The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
Findings Of Fact Upon consideration of the testimony adduced at the hearing, the following relevant facts are found: Respondent Randolph Rice has been employed by the petitioner Dade County School Board for seven years. At all times relevant to the charges involved in this proceeding, he was employed as a physical education teacher at Miami South Ridge Senior High School. In the school years 1977-78 and 1978-79, Randy Turner regularly appeared on the campus of South Ridge. Mr. Turner was never enrolled as a student at said high school. Believing that Mr. Turner was a student at South Ridge, respondent Rice allowed him to participate in Rice's physical education classes. Respondent Rice knew that Turner was not enrolled in his class, but he believed that Turner was enrolled at South Ridge to complete two credits he needed for graduation. When Mr. Turner participated in class, he wore the school's regular physical education uniform. At least six students attending and enrolled at South Ridge observed Mr. Turner on campus almost daily for the school years 1977-78 and 1978-79. They saw him in the hallways carrying books, around the physical education area, participating in physical education classes and in the locker room. Turner shared a locker with an enrolled student. He was also observed in a class in plastics. Mr. Turner's photograph appeared in the school's yearbook along with the pictures of enrolled students. Four employees at South Ridge -- a physical education teacher and three persons who work in security -- observed Mr. Turner in the hallways of South Ridge carrying books and around the physical education area. Three of these employees assumed Mr. Turner was an enrolled student at South Ridge. Another, who knew Turner from another high school, had the impression that Mr. Turner had probably finished school. The basketball coach at South Ridge, Everett Moncur, allowed Mr. Turner to help out and keep the statistics in the basketball games end courses. Mr. Moncur assumed Mr. Turner was not enrolled as a student as he had known Turner from another high school. Moncur worked closely with respondent Rice and did not discuss with Rice Mr. Turner's status as a student or non-student. On or about February 9, 1979, respondent Rice's physical education class was having a special challenge with the other physical education classes, and several games were occurring simultaneously. During this period, Mr. Turner became involved in a fight with an enrolled student and the other student was injured. Respondent Rice did not witness this event. The parties have stipulated that there is no legal causal connection between Turner's participation in class and the injury that was received by the other student. Excerpts from the minutes of a March 21, 1979, Dade County School Board meeting indicate that the Board approved the suspension without pay of respondent Rice. By letter dated March 26, 1979, Mr. Rice was notified that the Board bad suspended him without pay for a period of thirty days for willful neglect of duty in allowing a nonschool youth to participate in his class. He was further advised that prior to the expiration of his suspension, he would be advised of his reassignment to another work location to be effective May 3, 1979. The respondent requested a hearing on the suspension, and, on April 9, 1979, the School Board filed "Notice of Charges" charging respondent with willful neglect of duty by allowing a nonschool youth to participate in his physical education class. The Board asked for a thirty-day suspension and reassignment to another school in Dade County. Respondent has served his period of suspension without pay and has been assigned to another school. Respondent seeks to be reinstated at South Ridge High School and further seeks back pay for the period of suspension.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that a final order be entered by petitioner rescinding respondent's suspension and transfer to another school, and that respondent be reimbursed for the salary lost during his suspension and be reinstated to his former position at South Ridge High School. Done and entered this 2nd day of July, 1979, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jesse J. McCrary, Jr. Assistant Board Attorney 3050 Biscayne Boulevard Suite 300-E Miami, Florida 33137 William du Fresne Suite 1782 One Biscayne Tower Miami, Florida 33131 Phillis Douglas Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY, Petitioner, CASE NO. 79-768 RANDOLPH RICE, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting of September 5, 1979, upon the Hearing Officer's findings of fact, conclusions of law and recommended order, and upon the exceptions filed by counsel for the School Board. The Board having considered the same and having heard argument of counsel, IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that: The Hearing Officer's findings of fact, conclusions of law and recommended order attached hereto be and the same hereby is adopted as the final order of the School Board, with the exception of the recommendation that the respondent be reinstated to his former position at Miami Southridge Senior High School, which is rejected by the School Board; and The suspension of Randolph Rice for the period March 22, 1979 through May 2, 1979 be and the same is hereby rescinded, and the respondent, Randolph Rice, shall be reimbursed for all salary lost during the period of that suspension. DONE AND ORDERED this 5th day of September 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By Phyllis Miller, Chairman
The Issue The issue presented for determination is whether the proposed high school attendance zone plan, Z2, is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: This rule challenge to a proposed rule is a result of proposed changes to school attendance zones in Seminole County, Florida, which would result in students attending different schools than they presently attend. Hagerty High School (Hagerty) is a newly constructed Seminole County school. The opening of this new high school in August 2005 was the catalyst for the county-wide rezoning. Incidental to rezoning to accomplish populating the new high school, adjustments in student populations were made in an attempt to create appropriately balanced racial and ethnic student populations and to alleviate school over-crowding. Since 1970, schools in Seminole County have been subject to the jurisdiction of the Federal government regarding desegregation of the public schools. This continuing jurisdiction is the subject of "Consent Decrees" between the United States of America and Respondent in Case No. 70-152, ORL CIV (M.D. Fla. August 19, 1975). In particular, adjustments in school attendance zones have been the subject of the scrutiny of the Federal government. Several members of the current School Board were on the School Board when a rezoning plan was rejected by the Federal government. Since early in the 1990's, the School Board and school administration have aggressively pursued the goal of a "unitary" school system, i.e., a system that has accomplished a myriad of goals which equate to a system wherein any student, regardless of race and ethnicity, has an equal opportunity for a quality education. Once the status of a "unitary school district" is accomplished, direct Federal supervision will cease. In 2002, preparing for the day when "unitary" status would be achieved, the School Board developed an extensive post-unitary status policy. The Parties Petitioner, Jennifer Finch, is the mother of Christopher Brady; she and Christopher reside in Seminole County, in the residential community known as Sable Point. Christopher is currently in the sixth grade. The Finch residence is in Cell 27A; a "cell" is a geographic area created by the Core Committee when it divided the county into numerically identified “cells” for purposes of considering rezoning alternatives. The Finch residence is currently zoned for Lake Brantley High School. As a result of the proposed rezoning, children (with the exception of "grandfathered in" children) residing in Cell 27A will be zoned to attend Lyman High School. Lake Brantley High School is "over-crowded." The facility is designed to accommodate 3,000 students; it has a current student population of approximately 3,650. Because of Lake Brantley High School's over-crowding, its principal regularly audits the student population, using unique and creative methods, in an effort to assure that each of the students attending Lake Brantley High School is zoned to attend Lake Brantley High School. Petitioner, SC. Read, Inc., is a Florida corporation. Members of SC. Read, Inc., live in Cell 27A, and several of its members have children who are currently enrolled in the public schools of Seminole County. Intervenor, Tuscawilla Home Owners’ Association, Inc., is a Florida corporation. Part of Cell 10, and all of Cell 11, are within the area of subdivisions represented by Intervenor. Intervenor has 2,109 member households; 734 member households are in Cells 10 and 11. The homes in Cells 10 and 11 are single-family residences with many children who attend Seminole County public schools. The proposed rezoning contemplates students living in Cells 10 and 11, who are not specifically "grandfathered in," attending Oviedo High School instead of Winter Springs High School where they are currently zoned. One of the specific functions of Intervenor is to engage in efforts to secure educational opportunities and a stable educational environment for its members. It has historically worked with the schools to provide increased educational and extracurricular activities for its constituent members. The School Board is the governmental entity responsible for the operation, supervision, and control of public schools in Seminole County, Florida, including establishing attendance zones, determining the educational capacity of schools and assigning students to schools. The Rezoning Process Rezoning is a thankless responsibility; whenever the lives of children are disrupted, parents are unhappy. Moving a student from one school to another, places unanticipated demands on both parents and students. In January 2000, the School Board adopted a policy entitled “Revision of School Attendance Zones” (hereinafter referred to as “Policy J”). Section III of Policy J, entitled Process for Revision, at Step One provides, in relevant part: The Board establishes a Core Committee including, but not limited to district representatives . . . , affected school administrators, a representative from the affected School Advisory Councils, and a PTA representative from the affected schools to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress . . . . The role of the Core Committee in the rezoning process is advisory. Its responsibilities, as enumerated in Policy J, are to serve as a conduit for public communication, receive demographic data, create "cells" to be considered in attendance zone shifts, consider public input, and create rezoning plans to be considered by the School Board. Policy J provides definitions of certain "words of art" used in the rezoning process, for example, "Over- enrolled/under-enrolled": an over-enrolled school has an enrollment that exceeds its permanent design capacity, and an under-enrolled school has an enrollment less than its design capacity -- both are identified on an annual basis, and "Design capacity": the permanent capacity of a school as calculated by the Department of Education. Portables are not included in the design capacity of a school. The calculation variables include class size, classroom program types, and scheduling. Based on appropriate definitions and criteria, Lake Brantley High School is "over-enrolled" and Lyman High School is "under-enrolled." In addition, Policy J specifies specific parameters that "current and proposed attendance zone plans will be measured against." The parameter having the highest priority according to this policy is: "[T]he plan is consistent with the district Consent Decrees as long as the decrees remain in effect." In April 2004, in anticipation of the August 2005 opening of Hagerty, the rezoning process was initiated. Because rezoning was county-wide and affected numerous schools, the Core Committee consisted of 54 people. The following schedule was established: Organizational Meeting June 15 Core Committee will identify "cells" Core Committee (CC) August 19 CC will use cell data to develop plan options Core Committee Sept. 2 CC will choose plans for public input Public Input Sept. 20 Lyman High 7:00 PM Public Input Sept. 23 Winter Springs High 7:00 PM Core Committee Sept. 30 CC uses public input to develop final drafts School Board Public Input Oct. 26 Educational Support Center 6:00 PM Final Adoption Nov. 9 This schedule outlined in paragraph 17, supra, was essentially followed. However, one meeting was cancelled and one shortened because of hurricanes. The Core Committee meetings, while they took place in public facilities, did not lend themselves to ongoing public input due to the nature of the work that was to be accomplished by the committee members. As would be expected, the committee members relied heavily on school administrators, Deputy Superintendent of Operations Dianne L. Kramer, in particular, who was the facilitator and contact between the committee and school administration, for information necessary for their consideration of student demographics, school populations, and other pertinent data for high schools and middle schools. Geographic enrollment numbers (all potential students living in a geographic area) were used, which is appropriate for rezoning planning. In addition to the information provided directly and electronically to the Core Committee members, which was more than adequate and conforming to Policy J requirements, the School Board made this information available to the interested public directly and electronically. Nothing in this record indicates that any Core Committee member was denied any needed information. Policy J charges the Core Committee with the responsibility "to solicit public input, develop and evaluate alternative plans, and keep the local community informed of the progress." This was accomplished. Because the Core Committee is composed of members of the Parent-Teacher Associations and School Advisory Councils from each affected school, parents were involved and made aware of the Core Committee activities. The Core Committee and the School Board meetings were advertised as required. There was a great deal of public awareness of the rezoning process. For example, it was estimated that 1,600 people attended the two scheduled "public input" sessions, and the School Board meeting and workshop where the plans were presented took more than seven hours. At the conclusion of the Core Committee's consideration of many alternatives, some of which were submitted by the public, three rezoning plans were advanced by the committee. These plans were identified as W, Z, and Z1. Plan Z1 was a plan modified by Deputy Superintendent Kramer at the direction of the committee. These plans were then published on the School Board web-site and made available to the School Board members. Policy J and the Core Committee's stated involvement and participation in the "process for revision," was substantially complied with and any deviation from Policy J or the Core Committee's purpose was insignificant and did not negatively affect the rezoning process. On October 19, 2005, the School Board members took an informational bus trip during which they traveled proposed bus routes for the rezoning plan alternatives. The School Board members are generally familiar with routes to and from the various schools in Seminole County. Seminole County, like most of Central Florida, has experienced dynamic growth in the past decades. This growth has burdened the infrastructure of all communities. As a result, not only are new schools needed, but roads must be constructed and improved. Traffic congestion, whether occasioned by too many vehicles, new construction or for whatever reason, is a daily challenge to central Floridians. Regardless of the particular school a student attends, buses transporting students will be a part of the traffic with which all motorists, including the bus drivers, must contend. Student transportation is a consideration in rezoning, but is not significant or controlling. The School Board has a safety advisory committee whose membership includes police officials and traffic safety personnel from the various governmental entities in Seminole County. As safety or traffic issues arise, this committee provides recommendations regarding those issues. As the need arises, bus routes can be adjusted to accommodate optimum travel time and safety. Subsequent to the publication of the Core Committee Plans W, Z, and Z1, several of the School Board members approached Superintendent Bill Vogel and indicated that they did not feel that any of the Core Committee plans would be acceptable to the Federal government. The School Board members are regularly informed of student demographics, school populations, over/under-crowding, and myriad other statistics which help them make informed judgments in their roles as School Board members. On each school day, every Seminole County school electronically provides the School Board administration with data, including attendance information, to assist in school governance. During the rezoning process, each School Board member was provided timely updates on the Core Committee's activities and had numerous contacts with the general public regarding concerns associated with rezoning. Perhaps, the School Board members who had previously seen a rezoning plan rejected by the Federal government were overly concerned; perhaps, in order to achieve "unitary" status, they wanted to see racial and ethnic ratios adjusted to meet county averages; or perhaps, they were concerned about under/over-crowding. For whatever reason, the School Board members directed Superintendent Vogel to create additional rezoning plans which would address over-crowding at Lake Brantley High School and student enrollment at Lyman High School that included disproportionately high percentages of students qualifying for free or reduced-price lunches. As a result, Superintendent Vogel directed Deputy Superintendent Kramer to prepare modified plans addressing the deficiencies in Plans W, Z, and Z1: that enrollment at Lake Brantley High School had not been reduced in the plans presented by the Core Committee to the extent that it needed to be and that the percentage of students receiving free and reduced-price lunches at Lyman High School was too high in each of the plans presented by the Core Committee. In addition, Superintendent Vogel believed a greater number of the district's high schools could be closer in enrollment percentages to the county-wide averages for black students, Hispanic students, and students receiving free and reduced-price lunches. This planning direction is one of the fundamental considerations of Policy J. Using essentially the same data and cells identified by the Core Committee, Deputy Superintendent Kramer developed Plans Z2 and Z3 in response to the Superintendent's directive. Plan Z2 incorporates the essential components of the plans advanced by the Core Committee with modification of the attendance zones for specific cells. The primary modification in Plan Z2 is moving Cell 27A from the Lake Brantley High School attendance zone to the Lyman High School attendance zone. Cells 10 and 11, which are included in the Intervenor's area of interest, were recommended for transfer from Winter Springs High School in Plan Z as well as Plans Z1 and Z2. Plans Z1 and Z2 were forwarded to the School Board and the Core Committee members electronically upon development. On October 26, 2004, after being appropriately advertised, all five rezoning plan alternatives were presented at an eight-hour public meeting of the School Board held at the School Board's administration building, at which time the public addressed the School Board on the subject rezoning plans. At the close of the public input, Superintendent Vogel recommended Plan Z2 to the School Board. During the presentation in which Plan Z2 was recommended, Superintendent Vogel presented an assessment of each of the five rezoning plan alternatives and how each impacted each Seminole County high school, including the new high school, Hagerty. This assessment included the current student enrollment, with black students, Hispanic students, and students receiving free or reduced-price lunches noted by percentage, current numeric enrollment, and target numeric enrollment. The assessment specifically addressed the effect of each rezoning plan alternative on these critical areas and demonstrated how each plan alternative measured against each critical area. Superintendent Vogel's recommendation reflects consideration of the criteria and process outlined in Policy J, as well as considerations fundamental to the basic objectives articulated by the School Board's commitment to becoming a "unified" school district. Members of the School Board were not bound by Superintendent Vogel's assessment; each had a worksheet by which each individual School Board member could render his or her own assessment. In addition, several of the School Board members had over 14 years of Board experience being first elected in 1990. These experienced members had participated in previous rezonings and had a wealth of experience and knowledge of critical information needed to make informed decisions with or without Superintendent Vogel's assessment of the various plans. The totality of the evidence presented revealed that each of the School Board members was well-informed on all significant data needed to make an informed decision. At the close of the October 26, 2004, meeting, the School Board unanimously voted to accept Superintendent Vogel's recommendation of Plan Z2 with certain modifications.
The Issue Whether Respondent should be terminated from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a doctorate in American Civilization and Third World Literature. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France, and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students. Respondent began her career with Petitioner as a substitute teacher. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave Respondent numerous suggestions to help her keep students on task, to maintain control, and to promote interaction between teacher and students in the class. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By Mr. Scriven's count, ten students never participated. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS prescription manual. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task. As a result of the observation on March 25, 1998, Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1998. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade Legal Department 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
The Issue Whether Respondent should be dismissed from her employment with the School Board of Dade County, Florida, upon grounds of incompetency, gross insubordination, willful neglect of duty, misconduct in office and/or absence without leave. POST-HEARING PROCEDURE A transcript of the formal hearing was provided the undersigned on March 21, 1985, and proposed findings of fact and conclusions of law were timely filed by both parties. A subsequently-filed revision of Respondent's initial proposal was accepted without objection and considered. When a party's proposed findings of fact were consistent with the weight of the credible evidence admitted, they were adopted and are reflected in the Recommended Order, but to the extent proposed findings of fact were not consistent with the weight of the credible evidence, they have been rejected or, where possible, modified to conform to the evidence. To the extent proposed findings of fact have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence. A ruling on each proposed finding of fact has thereby been made either directly or indirectly except where the proposed finding of fact was cumulative, immaterial, or unnecessary. Based upon observation of the witnesses and their candor and demeanor while testifying, all exhibits admitted in evidence, and the proposals and arguments of counsel, the following relevant facts are found:
Findings Of Fact Respondent was initially employed by Petitioner on November 15, 1982, at West Little River Elementary School. She suffered a non-school related accident and was absent approximately 121 days during the 1982-1983 school year. Observations of her teaching by her then-principal, John Johnson II, were unfavorable, but due to the prolonged absences, those observations did not result in any formal evaluations/recommendations. Respondent's requested leave for this period was granted and approved by Petitioner upon the basis of her severe electrical shock and back injury. Some of this period was classified as leave without pay. Petitioner also paid Respondent's insurance premiums for this period. Having thus condoned this absenteeism, Petitioner cannot now be heard to complain of it. (See allegations of Paragraph 18 of the Notice of Charges.) Principal Nicholas Rinaldi of Bay Harbor Elementary School hired Respondent as the teacher for its new "home-based" gifted program beginning there for the 1983-1984 school year. Although Principal Johnson would not have recommended Respondent for employment in the second year, he was not consulted by Principal Rinaldi. Principal Rinaldi told Respondent that she was limited to a $1,000.00 budget for purchasing materials for the program she was to develop. Principal Rinaldi understood that Respondent knew she was both to stay within this budget which is the standard limit at all home-based gifted programs and that she was required to get prior approval of her purchases from him. Apparently, Respondent grasped, the concept of a $1,000.00 "cap" but did not initially understand that she was to obtain prior written permission. After two orders were cancelled, she still had overspent by $60.00. She was then told specifically not to make any further purchases without the principal's permission. Thereafter, another order placed by Respondent was received at the school but Petitioner did not establish that Respondent placed the order after the cancellation of two prior orders and after Rinaldi's specific instruction not to order any more goods whatsoever. (See allegations of Paragraphs 1 and 3 of the Notice of Charges.) Respondent was clearly informed that she needed prior authorization for phone calls. She did not get prior permission for five long distance phone calls made personally or by students at her direction. The total cost of these calls is 8.56, which is very minimal. All calls were related to classwork with the exception of one call for $.44 and one call for $.25, which were admittedly of a personal nature. Respondent reimbursed the $.72 after the fact when notified of investigation into the phone bill. (See allegations of Paragraph 2 of the Notice of Charges.) Twenty-five students are required for a home-based gifted program. Bay Harbor was one of three North area schools piloting a home-based program in the 1983-1984 school year. In prior school years, gifted children from Bay Harbor attended a center program physically located elsewhere. A center program places a team of teachers of subjects from various schools in one physical location. Eligible students from various schools come to the center for two days a week for the gifted program and they receive their basic skills education at their respective home schools in the remaining three days per week. In a home-based program, a school which has enough gifted students elects to keep those students physically at the home school. They usually go into that program for two hours a day, every day. Some subject or subjects are used to deliver the gifted program. Those subjects are then graded by the home- based gifted teacher, who in this case was Respondent. When he hired her, Principal Rinaldi told Respondent that mathematics would be part of the new "home-based" gifted program, but math was essentially unstructured in the beginning. Thereafter, Principal Rinaldi instructed Respondent to utilize the standard Dade County "total math program, (TMP). When the TMP program was selected by Principal Rinaldi in approximately, December 1983, his motivation was that he understood TMP provided a structure for math that allows students to enter at the level that they are individually and moves each at a pace commensurate with his individual ability. Unfortunately, because a home-based program does not select its students on their specific giftedness in content area, some students in Bay- Harbor's 1983-1984 pilot program were lower than others in math. Some were even below their grade level. Those above the grade level were becoming bored with the program and those below the grade level were in a constant state of frustration struggling to keep up. A failure on Respondent's part to communicate surfaced, and misunderstandings arose between Respondent and parents and students as to the nature of projects, when projects were due and the reasonableness of homework. Problems concerning teacher absences also arose. The more academic and less "time-out-of-school" atmosphere of a home-based versus a center-based program also caused problems between the Respondent teacher and students/parents and between the Respondent and her principal. Upsets among the students and their parents resulted in many students being permanently removed from the gifted program. Over a period of time, the decrease in enrollment threatened to destroy the Bay Harbor gifted program, the survival of which required 25 students. On January 4, 1984, Principal Rinaldi observed Respondent's class for an hour for teacher evaluation purposes. This resulted in a basically good evaluation with some areas targeted for improvement (instructional planning and maintenance of student records [P-7]). The crux of this targeting was the principal's perception that Respondent did not record sufficient grades and her student files were not arranged alphabetically with papers arranged chronologically within each file. This standard of record-keeping is personal to Mr. Rinaldi and not uniform among other Dade County principals. At the standard post-observation conference, the two argued over the evaluation and the exactitude required by the principal, and Respondent refused to sign the evaluation to acknowledge that she had seen and received a copy of the document. As will be related infra, this refusal to sign or initial merely for acknowledgment of receipt of documents became a constant and continuing refusal on Respondent's part whenever the issue came up. Six days later she refused again; on January 17, 1984, Respondent responded in four written pages defending her methods. As events unfolded chronologically thereafter what started basically as a personality clash of the principal's "irresistible force" authoritarianism and the teacher's "immovable object" obstructionism mushroomed to affect students, parents, teachers, and administrators. In early January, Respondent complained concerning the inclusion of math in the gifted program to a higher outside administrator Dr. Agerwald. Mr. Rinaldi objected to this contact. On January 11, 1984, Mrs. Vickers, Petitioner's Director of Exceptional Students Program, arrived to observe Respondent's classes. She prepared a "School Visitation Report." The report is basically positive but does comment that the gifted classes are too big and current IEPs (records) were not and should have been available in the classroom. On February 2, 1984, Vickers issued a commendation to Hay Harbor on quality of cumulative records for exceptional children. Mr. Rinaldi passed this commendation (R-19) on to Respondent with the note, "Mrs. Burton, please continue this fine record 2/6/84." On 1/23/84, he also commended her on quick responses to the Miami Module records-keeping requests (R-20). Petitioner's advisor to gifted teachers, Richard Huffman, was assigned to assist Respondent at the beginning of the 1983-1984 school year. He testified that in his opinion she was a fit teacher, but he was removed as her advisor at the end of January or early February. February 24, 1984, Assistant Principal Vince Vignola observed Respondent in the classroom for a full hour and rated her overall acceptable except that she needed more grades in math and had, lost a student "contract" which had never been signed. Principal Rinaldi called in Gary Rito, Petitioner's Director of Academic Excellence for help resolving the gifted class problems. On March 2, 1984, Mr. Rito met with Respondent, Principal Rinaldi, and Mrs. Laurence, mother of a gifted student. Respondent and Laurence, who teaches elsewhere in Dade County, exchanged sharp words. It was agreed to meet again on March 8, 1984. At that time, James Miley, Petitioner's Supervisor of Gifted Programs, was present. Respondent was given written notice of the meeting one day in advance. Respondent elected to continue in this meeting at the conclusion of the school day. At this time most of her concerns, as expressed to all others present, were with the number of subjects she was required to cover and with the content of the mathematics curriculum in particular. Mr. Rito explained that "gifted" symbolizes a "technique" not a "subject," that Respondent was to use this technique for teaching subjects of math, science (which Respondent should be teaching anyway), and social studies, and for teaching a health and safety unit which was taught for only one or two grade units. Respondent strenuously objected to the use of the TMP math program. Rinaldi and Miley concurred that it was reasonable to include math in the gifted program. Math was, in fact, successfully used in the other two home-based programs beginning in Bay Harbor's Division that year, but the programs utilized may not have been the TMP. Nonetheless, the following adjustments were agreed upon among all those present at the March 8, 1984 meeting: Principal Rinaldi agreed to relieve the academic excellence program of the TMP math program and increased their enrichment activities; Ms. Thomas, Say Harbor's 6th Grade math teacher, was assigned by Principal Rinaldi to help Respondent in math. It was later Ms. Thomas' assessment that Respondent did not understand the TMP concept; and Respondent was directed and agreed to develop four units of study in botany (2 intermediate and 2 primary) to cover the rest of the school year (9 weeks). These plans were to cover instructional objectives, classroom activities, student evaluation methods and homework assignments on a time line. A preliminary plan was to be shown by Respondent to Mr. Miley on March 20. This assignment was primarily the result of a request by Ms. Laurence and other parents requesting to see a sets of plans for purposes of deciding whether to leave their children in the Respondent's class or return those who had already been withdrawn. Rinaldi, Rito, and Miley felt the plans required by the directive would ease the primary problems of implementing the program and of parent-teacher communications and misunderstandings which had been growing, and also felt they were reasonable and necessary. Everyone was aware that withdrawal of Mrs. Laurence's child could reduce program enrollment below the 25 student minimum required. However, no one clearly expressed the belief that this directive was a prescription to improve Respondent's teaching performance, which had been found basically sound up to this point. 1/ The direction itself was for a reasonable and necessary purpose (preserving and improving the gifted program). However, despite Mr. Miley's opinion that the plans as initially directed were reasonable and necessary and despite Respondent's failure to object to the direction at this point, the initial scope of the direction was actually unreasonable under the circumstances. Mr. Miley postponed his scheduled meeting with Respondent from March 20 to March 23, 1984. On that date, Respondent had nothing to show him with regard to the required botany units she had been asked to prepare. Mr. Miley met with Respondent anyway and reduced the required units from 4 to 2 and extended the time for preparation until April 12, 1984. He also gave her a document entitled "Standards of Excellence" for use in the units she was to prepare and agreed to let Respondent continue with her present evaluation system. This adjustment, made in consultation with Respondent also rendered the scope of the direction to prepare the units reasonable. 2/ On April 12, 1984, Mr. Miley asked for the required botany units and received nothing from Respondent. He returned to the school on April 13, and Respondent produced a series of goals and objectives essentially copied from the "Standards of Excellence" wherein she had identified part of a program for the primary students but none for the intermediate students. There were no classroom activities listed, no homework mentioned, and no time lines provided. Despite the extension of time, Respondent did not fulfill the required directive even in its reduced and consequently reasonable form. 3/ The units were not further amplified by Respondent before she left on April 20 and Mrs. Laurence's child was permanently removed from the gifted program. (See allegations of Paragraphs 5 and 7 of the Notice of Charges). On March 12, 1984, Respondent called Principal Rinaldi a liar three times in the presence of two other school employees. 4/ (See allegations of Paragraph 4 of the Notice of Charges.) Respondent later informed Principal Rinaldi that she perceived the March 8 meeting as disciplinary in nature. He had not considered it so. He accordingly removed a request for her signature from a summary he had prepared of the March 8 meeting and scheduled a "conference-for-the-record" for March 16, 1984. Conferences-for-the record are disciplinary conferences. The March 16, 1984 meeting was postponed at the request of the Respondent's union representative. A second request for postponement for emergency reasons peculiar to the schedule of that particular union representative (Ms. Perez), was not granted and the conference-for-the-record went forward on March 20, 1984, with Respondent accompanied by her union steward, James Collings. At this conference, Rinaldi discussed the same matters that had been discussed at the March 8, 1984 meeting, the incident which had occurred March 12 when Respondent called him a "liar" three times, Respondent's unsatisfactory attendance record that year, and the fact that her absences were having an adverse effect on the program. Respondent was specifically instructed by her union advisers not to speak at this conference. Certainly she did not deny the March 12 "liar" incident. When she did not respond to Principal Rinaldi's accusations and inquiries, he became agitated. Respondent had received prior approval for a half-day in-service conference (8:30 a.m. to noon on March 21, 1984) with Mrs. Vickers, Director of Petitioner's Exceptional Student Education Program. When she did not report back to teach at Bay Harbor that afternoon, Mrs. Macri, secretary to Principal Rinaldi made inquiries and Respondent's continued presence with Mrs. Vickers was confirmed, but not approved. This constitutes a 1/2 day's absence without leave. No substitute was procured since Respondent had been expected to teach her afternoon class. (See allegations of Paragraph 12 of the Notice of Charges.) On March 28, 1984, during a regularly scheduled parent meeting, the parents present expressed a great deal of dissatisfaction with various aspects of the gifted program, particularly math. Principal Rinaldi publicly attributed the problems in the gifted program to Respondent and Respondent retaliated by publicly stating that she did not believe TMP math should ever have been included in the gifted program and that she had no control over the inclusion of the math. The majority of witnesses actually present at this meeting found its entire tone and nature informative prior to Principal Rinaldi's comment. Even then, Respondent's comments may have been less than tactful but were hardly untruthful, unprofessional, irresponsible, or incendiary. (See allegations of Paragraph 6 of the Notice of Charges.) Respondent was tardy to the March 29, 1984 faculty meeting. Based on the contemporaneous memoranda and letter, Respondent's estimate of 3-4 minutes tardiness is accepted over Dr. Rinaldi's later estimate of 20 minutes. The causes related contemporaneously by Respondent are entirely reasonable. (See allegations of Paragraph 11 of the Notice of Charges.) At Principal Rinaldi's April 16, 1984 classroom observation of Respondent, he rated her teaching performance as unacceptable in 3 categories: preparation and planning, assessment techniques, and professional responsibility (P-18). Rinaldi testified that his negative ratings in preparation and planning were due to what were minor concerns on the January evaluation. However, as observed above in Fact Paragraph 6, the January evaluation actually concentrated on the principal's particularly harsh requirement that Respondent's student files must be arranged alphabetically with papers neatly arranged chronologically within each file. Since his perception of the adequacy of records is so intensely personal to Mr. Rinaldi and in light of interim commendations to Respondent for record-keeping, his April analysis of inadequate records of assessment renders the final evaluation "score" highly suspect. 5/ (See allegations of Paragraph 8 of the Notice of Charges.) Respondent was tardy to work and failed to timely sign in on March 26, 27, 28, and April 20, 1984. (See allegations of Paragraph 13 of the Notice of Charges.) Respondent was absent on April 17, 18, and 19. She requested leave for April 17-18 late but it was approved and authorized in advance by Principal Rinaldi for participation in religious holidays. However, these were absences without pay and pushed Respondent over the number of personal leave days to which she was annually entitled. Respondent was absent without authorization on April 19; this was an absence without pay. (See allegations of Paragraphs 14 and 19 of the Notice of Charges.) On April 20, 1984, Respondent protested, but finally agreed to meet with Principal Rinaldi in his office for a post-observation conference. Post- observation conferences are not normally considered disciplinary in nature. By this time, he had added Respondent's late notification of the 4/17-4/18 absence and her 4/19 absence to the prescription sheet as deficiencies. Respondent declined an oral dialogue with Rinaldi wherein she was invited to respond to the rating criticisms and prescriptions and offer alternatives and also refused to initial his notation that she insisted on responding in writing. Midway in this meeting, Respondent announced she was going to leave. Again, she would not sign to acknowledge receipt of the observation and prescriptions. Rinaldi instructed her that she was obligated to discuss the rating and if she left, he would consider it insubordination. Respondent left his office and the school and did not return to work as a teacher at Bay Harbor again. A formal reprimand issued partly as a result of this incident. (See allegations of Paragraph 9 of the Notice of Charges.) On April 23 and April 24 Respondent was absent without pay. April 23 was unauthorized leave. (See allegations of Paragraphs 14 and and 19 of the Notice of Charges.) With regard to the frequent' short absences, which total led 18 as of April 22, Respondent rarely if ever complied with the "Teachers' Handbook" guidelines for advance notification. Respondent originally felt that it did not matter what type of leave (personal or sick) was listed because she had no leave left anyway. Although many of these absences were for legitimate illnesses or injury of herself or a relative, there was either an on-going absence of lesson plans or a failure on Respondent's part to inform the principal that she had created plans since he last commented on there being none. Consequently, he often could not or did not secure substitutes. This resulted in wasted class time and interfered with classroom continuity. Some of Respondent's unauthorized absences were simply gifted programs she chose to attend without notifying the principal in advance. Respondent was also absent during the 1983-1984 school year for two lengthy periods, which, with all other absences, totalled 62 1/2 days. Medical narratives, admitted without objection, corroborate Respondent's testimony that the two lengthy absences were the result respectively of unanticipated allergic complications of a CAT scan (from January 30 to February 10, 1984,) and of surgery to correct acute sinusitis and recovery time from late April until release. One doctor released her from this last treatment On May 29, 1984; the other released her on June 8, 1984. During the period of time she was absent immediately following the April 20 "walkout" incident until approximately June 8, Respondent failed to adequately inform Petitioner of her proposed date of return. Certified letters sent to her post-office box were returned because Respondent did not pick them up and Petitioner could not send these to her by regular mail or by hand- delivery via a "visiting teacher" because Respondent had never informed Petitioner of her street address. The failure of Respondent to stay in touch, her failure to indicate when she could return to work, and her failure to indicate that her absence would be lengthy resulted in an inability of Petitioner to immediately hire a permanent substitute teacher. Therefore, the gifted classes had to "make-do" with a series of short term substitutes (4 or 5) until Mr. Rinaldi finally hired Mrs. Judith Dryanoff. This process created a lack of continuity in the classroom and more student withdrawals from the gifted program. The problem with multiple substitutes was compounded by Respondent's failure on April 24 and thereafter to have available substitute lesson plans. 6/ Because of Respondent's failure to leave any form of lesson plans or grade book, substitute Judith Dryanoff had to make up her own lesson plans for science and enlist the help of Janice Thomas for math plans. (See allegations of Paragraph 10 of the Notice of Charges.) On May 24, Principal Rinaldi signed Respondent's Annual Evaluation, not recommending her for employment in the next school year (P-22). When released by her doctors, Respondent was assigned by Administration to the North Area Office for June 11-15 and was expected by her principal to be at Bay Harbor simultaneously. She obviously could not do both. She was at the North Area Office for part of June 12 and at Bay Harbor for part of June 14. She was in neither location on June 11, 13, and 15. These days constitute absences without leave. (See allegations of Paragraph 19 of the Notice of Charges.) On June 12, 1984, James Monroes, a supervisor in Petitioner's Division of Personnel Control, ordered Respondent to begin the 180 hour course, Beginning Teacher Program, to start at 10:00 a.m., June 14, 1984, at Bay Harbor Elementary School. 7/ At 7:20 a.m. that morning Respondent confronted Principal Rinaldi in his office and called him "malicious, devious, incompetent," and "a sorry excuse for a principal." She accused him of personally taking her personal items from her room and of attempting to get her fired. 8/ Although she initially refused to come back for the program, she returned at 10:00 a.m. and repeated essentially the same harangue in the presence of Mrs. Thomas, the peer teacher selected to oversee Respondent's Beginning Teacher Program. Mrs. Thomas was called in by Mr. Rinaldi who had anticipated that a scene would ensue. Thereafter, out of Mr. Rinaldi's presence, Respondent invited Mrs. Thomas to sign a petition "to get rid of Mr. Rinaldi". (See allegations of Paragraph 15 of the Notice of Charges.) Dr. Huffman testified that Respondent also frequently yelled at Mr. Rinaldi in Dr. Huffman's presence prior to Dr. Huffman's February reassignment, and Mrs. Macri, secretary to Principal Rinaldi testified that she had heard Respondent call Mr. Rinaldi a "bastard" or refer to him as a"bastard," but the date of this incident(s) was not proven. On August 29, 1984, Dr. Richard Artmeier, supervisor of Petitioner's Division of Personnel Control, directed Respondent to be psychiatrically evaluated the next day to determine if there were any mitigating circumstances for her June 14, 1984 behavior. Respondent is obligated to submit to such evaluation by terms of her employment. After vacillation, Respondent refused to sign the written directive indicating its receipt and adamantly refused to see a psychiatrist. Finally, Dr. Artmeier directed her instead to report to the North Area Office the next day. Respondent did, however, actually go the next day as originally directed for psychiatric evaluation to Dr. Gail Wainger. Dr. Wainger was on Petitioner's "approved" list. In so doing, Respondent could not immediately comply with the directive to report to the North Area Office. Respondent reported to the North Area Office later the same day after her psychiatric evaluation. Petitioner accepted Dr. Wainger's psychiatric evaluation of Respondent, paid for it, and it was admitted at hearing upon Petitioner's motion (P-38). Since Respondent could not be in two places at once, she fulfilled the alternative directives reasonably by fulfilling them sequentially even if she did initially refuse. (See allegations of Paragraphs 16 and 17 of the Notice of Charges). The psychiatrist's evaluation is admissible under Section 231.291, Florida Statutes and has been considered. Upon that evidence, together with all other credible evidence adduced at formal hearing, Respondent was accountable for her actions. Respondent has never qualified for and has never been characterized as a teacher under continuing contract.
Recommendation It is recommended that Petitioner enter a Final Order dismissing Respondent from employment with the Dade County School Board and denying any claims for back pay. DONE and ORDERED this 20th day of June, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 20th day of June, 1985.
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
Findings Of Fact At all times material to this proceeding, Petitioner was a duly constituted school board. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell. J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell. J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris. DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jimmie D. Harris 13336 S.W. 112 Place Miami, Florida 33176 Frank R. Harder, Esquire Suite 100 - Twin Oaks Building 2780 Galloway Road Miami, Florida 33165 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132 APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court. The temperature on April 15, 2010, was 81 degrees. The students were exposed to the sun while they were walking. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1 According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking. All students in the class were required to walk without stopping for 32 minutes. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately 2:54 p.m. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2 Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the circumstances of the case and the exposure of the students to harm. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3 There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement." Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 14th day of March, 2011.
The Issue Whether the Respondent's teaching certificate should be revoked or disciplined on grounds that she is incompetent to teach or to perform her duties as an employee of the public school system and is unable to effectively meet her responsibili- ties as a classroom instructor, and that she intentionally ex- posed her students to unnecessary embarrassment or disparagement.
Findings Of Fact At all times material hereto the Respondent held Teaching Certificate Number 182937, issued by the Department of Education for the State of Florida. This certificate covers the areas of English and administrative supervision. The Respondent was first employed by the Dade County School Board in 1966. She taught elementary levels first through fourth grades at Shadowlawn and Allapattah Elementary Schools. In 1971, the Respondent transferred to Shenandoah Junior High School, where she taught seventh through ninth grade English until she transferred to Highland Oaks Junior High in 1982. (RE 1) Prior to the Respondent's transfer to Highland Oaks Junior High School she received observations and evaluations which rated her performance in the 3.6 to 4.5 range. The Respondent testified that she received excellent to superior ratings on her evaluation sheets. The school system however considers this to be the ratings of an acceptable or satisfactory teacher. Over 4.6 would be considered excellent or superior. (T538, 623) For the 1982-83 school year through the 1984-85 school year (with the exception of a maternity leave of absence), the Respondent has been employed with the Dade County School Board and assigned to Highland Oaks Junior High School as an English language arts teacher. (T536) The Respondent started the 1982-83 school year late due to a back injury. (T223) Within a week the school began receiving complaints from parents dissatisfied with the Respondent. Parents complained that their children who were Level III students (average - above average ability) were being taught at Level II (below average ability). One of the Respondent's Level III classes through no fault of the Respondent's had been mislabeled as a Level II class. This was corrected immediately. The parents from her other Level III classes which were not mislabeled also complained. The Respondent testified that the dissatisfaction and complaints of the parents all stemmed from the mislabeling of her one class. (T221-223, 548) On October 8, 1982, Assistant Principal Nelson had an informal conference with the Respondent following phone calls and complaints from parents. (T182-183) Mrs. Nelson recommended that the Respondent not eat in the classroom and not use the T.V. for watching soap operas. (SE24F) Mrs. Nelson discussed the need for more rigorous assignments for the Level III students. She asked another teacher, Mrs. Susan Ruskin, who was also the department chairman for language arts, to explain the difference between Level II and Level III students to the Respondent. Mrs. Nelson informed the Respondent that she needed to keep her lesson plans up-to-date. She also needed to specify different lesson objectives for the Level II students as opposed to the Level III students. Mrs. Nelson cautioned the Respondent to watch her language and word choice when speaking to her students. She encouraged the Respondent to call the students' parents when a problem arose. (SE24F) On October 12, 1982, Mrs. Ruskin met with the Respondent to assist her in differentiating between Level II and Level III students. She also discussed discipline, homework, and other curriculum problems with the Respondent. Mrs. Ruskin told the Respondent that she was available if the Respondent needed assistance. The Respondent never asked Mrs. Ruskin for help. (T362, 366-367, SE24) On October 13, 1982, the Respondent's seventh grade Level III English class was formally observed by Assistant Principal Nelson. Mrs. Nelson rated the Respondent unacceptable in the areas of preparation and planning and techniques of in- struction. Mrs. Nelson rated the Respondent unacceptable in preparation and planning because the Respondent did not list more rigorous lesson objectives for the Level III students. The Respondent's lesson objectives were too general and her homework assignments vague. (SE24-B) The Respondent was rated unacceptable in techniques of instruction because she did not adapt the materials to the interest and ability of each student. The Respondent's questioning of her students was not done in depth and lacked important follow-up questions. Her lesson lacked closure: there was no overview or conclusion at the end of the class period. The Respondent's homework assignments did not have any value and the Respondent failed to recognize students for having done or not done their homework. (T188-190) Although Mrs. Nelson rated the Respondent acceptable in the area of classroom management, she was concerned that the Respondent wasted twenty (20) minutes getting the class settled down and on task. Mrs. Nelson recommended that the Respondent establish and enforce classroom rules. (T195) On November 9, 1982, Dr. Mildred B. Augenstein, the principal of Highland Oaks Junior High School did a formal observation of the Respondent. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEI) The Respondent was rated unacceptable in knowledge of subject matter because she neither presented her lesson knowledgeably nor used the appropriate teaching methodology. When asked for the definition of science fiction the Respondent answered incorrectly that it was fiction about science. In giving a spelling test, the Respondent merely read the words off instead of following the accepted and simple procedure of pronouncing the word, using the word in context, and then repeating the word. (T20-23) Dr. Augenstein rated the Respondent unacceptable in classroom management because the class was not in control. Students spoke up at-will without raising their hands for acknowledgment. The class was late in beginning because the children would not settle down. The Respondent appeared unable to keep her students focused on the learning process. Children who were trying to learn were distracted by the unruly children. (T28-30) The Respondent was rated unacceptable in the category of techniques of instruction because the Respondent's instructions to the students were unclear. When the students asked questions for clarification, the Respondent could not adequately answer. Dr. Augenstein felt that the Respondent was deficient in the sequence of her lessons. There was no background, no purpose and no follow through. Instead of facilitating a learning experience the Respondent was merely assigning activities. (T3O-40) Dr. Augenstein used the Teacher Assessment Development System (TADS), the approved assessment instrument (jointly developed by the school system administration and the teachers union and approved by the school board and the state) to assess the Respondent. The TADS is meant to act as a support system to help teachers overcome their deficiencies. A part of the system is the TADS prescription manual. This is a large manual which contains various self- assessment activities and learning materials keyed to various problem areas. (T20-26) On November 24, 1982, Dr. Augenstein presented a prescription to the Respondent to address the deficiencies noted at the observations on October 13, 1982 and November 9, 1982. To remediate weaknesses observed by Mrs. Nelson in preparation and planning, Dr. Augenstein made specific recommendations. These included turning in lesson plans every Friday to Mrs. Nelson. They were to be done separately for the Level II and Level III classes. They were to include the days' objectives, activities, assessment procedures, homework assignments, and the materials and media to be utilized. Dr. Augenstein recommended Mrs. Ruski (she language arts department head) and Mrs. Earle (the librarian) as good source people. (SE1-B) To remediate weaknesses observed in the Respondent's knowledge of subject matter, Dr. Augenstein assigned specific pages and exercises in the TADS prescription manual to be completed by December 8, 1982. The Respondent was also instructed to contact the Teacher Education Center (TEC) and enroll in course offerings of language arts by December 15, 1982. Dr. Augenstein suggested that the Respondent visit other language arts classes prior to December 15, 1982. To remediate the Respondent's weakness in classroom management, Dr. Augenstein recommended that the Respondent establish class rules and enforce them. The Respondent was directed to investigate a course on assertive discipline or teacher effectiveness training and to enroll in a TEC course in classroom management by March of 1983. The Respondent was also directed to review the faculty handbook which contained the rules and regulations of the school. She was directed to work with Assistant Principal Fontana to set up her classroom rules. (SEI, T32-36) To remediate the Respondent's deficiencies in techniques of instruction Dr. Augenstein prescribed resources such as the TADS manual exercises on questioning students, verbal interaction, effective teaching strategies, and instruction sequence. These were to be completed by January 15, 1983. Dr. Augenstein felt the Respondent needed to learn how to ask questions which lead the students into more critical thinking. The Respondent was to demonstrate at least one new teaching approach by January 15, 1983. (SEI) On November 29, 1982, a group of nineteen (19) parents met with Dr. Augenstein to lodge complaints against the Respondent. The parents requested that their children be assigned to another teacher for language arts instruction. The parents complained that the Respondent was not adequately prepared to teach, that she did not address separately and adequately the needs of Level II and Level III students, that she used "atrocious" grammar and poor pronunciation, and that she taught at a level below her students' abilities. The parents were angry that at the end of November their children were still in Chapter I of their textbook. They complained that work assignments were without purpose and often meaningless. Furthermore, the parents complained that the Respondent used inappropriate language in the classroom. The Respondent had called a child "a stupid ignorant person, yelled "shut-up" and had referred to the mother of one of her students as a "whore." The Respondent asked one student (in response to a request for a bathroom pass) whether she was "going to smoke or take quaaludes." The parents were upset that their children were subject to the Respondent's verbal abuse. They also complained that the Respondent had retaliated against students whose parents had made complaints by threatening and ridiculing the students by lowering student conduct grades. (SE2, T50-55) The parents reported a change in their children's atti- tude toward learning and school. Their children hated school and did not want to attend. The parents reported that the Respondent would indiscriminately punish an entire class for the misbehavior of various individuals. The Respondent had handed out detentions to two whole classes and then did not show up herself to supervise the students when they reported for the detention. (SE2-A) The parents reported that the Respondent had watched the soap opera "The Young and the Restless" on the educational T.V. in her classroom. They complained that at an open house for parents the Respondent was late and then allowed her own child to disrupt the program. The Respondent did not abide by school procedures requiring notice to parents of their child's unsatisfactory progress before giving a students an "F" in conduct. One parent related that the Respondent initially would not provide homework assignments for a sick child and then finally, after repeated requests, provided an inadequate and incomplete assignment. (SE2-B) The Respondent's response to the parents' comments and concerns was that the parents and students had "fabricated stories" and told "terrible lies" about her. She testified that the disciplinary problems in her class were because the students conspired against her to prevent her from teaching. She said that the students continually disrupted class and prevented her from teaching. The Respondent stated that she was shocked by the profanity that the students used among themselves. The Respondent denied that she had ever "blasphemed" a child. (SE2-E, T550-553) On November 23, 1982, one parent wrote a letter to Dr. Augenstein complaining of the Respondent's unjust treatment of her daughter, one of the Respondent's students. The parent complained that the Respondent punished all the students for the misbehavior of a few, She also complained of the Respondent's word choice, quoting the Respondent as saying in class,, "I'm not taking any crap from you kids." Her daughter had been so upset by the Respondent's treatment that she became physically ill with stomach cramps. When she requested a bathroom pass the Respondent "gave her a very hard time in front of the whole class." After the student insisted that it was an emergency, the Respondent looked at her watch and told her that she had sixty (60) second to go to the bathroom and was being timed. The parent was very upset at the emotional distress her daughter was suffering at the hands of the Respondent. (T2-1) Two other parents wrote the School on November 23, 1982, complaining that the Respondent's treatment of their particular children, and the students as a whole, was abusive. One parent emphasized that he did not want his child "humiliated or mistreated" by the Respondent. Both parents requested that their children be moved out of the Respondent's classroom. (SE2-J, 2-K) After the November 23, 1982, meeting with parents, Dr. Augenstein continued to receive complaints from other parents. On December 7, 1982, several parents met with Mr. Marvin Weiner, Superintendent of the North Area of Dade County Schools, Mr. Roger Frese, Director, and Principal Augenstein, and presented a petition signed by parents of the Respondent's students. They also presented more letters of complaint against the Respondent. (SE3) On December 13, 1982, Dr. Augenstein wrote the Respon- dent a letter to notify her that she had failed to comply with the prescription of November 24, 1982. The Respondent had failed to turn in lesson Plans as directed and the one plan she did turn in did not differentiate between Level II and Level III students. (SE4) On December 16, 1982, another parent wrote to Dr. Augenstein complaining of her son's treatment in the Respondent's classroom. Her son had been involved in an altercation with another student which developed into a fist fight. The Respondent ignored the incident and refused to separate the two boys stating, "let them both hang themselves back there." The parent sent a note to the Respondent requesting a seat change for her child. The Respondent read the note and did not respond to the parent. The Respondent, after some sarcastic words with the boy, refused to change his seat. The parent then received a poor progress report on her son, which the parent felt was either unjustified or due to her son's seat in the back of a noisy and unruly classroom. The parent felt that her son was not physically safe and secure in the Respondent's classroom. (SES-C) On January 6, 1983, another parent wrote complaining of a distressing phone call with the Respondent. The Respondent had told her that her son never came to class on time, never did his homework, and never passed any tests. The parent did not believe the Respondent since the parent closely monitored her child's homework. The parent went on to relate that she had given her son a note for all of his teachers indicating that he would be absent on a Friday and requesting assignments. The Respondent was the only teacher who did not provide any assignments. The letter written to Dr. Augenstein asked why if her son was doing absolutely nothing had she not received any sort of home progress report. (SE6) Teachers are required by the School Board to send notice to the parents any time their child is doing below average work or exhibiting below average behavior efforts. (T59) On January 6, 1983, the Respondent was again formally observed by Dr. Augenstien. The Respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, assessment techniques and teacher-student relationships. (SE7A, T60-67) Dr. Augenstein felt the Respondent's lesson plans were not being used as an important resource for the structure of her class. The plans were done but not followed. The Respondent also displayed an inadequate grasp of her subject matter language arts. She used the grammatically incorrect sentence, "what hour you went to bed last night." Furthermore, the Respondent provided unclear and inadequate instruction when giving a test on homonyms. Her lesson plans lacked cohesiveness and sequential meaning. There was little if any connection between lessons, leaving the students unable to grasp the overall meaning of what was being studied. (T6O-65) Although the January 6, 1983 observation was done near the end of the first semester, there was no evidence of a structured composition program. The county language arts directives require teachers to assign compositions, collect-the assignment, constructively critique it and then reassign it. This is done to benefit students in developing their writing skills. (T66-68) The atmosphere of the Respondent's classroom was uncomfortable and hostile. The teacher and student interchanges were very cold. (T67) No prescription was given following the January 6, 1983 observation due to the fact that the Respondent had not completed the November 24, 1982 prescription. The Respondent was instructed to continue with the old prescription. (T68) On January 11, 1983, Dr. Augenstein gave the Respondent a listing of courses offered by the Teacher Education Center (TEC) to remediate unacceptable areas noted on November 24, 1982 and January 6, 1983. (SE8) On January 19, 1983, another parent wrote Dr. Augenstein complaining that the Respondent had assigned a book report which was inappropriate for seventh graders. Dr. Augenstein agreed that the book report was too elementary for junior high school, particularly the Level III children. (T70) On February 8, 1983, Dr. Augenstein formally observed the Respondent. Since the January 6, 1983 observation, the Respondent had been reassigned lower performance students. This was done with the hopes that she would be able to handle her students more successfully. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEIO, T71) The Respondent mispronounced "architecture" and "denouncement" words that were critical to her lesson. The students were quiet and well behaved as long as Dr. Augenstein was in the room. When the Principal was in the adjoining room, the class became extremely loud. The teacher next door indicated that the Respondent's class was always very loud. The Respondent's lesson lacked closure; rather, it ended when the bell rang. Finally, the Respondent did not adequately answer her students' questions. (T70-73) Although the Respondent had been switched to all Level II students, she exhibited the same problems she had with her other classes. (T74) On February 17, 1983, Assistant Principal Nelson conducted a formal observation of the Respondent's seventh grade, Level II class. She rated the Respondent unacceptable in the areas of classroom management, techniques of instruction and teacher-student relationships. The Respondent's students were very noisy and the Respondent had great difficulty getting them settled. There was an undercurrent of noise throughout the whole class period. There was no focal point to the Respondent's lesson. The lesson should have been reinforced with supportive material such as writing on the chalkboard or an overhead projector to assist the students who were visual rather than auditory learners. Some of the Respondent's students were totally uninvolved with the lesson. A few students monopolized the discussion. The Respondent did not attempt to involve disinterested students. She gave no encouragement to the non- participants. The Respondent had assigned homework and only five students had done it and they received no reinforcement for their effort. The Respondent collected their work but did not grade it or place it in the students' folders. (SE39, T195-198) Assistant Principal Nelson did not assign a new prescription to the Respondent even though the time line on the November 24, 1982 prescription had run out. Instead, she reviewed the areas of the prescription that were incomplete and encouraged the Respondent to complete them, Mrs. Nelson felt that the November 24, 1982 prescription was a good one. (T200) On February 23, 1983, a conference with the Respondent, Dr. Augenstein, Assistant Principal Nelson, and Mrs. Yvonne Perez, a union representative, was held to discuss the status of remediation of observed performance deficiencies and to discuss reemployment of the Respondent. Principal Augenstein stated that she would recommend consideration of a return to annual contract status for the 1983-84 school year. (SE11) On March 2, 1983, the Respondent's seventh grade Level II class was again formally observed by Dr. Augenstein and Mr. Roger Frese, an outside administrator. The Respondent was rated unacceptable in the areas of knowledge of subject matter and techniques of instruction. The Respondent gave her students inadequate instruction. She asked them to read a short story and then write a paragraph describing a character in the story. There was no discussion or instruction on method of character development that could be used to develop the paragraph. Most of the children were unable to complete the assignment. When the children read their paragraphs, many of which were merely a synopsis of the story rather than the assignment, the Respon- dent did not differentiate between acceptable and unacceptable responses. (SE12, SE33A, T78) At the end of the class, the Respondent made a homework assignment but the bell rang before she could adequately discuss or explain the assignment. Again, she did not provide closure on the lesson for the day. (SE33) Throughout the class period the Respondent missed opportunities to clarify the assignment. She did not adequately respond to student's questions and did not ask questions herself. Observers were left in doubt as to whether she, herself, understood the topic and assignment. (T416) As a result of the March 2, 1983 observation, Dr. Augenstein instructed the Respondent to continue with the prescription of November 24, 1982. In addition, the Principal instructed the Respondent to enroll in classes during the summer of 1983 covering the subject matter of (a) critical study and analysis of literature, (b) advanced English grammar, and (c) English rhetoric. (T79, SE13) On May 24, 1983, the Respondent's seventh grade English class was formally observed by Assistant Principal Herman Mills. The Respondent was rated unacceptable in the area of knowledge of subject matter. The subject of the Respondent's lesson was analogy. The sequencing of information disbursed in the lesson was illogical and unclear. (SE26) The Respondent handed out an assignment with a series of words: greater, larger, more bigger, same. The children were to pick out the dissimilar word from the group. The Respondent failed to realize there is no such expression as "more bigger." She should have indicated that a comma between more and bigger was missing. In another series of words: accidental, design, intentional, on purpose, and planned the Respondent incorrectly chose "designed" as the dissimilar word. In other parts of the lesson, the Respondent told the class that Canada was a French speaking country and Korea was a city. (SE26, T258-259) Throughout the 1982-83 school year, administrators at Highland Oaks made it a point to drop into the Respondent's classroom so that their presence would help the Respondent get her class under control. (T267) The Respondent's 1982-83 annual evaluation indicated that Respondent had not remediated the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. It recommended that the Respondent lose her tenure status and be returned to annual contract. The recommendation was not implemented. (SE14, T81) In September 1983, Dr. Augenstein assigned Assistant Principal Mills the task of evaluating the Respondent's progress with the November 24, 1982 prescription. At his first meeting with the Respondent, Dr. Mills discovered that the Respondent had not completed any "required action" on the prescription. At their second meeting, Joan Kaspert of TEC verified that the Respondent had still not completed the "required action" on the prescription. She verified, however, that the Respondent had completed the course "Techniques of Instruction." On September 27, 1983, Dr. Mills instructed the Respondent to obtain "sign- off" on her prescription by September 30, 1983. On October 5, 1983, he determined that the only item signed-off on the pre- scription was the meeting with Assistant Principal Fontana on the subject of classroom management and the already noted course at the TEC. (SE27) On October 19, 1983, Dr. Augenstein again observed the Respondent's seventh grade, Level II English class. She rated the Respondent unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. (SE15) The Respondent was rated unacceptable in preparation and planning because her lesson was planned too sparsely. It did not fill the time allotted. Her homework assignment could not be done by the students because it required a spelling text, which was not a book sent home with the students. The Respondent scheduled a grammar exercise which the class could not do because a large number of the students did not bring the appropriate book to class. (5115) The Respondent was rated unacceptable in the area of subject matter because she could not adequately explain or demonstrate the subject matter of her lesson, the difference between homonyms, and homographs, and homophones. (5115) The Respondent was rated unacceptable in the area of techniques of instruction in that she did not use the chalkboard to reinforce the differences between the spellings, pronunciations, and uses of the words studied. Students were called upon for examples which only furthered the confusion. The Respondent was unable to clarify or rectify the situation. (5115) The Respondent was rated unacceptable in assessment techniques. Her grade book showed grades for only five spelling tests since the beginning of the year. There were no graded compositions or homework assignments in the students' folders. The Respondent did not call for the day's homework assignment. When the Principal asked the class for their homework only six students could produce any and those produced did not seem to be the planned assignment. (SE15) In order to remediate the Respondent's deficiencies observed on October 19, 1983, Dr. Augenstein instructed the Respondent to continue with the November 24, 1982 prescription. She instructed the Respondent to pay special attention to teaching the required content and skills for grade seven literature study, library skills, and composition lessons. She also told the Respondent to enroll in the TEC component "Preparation and Planning." Dr. Augenstein assigned Assistant Principal Mills to monitor the adequacy of the Respondent's weekly plans and the overall accomplishment of course objectives revealed in the plans. She then assigned Ms. Zelda Glazer, Supervisor of Language Arts, to prescribe activities to remediate the Respondent's inadequate knowledge of her subject matter. (SE15) On November 16, 1983, the Respondent's reading lab was observed by Assistant Principal Mills. The Respondent was rated unacceptable in the area of techniques of instruction because her methodology was inappropriate for the reading lab. The purpose of the reading lab is to allow the students an opportunity to work at their own particular reading level. The Respondent was teaching the same lesson to the whole group, entirely missing the point of the reading lab. (SE28) Dr. Mills suggested that the Respondent immediately divide the class into three levels according to diagnostic testing that had been done. He instructed her to provide the requisite materials so that the students could work at their own pace. He also instructed the Respondent to utilize progress sheets so that the progress of the various students could be charted. Dr. Mills assigned a portion of the prescriptive manual to the Respondent and requested that she do all the activities suggested by the manual. Dr. Mills recommended various resource people to the Respondent. He assigned Mrs. Hoffman, a teacher on special assignment, to assist the Respondent in setting up her reading lab. Dr. Mills also arranged for carrels to be placed in the Respondent's reading lab. (SE28) On November 30, 1983, a parental complaint was made against the Respondent for the use of profanity in her classroom. After the matter was investigated it turned out that in chastising a student for profanity, the Respondent had repeated the word several times herself. The Respondent was instructed that repeating the profanity was ill-advised and served no purpose. She was instructed, in the future, to handle such situations using the standard referral procedures. (SE35) A conference for the record was held on December 13, 1983, to discuss the Respondent's progress with her prescription. After reviewing the Respondent's deficiencies and prescription the Respondent was informed that failure to remediate and improve performance to an acceptable rating could have an adverse impact on her employment status. (SE16) On February 14, 1984, the Respondent's ninth grade reading class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of preparation and planning knowledge of subject matter, techniques of instruction and assessment techniques. There was no evidence that the Respondent had applied the readings from the TADS manual that had been prescribed. Dr. Augenstein pointed out to the Respondent' that she had not enrolled in the TEC component on preparation and planning as required by her prescription. The Respondent was rated unacceptable in knowledge of subject matter because she did not understand the difference between assessment activity and programmed instruction. Her students were working on the ninth' grade preparation for taking the state assessment test given in the tenth grade. The Respondent did not orient the students to their assignments. She failed to answer the students' questions and did not review the students' work. The students never knew whether they had answered correctly or not. (T92) The Respondent was rated unacceptable in techniques of instruction because her students spent an entire period doing an activity which was never introduced, explained, monitored or concluded. The Respondent had no follow-up activities planned for the students who finished the assignment early. (T92-94) The Respondent was rated unacceptable in assessment techniques because her grade book showed no grades for the four weeks preceding the observation. The minimum amount of grades expected would be two per week. There was no evidence of graded homework in the students' folders. If the Respondent had become ill it would have been impossible for a substitute teacher to grade her students. (T94-95) In remediation, the Respondent was referred to a memorandum written April 22, 1983, in which Dr. Augenstein had suggested the need for intensive study of subject matter. She was also instructed to refer to the TADS prescription manual as prescribed on November 24, 1982. The principal also referred the Respondent to the prescription given on October 19, 1983. (SE13, 17) On March 6, 1984, the Respondent's language arts class was formally observed by Ms. Zelda Glazer and Dr. Augenstein. The Respondent was rated unacceptable in the areas of knowledge of subject matter and assessment techniques. (SE18) The Respondent was rated unacceptable in knowledge of subject matter because the Respondent was teaching a lesson dealing with parts of speech and she accepted incorrect answers from her students. She identified words as adjectives that were in fact adverbs, verbs and a noun. Furthermore, the Respondent's lesson was improperly sequenced. No background information was provided to the children who consequently did not understand what the Respondent was asking of them. In remediation the Respondent was directed to review with the department chairperson or school administrator the sequencing of a lesson. She was told to prepare a properly sequenced lesson, one which contained the necessary components: review, a drill, and a follow-up application of the skills learned. (T305-310) The Respondent was rated unacceptable in the area of assessment techniques because her students' folders did not contain any compositions. At this time of the year the students should have done between fifteen to twenty (15 to 20) compositions. There was no evidence of any assignments which allowed the students to apply newly learned skills. In remediation the Respondent was instructed to develop a test on a present unit or topic being taught using writing production as one element of assessment. (SE18, T311-313) On March 6, 1984, another conference for the record was held to discuss the Respondent's remediation of performance deficiencies relative to future employment with Dade County Public Schools. After reviewing the Respondent's performance during the 1982-83 and 1983-84 school years, Dr. Augenstein recommended that action be taken toward dismissal for cause. (SE19) In March 1984, the Respondent went on maternity leave. (T97) The 1983-84 year-end evaluation indicated that the Respondent's performance in knowledge of subject matter, techniques of instruction, and assessment techniques was unacceptable. The Respondent was recommended for dismissal. (SE2O, T98-99) The Respondent returned from her maternity leave to Highland Oaks in April 1985. The Respondent received special attention to help acclimate her after almost a year's leave. The Respondent was allowed a full week without the responsibility of a classroom so that she could observe the status of the classes she was assuming and meet with the teacher to discuss the students' progress. Although Dr. Augenstein had never done this before with any other teacher, she wanted to make sure that the Respondent would be adequately prepared. Dr. Mills was also assigned to help the Respondent make the transition. (T99-100, 266-269) On May 2, 1985, the Respondent's eighth grade Level II English class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of subject matter and techniques of instruction. (SE21) The Respondent was rated unacceptable in the area of subject matter because she did not appear to grasp the difference between general and specific research sources. She was subsequently unable to clearly explain techniques of research and writing. The students were frustrated and unable to receive clarification from the Respondent. (SE21, T103) The Respondent was rated unacceptable in the area of techniques of instruction because the Respondent was not addressing the needs of her students. Her students were advanced academic learners with a need for inductive and critical thinking approaches. (SE21, T104) In remediation, Dr. Augenstein recommended that the Respondent observe other Level IV English classes and that she do a research project herself. Respondent was also directed to design lessons using strategies for inductive and critical thinking. Dr. Augenstein assigned Mr. Charles Houghton, the North Area project manager for secondary language arts to assist and critique her demonstration lessons. (5521, T013-105) Because the Respondent had recently returned from maternity leave, her assessment techniques were not evaluated. (5521) On May 15, 1985, Mr. Houghton came to Highland Oaks to assist the Respondent. He observed her class working on a large research project. He discovered that the Respondent did not have a clear understanding of the use of bibliography cards, note cards, and research skills. Mr. Houghton told the Respondent that he would gather materials together to help her and return on Friday, May 17, 1985. Mr. Houghton returned on May 17, but the Respondent was absent that day. He left the materials with a note explaining the materials and inviting the Respondent to call him if she needed further assistance. The Respondent never called him. (T242-248) On May 28, 1985, the Respondent's English class was formally observed by assistant Principal Mills. The Respondent was rated unacceptable in the areas of preparation and planning, classroom management, and techniques of instruction. (SE29) The Respondent was rated unacceptable in preparation and planning because although she had prepared lesson plans she did not follow them. There was no lesson presentation and no reference to the lesson objective a review of composition skills. (SE29) The Respondent was rated unacceptable in classroom management because the class never settled down so that a lesson could be presented. (SE29) The Respondent was rated unacceptable in techniques of instruction because, among other things, there was no systematic method demonstrated for monitoring the students' performance on the learning objectives. The Respondent still did not use media to assist her presentation. There was no lesson presented. (SE29) For remediation, Dr. Mills met with the Respondent and urged her to follow Dr. Augenstein's prescription. He gave her more prescriptive activities which were similar to those already assigned. (SE29, T266-268) On June 6, 1085, the Respondent was observed by Assistant Principal Nelson and Ms. Glazer. The Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. (5E25) Mrs. Nelson observed little improvement on the part of the Respondent. She did not seem to be benefiting from the prescription and TADS system. (T210) The Respondent was rated unacceptable in preparation and planning because she did not follow her lesson plan. The poem which had been assigned reading for that day was inappropriate for the lesson objective: metaphors and similes. The Respondent was rated unacceptable in the area of knowledge of subject matter because not only was she using a poem that did not contain metaphors and similes, but she could not even give an example of a metaphor, when asked by a student. The Respondent referred to the cockney dialect of the poem as a southern dialect. Consequently she interpreted the word again" as dialect for aging and completely misinterpreted a whole line of the poem. (5E25) The Respondent was rated unacceptable in classroom management in that it took her ten minutes to call the roll, after which there was still socializing among the students. Several students came in late and no questions were asked of them. (SE25) The Respondent was rated unacceptable in techniques of instruction because she accepted correct and incorrect responses without comments or suggestions. No background was given on Rudyard Kipling (the poet being studied) or on the form of the poem, the ballad. The Respondent ignored all the appropriate topics raised by the poem and, instead, interjected the terms "metaphor" and "simile "haphazardly. (5E25) The Respondent was rated unacceptable in teacher- student relationships because she ignored the students' responsibilities. She neither praised nor questioned them. Furthermore, she ignored the non-participating students. (SE25) In remediation, the Respondent was referred to the prescription of May 2, 1985 and May 28, 1985. She was also directed to carefully review her lessons so that she would he prepared for students' questions and be ready with appropriate examples. The Respondent was also directed to specific exercises in the TADS manual dealing with feedback, interaction with stu- dents, and recognizing correct and incorrect responses. (SE25, T328-330) The Respondent's 1984-85 annual evaluation rated her unacceptable in the areas of preparation and planning, knowl- edge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Dr. Augenstein noted that the Respondent's unacceptable performance--documented in previous years--continued since her return from leave. She again recommended that the Respondent be dismissed for cause. (SE22) On May 30, 1985, a conference for the record was held to discuss the Respondent's end-of-the-year evaluation. The principal again recommended that dismissal for cause be initiat- ed. (SE23B) The Respondent's final exams distributed in June 1985, indicated that she still had no understanding of what constituted an objective type of exam. (T27, SE30-32) Dr. Augenstein informally observed the Respondent's classroom many times over the years, as she did with all the teachers. Her informal observations substantiated the general deficiencies noted ire formal observations. Problems were continually observed in lesson planning, subject matter, methods and materials. (T106-107) Dr. Augenstein testified that she did not think that the Respondent put out even a minimal effort to overcome her deficiencies. (T108) All the administrators and educators who observed the Respondent's classroom agreed that the Respondent did not adequately grasp her area of specialization, the English language arts. All agreed that she lacked the minimum skills in both content and methodology of English language arts. (T16, 255, 304, 424, 461) Over the three year period, the Respondent was given various prescriptions to encourage and help her in remediation. The Respondent followed and completed only a tenth of the prescriptions given to her. (T170) Dr. Patrick Gray, Assistant Superintendent for the Dade County School Board's Office of Professional Standards, testified that--based on his educational background; his personal evaluation of the Respondent's file, his review of the evidence offered at the Respondent's school board hearing in the Division of Administrative Hearings' Case No. 85-3223; his review of the exhibits introduced on behalf of the Petitioner; his knowledge of the required teaching behaviors for teachers, including the state of the art and research; and the Florida teaching competencies which are expected of every Florida teacher--the Respondent's performance consistently failed to meet the standards of performance of the State of Florida. Dr. Gray recommended that the State permanently revoke the Respondent's teaching license. On September 4, 1985, the Respondent was suspended from her employment with the Dade County School Board. The School Board instituted proceedings to dismiss the Respondent from employment. On June 4, 1986, the School Board of Dade County entered its Final Order upholding the dismissal of the Respondent. (PE77)
Recommendation Based on the foregoing, it is RECOMMENDED that the Respondent's Teaching Certificate Number 182937 be REVOKED. DONE and ORDERED this 30th day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 30th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1144 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-100. Adopted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-8. Approved. 9. Approved, as modified to reflect that Respondent did not attend any of the TDS training sessions conducted by Dr. Gray. 10-13. Approved. 14. Approved, as modified to reflect that she was given the correct textbooks soon after parents complained about her performance. 15-21. Approved. 22. Approved as modified to reflect that a secretary made a transposing error on the form so that those areas where Respondent performed satisfactorily were marked unsatisfactory, and vice versa. 23-34. Approved. 35. Approved, but modified to reflect that, nevertheless, Respondent continued to perform below minimal standards and her remediation efforts were not effective. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Laverne Elizabeth Reaves 1430 N.W. 90th Street Miami, Florida 33147
