Findings Of Fact Respondent, Anna M. Brewer, holds Teaching Certificate Number 475518, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of elementary education, grades 1-6. From 1968 or 1969 until 1980, Respondent worked for the School Board as a teacher aide. As a teacher aide, she had approximately twelve years to view a wide variety of teaching strategies, methods, and teaching techniques in the approximately six different schools to which she had been assigned. While employed as a teacher's aide, Respondent attended Miami-Dade Junior Community College, North Campus, and studied Initial Elementary Education. She then completed Bachelor's Training at Nova University in 1979 and thereafter became employed as a classroom teacher with the Dade County School Board at the Elementary Level beginning in the 1980-1981 school year. Respondent has been employed as an elementary teacher by Petitioner School Board since the 1980-1981 school year. During all of that period, she has taught at Perrine Elementary School in Dade County, Florida. During all of the years Respondent taught, except for the first year, she had classes approximately half of a regular size class. This was because she has been teaching Title I/Chapter I classes. "Title I", renamed "Chapter I", classes refer to classes funded and mandated as part of the Education Consolidation Improvement Act which targets children who are deficient in certain areas and concentrates on bringing them into the mainstream of the education process by concentrated remediation in small, directed education classes. It is a "given" that many of these children are difficult to teach and to control. 1980-1981 SCHOOL YEAR On October 29, 1980 Respondent was formally observed in the classroom by her principal, Gloria H. Gray. Although rated overall acceptable she was rated unacceptable in preparation and planning and in assessment techniques. Although rated acceptable in techniques of instruction, Respondent was rated unacceptable in one subcategory thereof because the proliferation of students' questions concerning the work indicated to the observer that the Respondent did not give clear assignments and directions to allow ample time for completion of tasks. Respondent was next formally observed by Principal Gray on December 12, 1980. Although Respondent was rated overall acceptable, she was rated unacceptable in classroom management because Mrs. Gray found much off-task behavior on the part of students, and Respondent appeared not to notice it. Through no fault of her own, Respondent had a very difficult first year experience with many interruptions. She was the foreman of the Grand Jury and was absent every Wednesday. In addition, she had legitimate family and medical problems causing frequent absences. To the extent possible, principal Gray initiated and followed through on numerous attempts to remediate Respondent's deficiencies in teaching. Mrs. Gray also provided an aide for Respondent in order to be assured that the education of her students was not being sorely neglected. Respondent was in a large pod with two other teachers. They helped Respondent in putting work on the board clearly. They also helped her in getting and using instructional material. Although Mrs. Gray testified that she was, in the spring of 1981, of the opinion that there was a repeated failure on the part of Respondent to communicate with and relate to the students in her classroom to such an extent that they were deprived of a minimal educational experience, she nonetheless rated Respondent acceptable in all categories and gave Respondent an overall acceptable rating on her Annual Evaluation for the 1980-1981 school year. Mrs. Gray gave Respondent the benefit of the doubt because Respondent had improved her teaching skills during the year, she had a good attitude toward trying to improve, she took Mrs. Gray's recommendations and attempted to implement them, and Mrs. Gray expected further improvement from Respondent the following year. Mrs. Gray further recommended Respondent for re-employment as an annual contract teacher. 1981-1982 SCHOOL YEAR Respondent was next formally observed in the classroom by her new principal Dr. Joan Hanley, on November 23, 1981. While Respondent was very devoted to self-improvement, she was nevertheless rated overall unacceptable and unacceptable in the category of preparation and planning because she did not have complete lesson plans for each of the following subjects she was responsible to teach: social studies, science, art, music, and physical education. Likewise, she did not have plans which could be used by a substitute in the event of her absence. Although she was rated acceptable in classroom management, Dr. Hanley offered suggestions for Respondent's improvement. It was not clear to Dr. Hanley whether Respondent's students were grouped for math. It is a standard instructional strategy to ascertain the ability levels of the students, group them accordingly, and plan separate instruction for the various groups. She also instructed Respondent to stand up and move between her groups of students in order to monitor the random activity that goes on. Respondent was formally observed in her classroom by Assistant Principal Ellen Supran on January 6, 1982. Although rated overall acceptable, Respondent was found unacceptable in one subcategory, techniques of instruction. This subcategory deals with the use of instructional strategies for teaching the subject matter. Her students were not grouped for math instruction and the subject matter was too difficult and too abstract for the students. Respondent was not getting feedback from them. During the remainder of the school year, Mrs. Supran assisted Respondent through informal visitations. On these occasions, Mrs. Supran was concerned about Respondent's lesson plans, her children being off-task, and the appropriateness of the tasks assigned to the students by Respondent. She spent time working with Respondent on lesson plans, materials, instructional strategies, grouping, and monitoring children's progress. Respondent had an accident during the 1981-1982 school year which resulted in extended sick leave. Dr. Hanley was unable to observe Respondent formally in the classroom for the remainder of that school year. Because Respondent was anxious to improve her teaching and because she had made a good start, Dr. Hanley felt that it was only fair to rate Respondent acceptable in all categories for her Annual Evaluation for the 1981-1982 school year. Therefore, for the school year 1981-1982, Respondent's second annual contract year, Respondent was found acceptable in all categories on her Annual Evaluation and was again recommended for employment. 1982-1983 SCHOOL YEAR Respondent's next formal observation was on November 23, 1982. Although rated overall acceptable, Respondent was rated unacceptable in knowledge of subject matter, because the observer, Dr. Hanley, felt Respondent needed improvement in grammar, particularly verb usage. More specifically, Dr. Hanley observed poor grammar was utilized orally by Respondent in the course of teaching other subjects. Hers was a significant error because Respondent was teaching a resource class in compensatory education. This is a remedial class which addressed the reading, language arts, and mathematics needs of low- achieving students. In every type of class, it is necessary that a teacher set a good example in spoken English. Because elementary school children model the speech of their teacher, Respondent's grammatical errors, which were frequent and excessive, would impede the students' acquisition of appropriate language arts skills. In remedial classes, the effect is more pronounced and reinforces poor language arts skills because the children are already deficient in that area. Respondent was next formally observed in the classroom by Dr. Hanley on December 7, 1982. Although rated overall acceptable, Respondent was again found unacceptable in knowledge of subject matter because she continued to make the same kinds of grammatical errors she had been observed making at the November 23, 1982 observation. The December 7, 1982 observation resulted in a prescription for remediation. Dr. Hanley suggested that Respondent record herself on a tape recorder so that she could become sensitized to verb forms. Respondent followed Dr. Hanley's advice and it helped on the subsequent observation, but she did not sustain the improvement as indicated below. Respondent was next formally observed in the classroom by Dr. Hanley on February 10, 1983. She was rated overall acceptable and made only one grammatical error, saying "cent" sometimes instead of "cents." Note was made of excellent behavior modification. On Respondent's Annual Evaluation for the 1982-1983 school year, Dr. Hanley rated Respondent acceptable in all categories and recommended her for employment for the next school year as a continuing contract teacher. Respondent had achieved tenure. 1983-1984 SCHOOL YEAR Respondent was next formally observed in her classroom by Dr. Hanley on May 7, 1984. Although rated overall acceptable, she was rated unacceptable in knowledge of subject matter and in a single subcategory of preparation and planning. She was rated unsatisfactory in the latter subcategory because her room was so cluttered that it was difficult to carry on her instruction. She was rated unacceptable in knowledge of subject matter because she was again making the same grammatical errors she had made the year before. (See Finding of Fact No. 20 that improvement was not sustained). For example, the following statements were written on Respondent's chalk board: "Dorothy want to go back home", " . . . work that I have not finish." Dr. Hanley reminded Respondent that they had worked on the "ed" and "s" endings on verbs before. Nonetheless, Respondent was rated acceptable in all areas on her Annual Evaluation for 1983-1984 and was recommended for continued employment as a continuing contract teacher. 1984-1985 SCHOOL YEAR Through the 1983-1984 school year, the School Board utilized the standard evaluation system which was an undefined system that allowed observers maximum discretion, without any clear or consistent criteria. It was essentially geared toward making any end-of-the year employment decision. With the advent of the 1984-1985 school year, a new method of evaluating teachers was put into effect. Beginning with the 1984-1985 school year, Respondent's performance was assessed under a new form of evaluation which was thoroughly tested by the School Board and which was negotiated and agreed-to between the School Board and Respondent's union. This is the Teacher Assessment and Development System (TADS). TADS is a highly specific research-based clinical supervision system. State-of-the-art research has characterized certain teaching behaviors that are effective in a learning environment. TADS has grouped these into categories of assessment criteria. Required teaching behaviors are very precisely defined and there is very little room for discretionary interpretation by the observer. Ideally, the system is governed by decision rules which eliminate the potential of an arbitrary or capricious application of the criteria. The system is intended to further develop and upgrade teaching skills and assist the individual teacher to perform better. On the down side, TADS was characterized by the School Board's expert, Dr. Patrick Gray, as a clinical form of evaluation which primarily identifies teaching behavior which is simply acceptable, but it would not identify behavior of superior or excellent performance. (TR-II 47) Respondent's first formal classroom observation under TADS was on November 13, 1984. She was rated unacceptable in preparation and planning because she only carried out a very small part of the lesson and because she did not follow the assessment item in her lesson plan. She was rated unacceptable in knowledge of subject matter because she presented the information to the children inadequately. There was no background given to draw out the students' previous understanding; no introduction, reinforcement, and drill; and no form of assessment to ascertain what the children had learned when the lesson was completed. She was rated unacceptable in classroom management, because there was disorder a good part of the time and the class was not conducive to learning. Respondent and students arrived late. There were many delays during the class period. The cardboard coins utilized in the lesson on coin values became a great distraction and Respondent was unable to bring the coins into the lesson. She only got into the very introductory part of the lesson and rambled in her instruction. Respondent was not able to pull the students together into a group of attentive listeners. She was also rated unacceptable in techniques of instruction because she never fully instructed the students about her expectations regarding what they were to do at their desks. The coins became the major focus of the children's attention and they were tossing them and taking them from one another. Respondent was rated unacceptable in assessment techniques because there was no assessment of the teaching objectives. As a result, there would be no way to tie up a lesson or help a teacher plan subsequent lessons. In order to aid Respondent in improving her performance, Dr. Hanley prescribed help. Dr. Hanley recommended that Respondent develop the skill of pacing her lessons so that she could complete the lesson within the allotted time; that Respondent seek help from Cynthia Muller, a PREP specialist, and that she also seek help from Dorothy Sissel, Chapter I Manager. Dr. Hanley also prescribed help in that she recommended that Respondent reorganize her room to make materials accessible for more efficiency. She recommended Mr. Holmberg, Assistant Principal, as a resource person. She also recommended that Respondent seek help from the Chapter I Specialist. Dr. Hanley recommended the Respondent seek help from Chapter I and PREP specialists because she felt that the on-the- spot classroom training by these very qualified people would be very helpful to Respondent. PREP stands for Florida Primary Education Program, a program mandated by the State of Florida pursuant to Section 230.2312, Florida Statutes. PREP mandates a diagnostic- prescriptive approach that enables each child to have an individualized program to permit development of that child's maximum potential and to achieve a level of competence by that child in basis skills. Pursuant to this approach, students are divided into three categories, with those developing at a normal level being taught with developmental teaching strategies, those having been identified as having potential learning problems, being taught with preventive teaching strategies, and those needing more challenging work, being taught with enrichment teaching strategies. The School Board has developed reading and math programs to comply with the statutory mandate. Respondent actually received help from Cynthia Muller, the PREP Specialist, in the areas of preparation and planning, classroom management and techniques of instruction. Mrs. Muller helped Respondent approximately on 9 to 10 occasions for a total of approximately 12 hours of assistance. She provided this assistance on November 7, 9, 26, 29 and December 4, 1984, and on February 7, May 28, June 6, and 11, 1985. In the course of her assistance, Mrs. Muller observed several problems with Respondent's teaching. There was a lot of off- task behavior. The children were jittery and walked around the classroom at will. They exhibited little motivation. Mrs. Muller found that much of the work was inappropriate for the students, above the level for which they were competent. That added to the off-task behavior. On November 26, 1984, Mrs. Muller did a demonstration lesson for Respondent showing her how the children could be motivated to stay in their seats and work quietly. She also demonstrated the use of the teacher manual in planning for the complete class period so that all of the children would receive their reading lessons within the prescribed timeframe. On another occasion, they also discussed the Total Math Program (TMP), Petitioner School Board's diagnostic-prescriptive program for math. TMP provides for pre- and post-testing of students and clustering students into particular groups. They discussed grouping students, assessing them, planning for them, and instructing them using a teacher's manual. Mrs. Muller also suggested a positive re-enforcement type of reward system. She also suggested that Respondent remove books and materials from the instructional area so that the class would have a clean place to work and place their books. Mrs. Muller also noticed misspelled words and improperly used words on the chalkboard e.g., "When he finish the book." Mrs. Muller's assistance, November 7, 1984 to June 11, 1985 overlaps several subsequent formal observations. Respondent was next formally observed in the classroom by Dr. Hanley on December 7, 1984. Despite Mrs. Muller's assessment on November 7 and 11 that there was some improvement, Respondent was rated unacceptable in preparation and planning, classroom management, and techniques of instruction by Dr. Hanley on December 7, 1984. She was rated unacceptable in preparation and planning because she had no assessment item in her lesson plan. Because Respondent told Dr. Hanley that she knew what was expected and she promised to do it in the future, Dr. Hanley did not make a further prescription in that area. Respondent was rated unacceptable in classroom management because her classroom was still very disorderly. Dr. Hanley recommended that Respondent designate areas for specific subjects and tasks within her room. Respondent was rated unsatisfactory in techniques of instruction because her lesson, again, was considered by Dr. Hanley to be a rambling one. Dr. Hanley found the lesson components not to be sequenced; Respondent did not accent the important points; Respondent was unaware of what her students were doing; she did not provide suggestions to her students for improving performance; she did not adjust her lesson when students were not understanding but went right on with what she was teaching rather than re-teach a concept. Dr. Hanley did not feel Respondent provided for closure of the lesson so as to help the children pick up the critical areas of the lesson and so as to be ready for the next lesson. Respondent continued to make grammatical and spelling errors, e.g., "...Santa Clause and other tradition." In order to help Respondent improve her performances Dr. Hanley recommended that Respondent observe two fellow teachers whom Dr. Hanley felt had excellent techniques of instruction. A conference-for-the-record was scheduled for the Respondent in December, 1984, but due to Respondent's illness and impending surgery, it was rescheduled for February 13, 1985. A conference-for-the-record is an official meeting regarding a teacher's teaching performance. It is required so that the teacher is officially notified that her deficient performance has not been remediated. At the conference, administrators went over Respondent's classroom observations. Respondent was notified that if she was still under prescription at the time of her Annual Evaluation, she would not receive her annual teaching increment (pay raise). From February through May, 1985, Perrine Elementary School was visited at least once a week by the Chapter I Educational specialist, Tarja Geis. She helped most of the teachers each time she visited. Chapter I is a federally funded program which addresses reading and math deficiencies in children from low income areas. It uses a language experience approach. Ms. Geis' opportunities to observe Respondent were short and sporadic. Her observations were not "formal" observations. However, when Ms. Geis did observe Respondent in the classroom, she noticed Respondent's inattentiveness to some of the children's behavior. She suggested ways to Respondent to improve that, most of which were "boilerplate" suggestions. Ms. Geis also observed one of Respondent's lessons and did a demonstration lesson for her on May 22, 1985, in order to show Respondent the language experience approach used in the Chapter I program. Ms. Geis discussed and/or demonstrated techniques to improve class management, student behavior, student comprehension and student attitude. On March 15, 1985, Ms. Geis gave a workshop for Chapter I teachers. All teachers who would have been working that day would have been in attendance. It is probable that Respondent attended that workshop. She had missed an earlier one in February because of her absence. Respondent indicated at formal hearing that she was not aware that Tarja Geis was a resource person for her use, but her perception is illogical in that Ms. Geis is a Chapter I Educational Specialist and Respondent teaches in the category of Chapter I students. Respondent also testified that she was not given in-service learning experiences by Dr. Hanley and Mr. Holmberg when she requested them. The workshop given by Ms. Geis would seem to address this request, contrary to Respondent's assertion. Respondent concurs that she attended at least one such workshop. Respondent was next formally observed in her classroom by Dr. Hanley on March 21, 1985. By this time, Respondent had received help from Mrs. Muller and Ms. Geis. She may have also sought help from the two teachers at her school. By her own testimony, she sought assistance from Ms. Jackerson and by a course taught outside of the usual school day. She showed great improvement and was rated acceptable in every category. Respondent was next formally observed in her classroom on May 7, 1985, simultaneously by Dr. Hanley and the area director, Phyllis Cohen. Under TADS, this is an external or dual observation where two observers assess the same classroom performance. Its purpose is to assure objectivity and fairness. Respondent was rated unacceptable in preparation and planning because her lesson plans were not carried out. While Respondent attempted to work with one group, the other groups' lessons were not implemented. The students were not on task. The group at the listening station was not doing its work. The group doing independent reading did not open their books. At least half the students did not receive their directed reading lesson. Respondent was rated unacceptable in knowledge of subject matter because her development of ideas and information was unclear and confusing. She would give insufficient definitions and did not reinforce with enough examples so that the students could understand the homework assignment. The lesson was not sequenced and Respondent was again using inaccurate language. The vocabulary words that the students were working on were not introduced to them and did not have any relationship to the lesson. Respondent was rated unacceptable in classroom management because her classroom was out of control and because of her problems in managing the transition time, getting and keeping students settled, and managing the different reading groups. Class started ten minutes late, and during transitions in the lesson, approximately twenty minutes were wasted. As the hour progressed, the noise crescendoed. Five to eight students were off-task at different times during the class. One student slapped another during the lesson. Respondent was not aware of the off-task behavior and did not redirect the students. Respondent was rated unacceptable in techniques of instruction because she did not introduce the lesson, provide opportunities for the students to practice, get feedback whether the students had obtained information, or provide reinforcement and follow-up. In other words the sequence was not appropriate. There was a lot of jumping around in the lesson. Respondent did not address the various learning styles of the students. Her communication was not precise enough for students to understand what she was trying to teach. She did not give the students feedback on their strengths and weaknesses. Although she used the teacher manual, she did not fill in between the questions with her own information. She asked the questions in a distorted manner. The students were unable to answer the questions and Respondent could not elaborate but went on to the next question. Her directions to the students were very poor, as were her explanations. She failed to rephrase explanations that were not understood. Her instructions to the listening station group were not specific enough. Her questions on the worksheet were not explained in a way that the students were able to proceed independently. They did not do the worksheet at all. Respondent was rated unsatisfactory in assessment techniques because she did not assess what the students were learning at their levels. Material was presented at a low cognitive level. She did not seem to be able to ascertain whether the students were learning what she was teaching them. She did not walk around to determine what each group was doing. In order to help Respondent improve her teaching performance, Dr. Hanley recommended that she work with Mrs. Muller again on the execution of her lesson plans in order to facilitate a directed reading lesson for each of her reading groups. To help Respondent improve her teaching performance, Dr. Hanley recommended that she observe another Chapter I teacher during a reading lesson to hone in on the development of ideas and information in a sequential and meaningful manner. Two teachers were named as resources. To help Respondent with her classroom management, Dr. Hanley recommended that Respondent work with Ms. Geis and the Assistant Principal to develop strategies for effective student management while beginning classes and during transition periods and that she work with an observer to sensitize herself to off-task, nonproductive activities on the part of students. It was also recommended that Respondent revamp her behavior modification plan to enhance student involvement. To help Respondent improve her techniques of instruction, Dr. Hanley recommended the Respondent again work with Ms. Geis and Mrs. Muller since she had improved after working with these two education specialists the prior year. Dr. Hanley recommended that Respondent review the elements in a basal reading lesson, i.e., background, sequence, and closure. She also recommended that Respondent rehearse her reading lesson so that she would think ahead about the main points and key definitions. She recommended that Respondent work with the observers to sensitize herself to situations in which the students are confused, and that she develop strategies to improve clarification. Dr. Hanley was also available to Respondent as a resource. In order to help Respondent improve techniques of instruction, Dr. Hanley recommended that Respondent have a person observe Respondent while she was teachings and help her on the spot when her students were not following the lesson. She suggested the Respondent develop assessment techniques which incorporated multilevel assessment activities. She also recommended that Respondent include development of summative assessment instruments in conjunction with these other activities. She recommended that Ms. Geis and the Assistant Principal be used as resources to help Respondent develop a sensitivity in identifying whether the students were on-track. On May 28, 19 85, Mrs. Muller discussed reading lessons with Respondent. She went over sequencing. She asked Respondent to rehearse her reading instruction. Mrs. Muller also gave Respondent a PREP teacher guide and a sample directed reading lesson. She referred her to a section on classroom organization and management. On June 6, 1985, Mrs. Muller was to visit Respondent's class and to observe a directed reading lesson. Respondent, however, was doing a different lesson. There was very little organization in the lesson. Mrs. Muller saw some improvement in the Respondent's teaching; however, considering the amount of time she had spent with the Respondent, she would have expected to have seen more progress. Although Respondent had demonstrated a willingness to receive suggestions for improvement and a willingness to work toward acceptable ratings, her Annual Evaluation for the 1984-1985 school year was unacceptable. Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Nonetheless, Respondent was recommended for continued employment for the next school year as a continuing contract teacher. It was Dr. Hanley's hope that Respondent would remediate herself during the next school year. Respondent remained on prescription and would not be entitled to her pay increment (raise) for the next school year while she was still on prescription. 1985-1986 SCHOOL YEAR On October 16 and 17, 1985, Respondent received more help from a fellow teacher, Joyce King. Ms. King discussed with Respondent the instructional processes of sequencing, interfacing subjects, and closure. Ms. King also demonstrated a reading lesson for Respondent. On October 22, 1985, Respondent received further help from another teacher, Doretha P. Thomas. Respondent observed Ms. Thomas during a developmental reading lesson in her class. Ms. Thomas also discussed with Respondent the amount of time used with the reading group, scheduling, and possible changes Respondent could make in her own planning. Respondent was next formally observed in her classroom by Dr. Hanley on October 30, 1985. The class was working on the Dade County required diagnostic-prescriptive reading curriculum known as RSVP. This curriculum contemplates that students are to be pretested and their deficiencies listed on individual profiles so that the teacher knows what specific skills to teach them. It is mandatory that the students' skills be profiled before the teacher attempts to work with them. Respondent had not completed the RSVP paperwork as of the date of this observation. I accept Respondent's testimony that she only had from October 18 until October 30, 1985 in which to complete these profiles; that she was under some disadvantage in preparing the profiles because of the administration's peremptory move of all her materials to a smaller classroom on Friday October 18; and that her observation rating was somewhat tainted by the temporary mess that resulted from the move. However, I find that the period involved would have been sufficient to complete at least the profiles if she had performed her tasks diligently in the intervening seven workdays. Respondent was rated unsatisfactory in classroom management because the class was not well managed and the students were not working. After the midpoint of the period, three students did no work. In the last ten minutes of the periods, six students did no work. Many students completed worksheets during the first twenty minutes of the class and then colored pictures. These students of Respondent's were not re- directed by her. Respondent seemed to be unaware of the off-task behavior. In order to help Respondent with her classroom management, Dr. Hanley recommended the Respondent move among the students periodically. She also recommended the Respondent plan sufficient work for the instructional period and that she clarify to students what additional study and enrichment activities were available when work is completed. Respondent was rated unacceptable in techniques of instruction because she was not monitoring pupil performance. Students were doing work incorrectly on their worksheets, and Respondent did not circulate and catch the errors or clarify them. Therefore, incorrect material was being reinforced by the students in their work. Several of the students did not understand the follow- up worksheets. The students' confusion indicated that they were not being taught at their appropriate level. They were being taught on a hit or miss method since their profiles had not been completed. In order to help Respondent improve her techniques of instruction, Dr. Hanley recommended that she fulfill the requirements of RSVP by completing her profiles, grouping her children, and making a class profile chart. Dr. Hanley also recommended that the teacher aide assist Respondent with the pretesting. Dr. Hanley listed the area PREP specialist and herself to review grouping for instruction. Respondent was rated unsatisfactory in assessment techniques because although she, as part of her school faculty, had been instructed every year as to the School Board requirements for maintaining student folders, her student folders were deficient. She had no papers dated after September 19, 1985 in them. In order to help Respondent improve her assessment techniques, Dr. Hanley clarified what was expected as far as classroom folders. Respondent must have at least one graded and dated paper per week in reading, math, and writing in each student's folder. Dr. Hanley listed herself and other classroom teachers as a resource for Respondent. Respondent was next formally observed in the classroom by Assistant Principal, Herbert Holmberg. He rated her unsatisfactory in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because she had grammatically incorrect information and statements on the chalkboard. Knowledge of subject matter was not exhibited as Respondent read verbatim from the teacher manual. She did not address various cognitive levels. In order to help Respondent improve her knowledge of subject matter, Mr. Holmberg recommended that Respondent prepare her material, information, and directions in advance and that her verbal and written usage be grammatically correct. He suggested more flexibility and elaboration during reading. He also suggested that the subject matter be presented at more than one level. As recommended resources, he listed the Principal, the Assistant Principal, and a peer teacher. Respondent was rated unsatisfactory in techniques of instruction because she did not have a sequence in the lesson. The grammar on the board was incorrect. Her spelling was incorrect. There was no variety to her activities. There was no assessment of closure in the lesson. As resources for help, he recommended the Assistant Principal, the PREP specialist, and a peer teacher. Another conference-for-the-record was held with Respondent on December 9, 1985. Respondent's teaching performance was discussed. Dr, Hanley was hopeful the Respondent would be able to remediate her deficiencies; however, Respondent was put on notice that if she was not fully remediated by the close of the school year she would be recommended for termination for cause. Respondent was next formally observed by Charles Sherwood, Directors Basic Skills on December 13, 1985. She was rated unsatisfactory in techniques of instruction and assessment techniques. Respondent testified that Dr. Sherwood orally indicated to her that her rating was satisfactory and created no problems but the business record of the school (P 30) shows that he rated her unsatisfactory in techniques of instruction because all of the pupils received the same spelling lesson, despite the differences in their reading levels; and that he rated her unsatisfactory in assessment techniques because, although the school year was very close to being halfway over, Respondent still had not completed her PREP roster. Respondent was next formally and simultaneously observed in her classroom in another external observation on March 17, 1986, by Dr. Hanley and Mrs. Cohen, and she was rated unsatisfactory in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because there were a substantial number of errors in teaching the concept "1/2". The words "equal" and unequal" were not used, although they were key vocabulary words in the teacher's manual for the lesson. Respondent told the children that a whole with a line in it becomes one-half. She did not indicate that the line had to be in the middle of the whole in order for there to be halves. In order to help Respondent improve her knowledge of her subject matter, Dr. Hanley recommended that Respondent use the teacher's manual for planning and delivering of instruction. It was requested the Respondent master the use of and use the words "equal" and "unequal" appropriately. She also recommended the Respondent use the area specialists, peer teachers, and the Assistant Principal as resources. Respondent was rated unacceptable in techniques of instruction because the explanations of the concept of a whole, half, and fractions were not clear to the reviewer, and the reviewers felt the components necessary to address the key concepts were not effectively presented, thereby confusing she children, and an appropriate vocabulary was not used. They felt Respondent's lesson was again lacking in sequence. Additional resources and suggestions for improvement were prescribed to Respondent. Another conference-for-the-record was held with the Respondent on April 16, 1986. Some of Respondent's concerns regarding the TADS process were addressed. Respondent's improvement was discussed and Respondent was again notified that if she failed to be removed from prescription by the end of this second year of deficiency, recommendation of dismissal for cause would be made. Respondent was next formally and simultaneously observed in the classroom in another external observation by Dr. Hanley and Evelyn Evans, another area director. Respondent was rated unacceptable in knowledge of subject matter and techniques of instruction. Respondent was rated unsatisfactory in knowledge of subject matter because she made errors in subtracting. The errors which she made on the board were not corrected. She also made errors in the process itself. These errors were demonstrated on a chalkboard at formal hearing which was erased without being admitted in evidence, but the oral testimony and business records of this observation are sufficient to support this finding. Respondent did not correct student errors, used inappropriate terminology referred to the one's and ten's columns as the right column and left columns and thereby confused the children. Dr. Hanley found the deficiencies in this lesson very similar to the math lesson observed on March 17, 1986. Respondent was still using her own vocabulary. Despite the fact that most of the children in her class and certainly most of our society could understand Respondent's use of "take away" for "subtract" and use of similar colloquialisms, the School Board established the need for more precise and consistent language in teaching early math skills. Respondent did not show evidence of having mastered the subject matter. In order to help Respondent improve her knowledge of subject matter, Dr. Hanley again emphasized mastery of vocabulary and concepts in the teacher's manual and advised adhering closely to the recommended word usage and plan of instruction. Respondent was instructed not to use her own vocabulary and methods until she had total command of the material. Respondent was rated unacceptable in techniques of instruction because of many errors. The lesson was not properly sequenced; the children did not have a basic understanding of subtracting without regrouping before beginning subtracting with regrouping; Respondent's use of her own vocabulary confused the children; Respondent did not clarify by rephrasing with different words, but rather, used the same vocabulary over again that the children had not understood the first time. Respondent blocked the chalkboard while she was demonstrating to the class, was inattentive to the need for a chair by one student, and required a reading level of the children in math for which they were not prepared. Respondent again demonstrated improper subject-verb agreement, e.g., "What is the numbers?" and dropping endings on verbs, e.g., "As time go on", "Three minus two leave one." In order to help Respondent improve her techniques of instruction, Dr. Hanley again recommended the Respondent work with another second grade teacher to understand and become proficient in following the sequence and the delivery of instructions to include introduction, background, and the other steps in sequencing. She was also instructed to master the vocabulary and instructional plans in the teacher's manual and to adhere to them while teaching. She was instructed to develop a method for re-teaching individual students who appeared not to understand the lesson. Another conference-for-the-record was held on June 6, 1986. Respondent's unacceptable teaching performance was reviewed. Respondent was advised that a recommendation for dismissal for cause would be made. Respondent was also given an end of the year prescription, as required by TADS. Although Respondent had improved her classroom management during the year, she was still unacceptable in knowledge of subject matter and techniques of instruction for the 1985-1986 school year. The two unacceptable categories are key categories in teaching. Improvement in these had either been slight or not at all, and Dr. Hanley had exhausted the school system's resources in attempting to assist Respondent. Respondent's testimony at formal hearing corroborates her supervisors' observations as to her failure to exhibit appropriate English grammar and usage with regard to subject-verb tenses. Gloria Jackerson, a retired teacher, testified on behalf of Respondent. Although this retired teacher of 21 years and a candid witness, she is Respondent's best friend. While this relationship may not have colored her favorable testimony, she admits that she has never observed Respondent teach in the classroom nor has she taught Chapter I students in Miami-Dade County under the present program. Therefore, her testimony with regard to Respondent's competency must be rejected. Evidence presented by several satisfied parents is all in Respondent's favors however, most had no training in classroom observation nor were they able to observe Respondent teaching in her classroom over any significant period of time. Their observations, therefore, were of minimal duration and purely subjective. No objective records showing whether their children were promoted or how their children progressed under Respondent's teaching were offered to substantiate their layman's viewpoint. With regard to the testimony of Robert Collins, a Learning Disability teacher in the Dade County School System, who requested that his child be placed in the Respondent's class and who had a brief opportunity to observe Mrs. Brewer in the classroom and who testified that her classes were well managed, his observation opportunities were so brief and so sporadic as to not outweigh the greater weight of the expert testimony of Petitioner's witnesses. The supportive evidence of Geraldine Townsend, another Perrine teachers is not helpful to Respondent in that this witness also had no truly meaningful observations of Respondent. The testimony of Mrs. Collins, a mother and also a teacher's aide, that some of the formal observers made Respondent's classes nervous and jittery is accepted, but this circumstance does not eliminate or seriously mitigate Respondent's responsibilities to teach effectively and to keep her students under control during observations. Respondent Brewer has worked hard to obtain her education and position. She is a deeply religious, compassionate, and caring individual. She has the type of supportive personality the young people of this society dearly need to know and relate to. She has good rapport with the young and communicates with them in loving and supportive ways. However, her personal qualifications and attributes do not outweigh the clear and convincing evidence of her incompetency as demonstrated by the foregoing Findings of Fact. On August 20, 1986, Petitioner School Board suspended Respondent, 55 years old, from employment, 2.20 years short of her attaining full retirement, and further initiated dismissal procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner, School Board of Dade County, Florida, enter a Final Order sustaining the suspension, without pay, as of August 20, 1986, of Respondent, Anna M. Brewer, and dismissing Respondent Anna M. Brewer as a teacher in the Dade County Public Schools. That the Educational Practices Commission enter a Final Order suspending Respondent's Florida teaching certificate for five years or until she demonstrates competency pursuant to statute and ruled whichever occurs first. DONE and ORDERED this 31st day of July, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 86-3926, 87-0468 The following constitutes specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner School Board's PFOF Covered in FOF 1. Covered in FOF 2 and 3. Covered and corrected to reflect the record in FOF 5. Covered in FOF 6. Covered in FOF 7. 6-8. Rejected as subordinate and unnecessary except as set out in FOF 11. Covered in FOF 8. Except to the extent it is subordinate and unnecessary, it is covered in FOF 9. Rejected as subordinate, unnecessary and cumulative. Partially addressed in FOF 11. Covered in FOF 10. Covered in FOF 11. Covered in FOF 12. Covered in FOF 13. 16-18. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. Covered in FOF 17. 22-23. Covered in FOF 18. Covered in FOF 19. Covered in FOF 20. Covered in FOF 21. Covered in FOF 22. Covered in FOF 23. Covered in FOF 24. Covered in FOF 25. Covered in FOF 26. Except to the extent it required expansion to fully conform to the record and except to the extent its proposals are subordinate and unnecessary, this proposal is covered in FOF 26. 33.-42. Covered in FOF 27-28. 43.-47. Except as contrary to the record for expression or subordinate, covered in FOF 29. Covered in FOF 30. Covered in FOF 31. Covered in FOF 32. Covered in FOF 33. Covered in FOF 34. Covered in FOF 35. Covered in F0F 36. Modified to more accurately reflect the record as a whole, in FOF 37. Modified to more accurately reflect the record as a whole, in FOF 38. Covered in FOF 39. Covered in FOF 41. Covered in FOF 42. , 62., 64., 66. and 68. are covered in FOF 43. , 63., 65., 67. and 69. are covered in FOF 44. 70.-73. Covered in FOF 45. Covered in FOF 46. Covered in FOF 47. Covered in FOF 48. Covered, expanded and modified so as to reflect the competent, substantial evidence of record as a whole in FOF 49. Covered in FOF 50. Covered in FOF 51. Covered in FOF 52. Covered in FOF 50 and 53. Covered in FOF 54. Covered in FOF 55. Covered in FOF 56. Covered in FOF 57. Covered in FOF 58. Covered in FOF 59. Covered in FOF 60. 89-91. Expanded and modified to reflect the competent, substantial evidence of record and to eliminate the subordinate and unnecessary in FOF 61. Covered in FOF 62. Except to the extent it is subordinate and unnecessary, covered in FOF 63 and 65. Covered in FOF 64. 95-96. Covered in FOF 65 except for cumulative and unnecessary material. Covered in FOF 66. Covered in FOF 67. Covered and expanded in FOF 68. Covered in FOF 69. Except to the extent it is subordinate and unnecessary or cumulative, covered in FOF 70. Covered in FOF 71. Covered in FOF 72. Covered in FOF 73. Rejected as cumulative. Covered in FOF 74. Rejected as cumulative. Covered and expanded in FOF 80. Petitioner Betty Castor's (EPC's) PFOF Since this petitioner adopted the PFOF of Petitioner School Board, the rulings are also the same. Respondent's PFOF Covered in FOF 1. Covered in FOF 2-3. Covered in FOF 4. There is no PFOF. Covered in FOF 7-13, most specifically in FOF 13. Covered in FOF 14-17, most specifically in FOF 17. Covered in FOF 18-22, most specifically in FOF 22. Covered in FOF 23-25, most specifically in FOF 25. 9-10. Covered in FOF 26. Rejected as not supported by the evidence. Rejected as not supported by the evidence and for the reasons discussed in FOF 75. Rejected as not supported by the evidence and for the reasons discussed in FOF 77. Rejected as not supported by the evidence and for the reasons discussed in FOF 76. Rejected as not supported by the evidence and for the reasons discussed in FOF 78. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Madeline P. Schere, Esquire Board Administration Building Suite 301 1450 Northeast Second Avenue Miami, Florida 33132 J. David Holders Esquire 211 South Gadsden Street Post Office Box 1694 Tallahassee, Florida 32302 William DuFresne, Esquire 2929 Southwest Third Avenue Suite 1 Miami, Florida 33129 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 =================================================================
Findings Of Fact Tracy Tashanna Jackson is a 13-year-old, and Tammy Terrell Jackson is a 12-year-old, who were, until February 7, 1979, assigned respectively to the eighth and seventh grades at Miami Edison Middle School in Miami, Florida. On February 7, 1979, an incident occurred at Miami Edison Middle School which resulted in both students being reassigned to Jan Mann Opportunity School North. At the time of this incident, the two students had been attending Miami Edison Middle School for only approximately one month. On February 6, 1979, one day prior to the incident which gave rise to this proceeding, the students were threatened by another student who allegedly was a member of a group of students popularly known as the "Graveyard Gang." Upon receiving the throat, the students went to the office of the Assistant Principal and advised him that they expected trouble from these other students. The Assistant Principal essentially advised the students to attempt to avoid any confrontation. However, on the afternoon of February 6, 1979, while Tammy and Tracy Jackson were on their way home from school, they encountered the students who had threatened them, and a fight ensued. After the fight, Tracy and Tammy Jackson were advised by the other students that the fight would continue the next day at school, that these other students would have knives, and that Tracy and Tammy Jackson should come prepared. When Tracy and Tammy Jackson and their brother stepped off the city bus in the vicinity of Miami Edison Middle School the next morning, they were met by a large group of other students. Apparently, some member of this group struck Tracy and Tammy Jackson's brother, at which point Tracy and Tammy Jackson first displayed knives which they had brought with them from home. According to the testimony of Tracy and Tammy Jackson, which is not controverted, this was the first and only time that they had attended school armed with knives. The entire group of students apparently began milling around but proceeded generally in the direction of the main school building. At this point, Freddie Robinson, the Assistant Principal at Miami Edison Middle School, noticed the crowd of students, and proceeded into the crowd on the assumption that a fight was occurring. Upon being advised that Tracy and Tammy Jackson were armed with knives, Mr. Robinson managed to direct the students into the main school building, down the hall and into the Counselor's office. At all times during those movements, the Assistant Principal and the students were surrounded by a milling group of hostile students apparently intent on prolonging the confrontation. According to the Assistant Principal, at no time did either of the students display their knives in a threatening or offensive manner, but were instead attempting to defend themselves against attack. At some point in this process, the Assistant Principal was joined by George Thomas, a teacher at the school, who attempted to assist Mr. Robinson in disarming the girls. Mr. Thomas managed to remove the knife from the possession of Tammy Jackson without incident, but when Mr. Robinson grabbed the arm of Tracy Jackson, that student, in attempting to break free, inflicted what appears to have been a minor wound to Mr. Robinson's forearm. Mr. Robinson testified, without contradiction, that it appeared to him that the student did not intentionally stab him, but inflicted the wound accidently in the process of attempting to break free from his hold. On February 22, 1979, both Tammy and Tracy Jackson were reassigned from Miami Edison Middle School to Jan Mann Opportunity School North as a result of this incident. There is nothing in the record to indicate the procedures by which this assignment was accomplished. It is, however, clear that the students never attended Jan Mann Opportunity School North, but were instead held out of school by their mother. As a result, February 7, 1979, was the last day on which these students attended school during the 1978-79 school year. The incident which occurred on February 7, 1979, was the only incident of disruptive behavior in which Tracy and Tammy Jackson have been involved while enrolled in the Dade County Public Schools. The other students involved in the fight with them, however, had been suspended from school on several occasions for fighting and disrupting classes. There is no evidence in the record in this cause concerning Tracy and Tammy Jackson' grades from which any determination could be made that they have been unsuccessful in the normal school environment. Likewise, the record is devoid of any testimony regarding their lack of attendance in the regular school program. Although the students did not attend Jan Mann Opportunity School North after having been assigned to that facility, there appears no evidence of record concerning the programs available at that institution in which the students would have been enrolled had they chosen to attend. In addition, although there exists some testimony concerning a very commendable Dade County School Board policy against the possession of knives on campus at any school in Dade County, no such written policy was offered into evidence at this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That a final order be entered by the Dade County School Board reassigning the students, Tammy Terrell Jackson and Tracy Tashanna Jackson, to the regular school program in the Dade County School System. Recommended this 17th day of July, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mrs. Jerry D. Jackson 2340 NW 73rd Terrace, #12 Miami, Florida 33147 Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Ludwig J. Gross Executive Director Division of Student Services Dade County Public Schools 5975 East 7th Avenue Hialeah, Florida 33013 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 Michael Neimand, Esquire 3050 Biscayne Boulevard Miami Florida, 33137 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY CASE NOS. 79-709, 79-710 MRS. JERRY D. JACKSON, on behalf of minor child, TAMMY TERRELL JACKSON, Petitioner, vs. CASE NO. 79-709 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / MRS. JERRY D. JACKSON, on behalf of minor child, TRACY TASHANNA JACKSON, Petitioner, vs. CASE NO. 79-710 THE SCHOOL BOARD OF DADE COUNTY, 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 on August 22, 1979, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that Tammy Terrell Jackson and Tracy Tashanna Jackson be reassigned to the regular school program in the Dade County school system. 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 are adopted with the following modifications: 1. The Hearing Officer's Conclusions of Law are modified by deleting paragraph 7 and substituting the following therefor: 7. F.A.C. Section 6A-1.994 provides: "6A-1.994 Educational alternative programs. Definition. Educational alternative programs are programs designed to meet the needs of students who are disruptive, dis- interested, or unsuccessful in a normal school environment. The educational alter- native may occur either within the school system or in another agency authorized by the school board. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria prescribed below as deter- mined by grades, achievement test scores, referrals for suspension or other discipli- nary action, and rate of absences. (a) Disruptive. A student who: Displays persistent behavior which inter- feres with the student's own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide; or Displays consistent behavior resulting in frequent conflicts of a disruptive nature while the student is under the jurisdiction of the school either in or out of the class- room; or Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population." (emphasis supplied) 8. The petitioners have both displayed "dis- ruptive behavior which severely threatens the general welfare of the student or other members of the school population." Meeting this criteria is sufficient grounds for placement in an educational alternative program. Accordingly, they are properly, and in their own best interests, assigned to Jan Mann Opportunity School North. There is no evidence that this assignment is punitive rather than positive in nature. 2. The Hearing Officer's recommendation is, therefore, rejected, and the assignment of Tammy Terrell Jackson and Tracy Tashanna Jackson to Jan Mann Opportunity School North is affirmed. DONE AND ORDERED this 22nd day of August, 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By: Phyllis Miller, Chairman
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 30 workdays without pay?
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. (2009).1 Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Peters has been employed by Petitioner as a Special Education Teacher for eight years. Her first two years of employment as a full-time teacher were at Edison Park Elementary School. Peters has been assigned to Morningside Elementary School ("Morningside") as a full-time Exceptional Student Education ("ESE") teacher for approximately six years. She remains employed at Morningside presently. During the 2007-2008 and 2008-2009 school years, Respondent worked as an ESE teacher dealing with kindergarten and first grades. Even though Peters had a room, she went to the classrooms of the students assigned to her to perform her duties. Peters' job duties and responsibilities included but were not limited to developing IEPs, maintaining attendance and grade records, keeping students records, participating in various meetings and in-services, and performing work as required or assigned by the supervising administrator or his/her designee. At all times relevant hereto, Respondent was provided with an assigned class schedule. During Peters' employment at Morningside from August of 2005 through March of 2009, Respondent was disciplined numerous times for not complying with her job duties. Peters repetitively failed to adhere to her class schedule; failed to request administrative permission to leave the worksite; failed to follow faculty sign in/out procedures; left the school site during scheduled classroom work time; failed to complete student IEPs; failed to keep student grading, attendance, and other student records; and continually refused to obey the direct and reasonable orders given by her supervisors, Morningside Principal Ms. Kathleen John-Lousissaint ("Principal" or "John- Lousissaint"), and Morningside Assistant Principal Ms. Sandra Cue ("Assistant Principal" or "Cue").2 The School Board kept a record of the occurrences in Peters' personnel file and went through all the required procedures for disciplining Peters, including repetitive verbal directives, approximately 47 written directives by memorandums, numerous Conferences-for-the-Record ("CFR"), and ultimately written reprimands after Respondent continuously refused to comply with previously given directives. From October 4, 2006, to March 16, 2009, Peters failed to adhere to her schedule as written and was issued 16 written directives, including two written reprimands, to adhere to her class schedule and not to make any changes to the class schedule unless approved by the Principal or Assistant Principal.3 On September 3, 5, 8, 9, 10, 11, and 12, 2008, Peters did not adhere to her daily schedule as written when she didn't report to her assignment. Peters received her first written reprimand for failing to adhere to her schedule on September 21, 2008.4 The Principal went out of her way to work with Peters constantly and met with her numerous times providing verbal directives to follow the school policies including adhering to the class schedule. After the first reprimand, Peters continued to fail to adhere to her class schedule numerous times in November and December 2008 and January 2009. Peters received a second written reprimand for failing to adhere to her class schedule on March 16, 2008. Peters signed both of the written reprimands dated September 21, 2008, and March 16, 2008. Each informed Peters that "Any recurrence of the above infraction [would] result in further disciplinary action." By failing to adhere to her schedule, Peters burdened the Morningside administrators and other teachers who had to cover for Respondent or do her work. Peters also impaired the learning environment for the ESE students when she didn't show up, since she was responsible for educating the students assigned to her. Further, when Peters did not report to her assigned classes, she jeopardized the health, safety, and welfare of the children assigned to her care. From November 8, 2006, to February 16, 2009, Peters was issued several written directives including one written reprimand for failing to request authorization from the administration before leaving the school site, and three written directives for failing to sign in and out when leaving and returning to the school site, as per school site policy.5 Peters received two written reprimands on March 27, 2007, and on March 16, 2008, for failing to comply with the established timelines in the execution of a variety of her duties including, but not limited to, recording student grades, failing to complete IEPs in a timely manner, and failing to utilize the WISE system to complete IEPs. When Peters failed to complete her IEPs, the Morningside administrators had to get other teachers to complete Peters' job in addition to their own assignments. On February 2, 3, and 4, 2009, Peters failed to adhere to her schedule as written. Peters was reprimanded on February 20, 2009, for numerous violations of school policy. The reprimand was entitled RESPRIMAND-INSUBORDINATION and stated: On the following dates, November 3, 6, 18, 20, and 25, 2008, December 1, 5, 8, and 9, 2008, January 12, 13, 15 and 21, 2009 and February 2, 3, and 4, 2009, you did not adhere to your schedule as written. On December 10 and 11, 2008, you attended a two day WISE training without prior approval from this administrator. On January 13, 2009, you refused to meet with this administrator. On January 14, 2009, you did not attend a scheduled faculty meeting. Since your Conference-For-[the-]Record meeting in September, you have failed to follow your schedule on 16 occasions, did not attend a scheduled faculty meeting, and have refused to meet with this administrator on five different occasions and refused to meet with the Assistant Principal on one occasion. Your continuous defiance and compliance with the site directives issued on September 25, 2008 and reissued on October 20, 2008, is considered insubordination. It is your professional responsibility as a Miami-Dade County Public School employee to comply with directives issued by the site supervisor. You are hereby officially reprimanded for the following violations of your professional contractual responsibilities: Non-compliance with Miami-Dade County School Board Rule 6GX13-4A-1.21, Responsibilities and Duties.[6] Refusal to meet with this administrator. Failure to adhere to school site procedures. Failure to adhere to assigned schedule as written. At hearing, Respondent answered in the affirmative that she believed that the directives relating to adhering to a work schedule, seeking administrative approval before leaving a school site, and signing in and out when leaving campus were reasonable. Peters' journal, submitted to the School Board detailing her responses to the disciplinary action of February 20, 2009, stated “I’m not following the schedule because it doesn’t make sense.”7 After receiving the reprimand of February 20, 2009, Peters failed to secure approval from an administrator on either February 26, 2009, or March 3, 2009, when she signed out on the staff sign out log and left the building at a time when she was scheduled to work with students. On March 5, 2009, Peters refused to sign the memorandum dated March 4, 2009, entitled RESPONSIBILITIES AND DUTIES that the Assistant Principal provided Peters. The memorandum advised Peters that she had been told on February 20, 2009, to "adhere to [her] schedule and secure administrative approval prior to leaving the building at a time other than the scheduled lunch time.” It also stated: This memorandum serves as a final reminder that you are to adhere to your schedule and you are to request prior approval from this administrator to leave the building at anytime other than your scheduled duty free half hour lunch block. On March 16, 2009, John-Lousissaint observed Peters in the hallway at approximately 8:30 a.m. and instructed her to report to her scheduled assignment. At approximately 8:40 a.m., the Assistant principal saw Peters and told her several more times to report to her scheduled assignment. At 9:00 a.m. Peters was not in her scheduled classroom assignment. On March 16, 2009, the Assistant Principal gave Peters a memorandum dated March 16, 2009, entitled RESPONSIBILITIES AND DUTIES that stated, "You are reminded that you are to adhere to school site procedures and your schedule as outlined unless notified by an administrator." As a result of Peters actions described in paragraphs 21 and 22 above, on or about April 16, 2009, a CFR was held with Peters. Administrators addressed Peters' gross insubordination and misconduct at the CFR. Peters was instructed yet again to adhere to the directives previously issued by the Principal on numerous occasions, and to comply with the reasonable requests of the Principal. Peters testified at hearing that her personal relationship with the school administrators has become strained and she felt she was being singled out. Peters felt as though she were not being treated like a teacher. Peters asserted that she should work with higher level students and didn't feel like she was part of the Morningside team since she didn't have a homeroom.8 On or about May 18, 2009, Morningside's Principal observed Peters in the school's resource room, sitting in front of a laptop, during a time when Respondent was scheduled to be instructing students. John-Louissaint instructed Respondent to follow her schedule and report to room 103. Peters refused and replied, "No, I don't think I will be going." The Principal left and went and brought a union steward back to the resource room, and repeated to Peters, "Ms. Peters as your supervisor and in front of your union steward, you are directed to report to your scheduled assignment." Peters was insubordinate and refused to go stating again, "No, I am not going." The students in room 103 were unattended. On May 20, 2009, the Principal issued a memorandum to Peters regarding the May 19, 2009, incident stating that Respondent's "continuous defiance and non-compliance with previously issued directives is considered blatant and gross insubordination." On or about August 26, 2009, Peters was notified by letter that the Superintendent of Schools was recommending to the School Board to suspend her without pay for 30 workdays. The letter further notified Respondent the reasons for the recommendation included, but were not limited to: gross insubordination and violations of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties and 6Gx13-4A-1.213 Code of Ethics. At a regularly scheduled meeting on September 9, 2009, the School Board of Miami-Dade County took action to suspend Respondent for 30 workdays without pay for just cause including, but not limited to, gross insubordination and violations of those School Board Rules as set forth above in paragraph 28. Respondent was notified of the School Board's action by letter dated September 10, 2009. On March 15, 2010, the School Board filed its Notice of Specific Charges charging Respondent with misconduct in office, gross insubordination, and violation of School Board rules regarding responsibilities and duties, and ethics.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Peters without pay for 30 days. DONE AND ENTERED this 21st day of June, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2010.
The Issue The issue is whether Petitioner has just cause to terminate the employment of Respondent, a Behavior Management Teacher (BMT), due to Respondent's inappropriate interaction with a student on April 16, 2014, as alleged in the Amended Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty of operating, controlling, and supervising all free public schools within Miami-Dade County, Florida, pursuant to article IX, section 4(b), Florida Constitution, and section 1001.32, Florida Statutes. At all times material hereto, Respondent was employed as a BMT at Allapattah Middle School (Allapattah), a public school in Miami-Dade County, Florida. Respondent has been employed by the School Board for approximately 14 years pursuant to a professional service contract and subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the provisions of the collective bargaining agreement in effect between Miami-Dade Public Schools and United Teachers of Dade (UTD contract). During his employment with the school district, Respondent took a break from teaching to attend divinity school. He became a permanent teacher in 2007 and worked in Miami Senior High School. Respondent transferred to Allapattah in 2011 at the request of its assistant principal. During the 2011-2012 school year, Respondent served as a SPED reading, language arts, and math teacher. During the 2012-2013 school year, Respondent held dual roles as the SPED Chair and a SPED teacher. In November 2013, Respondent was offered and accepted the position of BMT at Allapattah. The BMT is considered the "first in line" to deal with a student who causes a disturbance in the classroom by behavior such as cursing or fighting. If called by a teacher to assist or a BMT observes a student acting out in such a way as to disrupt a classroom, the BMT intervenes to try and get both sides of the story regarding why the student is upset and tries to redirect or modify the student's behavior so that the student can remain in the classroom. If that is unsuccessful, the BMT removes the student to a special education classroom where the BMT uses other techniques, such as discussing respect, to calm the student. The BMT may also recommend an in- school or out-of-school suspension. Respondent was in a graduate program for guidance counseling when offered the BMT position. He accepted the position because he felt the BMT role would help him better understand the student population with emotional/behavioral disorders (EBDs). As the BMT, Respondent was assigned 30 students with severe behavioral issues. Respondent also continued some duties of the SPED Chair position until February 2014. Respondent received uniformly satisfactory performance evaluations throughout his teaching career with Petitioner. He was not previously counseled or disciplined for any reason. On April 16, 2014, Towanda Seabrook, the SPED Chairperson, entered a seventh-grade classroom for observation and saw two students being disruptive. N.H. was cursing the classroom teacher, and D.J. was talking with other students. Ms. Seabrook directed these students to leave the classroom and go with her to the SPED office/classroom. The SPED office/classroom is in Allapattah's classroom 1165. It is a large room with several work stations and a conference table that are used by the EBD counselors, teachers, and the BMT. Attached and opening into the SPED office/classroom are the offices of the SPED Chairperson and EBD counselors. After going with Ms. Seabrook to the SPED classroom, N.H. directed his profanity and ranting at Ms. Seabrook calling her a "motherfucker," "whore," and "bitch" and repeatedly saying "fuck you" to her. Ms. Seabrook attempted to defuse the situation by explaining that she is a mother and asking N.H. how would he like it if someone said these types of graphic things to his mother. Ms. Seabrook chose not to go "toe to toe" with N.H. because she was aware that his exceptionality, EBD, causes him to be unable to control his emotions and temper. N.H. is known to curse and use profanity directed at teachers. Despite N.H.'s continued use of graphic language, Ms. Seabrook felt she had the situation under control and attempted to complete some SPED paperwork. Respondent entered the classroom and heard N.H.'s barrage of profanity and aggression directed at Ms. Seabrook. Respondent was familiar with N.H. due to N.H.'s history of being disrespectful to teachers, running out of class, name calling, defiance, and fighting. Respondent worked with N.H. on an almost daily basis attempting to help N.H. stay in school and modify his behavior to facilitate learning. Respondent described N.H. as one of the most difficult students with whom he was assigned to work. Because the BMT is supposed to be the first line of response to a belligerent and disruptive EBD student, Respondent immediately tried to diffuse the situation by reasoning with N.H. N.H. proceeded to call Respondent (an African-American male) "Nigger," "Ho" (whore), "pussy," "punk," and repeatedly said "fuck you." This tirade by N.H. went on for almost 45 minutes. During this time, N.H. and D.J. sat at the conference table in the classroom. Throughout the 2013-2014 school year, Respondent had tried numerous strategies to assist N.H. in controlling his behavior and temper at school-–all with no success. On April 16, 2014, after listening to N.H. verbally abuse Ms. Seabrook and himself, Respondent decided to use an unorthodox strategy to get N.H. to understand the gravity of his words and to calm down. Respondent asked N.H. if he knew what "fucking" means. N.H. responded "a dick inside a pussy." Respondent replied, "A dick inside a pussy? Maybe if you were fucking you wouldn't behave this way," implying that if N.H. was having sex, perhaps he would be better able to control his emotions at school. Ms. Seabrook overheard this portion of the conversation and it made her uncomfortable so she left the room. She believed this method used by Respondent was inappropriate and not likely to be successful, and she intended to talk to Respondent about it before advising the principal. Notably, Ms. Seabrook did not feel the need to intervene or immediately report the conversation and testified that in response to N.H.'s provocation, she may also have said "fuck you" back to N.H. This graphic discussion was also overheard by Deborah Phillips, an EBD counselor, who was in an adjacent office with the door open. After N.H. called Respondent a "pussy," Respondent asked N.H. if he knew what one was, had ever seen one or knew what to do with one. Ms. Phillips did not intervene or report the conversation. According to Ms. Phillips, this extremely graphic and profane interaction between N.H. and Respondent was only a minute or two. Ms. Phillips testified that she would not go toe to toe with N.H. because she believed it would only elevate the behavior. While Respondent and N.H. were arguing, and Respondent asked N.H. to define the words he was using, D.J. used his cell phone to video and audio record approximately 25 seconds of the conversation. In the recording, Respondent is heard telling N.H. to spell "Ho." N.H. answered "hoe," and Respondent stated, "yea nigga-–that's what I thought." During the brief recording, D.J. is heard laughing in the background. The conversation had the desired effect. N.H. started laughing and immediately calmed down. Respondent was able to escort N.H. to the principal's office where it was decided that N.H. would not be suspended, but rather Respondent would drive N.H. home. During the ride home, N.H. was calm and there were no further incidents or inappropriate discussions. The following school day, D.J.'s mother brought the recording to the attention of the principal who initiated an investigation. Respondent immediately expressed remorse and regret that he used this unconventional method of defusing N.H.'s anger. Respondent admitted participating in the graphic dialogue and acknowledged that it was inappropriate. As a result of the investigation, Respondent was suspended effective June 19, 2014, without pay and recommended for termination from employment. Findings of Ultimate Fact As discussed in greater detail below, Petitioner proved Respondent violated School Board Policy 3210, Standards of Ethical Conduct, but failed to demonstrate by a preponderance of the evidence that Respondent committed any of the other charged offenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order: (1) finding that just cause does not exist to terminate Respondent's employment; and (2) imposing punishment consisting of suspension without pay from employment through the end of the first semester of the 2014-2015 school year for violation of School Board Policy 3210 that does not amount to misconduct in office. DONE AND ENTERED this 20th day of November, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2014.
The Issue Whether Respondent committed the actions set forth in the Notice of Charge of Misconduct in Office, dated December 18, 2013, and if so, whether these actions constitute just cause for suspension.
Findings Of Fact The Walton County School Board (School Board) is charged with the responsibility to operate, control, and supervise the public schools within the School District of Walton County, Florida. During the 2013-2014 school year, Ms. Harriet Hurley was a teacher at Walton Middle School. Ms. Hurley had earlier been a teacher in Georgia for eight years, had been employed in Walton County Schools in 1984 for a period of three years, and taught in Okaloosa County Schools for five years. She then returned to Walton County Schools where she has been ever since, for a career of over 30 years. In addition to her responsibilities as a teacher at Walton Middle School, Ms. Hurley assists in scheduling parent- teacher conferences for students at Walton Middle School. Ms. Hurley’s responsibilities in scheduling conferences are limited to a coordination function. She is not responsible for addressing the substance of the issues to be addressed in the conferences or becoming involved in attempting to resolve them. Principal Hope never asked Ms. Hurley to assume a role as a guidance counselor. Ms. Hurley is employed by the School Board. As a member of the School Board’s instructional staff, Ms. Hurley’s employment is subject to section 1012.33, Florida Statutes (2013), which provides that her employment will not be suspended or terminated except for “just cause.” As a teacher, Ms. Hurley is required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures of the School Board of Walton County, Florida. Ms. Hurley is not the legal guardian of her granddaughter, B.C., who is a student at Walton Middle School. On November 20, 2013, Ms. Hurley’s granddaughter, B.C., approached her in the adult dining area about a group math assignment that was upsetting her. B.C. told Ms. Hurley that she had been told by her sixth-grade math teacher, Ms. Black, that her “high grade was gone” because of the failure of her group to complete a group math assignment. B.C. told Ms. Hurley that she blamed S.A., another student in her group, for their failure to complete the work. Ms. Hurley immediately left the adult dining area with her lunch only partially eaten and went with B.C. back to Ms. Black’s classroom. B.C. had been released for lunch a few minutes before the other students because she was an A/B Honor Roll student, so the other students were still in the classroom when Ms. Hurley arrived there. When Ms. Hurley and B.C. arrived at the classroom, the students were packing up their personal items in preparation for their release for lunch. Ms. Black testified in part: At that time, I think it was because the students leave five minutes early, A/B honor roll students. I don’t really want to go ahead and teach them anything, because they’re missing that opportunity to learn. At that time I get them to pack up and get their things together to leave for lunch. There was a high level of noise in the classroom. Ms. Black, in her first year as a teacher, was at her desk trying to help some students who did not understand something, and was in a verbal altercation with S.A., who was walking away from her. On November 20, 2013, S.A. was not a student in one of Ms. Hurley’s classes. Ms. Hurley addressed S.A., telling him that he should not talk to his teacher that way. Ms. Hurley told S.A. to “come here to me.” She was upset with S.A. and told him that he needed to stop playing around. In a loud and forceful tone of voice, she told him that he was not going to be the cause of a “straight A” student getting a bad grade and that he needed to concentrate on his schoolwork. She told him that she knew his mother, who worked at a KFC-Taco Bell restaurant in Miramar Beach, and that she would talk to his mother if necessary. S.A. denied that his mother worked at KFC, and Ms. Hurley restated that she knew that his mother did. The other students in the class heard Ms. Hurley’s disparagement and public discipline of S.A. The bell rang and Ms. Hurley and the students began to leave the classroom. S.A. was embarrassed and upset by the incident. Due to the fact that the students were already packing up their things to leave, and because Ms. Black had been in a verbal altercation with S.A., the actions of Ms. Hurley in Ms. Black’s class did not disrupt the students’ learning environment. Ms. Hurley’s actions were unnecessary. She might have comforted B.C., and encouraged B.C. and her parents to pursue the issue with Ms. Black. S.A. was not one of Ms. Hurley’s students and at the time she decided to go to Ms. Black’s class Ms. Hurley had not directly witnessed any behavior by S.A. that called for immediate correction. Even had it been appropriate for Respondent herself to take action based upon her granddaughter’s information, there was no emergency which required that Ms. Hurley intrude upon a colleague’s class and loudly berate S.A. in front of other students. She used her institutional privileges as a teacher to gain access to Ms. Black’s classroom in order to assist her granddaughter. As Ms. Black was leaving her classroom, she saw that S.A. was reluctantly moving toward the door and she noticed he was crying. She attempted to comfort him. Ms. Black then reported the incident to Mr. Jason Campbell, Assistant Principal, who was in the student lunch room. A few minutes later, S.A. also approached Mr. Campbell to report his version of the incident. Ms. Hurley returned to her lunch in the adult dining room. When Ms. Black came in to the dining room later, Ms. Hurley apologized to her for coming into her classroom. That evening, Ms. Hurley drove to Miramar Beach and went to dinner at the fast food restaurant where she knew Ms. A. worked. Ms. Hurley was one of Ms. A’s teachers when Ms. A. had been in the seventh grade, and the two were casual acquaintances. Ms. Hurley told Ms. A. what had happened that morning with S.A. and B.C. in their math group. Ms. Hurley told Ms. A. that she had “kind of stepped out and went into grandma mode” and had “gotten onto” (disciplined) S.A. Ms. Hurley relayed that she had told S.A. that she knew his mother and that if he did not improve his conduct, she was going to let his mother know about his behavior. During the course of the conversation, Ms. A. relayed that she was concerned about an incident involving a damaged globe from Mr. Price’s classroom, which was S.A.’s SPEAR classroom (“home room”). The following day, on November 21, 2013, Ms. Hurley removed S.A. from his first-period classroom. Neither Principal Hope nor Vice Principal Campbell authorized Ms. Hurley to remove S.A. from his first-period classroom on November 21, 2013. On November 21, 2013, Ms. Hurley contacted S.A.’s mother on the telephone on her own initiative and without the authority of Principal Hope or Vice Principal Campbell. Ms. Hurley called Ms. A. on the telephone with S.A. present. Ms. Hurley and Ms. A. talked about the incident involving S.A. and the damaged globe from Mr. Price’s classroom. The telephone conversation had barely begun when Mr. Hope, upon learning that Ms. Hurley had gone to S.A.’s classroom and removed him from class, came into Ms. Hurley’s room and took S.A. back to Mr. Hope’s office. While the School Board alleged that Ms. Hurley and Ms. A. discussed the incident that happened in Ms. Black’s classroom the day before, this was not shown by the evidence. The allegation that Ms. Hurley was misusing her institutional privileges by engaging in the phone call may be correct, for Ms. Hurley was not authorized to discuss the substance of parent/teacher conferences, but was instead limited to scheduling responsibilities. The evidence did not show that the phone conversation was conducted for personal gain or advantage to Ms. Hurley, however. The School Board’s further argument that Ms. Hurley’s actions on November 21, 2013, reduced the ability of Principal Hope to efficiently perform his duties is also rejected. Assuming that Principal Hope could even be considered a “colleague” of Ms. Hurley’s, the evidence showed that he was able to efficiently “track down” S.A. with minimal effort. To the extent that Ms. Hurley’s actions on November 21, 2013, exceeded her “job description,” they could be corrected with a simple directive or memorandum, and in the absence of evidence that her actions were taken for her personal gain, they are not a just cause for discipline. Statements were taken from several students in Ms. Black’s math class regarding the incident on November 20th, which vary in detail, but taken as a whole corroborate the findings of fact above regarding the incident on November 20, 2013. No statement was taken from B.C., and neither party called B.C. as a witness at hearing. On December 2, 2013, Ms. Hurley met with Walton Middle School administration to discuss the events of November 20 and November 21, 2013. On December 17, 2013, Principal Tripp Hope issued a letter of reprimand advising Respondent that he would be recommending a 10-day suspension without pay to the Superintendent. On December 18, 2013, the Superintendent notified Respondent of her intention to recommend a 10-day suspension without pay. A Notice of Charge of Misconduct in Office, dated December 18, 2013, notified Respondent of the Petitioner’s intent to suspend her employment for 10 days without pay. (As stipulated by the parties.) Although the Notice of Charge of Misconduct in Office did not explicitly identify all rules that Ms. Hurley was charged with violating, the allegations of more specific rule violations were included in the Letter of Reprimand which was attached to the charge. Ms. Hurley was not prejudiced or hindered in the preparation of her defense by any lack of specificity in the charging documents. Ms. Hurley is substantially affected by the intended action of the School Board to suspend her employment without pay for ten days. The evidence did not show that Ms. Hurley failed to “value” the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, or the nurture of democratic citizenship. The evidence did not show that Ms. Hurley did not strive for professional growth or did not “seek” to exercise the best professional judgment or integrity. The evidence did not show that Ms. Hurley did not “strive” to achieve or sustain the highest degree of ethical conduct. The evidence showed that by entering S.A.’s classroom and raising her voice in anger towards him in the presence of other students, Ms. Hurley failed to make reasonable effort to protect S.A. from conditions harmful to his learning or to his mental health. The evidence showed that any required discipline of S.A. should not have been administered by Ms. Hurley and so her actions were unnecessary. Her actions, which reduced S.A. to tears, exposed him to unnecessary embarrassment and disparagement. The evidence showed that in entering another teacher’s classroom to assist her granddaughter by disciplining S.A. when he was not even one of her students, Ms. Hurley used institutional privileges for personal gain or advantage. The evidence did not show that Ms. Hurley lacked integrity, high ideals, or human understanding or that she failed to “maintain or promote” those qualities. The evidence did not show that in entering Ms. Black’s classroom during the final minutes of the class, when the students were already packing up their things and preparing to go to lunch, Ms. Hurley engaged in behavior that disrupted the students’ learning environment. The evidence did not show that Ms. Hurley engaged in behavior that reduced her ability or her colleague’s ability to effectively perform duties. One might speculate as to whether Ms. Black’s ability to maintain control over her class in the future was undermined by Ms. Hurley’s aggressive intrusion, but Ms. Black did not testify that her ability to effectively perform was reduced and this was not otherwise shown. There was similarly no evidence offered to indicate that Ms. Hurley’s own effectiveness was reduced. Her actions were not taken in her own classroom, there was no evidence that she had any of Ms. Black’s students in her classes, or that her own students or the student body generally was even aware of her actions. The actions of Ms. Hurley on November 20, 2013, constitute misconduct in office. Her actions are just cause for suspension of her employment without pay. The School Board witnesses conceded that Ms. Hurley has never received “formal” counseling, and presented no documentary evidence that she had been counseled even informally. The School Board did present credible testimony from Principal Hope and Assistant Principal Campbell that Ms. Hurley had been informally counseled regarding raising her voice with students and for communication with her peers. The actions of Ms. Hurley on November 20, 2013, were not so serious as to justify a ten-day suspension, but do warrant suspension without pay for three calendar days.
The Issue Whether Respondent's suspension from employment with the Dade County School Board should be affirmed and whether Respondent should be dismissed from employment with the Dade County School Board.
Findings Of Fact Respondent, Jill Cohen (Ms. Cohen), has been a school teacher for fifteen years. At all times material hereto, Ms. Cohen, was employed by Petitioner, Dade County School Board (School Board) as an elementary school teacher under a continuing contract. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. On April 27, 1989, Ms. Cohen, while employed at Edison Park Elementary School, had to leave her classroom for a personal hygiene emergency. She asked another teacher with whom she shared the classroom to watch her students while she went to the school clinic. The other teacher advised Ms. Cohen that in a few minutes she had to pick the students up at the physical education field. While Ms. Cohen was absent, the other teacher had to leave the classroom to get her own students. With both teachers absent from the classroom, Ms. Cohen's students were left unsupervised. On May 8, 1989, a conference-for-the-record was held with Ms. Cohen concerning the incident on April 27, 1989, and eleven tardies Ms. Cohen had from January 12, 1989 through May 2, 1989. She was advised that she had a professional responsibility to supervise her students at all times, that leaving students unsupervised was a violation of school and state rules and regulations, and that she was required to report to work on time. Ms. Cohen was told that if an emergency requiring her to leave her class unsupervised arose, she was to notify the administrator so that supervision could be arranged. Additionally, she was advised that future incidents of this nature would result in a recommendation for further disciplinary action. On January 19, 1990, Ms. Cohen left her students unsupervised. During this unsupervised period, one child allegedly sexually abused another student. Upon returning to the classroom, Ms. Cohen learned of the incident and spanked the alleged perpetrator. Ms. Cohen did not report the incident. A conference-for-the record was held on February 5, 1990, concerning the January 19, 1990 incident and another alleged incident of lack of supervision. Ms. Cohen was again advised that she must provide adequate supervision of her students at all times and that if she had an emergency necessitating her absence, she was to contact the administrator. She was told that any reoccurrence of her failure to supervise her students would be deemed gross insubordination for which further disciplinary action would be recommended. Ms. Cohen was given a letter of reprimand. In February, 1990, Ms. Cohen was given an alternate work assignment through June, 1990 at Region IV Operations. The incident of January 19, 1990, was investigated by the Department of Health and Rehabilitative Services. The same incident was also investigated by the State Attorney's Office which brought charges against Ms. Cohen. As a result of these charges brought by the State Attorney, Ms. Cohen entered into a pre-trial advocacy program. A conference-for-the-record was held with Ms. Cohen on May 29, 1990, concerning the January 19, 1990, incident. On September 25, 1990, Ms. Cohen and the School Board entered into a Community Service Agreement, in lieu of suspension, dismissal, or demotion. The agreement included 160 hours of community service, tutoring students, and counseling students. The Florida Commissioner of Education filed an Administrative Complaint against Ms. Cohen as a result of the January 19, 1990, incident. The Administrative Complaint was resolved with a settlement whereby Ms. Cohen did not contest the allegations that Respondent failed to supervise students and spanked a student as set forth in the Administrative Complaint. As a result of the settlement agreement with Commissioner Castor, Ms. Cohen was given a written reprimand, her state teaching certificate was suspended for eight days, she was placed on three years probation, and was required to undergo psychological evaluation and counseling. Ms. Cohen received an overall unacceptable performance evaluation for the school year 1989-90. Ms. Cohen was assigned to the Morningside Elementary School (Morningside) for the 1990-91 school year due to the notoriety stemming from the January 19, 1990 incident. On June 11, 1991, Ms. Cohen accidently hit a student on the head with a stick. The student did not cry or tell Ms. Cohen that his head hurt. At the time of the incident, there were no physical signs on the student that he had been hit. Later a bump appeared on his forehead. When the student went home, he told his mother what happened. She called the police. The next day the student's mother, accompanied by a police officer, went to see the school principal. Ms. Cohen had not reported the accidental hitting of the student. The principal first learned of the accident when the parent and police officer met with the principal. As a result of the accidental hitting of the student, HRS, investigated the allegations and submitted a final report where the investigation was closed without classification. Ms. Cohen received an unacceptable performance evaluation for the school year 1990-91. Ms. Cohen was returned to Region IV Operations for alternate work assignment on August 29, 1991. In lieu of harsher disciplinary action, Ms. Cohen entered into another Community Service Agreement with the School Board on October 8, 1991. Ms. Cohen agreed to perform 200 hours of community service. On October 22, 1991, Ms. Cohen received a written reprimand relating to the June 11, 1991 incident. She was directed to implement appropriate procedures for dealing with inappropriate student behavior. Ms. Cohen was warned that further such incidents would be considered insubordination and would warrant further disciplinary action. After a psychological examination, Ms. Cohen was returned to Morningside for classroom duty in either December, 1991, or January, 1992, with conditions of employment which included, among other conditions, acceptable attendance at the work site and adherence to site directives, prescriptive directives and Code of Ethics stipulations. Ms. Cohen's performance began to improve and she received an acceptable performance evaluation for the 1991-92 school year. At the beginning of the school year 1992-93, the faculty at Morningside were advised that their students must be supervised and students were not to be left unattended. During the first week of school the teachers were given a faculty handbook, which was discussed at the first faculty meeting. The Morningside Elementary School Faculty Handbook provides the following pertinent directives: Discipline: It is the professional responsibility of the teacher to handle routine disciplinary problems. When it becomes necessary for a student to be removed from the classroom, the teacher should seek assistance from the principal, or his/her designee. No Student is to be removed from a classroom and placed in an area that is unsupervised by a qualified person. . . . (at page 1) . . . Supervision of Children: Children should be supervised by adults at all times. Teachers are responsible for walking children to and from physical education. In cases of emergencies, if you must leave students unattended, leave your door open and notify the teacher next door. (at page 3) . . . DISCIPLINE PLAN: Staff members are asked to have a discipline plan on file outlining steps taken to ensure understanding of class and school rules, procedures to be implemented when rules are not followed and positive reinforcement strategies. The county approved Assertive Discipline Plan is the preferred plan for all teachers. (at page 4). . . . PROCEDURES FOR HANDLING STUDENTS WHO ARE SENT TO THE OFFICE. In instances where the routine procedures for handling misbehaving students has not been effective, or if the incident is of a more serious nature, i.e., fighting, defiance of authority, vandalism, teachers will call upon the assistant principal, counselor or principal for assistance. (at page 5) . . . SOME DON'T'S: . . . Put child outside the classroom unsupervised. If a child needs to be excluded from class, send him/her to the office. (at page 7) . . . Accidents and Injury Reports - Student: When a child under your supervision is injured, notify the office and an accident report will be issued. This form must be filled in within 24 hours. (at page 28) At Morningside the teachers pick their students up at the physical education field at the beginning of the school day and escort them to the classroom. During January and February, 1993, Ms. Cohen was late to work three times, resulting in her students being late to class on those days. Ms. Cohen had prepared a discipline plan for the school year which plan provided for a student to have time out in another classroom as part of the progressive discipline. Her discipline plan was posted in her classroom, but had not been filed with the school administrator. Other teachers at Morningside had discipline plans which included time out for students in another classroom. The practice, however, was to not send a child alone. If the teacher or her assistant was unable to accompany the student, the teacher would send two other students to escort the child being disciplined to another classroom. Sometimes the teachers would call the office for assistance. On February 3, 1993, a student in Ms. Cohen's kindergarten class was coloring in a coloring book. Ms. Cohen took the coloring book away from the student. As a disciplinary measure, Ms. Cohen decided to send the student to another classroom for time out. She did not use the call button to alert the principal that she needed assistance. Ms. Cohen took the child to the door of their classroom and told the student to go to Ms. Holden's classroom. Ms. Holden's classroom was down the hall from Ms. Cohen's classroom. The doorway to Ms. Holden's classroom was recessed and could not be seen from Ms. Cohen's doorway. Ms. Cohen saw the student go down the hall but did not see her go into Ms. Holden's classroom. The student did not go into Ms. Holden's classroom, but stood outside and began to cry loudly. A school employee discovered the crying student alone in the hallway and took the student to the office. Morningside is located close to Biscayne Boulevard near an industrial district and a high crime area, known for prostitution and drug dealing. The school is designed with open corridors and no fencing around the school. Vagrants loiter around the school. On May 17, 1993, a conference-for-the-record was held to address the February 3, 1993, incident. Ms. Cohen received a performance evaluation for 1992-93 of unacceptable. On July 14, 1993, a pre-dismissal conference-for-the record was held with Ms. Cohen to address the pending dismissal action scheduled for the School Board meeting of July 21, 1993. At the July 21, 1993, meeting the School Board voted to suspend Ms. Cohen and commence dismissal proceedings against her. The Dade County Public Schools and the United Teachers of Dade have entered into a collective bargaining agreement (Labor Contract) which provides in pertinent part on page 15: ARTICLE VII - SAFE LEARNING ENVIRONMENT Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. . . . E. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to or upon the student's return to the classroom, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Faculty Council/Shared Decision-Making Cadre. At page 88, the Labor Contract provides in pertinent part: Section 3. Workday The employee workday shall be seven hours and five minutes for employees at the elementary level . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. Cohen guilty of incompetency, insubordination and willful neglect of duty, sustaining her suspension without pay, and dismissing her from employment from the School Board of Dade County without back pay. DONE AND ENTERED this 3rd day of February, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4232 The following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: The first three sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts actually found. Paragraphs 5-6: Accepted in substance. Paragraph 7: Rejected as not supported by the greater weight of the evidence. Paragraphs 8-18: Accepted in substance. Paragraph 19: Rejected as unnecessary. Paragraph 20: Rejected as immaterial since Ms. Cohen received an acceptable performance evaluation for the year 1991-92. Paragraph 21: Rejected as unnecessary to the facts found. Paragraph 22: Accepted in substance. Paragraph 23: Rejected as unnecessary to the facts found. Paragraphs 24-26: Accepted in substance. Paragraph 27: The first sentence is accepted in substance. The second sentence with the exception of "hysterically" is accepted in substance. The portion of the last sentence that Ms. Cohen was assigned to the region office is accepted and the remainder is rejected as unnecessary. Paragraph 28: The first sentence is accepted in substance. The second sentence is rejected to the extent that Petitioner is inferring that Ms. Cohen did not see the child to the doorway of Ms. Cohen's classroom. Paragraph 29: Accepted in substance. Paragraph 30: The first two sentences are not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 31: Rejected as argument. Paragraph 32: Accepted in substance. Paragraph 33: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting argument. Paragraph 34: Accepted in substance. Paragraph 35: Rejected as constituting argument. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent, a teacher, for 30 days without pay for pushing a student.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, Respondent was employed by the School Board as an eighth-grade teacher at NDM, a public school in Miami-Dade County, Florida. Respondent has taught for the School Board for 15 years without receipt of any prior discipline. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade. The proposed discipline is based upon conduct occurring on Thursday, March 4, 2014. On that day, 14-year-old eighth-grade student, D.H., entered Respondent's classroom approximately ten minutes late. Respondent told D.H., “You are going to jail.” When D.H. asked why and said he had done nothing wrong, Respondent did not answer and instructed D.H. to immediately leave the classroom. This interaction was observed by other students in the classroom. D.H. exited to the hallway outside of Respondent's class. At or about this same time, substitute teacher Green was walking several students who had been disruptive to other classrooms. Green took a female student to Respondent's class. Green saw D.H. and told him to go into the classroom. Green opened Respondent's classroom door and asked if she could leave the female student with Respondent and he agreed. While Green and Respondent were talking, D.H. attempted to re-enter the classroom as directed by Green. Respondent stood in front of D.H. and told him he was not allowed to enter. D.H. asked why and said he was going to enter. Respondent replied, “You'd have to go through me first. I wanna see that.” D.H. replied, “Man, I ain't studying you, I don't even see you.” Respondent and D.H. then got in a heated verbal exchange. Green tried unsuccessfully to have Respondent calm down and go back in the classroom. Respondent taunted D.H. by saying he was waiting for D.H. to throw the first punch and that he would give D.H. a “beat down.” Respondent escalated the situation by calling D.H. “weak” and saying “You have no power. That's why you always get beat up.” D.H. was visibly upset and Green kept him separated from Respondent. Respondent went back into the classroom and closed the door, but continued making comments, gestures, and laughing at D.H. in front of his classmates. D.H. remained in the hall yelling. Respondent opened the door again and said if D.H. put his hands on him, he would give him a beat down. D.H. moved from behind Green, towards Respondent, and got a few inches from him and said, “I'm right here. What are you going to do?” D.H. did not touch Respondent. Respondent hit D.H. hard with two open hands to D.H.'s chest causing D.H. to stumble several steps and fall into Green. At the time of this incident, Respondent weighed 220 pounds. D.H. was 14 and weighed approximately 140 pounds. Green told another student to call security and then convinced Respondent to go back in his classroom. Green took D.H. to her classroom. D.H. was not physically injured, but was embarrassed. As a result of the investigation, Respondent was suspended without pay for a period of 30 days for misconduct in office, in violation of State Board of Education and School Board rules.
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 finding Richter Flambert guilty of misconduct in office, suspending his employment without pay for a period of 30 school days, and placing him on probation for a period of one year. DONE AND ENTERED this 11th day of December, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 11th day of December, 2015.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that respondent be found guilty of incompetency and gross insubordination within the meaning of Subsection 231.36(4), Florida Statutes (1987) and that she be dismissed as an employee of the Board. DONE and RECOMMENDED this 10th day of February, 1989, at Tallahassee, Florida. D0NALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4576 Petitioner: 1. Covered in finding of fact 1. 2-23. Covered in finding of fact 3. 24. Covered in finding of fact 4. 25. Covered in finding of fact 6. 26. Covered in finding of fact 7. 27. Covered in finding of fact 8. 28. Covered in finding of fact 9. 29. Covered in finding of fact 10. 30. Covered in finding of fact 11. 31. Covered in finding of fact 12. 32. Covered in finding of fact 13. 33. Covered in finding of fact 14. 34. Covered in finding of fact 15. 35. Covered in finding of fact 16. 36. Covered in finding of fact 17. 37. Covered in finding of fact 5. 38. Covered in finding of fact 18. 39. Covered in finding of fact 19. 40. Covered in finding of fact 20. 41. Covered in finding of fact 21. 42. Covered in finding of fact 22. 43. Covered in finding of fact 23. 44. Covered in finding of fact 24. 45. Covered in finding of fact 25. 46. Covered in finding of fact 26. 47. Covered in finding of fact 27. 48. Covered in finding of fact 28. 49. Covered in finding of fact 29. 50. Covered in finding of fact 30. 51. Covered in finding of fact 31. 52. Covered in finding of fact 32. 53. Covered in finding of fact 33. 54. Covered in finding of fact 34. 55. Covered in finding of fact 35. 56. Covered in finding of fact 36. 57. Covered in finding of fact 37. 58. Covered in finding of fact 38. 59. Covered in finding of fact 39. 60. Covered in finding of fact 40. 61. Covered in finding of fact 41. 62. Covered in finding of fact 42. 63. Covered in finding of fact 43. 64. Covered in finding of fact 44. 65. Covered in finding of fact 45. 66. Covered in finding of fact 46. 67. Covered in finding of fact 47. 68. Covered in finding of fact 48. 69. Covered in finding of fact 49. Covered in numerous findings of fact. Covered in finding of fact 5. Covered in numerous findings of fact. Covered in finding of fact 58. 74.-76. Rejected as being unnecessary. Partially covered in finding of fact 53. The remainder has been rejected as being argument or irrelevant. Rejected as being argument of counsel. COPIES FURNISHED: Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132 H. T. Smith, Esquire 1017 Northwest Ninth Court Miami, Florida 33136 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Karen B. Wilde, Executive Director Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32399
