poindexter, his new peer reviewer. At one point in their conversation, he talked about his former principal, Ms. Doll, referring to her battle with cancer. He stated, "She will kick the bucket soon because she has cancer and no one will care when she is gone." He stated, "She's the devil." Mr. Delucia also referred to his current principal, Ms. Smith, as "the devil." He stated, "My motivation is to destroy her with everything I have" and that he "wished the ground would open up and swallow her." Mr. Delucia also referred to the administrative staff as "assholes" and used multiple profanities, stating, "They do not know who they are messing with, but they will find out soon." Student A.F. testified that he heard Mr. Delucia tell Student C.D. that he should jump off of a bridge with a bungee cord wrapped around his neck; tell Student C.D. that if he was a speed bump, he (Mr. Delucia) would run over him; and tell Student C.D. to kill himself a couple of times. However, Student A.F. provided no detail or context for these alleged statements, some of which seemed to involve an incident involving an entirely different student who he testified was not even in his class. He was not a credible witness. On January 8, 2015, Ms. Sheffield observed Mr. Delucia using a four-page packet to teach punctuation to his seventh- grade language arts class. Ms. Sheffield told Mr. Delucia that this was not really part of the seventh-grade curriculum. Mr. Delucia made a statement to the effect of "these students don't know anything, not even the basics, so we have to start somewhere." There was no allegation that this comment was made in front of the students. From the period August 21, 2014, through December 3, 2014, Mr. Delucia's Instructional Practice Score was 1.916, and he was placed on a 90-day Professional Development Plan. Numerous observations by Dr. Jones and Principal Smith followed through the remainder of the school year. Mr. Delucia's Instructional Practice Score improved slightly, but was still less than effective. On January 12, 2015, Ms. Sheffield noticed that one of the vocabulary words written on Mr. Delucia's board for his students was "retard." Ms. Sheffield said she assumed that Mr. Delucia meant the slang term sometimes used as a noun to refer to persons with mental disabilities. Such use of the term, as a shortened form of the word "retarded," would be offensive and disparaging. Ms. Sheffield said that they talked about the fact that it is not appropriate to use the word "retard" as a noun as a reference to the disabled. She testified that he did not respond. At hearing, Mr. Delucia admitted using "retard" as a vocabulary word, but testified that he included the word as a verb, meaning to slow down or delay. Ms. Sheffield testified she did not hear him speak the term, or say anything about it, and there was no other testimony regarding this event. Mr. Delucia admitted that he often said, "If your writing looks like garbage and smells like garbage, then it is garbage." Ms. Sheffield stated that she told Mr. Delucia he might try to find another way to encourage students to write neatly in their journals that was a more positive comment or allowed students to take pride in their writing. On January 26, 2015, Ms. Sheffield testified that when a student returned late from lunch, Mr. Delucia and the student began arguing. Ms. Sheffield credibly testified that Mr. Delucia screamed at the student, "This isn't going to end up good for you. Just shut up." On February 4, 2015, Student A.W. had come in late to Mr. Delucia's class and was acting out in the back of the classroom. When asked why, her response was that other people also did it. Mr. Delucia responded, "If other people jump off of a bridge, would you jump off a bridge, too?" Student A.W., after a moment of silence, retorted, "Yeah, if you give me a bungee cord." Mr. Delucia replied, "If there is a bungee cord, you should wrap it around your neck before you jump." The class started laughing. Student A.W. replied, "You just told me to kill myself, I am telling the office." Mr. Delucia then asked Student A.W. to leave the classroom. While Student A.W. had a disrespectful attitude, Respondent's caustic comments to her were intentionally made in a spirit of mocking humor to subject Student A.W. to embarrassment in front of the class. A class grade graph prepared during the third quarter of the 2014/2015 school year documented that 68 percent of his students were failing at that time. No similar graph for any other quarter of that year, or for other years, was submitted in evidence. On April 7, 2015, the students in Mr. Delucia's class were supposed to be studying Latin and Greek roots of words, but one student did not have a packet and asked Mr. Delucia for one. After Mr. Delucia handed him the packet, the student said, "There is a footprint on this." Mr. Delucia responded, "Get working on studying or else I will call your father." The student replied, "Please don't." Mr. Delucia then said, "Why, because you don't want to get a footprint on your face?" Ms. Sheffield testified that during her observations, she never saw Mr. Delucia standing up interacting with his students. She said she never saw him deliver a lesson to students. For the 2014/2015 school year, Mr. Delucia's score for the instructional practice component on his evaluation was 2.002, a "needs improvement" rating, while his score for both the deliberate practice/growth plans and student data components was recorded as exactly 3.0. The final evaluation for Mr. Delucia in 2014/2015, computed by combining these unequally weighted scores, was 2.511, an "effective" rating.1/ Mr. Delucia was transferred to Piper High School for the 2015/2016 school year. The administration there did not place Mr. Delucia on a Professional Development Plan. Mr. Delucia has not been subjected to disciplinary action during his time at Piper High School, and he has exhibited positive rapport with his students and colleagues. Mr. Delucia's weighted overall evaluation score for the 2015/2016 school year at Piper High School was 2.831, "effective." Mr. Delucia's demeanor at hearing was defiant. His testimony was sometimes evasive and defensive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Eric Delucia in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), (3)(e), and (5)(e); imposing a fine of $3,000.00; placing him on probation under conditions specified by the Commission for a period of two years; and imposing costs of investigation and prosecution. DONE AND ENTERED this 20th day of November, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2017.
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since August 21, 1998. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, is covered by the collective bargaining agreement between the School Board and TALC, and holds a professional service contract with the School Board At the time of his hiring, Respondent was assigned to the dropout prevention program at Academy High School, where he taught for one year. On August 17, 1999, Respondent began teaching at High Tech Central, a vocational/technical school. High Tech Central's student body includes both high school students and adults seeking to obtain job skills. A large percentage of the adults attending High Tech Central receive assistance from the Pell grant program, a need-based undergraduate financial aid program funded by the federal government. During the 1999-2000 and 2000-2001 school years, Respondent taught the second semester of the personal computer ("PC") support services class, sharing a large classroom with Beth Ames, the teacher who taught the first semester of the same class. During the 2001-2002 school year, Respondent taught a web design class. During the 2002-2003 school year, Respondent taught CET in a co-teaching arrangement with Jeff Ledger, who had taught the CET class for the previous six years. At the end of that school year, Mr. Ledger moved to Ohio. From the 2003-2004 school year until the time of his suspension, Respondent alone taught the CET class. Throughout his period of employment with the School Board, Respondent also taught computer, business, and accounting courses as an adjunct professor at Edison College in Fort Myers. Until the 2003-2004 school year, Respondent received nothing less than satisfactory performance assessments. For the 1998-1999 school year, his performance was graded as satisfactory in each of the twelve criteria listed on the performance assessment form.2 His assessor at Academy High School wrote in the comment section of the assessment that "Mr. Nevins is well versed in technology and vocational skills," and commented favorably on Respondent's flexibility and cooperativeness in meeting the needs of students. For the 1999-2000 school year, Respondent's performance in teaching the PC support services class at High Tech Central was graded as exceeding expectations in five of the twelve criteria listed in the performance assessment form and as meeting expectations in the remaining seven criteria. High Tech Central's assistant director Susan Cooley prepared the assessment and wrote that Respondent "has done an outstanding job with collaboration with teachers and staff here at [High Tech Central]. He is very creative and strives to produce projects and alternative techniques for student achievement." For the 2000-2001 school year, Respondent's performance was graded as exceeding expectations in five of the twelve criteria and as meeting expectations in the remaining seven criteria. Ronald Pentiuk, the director of High Tech Central, prepared the assessment and offered no written comments. For the 2001-2002 school year, when Respondent moved from PC support services to web design, Respondent's performance was graded as exceeding expectations in three of the twelve criteria, and as "meets expectations" in the remaining nine criteria. Mr. Pentiuk commented that "Mr. Nevins has performed in an outstanding manner-- really super job in preparing the new CET lab." For the 2002-2003 school year, when Respondent moved from web design to co-teaching the CET class with Mr. Ledger, Respondent's performance was graded as exceeding expectations in three of the twelve criteria and as meeting expectations in the remaining nine criteria. Mr. Pentiuk performed this assessment and offered no additional written comments. For the 2003-2004 school year, when Respondent began to teach the CET class alone, Respondent received a grade of meeting expectations in eight criteria. In the criteria titled "Planning for Student Achievement" and "Subject Matter," Respondent received a grade of "exceeds expectations." In the criteria titled "Assessment of Student Achievement" and "State, School & District Requirements," Respondent received a grade of "below expectations," meaning that his performance was unsatisfactory. Mr. Pentiuk performed this assessment and offered no additional written comments. The record established at the hearing shows that High Tech Central's administrators expressed concern about Respondent's teaching and record keeping practices as early as May 2002. Ms. Cooley testified that, at the conclusion of the 1999-2000 school year, Ms. Ames had approached her with a request that she be permitted to teach both sections of the PC support services class alone, rather than splitting the course with Respondent. Ms. Ames stated that she was doing all the work anyway and felt it would be better for the students if she handled the class without Respondent. Ms. Cooley left matters as they were for the 2000-2001 school year, but then moved Respondent into the web design class for the 2001-2002 school year. As the 2001-2002 school year progressed, Ms. Cooley became concerned that Respondent was not properly tracking the progress of his students. She recognized that this was the first time that High Tech Central had offered a web design course and there would be a "learning curve" for everyone involved, including the instructor. Thus, the school's administration gave Respondent time over the course of the school year to work out the problems. In particular, Ms. Cooley was concerned that Respondent was not using lesson plans or a "career map" in his class. Each technical program at High Tech Central consists of a progression of competencies. To complete the program, or to pass from one phase of the program to the next, a student must demonstrate mastery of a certain set of competencies. An "occupational completion point" ("OCP") is a cluster of related competencies that a student is able to demonstrate and perform. A career map is a written chart completed by the instructor and used by the student to track the student's progress through the OCPs of a given program. Ms. Cooley testified that during the spring of 2002, three or four students in Respondent's class came to her to complain that there were no lectures or structured class work in the web design class and that the students in the class were left to do whatever they wanted. In early May 2002, a substitute teacher in Respondent's class came to Ms. Cooley to complain that Respondent left no lesson plan, despite the fact that his absence had been scheduled. The substitute teacher told Ms Cooley that the web design students appeared to be doing as they pleased in the class, including playing games on their computers. On May 5, 2002, Ms. Cooley and Mr. McCormick had a meeting with Respondent to discuss the lack of structure, discipline, and record keeping in Respondent's class. Ms. Cooley stated that every time she talked with him, Respondent would say he was going to do things better. Her concern was that she never saw any evidence of Respondent's performance matching his words. When queried as to the positive performance assessment authored by Mr. Pentiuk for the 2001-2002 school year, Ms. Cooley testified that she and Mr. Pentiuk had "agreed to disagree" about Respondent. Mr. Pentiuk was a "very, very accommodating" and "very, very patient" administrator who believed that Respondent was trying to do things the right way.3 Ms. Cooley had many conversations with Mr. Pentiuk about Respondent, but Mr. Pentiuk's philosophy was to give Respondent time, talk to him, and let him try to turn things around. Mr. Pentiuk also believed that Respondent's contacts in the business community were an asset to his students. Mr. Pentiuk testified that, due to lack of enrollment in the web design class, Respondent was moved into the CET class with Mr. Ledger for the 2002-2003 school year. Ms. Cooley testified that the administration believed that Respondent and Mr. Ledger could share each other's expertise in the same class for one year, then the CET program could be expanded by splitting it into two classes. The Department of Education standards state that the purpose of the CET program is to prepare students for employment or advanced training in the computer electronics industry. The Department's curriculum framework set forth the program structure as follows: This program is a planned sequence of instruction consisting of five occupational completion points as follows: (1) End User Support Technician, Level I Support Technician, Help Desk Specialist; (2) PC Electronics Installer; (3) PC Technician, Field Technician, Level II Support Technician; (4) Computer Support Specialist, Level I LAN Technician, Field Service Technician; (5) PC/Network Technician (Digital Electronics Repairer, proposed name change for 2005). When the recommended sequence is followed, the structure will allow students to complete specified portions of the program for employment or to remain for advanced training. A student who completes the applicable competencies at any occupational completion point may either continue with the training or become an occupational completer. The courses [sic] content includes, but is not limited to, installation, programming, operation, maintenance and servicing of computer systems; and diagnosis and correction of operational problems in computers arising from mechanical, electrical or electronics, hardware, and software malfunctions. The course content includes, but is not limited to, communication, leadership skills, human relations, and employability skills; and safe, efficient work practices.4 Respondent testified that things went well with Mr. Ledger because their skills complemented each other. Mr. Pentiuk testified that Respondent told him that Mr. Ledger provided most of the computer training in the CET class, and Respondent mostly taught employability skills, such things as the ability to get and keep a job, communication skills, and getting along with co-workers. Respondent agreed that he taught these employability skills, but emphasized that he also taught operating systems, and other software, whereas Mr. Ledger was a "hardware guru." At the end of the 2002-2003 school year, Mr. Ledger resigned his position and moved to Ohio, leaving Respondent as the sole instructor in the CET program. Upon learning that he would be teaching the class alone, Respondent told Mr. Pentiuk that he would require a new co-teacher or at least an assistant for the class and that he would need help in "getting up to speed with the gap" in his teaching knowledge of computer hardware. Mr. Pentiuk testified that Respondent also expressed insecurity about the returning students. Respondent feared they would be loyal to Mr. Ledger and would not accept Respondent as their sole teacher. In light of Respondent's expressed uncertainty about teaching the CET class alone, Mr. Pentiuk had discussions with Respondent in June 2003 regarding Respondent's teaching alternatives for the upcoming 2003-2004 school year. Mr. Pentiuk was interested in starting a business management and supervision program and moving Respondent into a teaching position in that program. However, this placement would have required Respondent to obtain state certification in business education at his own expense, and Respondent told Mr. Pentiuk he could not afford it because he was paying for a daughter to attend an Ivy League college. Mr. Pentiuk sought the advice of Mr. McCormick regarding Respondent's situation. In an e-mail to Mr. Pentiuk dated July 8, 2003, Mr. McCormick wrote, in relevant part: The tone of what [Respondent] is saying here [in an e-mail exchange with Mr. Pentiuk] indicates to me that giving him the CET class would be a recipe for disaster, especially given its current size. He is apparently looking for a way to continue doing not much of anything. For whatever reason, he does not believe he can handle the class or the curriculum by himself, even though that is what his current certification is in. I'm not sure about hiring him an assistant . . . even though Darryl is a good guy and I am sure he would be great with the students, I don't believe he has the technical background in networking that would be required. Any assistant teamed with Barry is going to end up doing the lion's share of the work, and I think that would be wrong-- especially if the assistant is not certified and qualified in this highly technical field. I think the bottom line is that Barry only wants to teach the soft "business employability skills," and really has no interest in CET. If he wants to teach the business curriculums, he needs to get off the dime and get certified! That is his responsibility, not ours. The fact [that] he feels that "it is really not the right time" and that he "really can't afford it right now" is his concern, not ours. There has been, and continues to be plenty of opportunity for him to do this. It would seem to me that with his future employability in the balance, he would not be fighting us on this issue. I don't know what else we can do to accommodate this teacher. If he is "uncomfortable" with either of the two options you presented to him, then perhaps we should try to find a teacher elsewhere who can meet our needs. I know this sounds cold, but after all, the goal is to provide our students with the best possible instruction . . . not make sure that our teachers don't feel "uncomfortable." This guy needs to get real. We have gone way beyond what is fair in offering him these options. He needs to decide if he wants to work here or not. My suggestion would be to place him in the business class this year, with the understanding that in order to maintain his teaching position, he must get certified in business, or at least be well on the way to getting certified, by next summer. In the meantime, we could advertise for a CET instructor who would be willing to take on the entire curriculum, not just the "employability skills." [ellipses in original] Mr. Pentiuk replied to Mr. McCormick that he shared many of the same feelings. At the hearing, Mr. Pentiuk testified that his reply did not mean that he agreed Respondent was not "doing much of anything," but that he did have concerns about Respondent's ability to pick up the CET class and teach it alone. Mr. Pentiuk ultimately did not follow Mr. McCormick's suggestion that Respondent be placed in the business class for the 2003-2004 school year, in part because the business class had not been advertised and the CET program had an ongoing enrollment. Mr. Pentiuk placed Respondent in the CET class, hoping that the training he had obtained in working with Mr. Ledger, along with formal training at the Cisco Systems Networking Academy program in the fall of 2003, would enable Respondent to handle the program. The School Board paid for Respondent to obtain Cisco training in Tampa and arranged for substitute teachers to take over the CET class on those days Respondent was in Tampa for training. Respondent completed the Cisco Certified Network Associate 1 ("CCNA"), Networking Basics, course of the Cisco Networking Academy Program on October 31, 2003. Respondent completed the CCNA 2, Routers and Routing Basics, course on December 9, 2003. Two more courses were required to obtain CCNA certification. Respondent testified that School Board policy required an instructor to take the first two courses then teach that material for a year before taking the second two courses and that he was never given the opportunity to complete the CCNA program. Mr. Pentiuk testified that problems began in Respondent's class at the outset of the 2003-2004 school year. Several students approached Mr. Pentiuk with complaints about the quality of Respondent's teaching. One irate adult student told Mr. Pentiuk that he intended to leave the CET program because he was not getting his money's worth.5 Late in the fall of 2003, near the Christmas break, Mr. Pentiuk contacted Georgianna McDaniel, the School Board's director of personnel services, to express his concerns that Respondent was not turning in his attendance records in a timely fashion, that Respondent did not have control of the students in his class, and that Respondent was not following the school's standard practices in preparing grades and documentation of his students' progress in the CET program. Ms. McDaniel directed Mr. Pentiuk to follow up on these matters and to note them on Respondent's final performance assessment for the school year. Respondent conceded that during the 2003-2004 school year, he was getting up to speed on the technology that he was supposed to be teaching to the students and often had to write down their questions so that he could research them and come in with answers the next day. In early 2004, the High Tech Central administration began to conduct informal observations of Respondent's class and to meet with him about his procedures, particularly as to taking attendance. Tracking attendance was a critical matter at High Tech Central because of the high percentage of its students who received Pell grants. Pell grants are calculated based on how many hours a student is in class, not merely on the number of days the student is present. Thus, teachers at High Tech Central were required not only to take attendance at the beginning of their classes, but to have students sign in and out of the classrooms in order to track their activities throughout the day.6 On the morning of February 19, 2004, Ms. Cooley was working in the front office when Respondent phoned in to say that he was running late. Ms. Cooley said that she would open Respondent's classroom and substitute until Respondent arrived. In a statement dated November 30, 2004,7 Ms. Cooley described her experience in Respondent's class as follows, in relevant part: While I was subbing in Barry Nevins' class one morning last year, as he was late coming to school, I noticed students were not focused on any assignments. I felt there was very little productive work being accomplished. One student pulled up the Internet and was reading current events; another one was checking the weather. I circulated to every student and simply asked what they were working on. Most students would responded [sic] they were working on projects. I asked if I could see the project information sheet, assignment sheet, project criteria sheet or rubric for the projects. None of the students had any written project direction sheets. I could not find any lesson plans or grade book. Two students walked in after 8 a.m. I asked if they would go to the office for a tardy slip. They responded that Mr. Nevins gives them extra time to start class.[8] I noticed the lab was full of pop bottles, food wrappers, and trash. While circulating, I asked each student if they had a career map or competency sheet. Not one student had a career map, assignment sheet, list of assignments, or any other tracking system. Students were not aware the program was divided into occupational completion points. As I approached two high school students sitting in the back room, I asked what they were working on. I noticed a small book placed inside the large textbook. I asked to see the book, and it was a hackers handbook.[9] One student in particular stood up-- in my face-- and yelled at me. I felt threatened; I felt he was rude and disrespectful. I radioed for the Student Affairs Specialist to discipline the student. Soon after the Student Affairs Specialist and this high school student left the room, Mr. Nevins arrived. I was scheduled to give an Employability Seminar to another group of students across campus, so I was in a hurry to leave Mr. Nevins' room. I thought he would have called me later in the day to find out what happened. He never talked to me until days later. He stated the students were upset and wanted to come talk to me. I told him I would be happy to schedule appointments for each one. He said they wanted to come as a class. I responded I felt it would be better to have a conversation with each student-- one on one; but, I never heard from Mr. Nevins about the students. I never received a copy of the letter until Ms. Garlock allowed me to read it last week.[10] * * * After this visit, I became very concerned about the lack of educational focus in the classroom. I visited his classroom a couple of weeks later, and I saw the same types of things happening. This time I asked Mr. Nevins about my concerns, and his responses made me question classroom management skills, paperwork, curriculum, lesson plans, etc. Every instructor has a student tracking system they use to maintain the data on each student. Whether they use competency lists, career maps, list of class assignments, etc. Every teacher does it a little bit differently. I do become concerned when a teacher does not have a tracking system or it is not consistent for every student in the class . . . . In a memorandum to Respondent dated February 26, 2004, titled "Classroom Management/Record Keeping Concerns," Ms. Cooley wrote as follows, in relevant part: The purpose of this memorandum is to summarize our conference held at 3:00 p.m. on February 20th, 2004 concerning issues related to your classroom management and basic record keeping practices. As you recall, Mr. Ronald Pentiuk, Director, High Tech Central, and Mr. Bill McCormick, Assistant Director, Operation, High Tech Central, also attended this meeting. During the conference, the following conduct was discussed: Improper attendance documentation on student tardies and early releases. Lack of up-to-date and complete career map documentation on each student. Lack of complete and accurate lesson plans. Lack of on task work demonstrated by students. Non-enforcement of school policies evidenced by not beginning class on time and allowing students to arrive late without proper sign-in documentation. I have reviewed your conduct as it relates to the established expectations as provided by our school's faculty handbook, our standard operating policies, and The School District of Lee County student attendance policies. This information was provided to you during new teacher orientation and training, standard in-service session, and at the beginning of each academic year during the pre-school sessions. I informed you that your conduct negatively impacted your students and our school in as much as inaccurate or incomplete recordkeeping and attendance documentation jeopardizes our ability to maintain federal Pell financial aid. This conduct also exposes the school to many unforeseen liabilities when we are unable to produce accurate student attendance records. And finally, non-enforcement of school policies on your part undermines the maintaining of good order and discipline throughout our campus by breeding contempt and noncompliance with school rules. During the conference, I provided you with the following directive(s) and assistance to take effect on or before Monday, February 23rd, 2004 and to continue throughout the remainder of the school year. Use/set up a teacher hard-copy grade book using the materials given to you 3 weeks ago. Keep accurate track of all tardies and early dismissals by documenting exact arrival and departure times. Print out all daily lesson plans. Update and maintain daily career maps for all students. Monitor students for on task behavior and use of proper classroom materials. I also informed you that your failure to comply with any of the above directives will result in another formal counseling meeting and letter, as well as placement on intensive assistance. In March 2004, the school's attendance secretary complained to Mr. McCormick that Respondent was not following the school's prescribed attendance procedure. On March 26, 2004, Mr. McCormick sent Respondent an e-mail reminding him of the correct procedure and directing him to follow it. On March 30, 2004, the attendance secretary complained to Mr. McCormick that Respondent had not turned in his attendance sheets by 9:00 a.m., as required by school procedure. Mr. McCormick sent an e-mail to Respondent, who wrote back to apologize, stating that he "got busy teaching a lesson and dealing with some interesting problems" and forgot to turn in his attendance. On April 14, 2004, Mr. McCormick observed Respondent's class. The CET lab was a large L-shaped room, approximately 800 to 900 square feet. There was a central open area with computer tables and computers and four auxiliary rooms each sectioned off by a solid half-wall from the floor up to about waist-level and a chain link fence from the top of the half-wall to the ceiling. These auxiliary rooms were generally referred to as "cages." The CET class was conducted for five hours each weekday from 8:00 a.m. to 1:30 p.m., with a half-hour lunch break. The students were required to remain in the classroom at all times, except during the lunch recess. There were rest rooms and a water fountain inside the CET classroom, and the school's administration expected that any short breaks from class work should take place inside the classroom. After his observation, Mr. McCormick sent an e-mail to Respondent with the following "feedback": As I arrived at about 8:30, you were obviously involved in taking care of a student issue in your back cage. However, the majority of the remainder of the class did not appear to be actively engaged in much useful learning activity. A group of 5 students were huddled up to the front right of the class visiting with each other. 4 other students were on their computers. At least two of them did appear to be viewing the online Cisco curriculum, the other 2 seemed to be surfing the web. 2 other students were setting up one of the back cages that had been disturbed by the maintenance men who are fixing your counter tops. At about 8:35 you assembled a group of students to the white board and began a discussion presentation on the different types of business models such as sole proprietorships, partnerships, etc. . . . You tried to engage the students in a discussion of the advantages and disadvantages of each. It did not appear to me that the students had any prior background prep on this subject such as a reading assignment. Although it could be argued that some knowledge of this topic might be useful to your students, I question the immediate relevancy of it given the wealth of more concrete and practical technical material available in the CET curriculum. I do commend you on getting the most out of what appeared to me to be a group of disinterested and unengaged students. You did your best to try to keep their focus. While you engaged these students in your discussion, two other students continued to work independently on their computers. I assume on the online curriculum. You also gave instructions to two other students to continue setting up the back cage. The two students in the back cage did not continue to set up the cage as you had instructed, but instead sat down in the back corner by a computer. They positioned a CPU so that it hid the monitor from my view. It was obvious to me that they did not want me to see what they were doing, although mainly what they were doing was visiting. Shortly before I left, I walked back unexpectedly to them, and saw that the one on the keyboard was attempting to log into the computer as an "administrator" but apparently did not know the correct password. They said they were attempting to get the computer connected to a nearby switch or server. Was this correct? I concluded my observation of your class at about 9:15. A few suggestions: Prior to a discussion presentation, make sure to give a prior preparation assignment so that the students can participate more fully in the discussion. If you are going to give a presentation on such a broad-based general knowledge topic such as the different types of business models, involve everyone in your class, regardless of their current place in the curriculum. There is no reason why the four other students should have been excluded from your discussion, even if they were not in the curriculum group you had assembled. Do not allow students to reposition computer equipment so as to mask observation of the monitors. Even if they were not up to anything inappropriate, it sure looked like it. Give desk work requiring a written assignment when you are tied up with a student issue in your office-- or at any other time you want to refocus their attention. Something as simple as completing the questions at the back of chapter xxx in their textbook would at least keep them somewhat focused on something other than visiting with each other. Focus your discussion presentations on the concrete technical material more directly relevant to the CET curriculum. Although what you covered does have some use and interest as background information, your time with the students in actual presentation should be devoted to your core curriculum material. I know it is sometimes difficult and frustrating to have someone come into your class for 45 minutes and make a few critical comments and suggestions based on that brief visit. Please take them in the [spirit] they are intended... as observations and suggestions. Later that day, Respondent sent the following response to Mr. McCormick's e-mail: Thanks for the feedback. I appreciate the time and effort you put into this. The student issue was quite urgent and unexpected. I had the class together and ready to go when [J.] showed up and we had to have the talk right away. It threw us off considerably as did the fact that . . . we weren't sure whether the counter-top guys were coming back today or tomorrow. Obviously the equipment they usually have to work with wasn't available. I purposely had a non-technical topic picked because I didn't know if I would have access to hardware for demonstration or practice. Also, business ownership is part of our curriculum (16.06)[11] and a very important part. I like your idea of a reading assignment to go along with it. I'll have to find something at the right level. The two students in the back were setting up the Cisco equipment (yes-- that involves connecting to the switches and routers) and were having some password issues with the computers (nothing major-- just a bit confusing). They would have been administrators on those computers. By the way, the computers in the cages don't go to the network or the Internet so they are "relatively" low risk. I also purposely wanted those low powered computers for this because they also won't run any popular games. Not much harm they can do in there. Interesting note-- I always tell them that hiding monitors is the quickest way to get me to come over. They sort of have the idea it doesn't work. The five students "visiting" in front would probably have been working with equipment in the cages under normal circumstances but knowing those guys I'm 99% sure they were talking about computers anyway. Lastly, this topic was covered by last year's students so there was no need for them to go through it again. When I do the A+ materials,[12] everybody participates because the advanced students need the review. The Cisco stuff can't be done by the beginners because they aren't ready so I give them something to read, review, research, etc. Quite a juggling act. Thanks again. It's great to have constructive feedback. On May 6, 2004, the day before he signed Respondent's 2003-2004 performance assessment, Mr. Pentiuk wrote a letter to Ms. McDaniel requesting that Respondent be placed on "performance probation." The letter noted that Respondent would receive "below expectations" ratings in "Assessment of Student Achievement" and "State, School and District Requirements," then stated: During this school year, Mr. Nevins has meet [sic] with me, Sue Cooley, Assistant Director for Curriculum, or Bill McCormick, Assistant Director for Operations, on numerous occasions and discussed the concerns relating to the above mentioned Accomplished Practices. The dates of these meetings, as well as observations were, January 13, 2004, February 20, 2004, March 24 and 26, 2004, March 30, 2004, April 15, 2004, April 2, 2004, and May 5, 2004. Administration has offered a myriad of suggestions and support to assist Mr. Nevins in improving his classroom environment, teaching techniques, teacher duties, and student assessment responsibilities. Attached is correspondence that has been conducted to show a flow of conversations reaping no positive changes in performance. In fact, unfortunately, there have been excuses and rebuttals, but performance has not changed. Ms. Cooley testified that Mr. Pentiuk consulted with Mr. McCormick and her when considering the request for performance probation. Ms. Cooley further testified that she and Mr. McCormick concurred with Mr. Pentiuk that Respondent needed to be placed on probation because Respondent continued to get the same things wrong and his performance was not improving. After receiving his performance assessment, Respondent contacted Donna Mutzenard, the president of the Teachers Association of Lee County to act as his union representative in a meeting with Mr. Pentiuk and Ms. Cooley about the assessment. Shortly after this meeting, Respondent learned of Mr. Pentiuk's letter to Ms. McDaniel requesting performance probation, which would include the initiation of the School Board's "intensive assistance program." The intensive assistance program ("IAP") is designed to rehabilitate poorly performing teachers. When the principal of a school determines that a teacher is experiencing difficulty in some area of performance, the principal must inform the teacher of these performance problems and provide assistance in the area of deficiency. Frequent feedback, peer coaching, and opportunities for training and development, such as peer observation and outside training courses, are among the items of assistance the principal is expected to provide and document. If assistance at the school level does not solve the problem, then the superintendent of schools authorizes Ms. McDaniel to appoint an IAP team, which includes the teacher's immediate supervisor and other persons with knowledge of the curriculum and of the teacher's deficiencies. Ms. McDaniel testified that she also tries to appoint one person without personal knowledge of the teacher. The IAP team's first task is to meet with the teacher in order to review: the nature of the program; the teacher's job expectations and performance standards; past performance assessments and other documentation of performance concerns and assistance; and the teacher's experience, certifications, and current assignment. The team also schedules individual diagnostic performance observations and conferences with the teacher followed by meetings of the entire team. At the conclusion of the IAP team's eighth meeting,13 the team makes a recommendation for action to the superintendent of schools, who must decide whether the teacher has raised his performance to standards, requires continued assistance, should be reassigned to a more appropriate position, or be dismissed from employment with the School Board. Ms. Mutzenard discussed the matter with Ms. McDaniel, arguing that there was insufficient documentation to justify appointment of an IAP team for Respondent. Ms. Mutzenard felt that one final performance assessment with two grades of "below expectations" did not meet the criteria for the IAP. Ms. McDaniel consulted with the superintendent of schools, reviewed the record, and ultimately agreed with Ms. Mutzenard. By letter to Mr. Pentiuk dated June 10, 2004, Ms. McDaniel denied the request for performance probation. The letter stated, in relevant part: It is clear by the documentation you presented that there are performance issues regarding Mr. Nevins' deficiencies in Accomplished Practice Indicators 2 and 12 (Assessment of Student Achievement and State, School & District Requirements) as indicated by the Below Expectations ratings he received on this year's Final Performance Assessment. It is also noted that the school could receive audit findings in the accreditation process for the incomplete Career Maps and attendance records. As Mr. Nevins has been put on notice regarding his need for improvement in these areas, it is my recommendation that you give him every opportunity to correct these deficiencies for the first quarter of the 2004-05 school year. Please continue to monitor and document his performance on a regular basis. If there is not a complete turnaround in the fulfillment of professional obligations expected of Barry, he will be placed on performance probation in the second quarter. Despite his belief that Respondent needed the assistance of the IAP immediately, Mr. Pentiuk accepted Ms. McDaniel's decision and set out to help Respondent at the school level during the first semester of the 2004-2005 school year. Mr. Pentiuk discussed matters with Respondent, whom Mr. Pentiuk described as "always [having] an answer for everything," meaning glib excuses for poor performance and a refusal to accept fault in his performance. Mr. Pentiuk advised Respondent to "buckle down and do your job" during the upcoming semester. Mr. Pentiuk assigned Ms. Cooley and Mr. McCormick to advise, assist, and observe Respondent. All three administrators conducted observations of Respondent's class and met with him to share their observations. Ms. Cooley worked with Respondent on his career maps and his overall assessments of student performance. In his observations, Mr. Pentiuk was disturbed by the fact that Respondent's students, though they always appeared to be working on projects, never seemed to know where they were on their career maps. Some students were not even aware that they had career maps. Mr. Pentiuk also observed a student sleeping in Respondent's class. Respondent was not aware of the sleeping student until Mr. Pentiuk pointed him out. Mr. Pentiuk's overall impression was that "not a lot of structured instruction is taking place" in Respondent's class. These incidents and observations further convinced Mr. Pentiuk that Respondent required more help than could be provided at the school level. During the first semester of the 2004-2005 school year, Ms. Cooley continued to work with Respondent to assist his job performance. She lent Respondent an instructional videotape keyed to the Florida Performance Measurement System's "summative observation instrument," a chart used by classroom observers in the Lee County school system to chart instances of positive and negative teacher performance. The tape discussed the document step by step, showing examples of an effective teacher at work in the classroom. Ms. Cooley described it as a "wonderful, wonderful tape" to show a teacher the right way to run a class. Ms. Cooley told Respondent to watch the tape, then to sit down with her and talk about it. Five days later, Ms. Cooley needed the tape to show to a group of beginning teachers. She went to Respondent's classroom to retrieve the tape and asked him if he had watched it. Respondent told her that he "never got to it." On October 6, 2004, Ms. Cooley conducted an observation of Respondent's classroom. She entered the class at 12:15 p.m. and stayed for about 30 minutes. Ms. Cooley's notes of the observation read as follows, in relevant part: Upon entering, I noticed one student reading the "Life Styles" section of the newspaper. Mr. Nevins quickly got up from his lap top and told me he was helping the student find a job. Mr. Nevins stated he was preparing this student's resume. When I questioned why Mr. Nevins was writing the resume, Mr. Nevins stated the student needed a job as he had been in this program a short time. When I approached another student and asked what he was working on, he stated he was waiting until 1:30 p.m. I found out he was not a current student in class without the proper visitor's pass. When asked, none of the students saw their career maps. Some have been in the program for two semesters. Chips, muffins, gatoraide [sic] bottles were at the computer stations and throughout the lab. When I asked students what they were working on, all the responses were the same. They all responded by telling me they were working on projects. I asked Mr. Nevins about the various projects. I asked for a copy of the project assignment sheets, criteria sheets, or rubrics. Mr. Nevins replied that the students were developing their own projects. My observation was the students were doing whatever they wanted and were given no direction or instruction. Checkmarks in grade book were used for attendance, but no tardies or leave earlies were noted . . . I am concerned the students lack direction, instruction, and detailed curriculum assignments. In late October 2004, Ms. Cooley contacted Bob Gent, the CET program teacher at High Tech North, another Lee County school, and asked him to visit and observe Respondent's class. Ms. Cooley thought it would help Respondent to discuss his class with a successful teacher whose program mirrored his own. Arrangements were made for Mr. Gent to visit Respondent's class on November 3, 2004. On November 2, 2004, less than 24 hours before Mr. Gent's scheduled visit, Respondent e-mailed Ms. Cooley with the following message: "I've rethought the situation and I'd rather not go through with this tomorrow. I will let you know if I decide to reschedule." Ms. Cooley testified that Respondent never provided a real explanation for his sudden cancellation of Mr. Gent's visit. On November 3, 2004, Cathy Race, High Tech Central's information technology specialist, sent an informational e-mail to all personnel of the school regarding several computer- related issues. Ms. Race reminded the school's staff that they should not bring in personally owned computers for use on the school's network because of the risk of viruses, nor should they allow non-district computers belonging to contractors, vendors, auditors, or partnering agencies onto the network before Ms. Race verified that the computer has modern, updated anti- virus software and up-to-date patch levels. The next day, November 4, 2004, Respondent allowed a student to connect his personal computer to the district network, resulting in the importation of a virus into the network. Mr. McCormick sent an e-mail to Respondent about the incident that concluded: "This incident reflects poorly on our school and your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy. Please provide an explanation as to why you allowed this to occur and how you intend to prevent it in the future." Later on November 4, 2004, Respondent sent the following answer to Mr. McCormick: I have already talked to Cathy Race about how this has happened. A student brought in a computer of his own to work on and another student was helping him fix it. A part of this problem was that drivers had to be located. The student, against the policy, but with good intentions got online and located the drivers but apparently got more than he bargained for. I talked with Cathy Race about setting up a meeting with [district director of information technology support] Dwayne Alton about the difficulties the computer use policies are causing in running my program. My policy at the beginning of last year was to not allow students to bring in computers to work on. You changed it after a student came to see you and complained. I wouldn't have had this problem if we kept my original policy. "your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy?" Do you really think that every time there is a computer use problem that this is what it means? You were at a meeting last year where Dwayne Alton said that we were not considered a real problem for the district. Put a bunch of computer geeks together and some "challenges" are inevitable. Ask any computer teacher in the district. I find the whole statement-- but especially the "your inability to understand" line very insulting and disrespectful. Expect to be hearing more about that sort of usage and tone very soon. If we were so inclined there were two commands we could have used to release the IP address and you never would have found the computer in here. The students and I took immediate responsibility for what happened. I bring that up because I'm not so sure that taking responsibility for unfortunate events that take place under you is very popular around here. Mr. McCormick testified that he did not know what to make of Respondent's statement that he should expect to hear more about his usage and tone, and that it was not his intent to insult Respondent. Later on November 4, 2004, Mr. McCormick responded to Respondent as follows: Was the student aware of the policy at the time, and is he/her now? If the student was aware of the policy, but choose [sic] to ignore it, I would expect some sort of discipline action or referral. If the student was not aware of the policy, I would want to know why. I understand the unique challenges faced by your class, however I don't know how much clearer the district policy could be with regards to connecting "guest computers" to the network. The resulting manhours and resources needed to remedy these types of problems leave us no choice but to treat them serious [sic]. If you feel that you are unable to [adequately] monitor your students when they are working on their computers they have brought in, I certainy [sic] agree that we should revisit the policy of allowing them to do so. I'll let you make that call and will support you if you decide against it. Respondent did not directly respond to the questions raised by Mr. McCormick's second November 4, 2004, e-mail. However, on November 8, 2004, Respondent filed with the School Board an equity complaint, alleging that he had been discriminated against on the basis of his religion and his sex.14 In the narrative portion of the complaint, Respondent recited his work history at High Tech Central, including the allegation that except for the Cisco training, he had received "no support or encouragement from the administration" upon taking over the CET program after Mr. Ledger's departure. The following excerpt from the complaint set forth Respondent's essential allegations: The problems developed last year when [Ms. Cooley] had to watch my class for thirty minutes one morning and she did not do a very good job (see attachment).[15] I have been an express target of Administration's negative attention since then. They are often very confrontational and negative toward me and completely ignore points I make to show my efforts. My lessons and class work in [CET] fully correlate to the State Standards for my course. Administration has received lesson plans, unit planning documents, and assessment information to support this. My grading and progress reports are up to date. Furthermore, several of my students have been placed in industry related employment which is the ultimate goal and stated mission of the school. This information has not showed up in any documentation I have received from administration. Administration has gone to great lengths to reprimand me for not utilizing career maps (a particular tracking device) on a day to day basis in my class. I update them periodically based on unit completion but do not place a strong day to day focus on them because students are more interested and motivated by Industry Certification requirements which also very strongly relate to the career map's requirements. Students are made aware of the link. The case has been made by Administration that because I do not utilize and emphasize these career maps my teaching is unstructured and of low quality. A particular technique that has been used to evaluate my job performance is for an Administrator to come in to my classroom, seek out a student who may be having a bad day, may have just gotten reprimanded, may be somewhat overwhelmed by a particular section of material, etc. and badgering that student for negative information about me and the class. I don't think the proper way to judge our Administrators would be to go to a Faculty meeting and seek out the teachers who are rolling their eyes and snickering. I have been told that I am being judged on this "measure of satisfaction." Besides being a contract violation the selection and measurement technique used is highly subjective and arbitrary. Again, the case has been made, without logical connection, by Administration that because I do not meet these satisfaction standards my teaching is unstructured and of low quality. In my Department (Business Technology) the Department Chair and two other teachers who are National Board Certified (all three with twenty plus years of experience-- and all female) have not been required to work with the career maps. They have not been using them for at least the last several years and they have not received any type of reprimand. They use "competency sheets" which is quite similar to the system I use (and I also utilize the periodically updated career maps). In addition, these teachers are not subject to the same degree of scrutiny, evaluation, and criticism as has been shown in my case. Students are not encouraged to "snitch" and basically proper procedure is followed. The Administrators have little trouble in treating these other teachers with respect. Therefore I am asserting that Mrs. Cooley has selected me for "attention" based on my being male and Mr. Pentiuk and Mr. McCormick has [sic] been supportive of her. I do not rule out that my being Jewish, a New Yorker, and a Union Rep had an effect on their decision making. Administration has used this as the cornerstone of an overall effort to undermine and discredit my teaching efforts and abilities. The remainder of the complaint catalogued the negative effects "this situation" has had on Respondent, including stress and being treated as "a slacker and unprofessional." Respondent also discussed the "highly insulting and disrespectful" e-mail exchange of November 4, 2004, with Mr. McCormick. At the request of Becky Garlock, a School Board investigator, Mr. Pentiuk, Mr. McCormick, and Ms. Cooley prepared written statements in answer to Respondent's allegations.16 Mr. Pentiuk's statement was as follows, in full: This letter is in reference to the equity complaint filed by Barry Nevins. I regret that Mr. Nevins has these strong feelings about being picked on. The administration at High Tech Central is concerned about the structure of his program and his delivery relating to the competencies and Career Map for the [CET] program. We have recommended that Mr. Nevins be placed in the intensive assistance program and feel that he has the ability to become an effective teacher. We have also asked for a fellow [CET] instructor from High Tech North to come, and Mr. Nevins felt that it was not a good time. We are ready for Mr. Nevins to find the time to become a good teacher. I feel that these allegations are with no credibility and I wish that Mr. Nevins would exert the energy toward his program that he has toward this complaint. Mr. McCormick's statement discussed Respondent's problems in complying with attendance reporting policies, and further discussed the November 4, 2004, e-mail exchange regarding Respondent's student introducing a virus into the computer network. As to Respondent's main point, that his class was being unfairly singled out for administrative attention, Mr. McCormick wrote: As I recall, the administrative team began looking more closely at the CET program during the 2nd semester of the 03/04 school year when an adult student withdrew from the program and made some disturbing statements concerning the quality of the instruction and classroom management practices of the instructor. The student was being given a withdrawal interview by Ms. Soto, one of our guidance counselors. Because of the veracity of the comments made by the student, she referred the student to me. I interviewed the student and determined that he should make his comments known to Mr. Pentiuk, which he immediately did. Mr. Nevins was informed of the statements and given a chance to respond. He immediately dismissed the student as being unreliable and not trustworthy. His comment was "students will say anything." Nonetheless, the student appeared to be credible and this was our first real indication that the CET program may need some monitoring. Further discussions with the guidance department revealed other students had in recent months been dissatisfied in much the same way. On another front, Mr. King, the Student Affairs Specialist had also been indicating problems with attendance not being accurately recorded in CET. For example, he indicated that tardies and absences were not being recorded when necessary. This was confirmed with the attendance secretary. These indicators pointed to the fact that the quality of instruction and classroom management practices warranted some attention on the part of the administration. Upon some cursory reviewing of Mr. Nevins' academic and attendance records, it was apparent that he was in need of some assistance. Any inference that Mr. Nevins is being singled out for unwarranted attention by the administration of this school for any other reason but for legitimate concerns about classroom management practice and the quality of the instruction, is completely false. This administration wants Mr. Nevins to be successful, and we have demonstrated that through our actions. Most of Ms. Cooley's statement was devoted to explaining the events of February 19, 2004. Besides her version of those events, detailed at Finding of Fact 32 above, Ms. Cooley made the following general statements about Respondent and the school's administrators: Administration has supported Mr. Nevins in numerous ways. Thousands of dollars went into his lab for new desks and equipment. It was a state of the art lab. In fact, he even mentioned it was better than Edison College's computer lab. Administration sent Mr. Nevins to Cisco training (in Tampa, I think). This training took weeks and was very expensive. The school paid for his travel, food, lodging (if needed) and his class in order to help support him in his teaching efforts. Mr. Nevins even commented that some of the students would be upset with his teaching methods when the other teacher moved away. Mr. Pentiuk was extremely understanding, patient, and supportive of Mr. Nevins. * * * This is my 29th year in education. I have never had a teacher file a grievance. I feel my role is that of a support system for the instructors in my school. I share with the instructors when they are doing a good job and I remiss [sic] in my duty if I did not share my concerns. I believe Mr. Nevins is a very intelligent man. I believe he is very knowledgeable about computers. My objective is to help him be successful in the classroom, so he can help students be successful in the workforce. At the hearing, Respondent at least implied that the decision to recommend that he be placed in an IAP, and the ultimate decision to recommend his dismissal, was in retaliation for his filing an equity complaint against the three named High Tech Central administrators. The evidence does not support such a suggestion. Mr. Pentiuk, who in any event retired before the completion of the IAP process, had only a vague recollection of the complaint's allegations. Mr. McCormick never saw the equity complaint before he testified in this proceeding and knew none of its details, or even whether he was named in the complaint. His statement, described at Finding of Fact 64, was written at Ms. Garlock's request and was not based on Mr. MCormick's having read the complaint. Ms. Cooley was "shocked" by the equity complaint because she believed that her actions toward Respondent, while sometimes critical, had always been professional. Respondent's allegation of retaliatory intent on the part of anyone in the administration of High Tech Central is not credible. By letter to Ms. McDaniel dated November 15, 2004, Mr. Pentiuk renewed his request that Respondent be placed on performance probation. The letter reviewed the administration's efforts to assist Respondent during the first semester of the 2004-2005 school year, including Respondent's refusal to cooperate in Mr. Gent's visit to his class. By letter dated December 16, 2004, Superintendent James Browder informed Respondent that, pursuant to the recommendation of Mr. Pentiuk and Ms. McDaniel, Respondent would be placed on a plan of assistance. Mr. Browder wrote that he would appoint an assistance team to work with Respondent during the second semester of the 2004-2005 school year. Mr. Browder informed Respondent that the first meeting would take place in early January 2005, and that he could name a representative to attend the meetings on his behalf. On the same date, Ms. McDaniel hand-delivered the superintendent's letter to Respondent in Mr. Pentiuk's office. The superintendent delegated to Ms. McDaniel the task of choosing the members of the IAP team. She selected Mr. McCormick and Ms. Cooley, because they were Respondent's direct supervisors at High Tech Central and were aware of the curriculum and Respondent's deficiencies. Ms. McDaniel testified that she had appointed six IAP teams before this one and that her standard procedure was to appoint both assistant directors of the school. Ms. McDaniel also chose Suzanne Roshon, the School Board's coordinator for technical and career education, as an objective outsider without prior knowledge of Respondent, or his classroom setting. Ms. McDaniel acted as coordinator and facilitator for the IAP team meetings. Ms. Mutzenard was an observer at the IAP team meetings as Respondent's representative.17 The IAP team held its organizational meeting on January 13, 2005. Respondent and Ms. Mutzenard were present. In her role as coordinator, Ms. McDaniel chaired the meeting, explaining the steps in the IAP process. There would be seven weeks of observations in Respondent's class with three observations taking place each week. The observations would be unannounced. Not more than one observation could take place in a single day. The observers were not to talk to Respondent or the students during the observations, and Respondent was to act as though the observer were not present. The observers were not to discuss their observations with each other prior to the weekly team meetings. Respondent was directed to turn in his lesson plans each week so that the observers would know what to expect when they came into the classroom. Ms. McDaniel's role was to determine whether the observers had common concerns about Respondent's classroom methods, and to ensure those common concerns received emphasis at the team meetings. Ms. McDaniel testified that, at this initial meeting, it was clear that Respondent was not happy to be involved in the IAP process. He believed that he could document his program's success and that he should not be there.18 Ms. McDaniel emphasized the need to maintain a "positive attitude in a positive learning environment" because it was clear to her that Respondent did not have a positive attitude about the scrutiny he was receiving. Ms. Cooley conducted the first recorded observation, on January 21, 2005, at 12:30 p.m. As she entered the classroom, Ms. Cooley noted that two students were sitting at picnic tables outside the classroom and that Respondent walked to the door and told them to return to class. One student left the classroom carrying a length of cable then returned for a bowl of water and left again. A second student walked in and took another bowl of water out of the classroom. Ms. Cooley testified that the students had caught a stray dog on campus. They used the cable to tie the dog to a tree until school was out. Respondent knew what was going on with the dog and was not requiring the students to sign in and out of the class. Ten students were watching a video about the founder of Apple computers and events in the industry during the 1980s. Two students were working on a computer in the back of the room and another was working in one of the cages. Later, one of the two students in the back put his head down on the desk. After the video, Respondent asked the students what had changed over the years. Students shouted out answers, and Respondent corrected them for talking all at once. Respondent then asked another question. One student, Keith McNeil, dominated the discussion. One student received a call on his cell phone and walked out of the classroom. Another student was using his Palm Pilot and another was reading a book. Though the class would not be dismissed until 1:30 p.m., Respondent stopped teaching and ordered the students to clean up the classroom at 1:05 p.m. Ms. Cooley was surprised that Respondent had not prepared his class to be on its best behavior given that he knew there would be three observations that week. In her follow-up notations and recommendations to Respondent, Ms. Cooley observed that there were too many distractions in the classroom, that not all the students were focused on the video, that the video itself was too long and too old for meaningful use in the CET program, that a couple of questions were insufficient after spending over 30 minutes watching the video, and that 25 minutes was too much time for classroom clean-up. Ms. Cooley later testified that a computer class is a clean environment that should take only a few minutes to clean up at the end of the class session. Mr. McCormick conducted his first observation on January 24, 2005, at 8:00 a.m. He noted that only ten out of the fifteen students present had signed in on the attendance log. Respondent divided the class into three groups. While Respondent worked with one group, the students in the other two groups had no direction. One student took a phone call during classroom instructional time. While Respondent was reviewing material with one group, some students in that group were surfing the Internet.19 There were vending machines just outside Respondent's classroom door, and students from the class were going out to buy food and drink from the machines. Respondent had complained about the location of the machines, and they were later moved a bit farther away from the classroom door. Mr. McCormick conceded that the machines were too close to the classroom, that they were a temptation to Respondent's students and that they were a distraction to the class when anyone used them. However, Respondent was nonetheless remiss in allowing students to freely go in and out of the classroom except during the lunch break. Ms. Roshon made her first observation at noon on January 26, 2005. Ms. Roshon disclaimed any expertise in the CET program, but testified that she has observed the classes at both the High Tech Central and High Tech North campuses and was familiar with the CET performance standards. When she entered the classroom, Ms. Roshon saw no structured activities taking place. Several students were sitting around talking in the middle of the room and others were in two of the cages. Shortly thereafter, Respondent walked over to the group in the middle of the room and told them they were going to discuss Chapter 13, which caused some grumbling among the students. Respondent began his lecture with ten students, one of whom was reading a book and one of whom was writing. Ms. Roshon observed that no one was taking notes on Respondent's lecture. Respondent asked questions in an effort to engage the class, and there was some give and take among Respondent and two or three of the students. Several times during his lecture and PowerPoint presentation, Respondent told the class, "You won't need to know this" or "This isn't important." Ms. Roshon questioned why Respondent would teach material that was not important. One of the students asked a question. Respondent suggested that the student do some research on the topic. The student got up to go to a computer. Respondent asked him to do the research later, but the student ignored this instruction and went to the computer. He looked up and printed some information, then handed the printout to Respondent, who thanked him. Ms. Roshon observed one student sleeping during the lecture. Respondent made no effort to wake up the student. Several students were wearing hats, which is forbidden by School Board policy. Several students had sodas in the class. High Tech Central has a policy prohibiting food and drink (except for bottled water) in the classroom.20 Students seemed to come and go as they pleased during the lecture, without signing in or out of the classroom. The students in one of the cages were talking, laughing, and walking around throughout Ms. Roshon's observation, leading her to wonder if they were engaged in any sort of educational activity. One of the students in the cage laughed loudly after looking at someone else's computer screen. On February 1, 2005, at 8:30 a.m., Ms. Cooley conducted her next observation. There were fifteen students in the class, one of whom remained in one of the cages throughout the observation. As Ms. Cooley entered, she observed that Respondent was just starting a PowerPoint presentation on "Objectives, Attitude, Generic Troubleshooting," comprising issues such as not overlooking the obvious, performing research, checking simple things, and writing things down. Respondent read the PowerPoint slides to the students and asked questions such as, "Why would you need to write things down?" Respondent was still going through the PowerPoint presentation when Ms. Cooley left the classroom at 9:10 a.m. In her written report, Ms. Cooley noted that one student had his shoes off and another yawned very loudly during Respondent's presentation. Ms. Cooley recommended that Respondent reduce the time he spends on PowerPoint and get the students actively engaged in the class. She expressed a concern that everything she observed in the class was "generic, low level, basic material . . . I have not observed a lesson on A+, Cisco, or any specific networking material." She observed that the PowerPoint material was far below the level of the majority of the class who were returning students and that nothing she witnessed in the class corresponded to the lesson plan filed by Respondent. 85. On February 3, 2005, from 12:50 to 1:30 p.m., Ms. Roshon conducted her next observation. When she entered the classroom, Ms. Roshon noted that the students were sitting in groups talking, but not about anything related to their class work. Respondent was in one of the cages, but came out into the classroom when he saw Ms. Roshon. Respondent directed one group of five students to work on their class work, which they did. Respondent answered some of their questions. Ms. Roshon observed that students in the back cage became very loud. One student walked out of the classroom, bought a candy bar, then walked back in without asking Respondent's permission, or signing the attendance log. Students were eating and drinking at their computer stations. At 1:15 p.m., Respondent told the class to begin cleaning up. The clean-up was finished by 1:20, and the students spent the remaining ten minutes standing around talking about extraneous matters. Ms. Roshon observed that there was very little structure in the classroom, and students did not appear to know what they were supposed to be working on. She suggested that Respondent require the students to keep a daily journal of what they did in the class, and that Respondent should regularly check the journals and provide feedback to the students. Respondent did not implement this suggestion. 88. On February 4, 2005, from 9:20 to 10:00 a.m., Mr. McCormick conducted his next observation. Mr. McCormick initially criticized Respondent's weekly lesson plan as simply a list of topics with no detail as to how Respondent intended to teach those topics. Mr. McCormick noted that thirteen students were present, but that he could not determine whether they had signed in because Respondent had no sign-in sheet posted at the classroom door. For security purposes, High Tech Central required all staff, faculty, and students to wear photo identification badges around their necks or clipped to their clothing. During Mr. McCormick's observation, a school security guard entered the classroom to check the identification badges. Of the thirteen students present, five did not have their badges, leading Mr. McCormick to conclude that Respondent had not checked the students' identification at the beginning of class as required by school policy.21 Mr. McCormick noted that three students were working independently on computers in the main part of the lab, and that each student was on a different web site. One of the students was looking at telephones on Best Buy's web site, which Mr. McCormick believed could have been related to a class assignment. However, another of the students was looking at a "Twilight Zone" web site, clearly unrelated to the CET class. One of the three students left the classroom for ten minutes without signing out or obtaining a pass from Respondent. Another group of three students was working in the right-side cage. Two were on web sites and one was working on a curriculum test program. One of these students left class for twenty minutes without signing out or obtaining a pass. The remainder of the class was in the left-side cage, engaged in a group discussion. Mr. McCormick described it as follows: I was unable to determine the subject of discussion as it was unfocused and was not being led in any discernable or deliberate way. Students wandered in and out of the cage at random during the discussion. Overall impression of this activity was that it was unfocused and random. Students did not appear engaged in any meaningful way. At about 9:40 a.m., Respondent asked the group of students in the lab to "come up with some good scenarios and good stuff for the students in the cage." Mr. McCormick assumed that Respondent wanted to give some direction to the discussion going on in the cage and was relying on other students to supply the scenario. Mr. McCormick testified that he thought it showed poor preparation for Respondent to ask students to make up scenarios on the spot for a class discussion. Mr. McCormick noted that students were still making frequent trips outside to the vending machines and that Respondent allowed food and drink in the classroom. Mr. McCormick testified that the prohibition on food and drink is in the faculty handbook, and that the administration "harp[ed] on it" at every faculty meeting. Besides the potential for spilling food or drink on the computers, food and drink created a sanitation and pest control problem. In his written observation report, Mr. McCormick concluded that Respondent's classroom "presents a very unprofessional appearance." At the hearing, Mr. McCormick called the classroom "a mess." It was disorganized, strewn with snacks and drinks and littered with computer parts. On February 7, 2005, the IAP team met with Respondent, Ms. McDaniel and Ms. Mutzenard to review the observations made by the team members up to that point. The team members shared their observations with Respondent, including positive feedback and suggestions for improvement. Ms. McDaniel summarized the suggestions as follows: Lesson Plans need to be detailed so an observer or substitute can clearly determine who does what when. Classroom Rules need to be addressed and maintained including sign in/sign out, food and drink not allowed, students focused on time on task, cell phone use, students walking in and out of classroom for snacks, etc. in order to assist with classroom management strategies. Organizational tool to be created/maintained for student progress-- career map. Mrs. McDaniel will email Mr. Nevins a template of a lesson plan. Mr. Nevins can take advantage of other options; such options might include Mr. Nevins observing other instructors at other schools teaching similar programs or someone observing Mr. Nevins. At the hearing, Ms. McDaniel testified that Respondent was very defensive about the observations. He was argumentative and disagreed with what the observers said they saw in his classroom. Respondent refused to sign the summary minutes of the IAP team meeting. Rather, he requested an opportunity to respond to the minutes with additional information. Ms. McDaniel could not recall that Respondent ever followed up with any additional information. On February 9, 2005, at 12:55 p.m., Ms. Cooley conducted her next observation. As she entered the classroom, Ms. Cooley saw a student talking on a cell phone. Respondent called out to the students to be seated so that he could go over their test answers. Of the eleven students present, two remained in the back cage area. Respondent read out the first test question and several students called out answers. Respondent asked them not to shout out the answers. He read the next question, and several students called out answers. This time, Respondent did not correct the students, nor did he correct them when they shouted out answers to the next five questions. Finally, Respondent said, "Guys, one at a time." A student yelled out, "Clean up." Respondent continued talking, but students talked over him. Some students began standing around, waiting for class to end. In her comments, Ms. Cooley wrote that Respondent "needs to be consistent with his classroom policies and procedures." She noted that the seven minutes allotted for end-of-class cleanup was more appropriate for a computer class than the fifteen minutes she noted in an earlier observation. On February 10, 2005, from noon to 12:40 p.m., Ms. Roshon conducted her next observation. Respondent called the class to attention to hear a lecture by a fellow student, Keith McNeil, on the Linux operating system.22 Ms. Roshon acknowledged that the student appeared to be very knowledgeable, but she was uncomfortable with his "lording it over" the other students that he knew this material and they did not. She also wondered if all the students were required to give such lectures, or if this student was lecturing for some particular reason. Ms. Roshon noted that Respondent's questions made it apparent that he did not know the software or the material the student was presenting. She was concerned that this made it appear to the class that Respondent knew less about the class subject matter than did the student. She was more concerned that Respondent had not reviewed the software for appropriateness before he allowed the student to teach it to the class. Ms. Roshon noted that the student giving the lecture was drinking from a bottle of soda in front of the group. She commented that if Respondent was going to give students leadership opportunities, he should require them to act as role models. She also noted that students "still get up, move around, use the rest room, etc. at random. Seem to come and go as they please." In her written report of the observation, Ms. Roshon stated to Respondent: "You are very fortunate to have a student with so much knowledge and what appears to be a good rapport with your class. BUT, this student was doing EXACTLY what I have been waiting to see YOU do-- TEACH." Ms. Roshon saw Respondent go around the classroom and speak to individual students, but did not observe Respondent teaching the class as a whole. 104. On February 11, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. When Mr. McCormick arrived in the class, Respondent was grading tests that the students had just taken. Mr. McCormick noted that the students appeared "unengaged" in any activity related to the CET curriculum. One student was talking on the phone to a Staples store, with a sales brochure in front of him, and three other students were playing "Doom 2" on an old Macintosh computer. Respondent returned the tests to one group of students then commenced an oral review of the questions and answers. Mr. McCormick noted that Respondent conducted the review in distracting proximity to another group of students. Mr. McCormick also noted with disapproval that Respondent referred to the multiple choice test as "multiple guess." One student left the class early without signing out. Another student had a two-liter bottle of soda on his desk, which Respondent eventually asked the student to remove. Clean-up activity began at 1:16 p.m., fourteen minutes before the end of class. The clean-up consisted of about one minute of straightening chairs, after which the students were unengaged until 1:30 p.m. Earlier in the day, Mr. McCormick had received a report that someone in Respondent's class had visited a pornographic web site. Mr. McCormick decided to investigate the matter because the school district's firewall filter should have prevented such activity. After the class was dismissed, Mr. McCormick asked a student in Respondent's class to show him the web site. The student did so and arrived at a site displaying what Mr. McCormick described as pornographic photos. Mr. McCormick realized the site was available because the web address did not contain the key words that the district's firewall is set up to block. At the hearing, Mr. McCormick emphasized that he did not believe Respondent would knowingly allow his students to access pornographic web sites. Mr. McCormick's criticism was that Respondent did not know, which was emblematic of Respondent's inability to maintain control of and know what was going on inside his classroom. Mr. McCormick suggested that Respondent position the computer monitors in the class to give himself maximum observation ability from a central position. Mr. McCormick testified that many students would position themselves so that their monitors could not be seen unless an observer was standing directly behind them. On February 16, 2005, the IAP team met with Respondent, Ms. McDaniel, and Ms. Mutzenard. At the outset, Respondent stated that he would submit his written responses from the previous team meeting at the next team meeting on February 28, 2005. As Ms. McDaniel testified, no such written responses were ever supplied by Respondent. Ms. Roshon then gave a summary of her February 10, observation and also stated that she had observed the CET teacher at High Tech North. Based on these observations, she had the following suggestions for Respondent: require students to prepare a notebook based on the chapter notes and software the students use on a daily basis, which could be used as a trouble-shooting reference; require students to sign in and out for bathroom breaks; and require students to keep a daily log of their work, upon which Respondent could check and comment. Respondent defended himself regarding some aspects of Ms. Roshon's observation. Mr. McNeil, the student who gave the Linux lecture, was fighting a sore throat and had asked Respondent for permission to drink a soda during his talk. Respondent also stated that he trusted the student not to do anything inappropriate and, thus, felt no need to preview the software prior to the student's lecture. Mr. McCormick then described his observation of February 11, 2005. He agreed with Ms. Roshon that a daily log would be helpful for Respondent to keep track of his students' progress. Mr. McCormick also agreed with Ms. Roshon's suggestions that students be required to sign in and out for restroom breaks and that they be required to keep trouble-shooting notebooks. Respondent disagreed with requiring students to keep a notebook. Ms. Cooley described her observation of February 9, 2005, and made a particular point of her concern that Respondent was inconsistent on the matter of allowing students to shout out answers. Ms. McDaniel summarized the deficiencies in Respondent's performance as noted by the IAP team, including: lack of consistency with rules and procedures; lack of consistency with students signing in and out; removal of all games from classroom computers; and arranging the classroom computers for maximum viewing capability by Respondent. Mr. McCormick stated that there were students still in the CET program who had completed all their occupational completion points and a lengthy discussion ensued regarding Respondent's tracking of students' progress. Ms. Cooley stated that Respondent had not turned in revisions to a Council on Occupational Education program reports that were due during the previous school year.23 Respondent promised to turn in the revisions on February 22, 2005. Respondent also promised to bring to the next IAP team meeting his grade book and all the career maps, or other tracking devices for his CET class, neither of which the IAP team had seen at this point. He also committed to removing all games from the computers in his classroom. Ms. McDaniel testified that by the time of the February 14, 2005, meeting, she perceived that Respondent was angry about the IAP process. It appeared to Ms. McDaniel that Respondent did not believe that he or his students needed to follow the rules and procedures established by the School Board or High Tech Central. Mr. McCormick testified that by this time he was "astounded" that the IAP team's observations and comments were the same every week. Respondent was not correcting the items noted by the team and was very defensive in the team meetings. 117. On February 22, 2005, from 8:15 to 8:45 a.m., Ms. Cooley conducted her next observation of Respondent's classroom. Respondent was working on computer assembly with five students in one of the back cages. Three students were in the other back cage. One of these students was looking up computer parts prices on the Internet and told Ms. Cooley he was seeing where the market was going. Thirteen students were present in the class, but only eleven had signed in. Two of the eleven had not indicated the time they arrived. No students were wearing identification badges. Six students were in the main computer lab. Two of them were reading the novel Great Expectations for another class and continued reading throughout Ms. Cooley's observation. Ms. Cooley asked them about their career maps. They replied that they knew nothing about career maps. When Ms. Cooley asked them how they knew which competencies they were working on, they told her they went "chapter by chapter." Ms. Cooley tried to redirect the students who were doing outside work. Respondent was so focused on the group he was working with that he did not notice what the other students were doing. Ms. Cooley noted that, based on Respondent's lesson plans, she could not tell one group of students from another. Not one student was working on assignments identified in the lesson plan. She concluded that the students "are not on task, not on track." 121. On February 23, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation. A music video, bearing no apparent relationship to CET class work, played over and over again on a classroom projector throughout the observation period. Three students were on shopping web sites and one was on E-Bay. Respondent had assigned them to learn how to acquire computer parts and build the best computer possible for $1,500. Mr. McCormick noted that this was legitimate CET class work. Respondent was circulating through the room. Mr. McCormick observed that it was still difficult to see the computer monitors in the back cages from the main part of the classroom. One student was reading a booklet that was not related to the CET program. A two-liter bottle of soda was on the classroom floor and an open bottle of soda was on a student's desk. Once more, all work stopped at 1:15 p.m. for clean-up activity that took about one minute. In the follow-up remarks to his written observation report, Mr. McCormick noted the unprofessional appearance and distracting effect of playing music videos in the classroom. He again suggested that Respondent stop wasting the last fifteen minutes of class and plan activities to keep the students busy until the dismissal bell. Mr. McCormick again told Respondent that he must enforce the rules against food and drink in the classroom. 125. On March 2, 2005, from 10:10 to 10:50 a.m., Ms. Roshon conducted her next observation of Respondent's class. When she walked into the classroom, Ms. Roshon noted that Respondent was sitting and talking with a group of four students. The conversation was apparently not related to class work because Respondent jumped up when he saw Ms. Roshon. He told her that half the class was "missing," without explaining where the students were, and that two of his students had placed in the "Skills USA" competition.24 Respondent announced that it was time to go over the test. Some students asked, "What test?" It transpired that not all of the students present had taken the test. Respondent spent eight minutes looking for the test. The group who had been talking with Respondent when Ms. Roshon entered continued their conversation about the relative merits of "a small house" versus "a condo." Three other students were working in the back cage, and Ms. Roshon noted that she still could not see their monitors from the classroom. When she approached the students, one of them turned off his monitor. Ms. Roshon also noted that the sign-in sheet was still not being used. Respondent gathered two students to go over their tests. They discussed the questions and answers aloud although another group of students was still taking the test. Ms. Roshon noted that Respondent told a student who was withdrawing from the class to take the test "for old times sake." Respondent then had this student correct his own test and those of the other students. Ms. Roshon observed that the student made some critical remarks about his classmates' performance on the test. Ms. Roshon positively noted that, when one student was confused about an issue, Respondent had the students go on their computers to find the answer. However, she also noted that one student appeared to become bored with the test review, rolled his chair away from the group, and turned on his MP3 player with earphones. The student even played "air guitar" near the group reviewing the test, and Respondent said nothing. In her written comments to Respondent, Ms. Roshon wrote, in relevant part: One big concern I have with the structure of today's activity is that you have this huge classroom and yet all of your students were packed into one small area at the back of the room. It would have made more sense to me that you would have taken the students you were going over the test with to an area of the classroom that would have been quieter and would have caused less distraction to other students. It was also a VERY relaxed atmosphere and not as conducive to feedback and interaction from students as it could have been. * * * I did have trouble following your lesson plan . . . . Once again, I don't know how the students know what they are to be doing. I didn't see any evidence of log books or checklists. * * * My concerns still are: How do students know what to work on. Class activity seems to start AFTER I walk into the room. Students seem to wander around however they feel like. On March 3, 2005, at 8:15 a.m., Ms. Cooley performed her next observation of Respondent's class. When she arrived, a film on PC navigation and commands was being shown. One student was working on his laptop computer. One student was reading sports web pages on his computer, while another surfed web pages on computer parts. A group of students worked in the back cage. Respondent's lesson plan stated only "lab work," which was so vague that Ms. Cooley could not tell one group from another. Respondent showed the film throughout Ms. Cooley's observation, which prompted her to suggest that Respondent show films in shorter segments and get the class actively engaged sooner. Also on March 3, 2005, at 9:30 a.m., Ms. Cooley attended an "attendance hearing" for one of Respondent's adult students. High Tech Central policy regarding adult attendance provides that after four absences, the student is to be advised that his absences jeopardize his financial aid. After five absences, the teacher is to have a conference with the student. After eight absences, the teacher is to advise the student that two more absences will result in an administrative review and possible withdrawal until the start of the next semester. After ten absences, the teacher is to complete an attendance documentation form and give it to the school's student affairs specialist, who then schedules an administrative review, or "attendance hearing." An adult student with ten accumulated absences may be withdrawn and lose credit for that semester, depending on the outcome of the attendance hearing and the reasons established for the absences. Dan King, the student affairs specialist, convened the hearing with an adult CET student who had 16 absences since January. Respondent was not present at the hearing, but sent to Mr. King the student's career map and an adult attendance documentation form. Mr. King asked the student why he had missed so many days, noting that the student was on kidney dialysis. The student stated that he goes to dialysis before and after school and that Respondent never asked for notes regarding his absences or even asked why he was absent so frequently. Mr. King directed the student to go back and retrace his steps regarding the dates he had missed because many of those absences could have been excused because of illness. Ms. Cooley criticized Respondent for his failure to hold the required conferences with the student, or to make the required referral to Mr. King after the tenth absence. At the attendance hearing, the student told Mr. King that the CET class was completely different when an observer was in the classroom. Mr. King showed the student his career map. The student stated that he had seen the blank career map back in August when he started the CET program and that this was just the second time he had seen it. The student stated that Respondent had never reviewed it with him, although Respondent had checked off many competencies as completed. The student was surprised to see everything he had accomplished. Ms. Cooley noted that the career map is supposed to be a motivator for students to show their accomplishments and track their competency completions and that it was improper for Respondent not to review the career map with the student. 135. On March 4, 2005, from 12:50 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. He saw four students grouped together in the front of the class. One was working on a laptop computer, one was working on class-related questions, one was using a cell phone, and the fourth was playing with a portable CD player in his lap.25 Some students were working in the back cage on projects though it was still difficult to observe their monitors from the classroom. Respondent was circulating around the classroom. Mr. McCormick observed five cups and soda bottles throughout the classroom, including one on Respondent's desk. One student had an entire fast food meal of a sandwich, French fries, and a soft drink spread out at his computer workstation. The student ate and drank throughout Mr. McCormick's observation. Mr. McCormick observed one student get Respondent's attention by calling out, "Nevins!" After discovering they had mistakenly printed a document to another teacher's printer, two students left the CET classroom to "apologize" to the other teacher. These students did not sign out or inform Respondent that they were leaving. Work stopped and "clean up" commenced at 1:00 p.m., a full half-hour before the end of class. Mr. McCormick's written comments on this observation were as follows: Mr. Nevins must design teaching activities so that students are engaged in learning activities throughout the day. No visible order to the way the material is presented. Much too much wandering, visiting and playing has been observed in this classroom. Suggest planning activities that will keep students busy until dismissal bell. Clean- up in this class only takes about 1 minute (as it is now structured), so save this until a few minutes before 1:30. Mr. Nevins must enforce classroom rules about food and drink-- but apparently is unable or unwilling to do so. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. Mr. Nevins must never allow students to address him by his last name only. This shows a complete lack of respect for the status of the teacher in the classroom. At the hearing, Mr. McCormick testified that he was "incredulous" that the problems with food and drink were still going on. The problem was so easily corrected that he had to conclude Respondent could not, or would not enforce the rule. Mr. McCormick believed that such simple classroom management issues were the last thing that should be dominating discussion in the IAP team meetings, but that the IAP team could never get past enforcement of the most basic classroom rules and employment of the most basic classroom management skills in attempting to assist Respondent. The IAP team met on March 7, 2005, to review the team's observations since the last meeting and to offer recommendations to Respondent. Ms. McDaniel and Ms. Mutzenard were present. Mr. McCormick, Ms. Cooley, and Ms. Roshon each gave an oral report of the observations described above. After Mr. McCormick described the playing of music videos in the class, Respondent stated that the music was "something different" for the students in the afternoon and that it was not distracting. He cited "brain based research" to the effect that music helps set the tone for the class and assists in learning. Ms. McDaniel pointed out that there is a difference between music and music videos and that the latter are not to be played in the classroom. Respondent also stated that he felt he was being picked on about the question of sodas in the classroom. Mr. McCormick stated that it was simply a question of school policies that Respondent must enforce, and that Respondent's classroom was so relaxed and uncontrolled that Respondent had difficulty maintaining order and focus. Respondent acknowledged that bending the rules causes problems, but also contended that students sometimes learn more in his relaxed environment. Respondent was once again asked to bring his grade book and career maps, or other student tracking system to the next IAP team meeting. He had been asked to bring these items to the March 7, 2005, meeting but failed to do so. At the hearing, Ms. McDaniel testified that after the March 7, 2005, IAP team meeting, she continued to feel that Respondent did not have a positive outlook on the process. Of greater concern was her growing conviction that Respondent was deliberately not following the instructions and recommendations of the IAP team. She did not share this conviction with the IAP team because she did not wish to influence the objectivity of their observations. Mr. McCormick conducted his next observation on March 10, 2005, between 12:40 and 1:30 p.m. Twelve students were present in the classroom. Five students were working on computers in the main lab, three students were working on projects on the back cage, and two were working with Respondent in a side cage. Two students were asleep in the front of the classroom with their textbooks open and their heads down on their desks. Mr. McCormick testified that the students woke up at some point during his observation. When Respondent saw Mr. McCormick enter the classroom, he left the cage and came out into the main lab and began circulating among the students. Mr. McCormick noted that the monitors in the back cage were still positioned to make observation difficult from the main lab. He also noted that the "Doom 2" game was still loaded on the old Macintosh computer in the classroom. Student Keith McNeil approached Mr. McCormick and was "very forceful" in trying to determine why Respondent was being observed. Mr. McNeil explained at length that MP3 players were integral to the CET program and could be used as data storage devices. Mr. McCormick noted that every student he had observed using an MP3 player in Respondent's class was listening to music. Mr. McCormick also observed that Mr. McNeil was a very bright student and that Respondent seemed to employ him as an informal teacher's aide, helping Respondent to run the CET program. Mr. McCormick's written comments on this observation were as follows: No visible order to the way material is presented. Too much wandering, visiting, and playing going on in this classroom. Students don't seem to ever be on task at anything for more than a few moments. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. On March 11, 2005, at 9:30 a.m., Ms. Cooley attended an attendance hearing for another of Respondent's CET students. This student had 14 absences. Respondent did not attend the meeting, but provided the student's career map and certificates of completion to Mr. King before the meeting. As did the student at the previous attendance hearing, this student told Mr. King that he had not seen his career map since Respondent showed him a blank one at the beginning of the course. The student stated that Respondent never reviewed his progress with him. He had never received any certificates of completion, although the career map submitted by Respondent showed that the student had completed three occupational completion points meaning that he should have had three certificates. The student felt unmotivated. He believed he was wasting his time and not accomplishing anything in Respondent's class. He told Mr. King that he might have felt more motivation had he known his progress in the program. The student told Mr. King that he wanted to make up some of the time he had missed, but that he could never get Respondent to commit to a specific date and time. After a while, the student became discouraged and stopped asking Respondent about making up the time. Ms. Cooley testified that by now she had conducted five observations and attended two attendance hearings, and she was frustrate d because the same things cropped up at every observation: food and drink, name badges for students, the failure to keep career maps, or some other tracking device for student progress. Ms. Cooley performed her next observation of Respondent's class on March 22, 2005, at 8:45 a.m. She noted that while Respondent lectured on how to set up a parts table on Microsoft Access, one student was typing, one student was sleeping, two were looking at a computer board, and one was playing with his cell phone. Students were calling out numbers and items to place in the Access spreadsheet. Food wrappers were on the desks. Respondent was wearing an MP3 player around his neck. He told the students to get started on their assignment, but they walked to the back cages and did not work on the assignment. Mr. McCormick observed Respondent's class on March 23, 2005, between 9:15 and 10:00 a.m. Twelve students were present in the class. Three students were working on projects in the cages. The other nine students were clustered around six computers. Mr. McCormick noted that there were plenty of computers in the classroom and that each student should be assigned his own computer. He observed that when students gather around a few computers some are just watching rather than actively participating in the class activity. In this instance, only two of the nine students appeared to be on task. The others were talking and "wandering around." Mr. McCormick noted that students were leaving the CET classroom to attend other classes, but were not signing out on the classroom attendance log. He checked the log and found that it had not been used since March 14, 2005. Mr. McCormick noted that at 9:30 a.m., a student walked into the classroom with a bag of chips and began eating them while working with another student. Respondent did nothing, although he did later pick up a soda bottle from a workstation and dispose of it. Another student listened to an MP3 player during the entirety of the observation. Mr. McCormick did note that all the old Apple computers had been disconnected thus, disposing of the "Doom 2" game problem. In his written comments to this observation, Mr. McCormick yet again stated that Respondent must enforce School Board policies on food and drink in class, the use of portable music devices in class, and the use of the attendance log. The IAP team convened its next meeting on March 24, 2005.26 Also present were Ms. McDaniel and Ms. Mutzenard. As in the other meetings, the three IAP team members reviewed their observations and made comments and suggestions to Respondent for improving his performance. As in the other meetings, Respondent reacted defensively. When Mr. McCormick commented that there was too much "wandering, visiting, and playing" going on in the classroom, Respondent asked Mr. McCormick not to say that his students did not appear to be learning because there was no data to prove that assertion. The lack of structure in Respondent's classroom was a common criticism. Ms. McDaniel attempted to explain to Respondent the need to draft and use coherent, detailed lesson plans, if only for the eventuality that a substitute would need such a plan in Respondent's absence. Ms. McDaniel told Respondent that a substitute would be "clueless" if forced to use Respondent's lesson plans.27 Using Respondent's method of teaching Microsoft Access as a point of discussion, the team attempted to make Respondent understand the need for some tangible artifact to demonstrate that the students have mastered a given OCP. Respondent answered that the majority of students were pleased with his methods. At the conclusion of the meeting, Ms. McDaniel once again reminded Respondent to bring his grade book, career maps and tracking sheets to the next meeting. Ms. McDaniel testified that at every meeting, Respondent had an excuse for not bringing these materials. He would say that the files were at his home, or back in his classroom. On April 4, 2005, at 12:20 p.m., Ms. Roshon conducted her last observation of Respondent's class. She observed six students in the main lab, one of whom was sleeping. Respondent walked over to the sleeping student and woke him. Three students in the back cage were talking about "witnesses" and "getting caught." Respondent approached Ms. Roshon and explained what each group was doing. She noted several soda bottles, cups, and chips around the room. Ms. Roshon observed a student go to the back cage to get Mr. McNeil to come out and assist him. She thought this remarkable because Respondent was circulating through the classroom and would logically have been the person to approach. Ms. Roshon later concluded that Mr. McNeil's assistance was needed because the question had to do with the Linux system, about which he had lectured during Ms. Roshon's February 10, 2005, observation. Ms. Roshon observed a conversation among several students regarding the capacity of an iPod to download the music on the computer. She noted that a student had his iPod plugged into the computer leading her to conclude the student was downloading music during class. One student did not seem involved in the class. Respondent engaged this student by demonstrating how to share files between computers. Ms. Roshon was favorably impressed by Respondent's method in this instance. Some students knocked at the locked back door of the classroom and were let in by students inside. The students did not sign in, which led Ms. Roshon to wonder whether the attendance log was being used at all. She checked and saw that the sign-in sheet had not been used since March 14, 2005. Mr. McNeil approached Ms. Roshon and attempted to discuss a letter he had sent to the school district's administrators in defense of Respondent. Ms. Roshon told him that she was not at liberty to discuss the matter.28 Mr. McNeil then proceeded to complain about the "new rules and regulations" in the class, by which he meant the long-standing but seldom enforced prohibition on food and drink in the classroom. On April 5, 2005, Mr. McCormick conducted his last observation of Respondent's class. Mr. McNeil approached Mr. McCormick and attempted to question him about his situation with Mr. Wiseman, as described in footnote 28 above. Mr. McCormick told Mr. McNeil that he was there to observe the class and would speak to Mr. McNeil at another time. Though he still noted sodas and a bag of chips in the classroom, Mr. McCormick observed that the activity for the day seemed to be well planned and that the students appeared to be actively engaged and on task. One student was working on an assignment for another class that was related to his high school graduation requirement. Ms. Cooley conducted her last observation on April 6, 2005. She noted soda bottles and drinks in the class and saw one student drinking a soda. Mr. McNeil was teaching the class along with Respondent. On April 6, 2005, at 1:45 p.m., the last IAP team meeting was convened. Ms. McDaniel and Ms. Mutzenard were present. This meeting was held in the CET lab, so that Respondent would have no excuse for failing to produce his grade book and career maps. After the observations were reviewed with Respondent, Ms. McDaniel asked Respondent to show the team his career maps, grade book, and tracking sheets. One member of the team asked Respondent how often he went over the career maps, and he stated that he did so every two weeks. Ms. Cooley asked Respondent why neither student at the two attendance hearings had ever received or reviewed a career map in Respondent's class. Respondent stated that every student had the opportunity to ask him for a copy, but that he did not give them out to everyone. Ms. McDaniel expressed concern that the Council on Occupational Education would review the school in November and would have to be shown these career maps and this grade book. The school's accreditation and its Pell grants would be placed at risk if it could not document what is being taught in the classroom. Ms. McDaniel noted that all the career maps were written in the same color ink. She testified that the maps looked as though they had all been completed at the same time, rather than at different points during the semester as students completed their various OCPs. The minutes of the meeting indicate the concerns raised as the team reviewed Respondent's materials: Mrs. McDaniel made numerous attempts to see if the career map matched and aligned with the gradebook and tracking sheets. Mrs. Roshon and Mr. McCormick would check the gradebook while Mrs. McDaniel would check the career maps. OCP completions were not recorded in gradebook. Quarter grades were missing. No actual dates were written in the career maps. Dates did not aligned [sic] in gradebook with career maps. Yellow attendance sheets were not found.29 Some tests did not have a grade on them. Only chapter test grades were recorded in gradebook. No lab work grades were recorded. No rubrics were used to grade projects. There were numerous questions on the correlation of grades. Mrs. McDaniel stated the career maps should prove the competency completed; but these competencies recorded with a month and year did not align with the gradebook. Some career maps were missing. Mr. Nevins stated he might have left them at home. The gradebook did not reflect what was in the student folders and career maps. . . . Ms. McDaniel testified that it was not possible to look at Respondent's grade book and correlate the numbers therein with any OCP. There were test grades, but no indication of what test was given. The tests in the student folders did not align with anything in the grade book. Ms. McDaniel concluded the meeting and stated that the team would schedule a meeting to make a recommendation to the superintendent as to Respondent's status. In fact, the team met with Ms. McDaniel and the school's new director, Robert Durham, in the administrative offices of High Tech Central immediately after their meeting with Respondent and unanimously recommended that Respondent's employment be terminated. As to her recommendation, Ms. Roshon testified that she told Respondent "that if I were a teacher and I knew I was being observed and that I had an opportunity to make . . . some pretty simple changes to my classroom and what went on in it, that I would have made every effort possible to do that, and that I felt like Mr. Nevins hadn't done that." At the final meeting, Ms. McDaniel presented the option of extending the IAP process, but Ms. Roshon did not believe that more time would make any difference in Respondent's classroom. The IAP process had already lasted for eight weeks, and Ms. Roshon had seen no difference "in classroom management, in teaching style, in anything within the classroom." She believed that Respondent had been given a full and fair opportunity to make significant changes and either chose not to make those changes, or was unable to change. In any event, she believed that Respondent was not an effective teacher. Mr. McCormick testified that Respondent is a very intelligent man, understood the purpose of the IAP process, and further understood the criticisms and advice he was receiving from the observers. However, Respondent did not accept the legitimacy of the criticism, or the need to change his classroom methods. Mr. McCormick recommended termination because he believed that Respondent's classroom shortcomings were very serious, and he did not see any evidence of improvement during the IAP process nor any willingness to make changes in the classroom. Mr. McCormick agreed with Ms. Roshon that extending the IAP process would be extremely unlikely to make any difference in Respondent's job performance. Ms. Cooley recommended termination and testified that she "felt bad about it, because I felt that I honestly tried to help change the situation by the many attempts of telling him what I saw and what I observed." She believed that Respondent is a very intelligent man, but not a teacher. By letter dated April 11, 2005, Mr. Browder notified Respondent that he was being suspended with pay and benefits, effective immediately, pending the outcome of a School Board investigation.30 A predetermination conference was held on April 28, 2005, to give Respondent an opportunity to respond to the IAP team's concerns regarding his competency to teach. Present at the conference were: Respondent and his legal counsel, Robert Coleman; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment administrator; and Paul Carland, then the School Board's attorney. By letter dated May 3, 2005, Mr. Carland notified Mr. Coleman that the School Board had found probable cause to terminate Respondent's employment. In his defense, Respondent raised several issues, both substantive and procedural. Respondent alleged in his equity complaint that he had been "an express target" of negative attention since Ms. Cooley substituted in his class on February 19, 2004. At the hearing in the instant case, Charlotte Rae Nicely, the former financial aid administrator at High Tech Central, testified that Ms. Cooley was "very vengeful" and "had it in" for Respondent. However, Ms. Nicely had been reassigned to a teaching position following the federal audit of the school's Pell grant program and believed she had been made a scapegoat by the High Tech Central administration. Ms. Nicely did not believe that Ms. Cooley was a good administrator and alleged that she carried grudges against other teachers. Though she claimed she had "chosen to forgive" the High Tech Central administration for its treatment of her, Ms. Nicely was a less than credible witness, not only because of her personal feelings about Ms. Cooley, but because of her limited knowledge of Respondent's teaching practices. The evidence did not establish that any administrator at High Tech Central, or the School Board had any personal animus against Respondent for his union activities, his religion, his place of origin, or any other reason. The school's administrators were concerned about Respondent's performance well before Ms. Cooley's experience substituting in Respondent's class, and the evidence was persuasive that Respondent was in no way "singled out" for any reason other than his job performance.31 Respondent contended that the process did not give him adequate notice of the areas of his performance requiring improvement or correction that there were no "uniform scoring criteria" used by the IAP team to evaluate Respondent's performance. This contention is without merit. While the observers used different instruments to record their observations, and their observations varied in some particulars simply because the observers came into the class on different days, there was a remarkable overall consistency in the observations and recommendations. Respondent did not enforce classroom discipline regarding such matters as food and drink and MP3 players. He did not follow proper administrative procedures in monitoring attendance. He did not file proper lesson plans. If he did track his students' progress and performance, he did not do so in an intelligible, coherent fashion, and he did not keep his students aware of their progress in any consistent way. Too often, no teaching appeared to be taking place at all in Respondent's classroom. Students appeared to be doing as they pleased. Any claim that Respondent did not know what was required to improve his performance is disingenuous and cannot be credited.32 Respondent notes that Subsection 1012.34(3)(d), Florida Statutes,33 provides that a teacher holding a professional service contract who is charged with unsatisfactory performance must be notified he is being placed on performance probation for the following 90 calendar days during which he is expected to demonstrate corrective action. School holidays and school vacation periods are expressly excluded from the 90-day period. Throughout the 90-day period, the teacher must be evaluated periodically and apprised of the progress achieved, and provided assistance and in-service training opportunities to help correct the performance deficiencies. Respondent further notes that, at the initial IAP meeting, Ms. McDaniel stated that Respondent would be the subject of observations for seven weeks, that there would be three observations per week, and that the observations would be 30 to 45 minutes in length. She also told Respondent that the IAP team would meet weekly and he would receive a signed copy of the minutes of the meeting. Respondent states that the IAP process lasted only 84 calendar days, from January 13 to April 6, 2005, and that nine of those days were school holidays. The IAP team met only six times, on January 13, February 7, February 16, March 7, March 24, and April 6, 2005. The IAP team failed to conduct three observations each week and at least two of the observations exceeded 45 minutes in length. The IAP team did not meet with Respondent every week of the process, and Respondent did not receive signed minutes of the meetings every week. Respondent claims that the School Board's failure to comply with the legal requirements for termination of a teacher on a professional service contract were not followed and failure to follow its own IAP procedures necessitate dismissal of the Petition. In fact, Respondent was provided notice that he was being placed on performance probation via Dr. Browder's letter dated December 16, 2004. Thus, the period of evaluation lasted a period of 93 calendar days, from December 16, 2004 to April 6, 2005, excluding 18 days for winter break, Martin Luther King Day, Presidents' Day, and spring break. The School Board complied with the express requirements of Subsection 1012.34(3)(d), Florida Statutes. The School Board also substantially complied with the procedures described by Ms. McDaniel at the first IAP meeting and set forth in its written IAP materials. The IAP team members conducted a total of 20 observations (not counting Ms. Cooley's attendance at two student attendance hearings), rather than the 21 observations promised by Ms. McDaniel. This was due to the fact that Ms. Roshon broke her arm and missed one week's observation. The IAP team met only six times because Respondent called in sick on March 16, 2005, forcing the cancellation and rescheduling of one meeting. Neither of these minor deviations from the schedule of events had a substantial impact on the IAP process. Neither Respondent nor his representative, Ms. Mutzenard, lodged a contemporaneous protest regarding these alleged procedural failings. In fact, they agreed to combine two weeks of observations into one IAP meeting in order to make up for the cancelled meeting. Ms. Mutzenard, who has represented union members in at least ten IAPs, testified that, although seven weeks of observations with three observations per week is the officially stated practice, this practice "has not always worked. Because of scheduling conflicts with the teacher and with other members of the team and myself and with meetings and conferences and all of that type of thing, there is [sic] some weeks we just can't schedule something." The process is sometimes extended to accommodate schedules. Ms. Mutzenard testified that the 45-minute limit on observations is simply a time management issue: if one person conducts a two-hour observation, another observer could be hampered from coming into the classroom. Ms. Mutzenard was positive about the flexibility of the process. She testified that scheduling was freely discussed at the meetings and that neither she nor Respondent objected to the dates of the meetings or the number of observations. Ms. Mutzenard testified that the IAP process is usually successful so long as the teacher follows the IAP team's suggestions. She has been involved in other IAPs that resulted in transfers and terminations, but stated that in the case of termination recommendations, the teacher usually resigns. Ms. Mutzenard believed that the IAP process would be extended for another eight weeks after April 6, 2005, to give Respondent more time to work on "a few minor things" such as the food and drink problem and to correct his record keeping. Her view was that, aside from being disorganized as to paperwork, Respondent presented no insurmountable problems and should have been given more time in the IAP process.34 Ms. Mutzenard stated that record keeping is unrelated to a teacher's competence and that Respondent's students were doing well in obtaining jobs. However, she conceded that she had seen no objective data regarding the employment rate of Respondent's students and that Respondent himself was her source of information.35 Ms. Mutzenard also conceded that Respondent did not really believe he should have to stop his students from bringing food and drink into the classroom. She discussed the issue with Respondent and he agreed that he should follow the school policy though the testimony from the IAP team members makes it clear that Respondent never seriously enforced the prohibition on food and drink.36 Respondent presented the testimony of several witnesses besides Ms. Mutzenard and Ms. Nicely. Richard Kennedy, now retired, was a School Board employee for 29 years and ran a special needs exploratory after school program at High Tech Central. This program brought students identified as high drop-out risks to High Tech Central to explore the option of vocational education. The population in the program consisted mostly of middle school special education students ranging from educable mentally handicapped to intellectually above average. Respondent was a paid volunteer in the program for about five years, teaching a web design class. Mr. Kennedy conducted no formal observations of the class, but did drop in on the class frequently. Mr. Kennedy testified that Respondent was a good teacher and was popular with the students. However, Mr. Kennedy conceded that his special needs program was very different from the regular day programs such as CET and that he had very little knowledge of why Respondent was suspended or of the IAP process in which Respondent was involved. Dennette Foy is the district coordinator for business and technology programs at Edison College and is responsible for hiring adjunct instructors such as Respondent. She is Respondent's immediate supervisor at Edison College, in charge of assessing his performance and offering him contracts for successive semesters. She opined that Respondent is a "very adequate teacher." Greg Meisel is a technology teacher for the School Board and runs a computer lab supporting the instructors at Edison College. Mr. Meisel was Respondent's lab assistant at Edison College. Mr. Meisel believed that Respondent was a competent, effective teacher. Respondent's delivery was good and he respected and cared about his students. Mr. Meisel's only knowledge of Respondent was in a college setting. He was not aware of Respondent's classroom management skills at High Tech Central, how Respondent tracked attendance in his classes, or whether Respondent enforced School Board policies in his classroom at High Tech Central. Ms. Foy's and Mr. Meisel's testimony is of limited use because of the differences between teaching at the college and high school level, particularly in a vocational education program such as the CET class. Ms. Cooley pointed out that many of the students at High Tech Central could never meet the academic requirements to be admitted to college, and have in fact been unsuccessful in a traditional high school setting. Students in a college classroom are self-selecting, highly motivated, independent thinkers, whereas students at High Tech Central tend to require greater supervision, discipline, and one-on-one assistance. The same teacher may be highly successful at the college level and be unfit to teach vocational educational classes. Richard Oglesby was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, he worked in the television department at CompUSA and credited Respondent with telling him about the job opening and for giving him the skills necessary to obtain the job. While a student in the CET class, Mr. Oglesby competed in the Skills USA competition and made it past the regional to the state level. He testified that he considered Respondent a friend and had recently attended a movie with Respondent. Mr. Oglesby called Respondent a very good instructor, who followed the textbook, gave tests, kept the students apprised of their academic progress, and managed the class well. Mr. Oglesby testified that Respondent made some attempts to forbid students from listening to MP3 players, or having food or drink in the class. However, he also admitted that students in fact brought MP3 players and food and drink into the class with virtual impunity, and that he never saw Respondent discipline a student for these violations. Mr. Oglesby stated that he always signed in and out of class, but could not say whether other students did. He could not remember seeing anyone sleeping in the class. Keith McNeil, as noted above, was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, Mr. McNeil was the head of the software and video game department at CompUSA. Respondent helped Mr. McNeil obtain his job. Mr. McNeil's loyalty to Respondent was evidenced by the fact that three days after Respondent was suspended, Mr. McNeil received a two-day out-of-school suspension for spinning a glass table 180 degrees and chipping it after Respondent's replacement asked Mr. McNeil to stop sitting on the side of his desk. Mr. McNeil attributed this outburst to the tension and frustration he and the rest of the class felt after Respondent left. During the 2005-2006 school year, Mr. McNeil was officially disciplined twice for insubordinate, disrespectful behavior toward Respondent's successor. Mr. McNeil testified that Respondent was the best teacher he ever had. He described Respondent's technique as nontraditional and "rather lenient." Respondent told the students not to bring food and drink into the class, but the students ignored this admonition and brought the food and drink into the class anyway. Respondent would "chastise" the students, but did not otherwise discipline them. Similarly, Respondent told students not to use cell phones in the class, but students would take calls and walk out of the room to speak. Mr. McNeil testified that students would work on material for other classes in Respondent's class. Some people listened to MP3 players. Students would play computer games during class. Respondent would not discipline these students beyond turning off their computers. Mr. McNeil testified that Respondent "made a big point" of having students sign in and out of the class, which directly contradicts the observations and testimony of every member of the IAP team. Mr. McNeil denied that he ever took on the role of teacher in the class, or that Respondent allowed him to take over the class. People "flocked" to him to ask questions because of his greater knowledge: And so a lot of times I would come up with something, I would realize something; and in the time when, you know, if somebody was done with their work and Barry wasn't giving any form of instruction or anything, then I would say, "Oh, hey, check this out or check this out," and then sometimes like two or three other guys would comment and listen and we'd talk and stuff. * * * It wasn't that frequent. It was just, you know, sometimes like-- sometimes like, you know, we'd finish up and then we'd have like an hour or so or sometimes we might only have a couple minutes or something like that. It wasn't like I would be able to give keynote speeches. (emphasis added) While Mr. McNeil was conducting these sessions, Respondent would be doing "paperwork or something off to himself," or perhaps circulating among the students. In summary, Respondent would forego "an hour or so" of teaching time to allow the students to do as they pleased. This testimony confirms the observations of the IAP team regarding the rudderless appearance of Respondent's classroom. Both Mr. Oglesby and Mr. McNeil appeared to be highly motivated students who succeeded in spite of Respondent's lack of effort in the classroom. They liked the very aspects of the class that the IAP team found most problematic such as the lack of discipline and structure. While such a free-form atmosphere might not prove detrimental to bright, self-motivated students such as Mr. Oglesby and Mr. McNeil, the evidence established that the majority of students in the CET program required a structured classroom that Respondent was unable or unwilling to provide. Respondent testified on his own behalf, recounting his educational experience, employment history, and his certifications. He reviewed his evaluations and described the CET class. However, Respondent was silent as to the IAP process, leaving unrefuted the testimony of Ms. McDaniel, Mr. Pentiuk, Ms. Cooley, Mr. McCormick, and Ms. Roshon. In summary, the School Board established that Respondent was unable or unwilling, when charged with running a classroom unassisted, to maintain student discipline, enforce well-established School Board and High Tech Central rules, teach in a coherent, organized fashion, or perform the administrative duties required of faculty at High Tech Central.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the suspension of Respondent and terminating Respondent from his position as a teacher with the Lee County School District. DONE AND ENTERED this 31th day of August, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of August, 2006.
Findings Of Fact Except for the matters at issue, the Petitioner is full qualified for licensure as an agent and to obtain an agency license. The Petitioner served twenty (20) years in the US Army, retiring as a sergeant-major in 1973. His last ten (10) years in service were involved directly with work which the agency concedes is the equivalent of the work done by an employment clerk. The Petitioner, since retiring from the US Army, has been employed as a teacher/career counselor in the Detroit school system at the high school level. There he instructed high school ROTC six (6) to seven (7) hours per week. The remainder of his time was spent in counseling and duties associated with administration of the ROTC department of which he was head. The Petitioner has counseled more than 200 students regarding careers to include helping them fill out applications, helping to place them in programs, and encouraging them to develop job skills. He held this position until applying for this license. The petitioner also served for more than three (3) years immediately preceding his application on the Harper Woods School Board. As a member of the school board he had to approve the hiring, firing and granting of tenure to school board employees, and review negotiated contracts for employees of the school board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of Ralph E. Young for an employment agency/agent license be granted. DONE and ORDERED this 21st day of December, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Ralph E. Young 2117 South East Erwin Road Port St. Lucie, Florida
The Issue Did Respondent, Yolie Bauduy, violate section 1012.795(1)(g), Florida Statutes (2018)?1 Did Respondent, Yolie Bauduy, violate section 1012.795(1)(j)? 1 All citations to the Florida Statutes are to the 2018 codification unless otherwise noted. Did Respondent, Yolie Bauduy, violate Florida Administrative Code Rule 6A-10.081(2)(a)1.?
Findings Of Fact Parties Petitioner, Richard Corcoran, is the Commissioner of Education. The Commissioner is the head of the state agency, the Florida Department of Education, responsible for investigating and prosecuting allegations of misconduct against individuals holding Florida educator certificates. Ms. Bauduy holds a Florida Educators Certificate covering the areas of Autism Spectrum Disorder, Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education (ESE), and Middle Grades Integrated Curriculum. It is valid through June 30, 2025. Ms. Bauduy teaches at Gotha Middle School in the Orange County School District and did at the time of the events alleged in the Administrative Complaint. During the period during which the alleged acts occurred, Ms. Bauduy taught students with autism. She has served students with disabilities of Orange County as an educator in ESE programs for 16 years. She taught at Gotha Middle School for 14 of those 16 years. Other than discipline for the incidents that are the subject of this proceeding, the District has never disciplined Ms. Bauduy. The school has recognized Ms. Bauduy as an effective teacher. For instance, an evaluation resulting from seven days of in-class observation in November 2020 concluded that she was applying all four expected classroom strategies and behaviors. The Education Practices Commission has never disciplined Ms. Bauduy. Gotha Middle School and Ms. Bauduy's Class During the 2018-2019 school year, all of Ms. Bauduy's students had disabilities that required more assistance and support than needed by students in the general population. Because of their disabilities, Ms. Bauduy's students required a modified curriculum that was less rigorous than the standard curriculum. The modified curriculum included social, skills, personal skills, and independent function skills. Teaching those skills helps students learn to manage their behavior and become more independent. All of Ms. Bauduy's students had Individual Education Plans (IEP). These plans identify a student's disabilities, their effect, and behavior that may arise from them. They establish goals for the student in light of the student's disabilities. And they identify strategies for helping the students accomplish the established goals. The demands of teaching students with disabilities required additional staff in the classroom to assist Ms. Bauduy. The school determined that properly caring for and teaching the children required a three to one student teacher ratio. The students' IEPs also required this staffing ratio. For that reason, the school assigned two paraprofessionals to assist in Ms. Bauduy's class of ten people. This was in addition to Ms. Edoo, who was assigned to student E.K. one-on-one. Thus, the proper staffing complement for Ms. Bauduy's class was four adults. Throughout the 2018-2019 school year, Gotha Middle School experienced chronic staffing shortages. One paraprofessional position in Ms. Bauduy's class was vacant the entire year. The school engaged a long- term substitute. That person often did not show up for work. In those instances, the school sought, often unsuccessfully, to engage fill-ins from a temporary staffing agency. In addition, the school usually did not provide staff to cover the paraprofessionals' breaks and lunches. Throughout the year, Ms. Bauduy had to juggle staffing shortages as best she could. During the representative month of September 2018, Ms. Bauduy's class was short one adult seven full days and four partial days. On September 11, 2018, Ms. Bauduy's class was down two professionals. When the paraprofessional staff took their breaks or lunch periods, the staffing deficiencies worsened. Ms. Bauduy repeatedly advised the administration about the staffing deficiencies, sought assistance, and expressed her concerns about not complying with students' IEP requirements. Her communications included a September 5, 2018, email advising that a substitute had not arrived, a September 11 email forwarding an email from a paraprofessional advising she was not coming in, and a September 26 email advising that a substitute once again failed to arrive and asking for assistance. In January 2019, despite the chronic understaffing, the school transferred two students, T.M. and N.A., from other classrooms to Ms. Bauduy's class. These students' disabilities were more profound and required more supports than the other students. They were regular elopers, required diaper changes, and required individual nearly one-on-one prompting for tasks. Among other things, T.M.'s disabilities required having someone hold his hand during transitions. Placement of T.M. and N.A. in Ms. Bauduy's class was not appropriate. Ms. Bauduy continued sending emails expressing her concerns and frustrations about understaffing. She also repeatedly, without effect, sought to get the school to change mandatory meetings to her planning period or after school because the meetings caused her to leave the classroom and exacerbated the staffing problems. Between October 25, 2018, and March 4, 2019, Ms. Bauduy sent 17 emails requesting full staffing and advising of staff absences. Ms. Bauduay could not rely upon prompt responses when she called for assistance or additional staffing to put her room back in compliance with the required student/adult ratio. Sometimes she received a quick response. Sometimes no one came. Often there was a 20 to 30-minute delay before assistance arrived. Even when management responded to Ms. Bauduy's request for a schedule of when behavior staff would be available to support her students, management's response was conditional. For instance, Laura Fogarty, ESE Curriculum and Instruction Team Instructional Coach, conditioned the schedule of available staff that she provided as follows. Please remember, however, that this schedule is in a perfect world. The behavior support team's first priority is to respond to radio calls and have other responsibilities that don't always make it possible for them to be in your room for the times listed below. They may also have to leave to respond to a behavior call when they are in there. Below is the ideal, if everything goes right and there are no behavior calls or other areas that require their attention. The world in which Ms. Bauduy taught was neither perfect nor ideal. Ms. Bauduy's testimony about staffing difficulties and insufficient responses to requests for assistance differs from testimony of school representatives. Ms. Bauduy was more credible and persuasive than the school representatives. Four of the reasons for this judgment are Ms. Bauduy's sincere demeanor, documents such as emails and logs consistent with her testimony, the admission in Ms. Fogarty's email that even scheduled availability of support was not reliable, and the corroborating testimony of a paraprofessional who worked in Ms. Bauduy's room, Lauren Mueller. K.C. K.C. was a male sixth grade student in Ms. Bauduy's class. K.C.'s IEP specified that K.C. should always be supervised. It stated, "He requires continuous supervision as he is very impulsive and responds aggressively and or obscenely." K.C. also had a Behavioral Improvement Plan (BIP). It too noted a need for intensive intervention to address inappropriate touching of and advances toward female students. The BIP provided, among other things, "If outside the classroom, one on one supervision must be provided." The BIP went on to state that K.C.'s transitions out of the classroom should be limited to necessary transitions and that a staff member should provide one-on-one supervision during all transitions. Ms. Bauduy was aware of the contents of the IEP and BIP. At each day's end, Ms. Edoo usually escorted K.C. from class to the transportation loading area, after escorting her assigned student to the transportation area. This did not happen on September 11, 2018. This was one of the many days when Ms. Bauduy's room was short-staffed. Because of a vacant position and a paraprofessional not showing up, Ms. Bauduy was down to two adults, including herself, of the staff that should have been in the room. This excludes Ms. Edoo who was responsible for providing one-on- one care for a single student. The afternoon of September 11 the substitute paraprofessional was to escort the students, in shifts, to the transportation area. The substitute took a student to the transportation area and did not return. This left Ms. Bauduy the sole adult in the room, responsible both for getting the children to the transportation area and supervising students in the classroom. Ms. Edoo called Ms. Bauduy on the radio and said to release K.C. Ms. Bauduy thought that meant Ms. Edoo was returning to the classroom and would meet K.C. in the hall. Although her room had a telephone and a two-way radio, Ms. Bauduy knew from experience a response to a request for help would be slow, if there even was one. Faced with confounding choices, Ms. Bauduy explained to K.C. that she would release him to go directly down the hall to meet Ms. Edoo. K.C. did not go straight down the hall to Ms. Edoo, and Ms. Edoo was not in the hall. K.C. went to the bathroom that opened on the hall. A student, K.M., found K.C. laying naked, save for his socks, on the bathroom floor, masturbating. This scared and confused K.M. He went home and told his mother about the incident. She called the school. The next day a guidance counselor met with K.M. to discuss the incident and reassure him. Shortly after K.M. left for home, an ESE clerk, Elizabeth Elkholi, saw K.C. naked in the bathroom, through the open door. She called for Shantell Johnson, a behavior trainer. Ms. Johnson did not wish to enter the bathroom because K.C. was naked. A substitute, Stephen Harnishfeger, and Deputy Luna, a school resource officer, joined Ms. Elkholi and Ms. Johnson. Between them, these four adults kept K.C. in sight. K.C. got dressed in a stall. Ms. Johnson escorted him back to Ms. Bauduy's classroom. Ms. Bauduy was not aware of this activity until K.C. was returned to her room. K.C. could have left the school grounds during the period that he was unsupervised. Eventually the substitute reappeared and declared she was leaving for the day. Ms. Bauduy convinced the substitute to escort K.C. to the transportation loading area before leaving. The school suspended Ms. Bauduy for five days without pay for this incident. T.M. T.M. was a student on the autism spectrum that the school transferred to Ms. Bauduy's class in January. T.M.'s previous classroom, Ms. Franklin's, was adjacent to Ms. Bauduy's classroom. On February 25, 2019, the school had again failed to staff Ms. Bauduy's classroom in compliance with the requirements of her students' IEPs. That day the school required Ms. Bauduy to participate in an IEP meeting, scheduled for 30 minutes, during her planning period. The meeting took two hours, running through her lunch period and ending at 4:00 p.m. When Ms. Bauduy returned to the classroom, she realized none of her paraprofessionals had taken a break. So, she released them one at a time for a short break. While one paraprofessional was gone on break, the remaining one left the room with a student to go to the restroom and change a diaper. This left Ms. Bauduy alone with the students. At that time, Ms. Bauduy was providing directions to a group of students. She heard the door slam. She looked for T.M. and did not see him in the classroom. T.M. had slipped away from Ms. Bauduy's classroom out into the hall. He left through the classroom's only door. Ms. Bauduy immediately went to the doorway to look for him. She knew T.M. had a history of leaving the classroom but waiting just outside the door. She did not see him. Then Ms. Bauduy took a few steps outside the door of her classroom into the hall. To the left of Ms. Bauduy's classroom the hall met double doors just yards away that led to the outside and a nearby road. Ms. Bauduy was in the hall approximately 23 seconds seeking to ensure that T.M. had not gone to the left toward the double doors. During these 23 seconds there was no adult inside Ms. Bauduy's class room. She however was just feet from the only door. One of the students could have done something destructive or harmful. But the brief period of time that Ms. Bauduy was outside the classroom, her proximity to the door, and the very short distance she was from her students made that risk minimal. Ms. Bauduy saw the door to Classroom B104 close. This was T.M.'s former classroom, which was next to Ms. Bauduy's room. This reassured her that T.M. was safe. She ran back to her classroom. The students had spent the 23 seconds without incident. Then Ms. Bauduy called for assistance. A staff member came to return T.M. to Ms. Bauduy's room. When T.M. slipped away, Ms. Bauduy had no good choices. In the time it would take to call for assistance and wait for it to arrive, if it did, T.M. could have been out the doors and in the road. Ms. Bauduy's experience taught her that assistance was often slow to arrive and sometimes did not arrive at all. Stepping out in the hall to quickly see where T.M. went left the eight remaining students without direct adult supervision for 23 seconds. But Ms. Bauduy was just outside the only door out of the classroom. She made a reasonable choice, one that most reduced the risk of a bad outcome to T.M. and his classmates. The school suspended Ms. Bauduy for five days without pay because of this incident. F.O. F.O. was a student in Ms. Bauduy's class. F.O. was non-verbal and deaf. She was working on pre-academic skills. F.O. was a joyful and social student. She, however, was defiant. She did not like to be corrected. She wanted to be on her own, basically following her own schedule. When corrected, F.O. would shake her head, point her finger, and stick her tongue out. The school regularly delivered breakfast and lunch to the class. On September 11, 2019, F.O. ate breakfast around 10:00 a.m. After breakfast, F.O. and the other students had a short lesson and went to PE. After they returned to class, they had another short lesson. Afterwards, Ms. Bauduy gave the class another short break. Around 11:30 a.m., the lunch cart's arrival signaled the beginning of lunch to the class. The lunch service procedure began with placing meals on tables for students who could feed themselves. Then Ms. Bauduy and the paraprofessionals assisted students who needed help eating. F.O.'s lunch was placed in front of her. It was time for F.O. to pick up her toys and eat. She refused. Ms. Bauduy tried prompting F.O. several ways. Ms. Bauduy's efforts to persuade F.O. to put her toys up included gestures, pantomiming the desired actions, and modeling the actions by picking up some toys herself. This did not work. Ms. Bauduy took F.O. out of the classroom to see if a change in environment would help. Ms. Bauduy then took F.O. to the behavior specialist's classroom down the hall. But it was not staffed. They returned to Ms. Bauduy's classroom. There Ms. Bauduy tried to get F.O. to comply with simple directions like "put it down." F.O. would not respond. Also, F.O. continued to refuse to pick up her toys and eat lunch. Ms. Bauduy concluded that F.O.'s refusal to eat lunch was a defiance issue. Ms. Bauduy learned a behavior management strategy called "First – Then" in her applied behavior classes at the University of Central Florida. Ms. Bauduy kept a graphic depicting this strategy posted in her classroom. Other teachers and paraprofessionals in the school also used this strategy. It was a system where the "Then" was something the child wanted or wanted to do and the "First" was a task the child was resisting. After F.O. continued to play with toys and ignore her lunch. Ms. Bauduy decided to use the "First—Then" strategy by withholding F.O.'s lunch until she picked up her toys. She asked a paraprofessional, Ms. Lewis, to remove the food. Ms. Lewis refused. Ms. Bauduy then placed the lunch on a shelf so that other students would not eat it or play with it. Around 2:00 p.m., snack time, F.O. had put up her toys. Ms. Bauduy gave her the lunch. Ms. Bauduy's log for the day, sent home with each student each day, advised F.O.'s parents that F.O. would not listen or follow directions most of the day and that "lunch was delayed till she showed more compliance." Withholding lunch was not a proper use of the "First – Then" strategy. Meals are a regular part of the day and necessary for nutrition, although in this case the student repeatedly declined food. Withholding a meal, as opposed to withholding a treat, is not proper. Also, since F.O. was not interested in eating lunch, making lunch the "Then" was not a well-reasoned use of the strategy. Ms. Bauduy, however, did not withhold lunch as a punishment. But withholding lunch was not a reasonable behavior management strategy. The school suspended Ms. Bauduy for five days for this instance.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent, Yolie Bauduy, violated section 1012.795(1)(j), Florida Statutes, by violating Florida Administrative Code Rule 6A- 10.081(2)(a)1., and imposing a reprimand upon Respondent, Yolie Bauduy. DONE AND ENTERED this 24th day of November, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, the Respondent, James P. Walsworth, caused to be prepared and submitted, documentation, including but not limited to, State Board of Education forms ESE- 269 and ESE-135, which subsequently, qualified Horizon Elementary School for additional FTE funding for students classified as "gifted" in the fourth and fifth grades, when, during the 1975-76 school year, as Principal of Horizon Elementary School, the Respondent, James P. Walsworth, failed to provide and/or implement an appropriate program for those gifted students, in accordance with the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the first substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he caused two children, to wit: Warren Moody and Johnny Knight to be placed in the Educable Mentally Handicapped (EMH) program at Horizon Elementary School, and these two children were not certified for such a program, thus violating s230.23(4)(m) Subsections 1 - 7, F.S., Rules of the State Board of Education of Florida, policies of the School Board of Broward County, Florida, and the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the second substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth, served as Principal of Horizon Elementary School, Respondent, James P. Walsworth, caused to be prepared and submitted documentation concerning the Special Learning Disability (SLD) students wherein, of the 79 students classified by the Respondent, James P. Walsworth, as (SLD), only 49 were certified; thereby violating the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m) Subsections 1 - 7, F.S., all as alleged in the third substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he prepared and submitted documentation concerning one child classified as emotionally disturbed, without proper certification; and after having designated child for additional FTE funding, the Respondent, James P. Walsworth then failed to provide and/or implement an appropriate program for said child in violation of the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m), subsections 1 - 7, F.S., all as alleged in the fourth substantive paragraph of the complaint letter.
Findings Of Fact The Respondent, James P. Walsworth, became Principal of Horizon Elementary School at the time of its opening in the fall of 1973, and has remained the Principal of that school, except for the period of his suspension between August 19, 1976 and November 18, 1976. Horizon Elementary School is a part of the school system of Broward County, Florida and the Respondent, James P. Walsworth, is an employee of the School Board of Broward County, Florida. During the pendency of the Respondent's employment at Horizon Elementary School, there was in effect certain District Procedures of the School Board of Broward County, Florida, pertaining to the education of exceptional children. The first of these were procedures for 1973-74 and appears as Petitioner's Exhibit #12, admitted into evidence. The second document represents procedures for the school year 1974-75 and appears as Petitioner's Exhibit #13, admitted into evidence. The last document is for the year 1975-76 and is found in Petitioner's Exhibit #14, admitted into evidence. All the aforementioned procedures in Petitioner's Exhibits #12 - #14, were enacted by the School Board of Broward County, Florida. In the school year 1975-76, the Respondent, James P. Walsworth, requested and received funding for seven students in the fourth grade and six students in the fifth grade, he claimed to be "gifted" students for funding purposes. This request for funding was placed in the October, 1975, funding count and the February, 1976, funding count. It is the October 1975, count that establishes the right to funding. Petitioner's Exhibits #19 and #20, admitted into evidence show the funding request for those gifted students. Petitioner's Exhibit #28, admitted into evidence, shows the total amount of FTE monies received in the gifted program at Horizon Elementary School. (The initials FTE stand for Full Time Equivalence). In the year 1975-76 the six fourth grade students which had been placed in the gifted program were taught by Terence Byrnes. Mr. Byrnes had a total class of 27 students comprised of third and fourth grade students. The gifted students were placed with seven other students for purposes of reading instruction. Terence Byrnes is not certain of any particular instruction about the gifted program given by Walsworth at the commencement of the school year. He only understood that he was being designated as the gifted teacher for the fourth grade students who had been designated gifted and had FTE funding claimed in their behalf. Mr. Byrnes did not buy any special materials for those six gifted students, per se, but selected materials which he felt the average fourth grader could not do because, "they would not know how." The materials selected were taken from the media center and the curriculum for the gifted was constituted of math, science, social studies and reading. The six gifted students in his class were not segregated from the other members of the class at any time during the instruction period in a physical sense. Those students, together with the other members of their group who were identified as students of solid average to above average were given open ended assignments, by that, all students did not have to complete all parts. Mr. Byrnes indicated that the emphasis on the program for the gifted and others was independent study where the student would have to think. He further stated that these gifted students and other members of their group were under his supervision. Some of the items of study were the use of globes, maps, film strips and human anatomy. The anatomy subject included the examination of a skeleton model, placing x-rays of the human body over light fixtures as a supplement to the study of the skeleton model and examination of the bones of animals to show the action of the sockets of those bones. The students then used tracing paper to outline the bodies of their fellow students and to place the skeleton and organs of the human body in the outline tracing. Mr. Walsworth commented that this skeleton model had been bought for sixth and seventh grade students. Approximately one hour per day was spent on the gifted program. Warren Smith was the teacher of the fifth grade students who had been labeled as "gifted" and had funds requested for their program. There were seven of these students who were placed with fifteen or sixteen other students in the top reading group. The other students were indicated to be academically talented. The gifted students were not physically separated from the other students. The type of assignments for the gifted and academically talented were open ended assignments and materials provided were materials provided for the gifted and academically talented. Mr. Smith remembers the instructions from Mr. Walsworth at the beginning of the school year 1975-76 as being, "to provide enrichment materials for the gifted," but Mr. Walsworth did not indicate what that program would consist of. The fifth grade "gifted" students read certain stories and wrote sequels to those stories. Some of the members produced a play and others wrote scripts and productions for television. The persons involved in the reading and writing assignments were "gifted" students; however, it was not clear what the involvement of the academically talented students were in this program. In addition, there was a clay and rock model in the curriculum area of a social studies unit on Western Movement and this program was an appropriate program for "gifted" students. Again it is not clear whether the "gifted" students alone worked on the Western Movement project, as opposed to the" gifted" and academically talented. During the school year 1975-76, Virginia Barker, the art teacher at Horizon Elementary School taught certain fourth and fifth grade students to weave on special looms, to do needlepoint on special canvas and string art, which she felt to be above the level of children in these grades. This work was done as independent study before and after school. Mrs. Barker indicated that these students had been identified to her as being gifted students, but her testimony was unclear on the question of whether those persons involved in this independent study would include children who were talented, but not necessarily identified and funded as "gifted" students. During the school year 1975-76 the students Warren Moody and Johnny Knight were placed and attended a program for Educable Mentally Handicapped (EMH) at Horizon Elementary School. Information on the child, Warren Moody, may be found in Petitioner's Exhibit #17 and Respondent's Exhibit #3, both admitted into evidence. Information on the child, Johnny Knight, may be found in Petitioner's Exhibit #16 and Respondent's Exhibit #5, both admitted into evidence. On October 1, 1973, the student, Warren Moody was given certain testing and a psychological report was rendered by Dr. Halcyon H. Carroll. The results of this testing and the conclusions of that examiner may be found in Petitioner's Exhibit #17 admitted into evidence. Dr. Carroll found that Moody did not qualify for a program for the Educable Mentally Handicapped (EMH). This conclusion and the remainder of the facts in that report are accepted as being the determination reached by Dr. Carroll. Subsequent to Dr. Carroll's report, a decision was made to place Warren Moody in the (EMH) program at Horizon Elementary. This decision was based upon a committee or staffing conference held between the teachers and school psychologist, Dr. Robert Ginsberg, conducted in the fall of 1973. Dr. Robert Ginsberg was the psychologist assigned to the Horizon Elementary School. Dr. Ginsberg made his decision notwithstanding the determination of Dr. Carroll. Dr. Ginsberg's decision was made in view of the comments of the teacher that the student was not performing at a reasonable level and in view of his own observations of the student; however, Dr. Ginsberg did not conduct any further testing on the student beyond the testing rendered by Dr. Carroll. The committee report and other matters pertaining to the October, 1973, staffing at Horizon Elementary School, at which time Warren Moody was placed, are unavailable. The record is not clear on the question of whether or not Dr. Ginsberg rendered a written psychological report in addition to the committee findings on the student Warren Moody, who was staffed in the fall of 1973. After Warren Moody was placed in the EMH program in the fall of 1973, he continued in the program through the end of the school year 1975-76. At all times his participation was in the Horizon Elementary School. In the spring of 1976, Queen M. Sampson, a school psychologist for the Broward County School System tested Moody and rendered a psychological report. Again this report is a part of Petitioner's Exhibit #17, admitted into evidence. In the report, Queen Sampson indicated that Warren Moody did not qualify for (EMH) in terms of testing and recommended return of the student to the regular classroom. On June 1, 1976, the student assessment and review committee met at Horizon Elementary School and concluded that the student should be returned to regular class. This report was entered at the end of the 1975-76 school year, and is part of Petitioner's Exhibit #17. In the school year 1972-73, the student, Johnny Knight, had been attending Royal Palm Elementary School. While attending that school certain tests were made of the student's ability to determine appropriate academic placement. Subsequent to the tests a report was rendered under the signature of Dr. Robert Ginsberg and co-signed by Dr. James R. Fisher, the Director of Psychological Services, in Broward County, Florida. The conclusion of Dr. Ginsberg was that the student did not qualify for (EMH) placement at that time, but did require much retraining and remedial help in all perceptual areas. A copy of this written report may be found in Petitioner's Exhibit #16 and the report is accepted as being an accurate depiction of Dr. Ginsberg's findings. The student was transferred to Horizon Elementary in the fall of 1973, for the school year 1973-74. After discussion with the teachers at the fall staffing for placement of students, determining that the student was not working well in the normal class setting, observing the student and reviewing the report of April, 1973, Dr. Ginsberg concluded that the student should be placed in (EMH). No written psychological report was rendered and no further tests were conducted by Dr. Ginsberg in the fall staffing committee conference. The student Johnny Knight remained in the program from the school year 1973-74 through the school year 1975-76, at which time, on June 8, 1976, per the re-evaluation committee's recommendation, he was removed from the (EMH) program. The placement of the students, Warren Moody and Johnny Knight, was for a period of three years from the fall of 1973 and was not in violation of any statutes, rules or procedures. The term, three years, means three school years. Acting on a complaint filed by John Georgacopoulos, school guidance counselor for Horizon Elementary School in the years 1974-75 and 1975-76, the Superintendent of Schools of the School Board of Broward County, Florida, ordered an audit of the Horizon Elementary records. One of the aspects of the audit was to examine certain folders on the specific Learning Disability students who were enrolled in the year 1975-76. These folders were folders that were found in the main office of the school. The audit report which is Petitioner's Exhibit #1, admitted into evidence, in part, states that 79 folders were examined in the course of the audit. In addition there was testimony by one of the auditors, that a computer print-out contained the names of those students that were found in the Specific Learning Disability program (SLD). Apparently the auditor was referring to that computer print-out which is Petitioner's Exhibit #8, admitted into evidence. That exhibit shows a color code for certain categories and (SLD) is shown in yellow. The number of (SLD) students in the year 1975-76 was determined by the auditors on the basis of the examination of the file folders in the main office and the computer print-out and this gave them the number 79. When the charge was made, it alleged 74 students were in the (SLD) program in the 1975-76 school year, but was subsequently amended during the course of the hearing to reflect the number 79, which appeared in the audit report. In fact, FTE funding in the (SLD) program of Horizon Elementary was claimed for 71 students in the October 27 - 31, 1975, count and for 74 students in the February 23 - 27, 1976, count as reflected in Petitioner's Exhibit #19, admitted into evidence. Therefore, funding would have been received for 71 students in October, 1975, in the (SLD) program. Moreover, testimony established that it was this October count which set up the process for the actual receipt of funds for such program. Of the 79 students claimed to be enrolled in the 1975-76 school year, in the category (SLD), 47 of those students whose files were examined were felt to be properly certified. Certification to the audit members meant that a school psychologist had indicated the propriety of placing that student in the (SLD) program in years prior to 1975-76, and after 1975-76 that a form known as B-1 had to be signed by the Director of Exceptional Student Education or his designee to have certification. This word certified comes from the audit summary table found in the audit, Petitioner's Exhibit #1. The original charge claimed 47 students of the (SLD) program were certified. This number was amended to read 49 as certified, such amendment being made in the course of the hearing. In addition to the audit report, there was prepared a tally sheet. This tally sheet was the product of the three auditors and pertained to the (SLD) students. The tally sheet is Petitioner's Exhibit #15, admitted into evidence. It shows 79 names, which are the names of the file folders examined in the audit. It has certain columns pertaining to items being sought, one of which columns is the aforementioned certification. Looking at this exhibit it is determined that there are 30 names of students, whom the auditors did not locate data for on the column labeled certification. Those 30 names are found in a separate part of Petitioner's Exhibit #15, In determining what data existed, the auditors had asked the Respondent to produce his files, they had looked at files in the main office and in the Specific Learning Disability room, and at the Diagnostic Center for the Exceptional Education Program in Broward County. Their examination of the Diagnostic Center files was only on a random basis. They had also spoken to the (SLD) teachers at Horizon Elementary in a general way, but not as to the specific names of students that they could not find data for. The auditors did not look in the cumulative folders, which were found with the homeroom teachers of the 30 (SLD) students. No document was offered which shows which if any of the 79 students named on the tally sheet were part of the 71 students for whom FTE funding in the (SLD) program was claimed for in the October 27 - 31, 1975, request, nor was such documentation shown for which if any of the 79 students on the tally sheet were claimed as part of the 74 students who were involved in the FTE funding count of February 23 - 27, 1976. Therefore, it is not known specifically which of the students were having funding claimed for them in October, 1975 and February, 1976. There was a great deal of testimony in the case concerning the referral process, testing, psychological evaluation, and staffing of those students in the (SLD) program at Horizon Elementary School. This discussion involved allegations and counter allegations about the conduct of the prescribed process, as to the compliance with procedures and the quality of that compliance, and the disposition of the evidence showing qualification of the (SLD) students for such a program, once placement had been made and funding requested. Essentially, the Petitioner was trying to establish, through its witnesses, that procedures were not followed in placing (SLD) students for the years 1973-74 through 1975-76 either in fact or in the quality of compliance. The Respondent, through its witnesses, countered that compliance had been achieved and that the placement of those students in the (SLD) program was correct. Within this testimony, there are claims on both sides that files either did not exist or certain data in those files had been removed. Some evidence which was offered to establish that testing was done on those 30 students whose names appear on Petitioner's Exhibit #15, will be found in Respondent's Exhibit #18 - #22, admitted into evidence. These Respondent's exhibits show materials taken from the files of the named students and compilation of tests scores kept by the (SLD) teachers, Bonnie Kirkham and Pat Sanders. These items were not seen by the audit team. Some information was in the possession of the (SLD) teachers based on notes of test scores that were take-offs of the original test booklets and documents, with the exception of one file which was mistakenly kept in the (SLD) teachers room, and the balance of the data was taken from the cumulative folders of the students, that had been kept in the homeroom teachers' rooms, which were not examined by the auditors. Other data may be found in Petitioner's Exhibits 36 - 38 which are psychological reports written by Dr. James R. Fisher, a school psychologist with the Broward County School System. These reports pertain to certain of the 30 students whom he recommended to be returned to regular class, and some of which were left in the (SLD) program from January, 1976 through the end of the school year to avoid adjustment problems. Although the psychological reports are dated September, 1975, these reports were not sent to Horizon Elementary School until January, 1976. In addition the attorney for the Petitioner after reviewing the evidence, concedes that the children, Jeanine O'Hara, Wayne Martin, Suzanne Cain, Karen Treese, Alderto Guzman, Laura Natzke and Kieth Franklin were tested and found eligible for placement in (SLD). After entertaining considerable testimony on the procedures and the whereabouts of certain data within the files of the 30 (SLD) students under discussion, and after reviewing the evidence offered to show the existence of data about the students, the undersigned is unable to conclude what the actual facts are, and for that reason it has not been shown that the procedures for placement and claiming funding were followed or not. However, there is strong evidence to show that the procedures were followed for placing the thirty (SLD) students, as shown by Respondent's Exhibits #18 - #22. On October 27, 1975, the student Anthony Buffone was tested by a school psychologist in the Broward County School System. This psychologist was Bob Lieberman, and Mr. Lieberman rendered a written psychological report, which indicated that Anthony Buffone should be placed in a program for Emotionally Disturbed children. A copy of this report may be found in Petitioner's Exhibit #18, admitted into evidence. This child was staffed and proper placement effected, in accordance with the existing law and procedures. The activity of placement transpired in the fall of 1975. The child was attending Horizon Elementary School in the school year 1975-76. The program provided for Anthony Buffone in that school year was to have him attend regular class part of the day and to spend approximately two hours a day with John Georgacopoulos, the school guidance counselor. Georgacopoulos was to help Anthony Buffone with academics, to assist in behavioral modification and to improve the student's self concept. This program was provided as needed, and this need turned out to be approximately two hours a day. In addition, the Respondent worked with the student in terms of counseling. The student spent some time in the (SLD) program but because of the disruptive nature of his conduct, was removed from that program. His attendance in (SLD) was from the beginning of January, 1976 through the spring, 1976. He was removed from the (SLD) program at the request of the (SLD) teacher. Mr. Georgacopoulos the instructor, had a BA Degree in psychology from the University of Oklahoma and a Master's Degree in Institutional Guidance and Counseling from Oklahoma City University. In addition Mr. Georgacopoulos had been approved by the Broward County School Board to do psychometric testing. Prior to coming to the Broward County School System in 1969, he had done work at the Wagon Wheel School in Oklahoma, in the field of guidance and counseling. He was not a certified psychologist, certified with the State of Florida. The Respondent recognized that the student Anthony Buffone, would have been better placed at the Castle Hill School which had a more comprehensive program for the Emotionally Disturbed, but the mother of the child did not wish this placement since it would work a hardship in transporting the child to the school, and would place the child in a location that was inconvenient to the parent.
Recommendation It is recommended that the Respondent, James P. Walsworth, be relieved of further responsibility in answering to these charges and that back pay and other benefits that he may be entitled to, be forthcoming. DONE and ENTERED this 4th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33302 Emerson Allsworth, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Mr. James E. Maurer Superintendent of Schools The School Board of Broward County Administration Offices 1320 S.W. Fourth Street Ft. Lauderdale, Florida 33312
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
Findings Of Fact Michael Douglas began the 1982-83 school year as a seventh grade student at South Miami Junior High School. Disciplinary measures were required on September 1, 10, 14, 17 and 29, 1982. The student refused to obey rules and instructions, and was generally incorrigible. On September 29, he threatened another student with assault. During September, school officials had several contacts with Michael's mother and his case was referred to the child study team. As a result of these conferences, he was assigned to a youth opportunity school on October 28, 1982.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner continue its placement of the student, Michael Douglas, in the Youth Opportunity School. DONE and ENTERED this 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard M. Britton, Superintendent Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132 Ms. Lillie Mae Jordon 5920 Southwest 6th Street Miami, Florida 33143
