Findings Of Fact Respondent began working for Petitioner in 1966 as a teacher's aide. She became a teacher in 1974 at Olympia Heights Elementary School under the principalship of William Kennedy. Although Respondent received acceptable evaluations from Kennedy for the next several years, she frequently had problems in classroom management and in her paperwork. Kennedy admonished Respondent to utilize more voice control in giving directions and corrections to students, since she frequently yelled at the students and sometimes the yelling could be heard in the hallway and even in the principal's office. Kennedy held informal conferences with Respondent. He also directed the assistant principal, Tessa Gold, and Respondent's fellow teacher, Josie Wright, to give advice to Respondent. Additionally, he changed Respondent's grade-level assignments from fifth grade to third grade to first grade and then to kindergarten in an attempt to assist her. Respondent basically corrected her errors each year and managed to obtain a good evaluation by the end of each school year. However, each year she required more administrative input in order to be an adequate teacher. On or about October 28, 1977, Respondent struck a child with a ruler. Kennedy and Gold saw redness and ruler marks on the child's hands. Respondent admitted to Kennedy that she had struck children, and Kennedy directly ordered her never to strike a child again. Clifford Herrman became the principal of Olympia Heights Elementary School for the 1981-82 school year. Although Herrman's goal was to visit every classroom once a day, he was generally successful in visiting each classroom at least three times a week for a short visit or "walk-through" for up to five minutes. Herrman also was responsible for official evaluations of the teachers at his school. New teachers are required to have a certain number of observations. As teachers have more seniority, fewer observation are required. If a teacher was found to be unacceptable in any area, Herrman was required to reevaluate to see that the improvements that had been recommended were actually made. Therefore, every time, as will be set forth below, that Respondent was rated "unacceptable" in a long series of observations, Herrman was required to reevaluate Respondent to ascertain if the recommended improvements had been made. Accordingly, mare formal observations were performed on Respondent than on other teachers with the same seniority in order that Respondent could demonstrate improvement. Respondent was promised a kindergarten class for the 1981-82 school year by Kennedy before he was replaced as the principal by Herrman. During the preceding summer, Herrman questioned whether there would be enough students for that additional kindergarten class. He therefore notified Respondent that she would be teaching a third grade class but that if there were enough kindergarten students he would make sure she taught a kindergarten class. During the pre-planning week, Herrman ascertained that the number of students was sufficient to generate the additional kindergarten class, and he so notified Respondent. Although she had only one afternoon to get ready for her kindergarten class, Respondent was not penalized in any way for having a late start. Herrman assigned the other kindergarten teachers to assist Respondent in preparing her classroom and son plans because of the reduced time Respondent had to prepare individually. When Herrman made his first official observation of Respondent on September 14, 1981, he rated her performance as acceptable. The Balanced Curriculum is a Dade County Public Schools district policy. It mandates that certain blocks of time be committed to different areas of study. Different grade levels require different lengths of time, and certain material must be taught within those blocks of time. PREP is a program mandated by the State Legislature. The most important aspect of the PREP program is that the children receive an intense amount of individualized help. Their problems are identified early in their school careers. The intent is to identify problem areas and eliminate those areas by the use of small class size, low teacher ratio, and a lot of support in the kindergarten through third grade classrooms. When a child enters school, a test is given. Through the results of that test, the child is placed into one of the three PREP strategies. The preventative strategy means that there is an identifiable, correctable problem. A "preventative child" needs a lot of manipulatives, a lot of "hands-on" activities, and more one-to-one instruction. A "developmental child" is one who is progressing the way a child is expected to progress at that grade level. These are generally the "average" children. The "enrichment children" would include the gifted and those children who need extended activities because they finish their work early and need to be challenged. The children are charted on a PREP roster, which is a classroom chart. A teacher's plans must reflect different activities for the children on the different strategies, and the children's work folders must reflect the strategies. Dade County provides in-service training for the PREP program in the form of a 30-hour course. Respondent had received her PREP training during the first year of teaching kindergarten, probably before Thanksgiving. Dade County requires all of the schools to have children's work folders with graded, dated work. Homework is to be reflected in those folders. The work must show corrections. There is also a requirement that the grade book reflect at least one grade per week in each subject area. The next formal observation of Respondent was performed by Herrman on November 24, 1981. Respondent was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was marked unacceptable in preparation and planning because she was not following her lesson plans and was therefore off task. Her lesson plans did not reflect the specific time allocations for different subject areas as required by the Dade County Balanced Curriculum. Respondent wad unacceptable in classroom management because the students were not on task, they were noisy, and they were out of their seats. Respondent did not appear to be aware of which students were on or off task. Respondent was unacceptable in the area of techniques of instruction because she was not involving the students in a diagnostic prescriptive program, as required by Dade County policy. All of Respondent's students were given the same material and were not put into PREP strategies. This meant that the work was too difficult for some and too easy for others. Respondent therefore failed to meet the individual needs of her students, as required by Dade County policy. Additionally, Respondent's directions were not given in a clear and precise manner. Respondent was found to be unacceptable in teacher-student relationships because her verbal communication was found to be inappropriate and very negative. She used phrases such as "Shut up" and "You're acting like babies." Respondent was found to be unacceptable in maintaining a complete grade book. There were many entries in the grade book that had no indication as to what they were for and for which date. There were grades missing for some subject areas. There were not sufficient grades in the grade book to document a child's progress at the end of the nine-week grading period. The grade book is used to determine whether a student has mastered the skills according to the Dade County Public Schools Minimum Performance Standards and to document whether a child has met the requirements for promotion to the next grade. Herrman prescribed help for Respondent. He directed her to (1) follow planned lessons, (2) establish classroom procedures and require the children to follow those procedures, (3) periodically check the students to see that they remain on task, (4) give directions in a clear and precise manner, (5) date her grades, and (6) have more complete grades. He further directed that her verbal communication should be more positive. Herrman performed the next formal observation of Respondent on December 1, 1981. She was found to be unacceptable overall, and she was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, and assessment techniques. Tessa Gold, the assistant principal, was in the Respondent's classroom when this observation was made, and she is in full agreement with the observation. Respondent was found to be unacceptable in preparation and planning because her lesson plans did not reflect the Balanced Curriculum requirements. Respondent failed to ascertain whether the students' record player was working properly. The record player was on the wrong speed, and the lesson was inaudible to the children who were using headphones. Respondent was found to be unacceptable in classroom management because the children were not on task and doing their lesson. instead, they were doing other things, talking, and out of their seats. Respondent was found unacceptable in her techniques of instruction because nothing was being done to remediate the deficiencies of the children. Much of the work was at a level that was too difficult for them. The strategies were not appropriate for them, they were not on task, and they were not supervised closely. Respondent was evaluated unacceptable in her assessment techniques. There were still insufficient grades to determine a student's progress. The Teacher's Handbook for Respondent's school indicated the requirement that a minimum of one grade per week per subject area be given. Respondent had no more than five grades in any one subject area for a period of 13 weeks. Herrman prescribed help for Respondent and directed that his recommendations for improvement be implemented by December 7, 1981. He directed Respondent to show all times of day in her plan book along with individual lessons with objectives from the “balanced Curriculum. Her grade book was to show the dates and objectives. She was to monitor individual group activities to see that the children remained on task and was to limit the number of group activities so as to allow time to move from group to group to see that the students understood and were on task. She was to meet regularly with the kindergarten staff, at least twice a week, so that they could assist her in complying with the recommendations. She was advised that all grades in her grade book must be identified by date and subject and that a minimum of one grade per week per required subject area was required to be recorded in her grade book. Teacher-directed activities were to be relevant to the needs of the students, and basic skills of the Balanced Curriculum were to be taught. Respondent was to implement a classroom management system that emphasized positive interaction with students. She was to keep the office advised of the status of compliance or noncompliance with these recommendations. Respondent was next formally observed by Tessa Gold, assistant principal, on January 22, 1982. She was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was found to be unacceptable in preparation and planning because her plans were not in compliance with the Balanced Curriculum. All of the teachers in the school had received copies of the Balanced Curriculum, and there had been meetings to review that information. Respondent did not have the materials at hand which were necessary to conduct the lesson she intended to teach, and the lesson which was being taught was not listed in the lesson plan. Respondent was found to be unacceptable in the area of classroom management because the students were not attentive and were talking. Further, a group of students returned from the ESOL program (English for Speakers of Other Languages), entered the room noisily, and did not settle down. The students were not incorporated into the lesson. Other students were trying to explain to these students what to do, and that made the class even noisier. Respondent was found to be unacceptable in her techniques of instruction because the students never settled down to pay attention to the lesson that was being taught. Respondent did not use motivating factors to begin her lesson and never obtained the attention of the students. Respondent was found to be unacceptable in her teacher-student relationships. She made inappropriate comments to the students, such as "Don't bother me now. This is inappropriate because it does not build a comfortable feeling on the part of the students about coming to school. She also threatened to send a student to the principal if he did not listen, and then, when the student had to be reprimanded again, Respondent did not follow through with her threat. Gold also recommended help for Respondent. She directed Respondent to follow the time guidelines for the Balanced Curriculum and to adjust her schedule accordingly. Gold indicated that the instructional time must follow the plan book times and that all lessons taught must be written in the lesson plans. Respondent was directed to have all supplies ready and available before beginning a lesson. Respondent was directed to compliment the students who listened and to reward their positive behavior. Gold further suggested that Respondent take a workshop course in classroom management and gave her a copy of 62 Suggestions to Improve Classroom Discipline. Respondent was directed to become familiar with the Science Teacher Manual and to utilize the information therein to prepare the students. Respondent was directed to be more positive with the students and not to threaten the students unless she intended to follow through with her threat. On January 26, 1982, in an effort to aid Respondent in complying with the Balanced Curriculum, Herrman developed a lesson plan for her to use. She was instructed to follow this lesson plan and to make no changes without first discussing it with him. Herrman's next formal observation of Respondent was on February 12, 1982. She was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Gold accompanied Herrman during this observation and concurred with his observations. Respondent was found to be unacceptable in preparation and planning because during the time that was allotted for a literature and expressive language lesson, she passed out art materials for 15 minutes. She also read a story, which was used as a time filler. She did nothing with the story to make it into a literature and expressive language lesson. She was therefore not meeting the Balanced Curriculum for language and literature on that day. Further, Respondent had not made the necessary arrangements for materials relative to the planned lesson. Respondent was also found to be unacceptable in her knowledge of the subject matter because she was not teaching the lesson in the plan book in the required manner, which entailed introducing the lesson and using some type of activity involving the students and some type of assessment. Respondent was also found to be unacceptable in classroom management because the children were very loud, and Respondent had to stop the lesson four times to quiet the students so that she could proceed. Respondent was marked unacceptable in techniques of instruction. The lesson was not appropriate, was not in compliance with the lesson plan, and did not meet the interests, needs, and abilities of the students. No interaction was taking place. Respondent was not teaching the subject listed in the lesson plans, and no directions were given by Respondent for the completion of tasks. Respondent was found unacceptable in student-teacher relationships because she used very negative communications and raised her voice almost to the scolding pitch. It was at this time that Herrman discovered Respondent had struck six children with a pointer stick. Although Respondent admitted hitting the children, she only admitted hitting four of them even though she had been previously advised by Principal Kennedy that corporal punishment was contrary to Dade County School Board policy. There is a relationship between classroom management and corporal punishment. Corporal punishment is a last-resort type of discipline for children. Respondent's repeated use of corporal punishment was a further indication that Respondent's class was out of control. Herrman made several recommendations to Respondent for improvement. He directed her to follow her lesson plans. He directed her to observe the classes of Mrs. Wright and Mrs. Peraza in order to observe their classroom management skills, and he arranged for coverage for Respondent's class so that she could observe those classes. He directed her to use motivation preceding all lessons and to encourage pupil participation and interest by discussions. He suggested that she enroll in one of the Teacher Education Center courses. He directed her to incorporate a behavior management program that stresses positives. He reiterated to respondent the fact that corporal punishment is not permitted by staff at the school and that, if punishments are deemed necessary, school board policies must not be violated. Respondent was next formally observed by Herrman on March 15, 1982. She was found unacceptable overall and was rated unacceptable in the areas of preparation and planning classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Gold accompanied Herrman during this observation and concurred with his observations. Respondent was exhibiting the same kinds of problems that were found unacceptable on previous observations. All students were receiving the same lesson. No pre- and post-assessments were done, and the needs of the individual children were not being met. Negative responses were given to students, and Respondent discouraged student expression. The lesson was not being; introduced, and the children were not given adequate instructions as to what to do. Many of the children sat with no work to do for most of the period. In an effort to help Respondent, Herrman recommended that Respondent ask students to repeat the directions. He also indicated that a positive approach to classroom management must occur to improve the teacher-student relationship. Respondent was next formally observed by Herrman on April 15, 1982. She was found to be acceptable overall; however, she was found to be unacceptable in the areas of assessment techniques and professional responsibility. Respondent was found to be unacceptable in professional responsibility because she had not implemented the directives for improvement as requested thus far and was still having trouble with certain areas She was still teaching the same lesson to the whole class. There were not enough grades recorded in her grade book. There were no recorded expressive language grades since march 10, 1982; no social studies grades since March 12, 1982; no science grades since march 10, 1982; no homework grades since February 23, 1982; and no health and safety grades since February 23, 1982. As a recommendation for improvement Respondent was again directed to record a minimum of one grade par week as per prior recommendations. Herrman next formally observed despondent on May 11, 1982. She was found to be unacceptable overall and was rated acceptable in the areas of preparation and planning, classroom management, techniques of instruction, teacher-student relationships and professional responsibility. The areas marked acceptable at this time were areas that had been marked unacceptable at various times over the year. The reason for Respondent's decline in performance since her prior observation is that she had been given a tremendous amount of support in the way of help being provided. Once she was left on her own to proceed and implement recommendations or to follow through on things that had been demonstrated, she could not do so. Her lessons again became acceptable in many areas. For example, she taught a lesson for only 10 minutes that should have taken 30 minutes. The children's individual needs were not taken into consideration in the presentation of the lessons. Classroom management became acceptable again. The children did not follow the directions, and Respondent resorted to a very negative approach in dealing with the children. There was no organization evidence in the classroom. Respondent was marked acceptable in professional responsibility because she was still not being consistent in implementing the recommendation for improvement. Herrman made recommendations for improvement and noted that all of the recommendations made had been made before and that implementation dates had been set and not met. He directed Respondent to meet these reasonable directives immediately. On the May 11, 1982, evaluation, Herrman noted that Respondent's grade book was complete and up to date. Subsequently, he discovered that the grades did not reflect the academic achievement or non-academic achievement of the students. The work was graded, but the grade was not a legitimate evaluation of the students' progress. Further, the grades were not substantiated by documentation of the students' work in the students' folders, as required by Dade County policy. At the close of Respondent's first year in the kindergarten classroom Herrman prepared an annual evaluation, which is a summary of all of the observations done during the year. While he believed that Respondent had not performed satisfactorily enough to attain an acceptable rating in most of the areas observed, he recommended her for reemployment because he was still committed to working with her in trying to improve her performance to bring it up to an acceptable level. In a memorandum to Respondent, Herrman indicated that he was still greatly concerned about her potential to implement recommendations for improvement. He stated that if improvement were not shown during the next year disciplinary action might be taken. He offered to continue to assist her in meeting the goals, but that, after one year of intensive assistance, he felt she must now assume a major portion of the responsibility. The first formal observation of Respondent during her second year of teaching kindergarten was performed by Herrman on September 13, 1982. She was found unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, assessment techniques, and professional responsibility. Some of the areas that were unacceptable previously were still unacceptable, and some of the areas where she had previously shown improvement were again unacceptable. Respondent spent more than one-half of the time intended for the lesson just getting the children ready. Ten minutes were used for passing out science books and locating page 35. The children were lacking the skills to know the number 35, and consequently they could not find the page. It took Respondent a long time to realize that the children did not know the concept They could have been introduced to it at that time, but they were not. This resulted in their being on the wrong pages, and few children, if any, could find the right page. This was not an appropriate introduction to the lesson. Additionally, children were not attentive to the lesson being taught, and they were flipping pages, talking, and out of their seats. No assessment of the lesson was done. The grade book had no recorded names or grades for any subject. Respondent was again given specific recommendations for improvement. On September 24, 1982, a conference-for-the-record was held to discuss Respondent's noncompliance with recommendations for improvement. Herrman and Barbara Porzio, the assistant principal, reviewed all areas that had been marked unacceptable on the prior evaluations. Respondent was directed to use each of these recommendations when planning, teaching, evaluating, and conducting her professional responsibilities. Herrman performed the next formal observation of Respondent on September 24, 1982. She was found unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, assessment techniques, teacher-student relationships, and professional responsibility. The same problems continued to surface: lesson plans did not reflect what was happening in the classroom; the lesson proceeded even though the children were off task; Respondent made negative comments to the students; and Respondent was still not recording grades as directed. As a recommendation for improvement, Herrman directed Respondent to review all recommendations for improvement and to incorporate them into her planning, teaching, and follow-through strategies. Respondent was next officially observed by Barbara Porzio on October 15, 1982. Respondent was found to be unacceptable overall and was rated unacceptable in the areas of preparation and planning, classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Earlier in the year, Porzio had passed through Respondents classroom on a daily basis and had made some unofficial observations: she noted that there was general confusion in the classroom; Respondent and the children were speaking at the same time; there was an unrest that should not have been there; and Respondent reinforced the unrest by rewarding bad behavior, i.e., giving attention to the children who were not seeking it appropriately. Respondent was rated unacceptable in preparation and planning because she ignored the workbook directions which would have been more appropriate than the directions she gave, which directions were confusing to the children. Respondent did not review with the children what a good breakfast was. The children were directed to a two-digit page number, which they had difficulty finding because they did not have knowledge of two- digit numbers. They looked at each other and thumbed through the pages until they came to the number that Respondent wanted them to have. Herrman had previously recommended that the books could have been distributed prior to the lesson and the pages marked or the books opened to the right page for these kindergarten students. Respondent was marked unacceptable in classroom management because the children were out of their seats, talking while directions were being given, talking throughout the lesson, and talking at will. Respondent was marked unacceptable in techniques of ink auction because several children clearly needed more explanation than was given. The whole class received the same lesson. Both the health lesson and the math lesson were presented to the whole class and not to smaller groups. The lesson on the square was presented in a very abstract manner. Respondent defined the word "square" by using the word "square." She did not have the children identify squares in the room and did not have them see and feel squares. Respondent was marked unacceptable in assessment techniques because there were no grades or corrections on the papers in the children's folders. The papers only had happy faces and sad faces on them. The child had no way to look at the paper and know what part of the paper was unacceptable. Finally, there were no grades in the grade book for that particular week. Respondent was marked unacceptable in teacher-student relationships. Some children monopolized Respondent's attention by calling out, talking, and/or being out of their places. There were children who were not getting the recognition they should have had. There was one problem child in the class who needed outside attention but was not referred by Respondent until March, after Respondent had complained about the student all year and after being prodded by the administration. Although Respondent got along well with the children and the children liked her, it is possible to have good rapport but still not effectively conduct a class. Children can like a teacher, but that does not mean that the teacher is necessarily relating to them in an appropriate teacher-student relationship. Respondent communicated with the children more on a personal level, and the communication of skills and learning was not done well. Porzio recommended Respondent establish classroom rules for behavior. Eye contact should be made when addressing a group, the class should be broken down into small groups, and a method for recognition, such as raising hands, must be established. Corrections on children's papers should be made in such a way that the child can identify his or her mistakes. Porzio further recommended that Respondent observe another lesson in Mrs. Wright's kindergarten class, that Porzio teach a lesson in Respondent's class, and that Porzio observe another lesson done by Respondent. The first two suggestions were rejected by Respondent. She did, however, invite Porzio back to observe another lesson. While Respondent is very artistic and her room was creatively decorated, she did not change those decorations frequently enough in order for them to be stimulating and interesting to the children. She did display some children's work, but the work remained on display for a long time. It would have been more effective to keep changing the display so that the children could be rewarded for doing well. At Herrman's request, during the months of November and December 1982, despondent was provided additional help by the PREP specialist for the south Central Area, Marcia Fulton. Herrman felt that he had exhausted the resources within his building and some outside the building, such as the Teacher Education Center, in his efforts to assist Respondent. Therefore, he contacted the area office for some other suggestions and the area office assigned a resource specialist to help Respondent. Fulton made six classroom visitations. When Fulton first arrived, Respondent did not have her PREP roster posted, nor did she have it in her planning or grade book, nor was it readily accessible. The Kindergarten tests which had been given by the counselor had the strategies marked at the top. The PREP chart had the children's names on it, but the strategies had not been filled in with the appropriate "Xs." The PREP chart is required to be completed within the first 20 days of school, so the PREP chart should certainly have been done by November. Fulton completed Respondent's PREP chart for her. Fulton determined that Respondent's lesson plans did not reflect strategies for the different children and were not in compliance with the Dade County Balanced Curriculum. Fulton further observed that Respondent did not spend the required time for math and did not teach the children according to their different strategies. They were all doing the same lesson. This was not appropriate because her PREP roster indicated that she had children in all three strategies. There was no evidence that the children had been grouped into reading groups. By testing the children, Fulton found that there was one child who was very advanced in reading, and she recommended resourcing that child to first grade for reading. Prior to Fulton's suggestion, that child's needs were not being met. The children who were resourced out for Spanish and ESOL were not getting the required subjects upon their return to Respondent's classroom. Fulton restructured Respondent's schedule to put her into compliance with the Balanced Curriculum. Fulton observed that Respondent did not prepare her materials prior to the lesson, for academic lessons and holiday activities as well, and that Respondent was still preparing her materials for Thanksgiving and Christmas activities at the beginning of the class. Only part of the class could begin work, while the rest of the class had to wait until materials were finished so that they could have some meaningful work to do. They had no other work to do in the meantime, and this caused discipline problems as well as lost instructional time. Even though Respondent cooperated and gathered some materials at the suggestion of Fulton, the kindergarten curriculum was not being implemented to the extent that a mid-year kindergarten teacher should have been implementing it. Fulton arranged for Respondent to accompany her to visit another elementary school to observe an excellent kindergarten program, but she was disappointed that the main concept which Respondent grasped from that visit was an art idea which she would try with her own students. Fulton had hoped that Respondent would gain ideas as to how to integrate and reinforce kindergarten objectives. The next formal observation of Respondent was performed by Herrman on November 30, 1982. She was found to be unacceptable overall was rated unacceptable the areas preparation and planning, classroom management, techniques of instruction, assessment techniques, teacher-student relationships, and professional responsibility. This observation was similar to prior ones: all of the students still had the same assignment; Respondent did not follow the plan in the teacher's manual, and she gave an inadequate presentation; she was not utilizing diagnostic information to meet the individual needs of the students; the lesson plans were not followed; the students did not follow directions, talked out loud, were out of their seats, and did not raise their hands after being told eight times; the children were noisy and off task; PREP strategies were not being followed; children were not given adequate introductions to lessons, and papers graded with an "N" (Needs Improvement) did not show what items were wrong. There were only two grades in the grade book for math in November, two missing grades for science and writing, no social studies grades, no health and safety grades, and no expressive language grades. Lastly, there were many negative interactions, and Respondent made few positive remarks. Dorothy Adside, the area director, formally observed Respondent on January 21, 1983, and found Respondent unacceptable overall, with "unacceptable" ratings in the areas of preparation and planning, classroom management, techniques of instruction, and assessment techniques. Respondent was unacceptable in preparation and planning because she had one lesson plan for all children. There was no evidence of any attempt to vary the instruction according to the Dade County policy for diagnostic prescriptive teaching in elementary schools. Adside suggested that Respondent carefully study the PREP tests, seat work, and class participation to determine where additional instruction was needed. Children were to be grouped according to the skills to be taught, and they were to be taught in small groups within the PREP strategies. Respondent was to include opportunities for evaluation and development of independent work habits. Respondent was to be certain that the children's independent work had been taught previously, so that they understood it well enough to work without assistance and confusion. She was to learn the parts of a lesson and the sequence for teaching it. Respondent was rated unacceptable in classroom management because the general procedures she used resulted in confusion and chaos. For example, a spelling lesson was given which was too simple for some children, about right for some, and too difficult for others. As a result, some children finished quickly and became discipline problems. Also, when Respondent was to begin the math lesson, she sent four children to get "counters" for each table without giving further instructions. When the children returned to he tables, they grabbed, dropped, scrambled for, crawled for, and played with the counters loudly. Although Respondent began teaching the lesson, she never did capture the students' attention, and order was never restored. Adside recommended that Respondent use the assistance given by the PREP specialist, Marcia Fulton. Respondent was also to implement the techniques demonstrated by the specialist and was to take a course in classroom management. Respondent was marked unacceptable in techniques of instruction because she was not teaching the children according to their interests and levels of learning. All children were given work on the same level. There was limited and inadequate opportunity for children to express their ideas. The lesson was dull, and there was no motivation for learning. Instructions in spelling and math were poorly given, thereby resulting in confusion. Children who finished their work early were given busy work to do. Respondent inappropriately had the children count from right to left, contrary to the required pre-reading skill of going from left to right. Adside also found that some seat work was too mature for kindergarten children, and the lines upon which they were to write were too close together. Respondent was found unacceptable in assessment techniques because she did not make use of the diagnostic prescriptive strategies. The PREP records were not current. There was no evidence of the use of listed sources to select instructional strategies for meeting students' needs. When Adside asked for Respondent's PREP roster, Respondent took it out of the middle of a stack of materials that was in the desk drawer. Adside recommended that Respondent use test materials and teaching strategies to assess strengths, weaknesses, and levels of learning. She suggested that Respondent study assessment data to group children according to skills missed and then to teach in either small groups or individually, as needed. She was to update her records to show the progress or lack of it. The next formal observation performed by Herrman was on March 4, 1983. Respondent was found unacceptable overall and in the areas of preparation and planning, techniques of instruction, assessment techniques, and professional responsibility. Porzio was in the room during the time that this observation was made and is in agreement with it. Respondent still had lesson plans that were incomplete and inappropriate. There was no lesson plan for development or enrichment PREP strategies for Friday. Children were not properly placed in groups. The children did not have the correct materials according to their individual needs. According to lessons and the PREP roster, students were given inappropriate assignments. Student folders contained grading errors. Herrman directed that the lesson being taught be reflected in Respondent's lesson plans. He directed that the children on the enrichment strategy have enrichment level material. He directed Respondent to involve all students in a diagnostic prescriptive program which reflected appropriate assignments. Assignments were to reflect PREP strategies. Respondent was directed to correctly grade and date all papers and was told that when an "S" or "N" was used as a grade there must be consistent indications of what is right or wrong with the paper. Herrman attached student papers to this observation form as an example for Respondent so that she could see the errors in the grading of papers in the student folders and because she insisted that she was grading papers correctly. The papers are representative of great inconsistency in grading and incorrect grading. The student papers indicated that some children received grades on a particular lesson while other students received no grade at all for the same lesson. One child received a perfect score on a paper, but his paper was completely wrong. Incomplete papers had perfect or satisfactory grades. On a paper where Respondent had marked all the correct answers, she missed some, which would indicate to the child that his answer was wrong when it was not. The grades that these children were receiving were inconsistent with their performance. On some papers, Respondent failed to indicate to the students what needed to be corrected or worked upon. There was also inconsistency in grading symbols. On some papers, a checkmark meant "correct," while on others it indicated a wrong response. There were indications of busy work in the folders. Some papers indicated that the children were given written work to do on unlined paper, which is inappropriate for kindergarten children who need to develop their motor skills. Some of the student papers did not have dates on them. Dates are needed to substantiate grades that are given for a particular marking period. The work folders indicated that "Erika" was working with the developmental group, even though she is listed on Respondent's PREP roster as an "enrichment" child. During the school year, Respondent had changes Erika's PREP strategy from enrichment to developmental and had documented that in her lesson plan book; however, Respondent admitted that she did not change the level on her PREP roster. Previously, Respondent had told Herrman that she worked directly from her PREP roster. While it is acceptable for a teacher to use teacher judgment to change the strategies of children, there must be appropriate documentation. If the PREP roster reflects that the teacher has enrichment children, there must be a different kind of activity going on in the classroom for those children. Respondent was suspended from employment on March 16, 1983, and Respondent's class was taught by a substitute teacher for the remainder of that school year. Under the substitute teacher, there was a great change in the classroom. The children were working on task. Even a child who was a hyperactive discipline problem was working on task--not perfectly, but on task. The disruptions to the teacher were almost totally dismissed by her organization methods. There was a change in atmosphere in the room, and the curriculum was implemented by the new teacher. The substitute had to be given a lot of help by Porzio because of the state the classroom was in upon Respondent's suspension. The papers that were found in the children's folders had grades on them, but they were not graded correctly. The grades did not match the work on the paper, and therefore the grade book was not representative of the children's achievement. The children had to be organized into groups. Some of the children were given assignments that they had been given earlier in the year; since they had not received the basic skills, the substitute was required to go back to fill in these deficiencies. Some of the lessons which had been given earlier may not have been appropriate for the children at the time they were given, and therefore the children were given some of the same assignments over again because they were more appropriate to what the children were now doing. During the 1981-82 and the 1982-83 school years, Respondent was unable or unwilling to communicate with and relate to the children in her classroom to such an extent that those children were deprived of minimum educational experience. Respondent is incompetent to teach and to perform her duties as an employee of the Dade County Public School system. Respondent has been either unwilling or unable to implement the directives given to her by her superiors for attaining acceptable teaching methods and procedures and for complying with the Policies of the School Board of Dade County. The prescriptions given to Respondent by Kennedy, Herrman, Gold, Porzio, and Adside are not merely suggestions but rather are mandates. Further, those prescriptions were reasonable and given by persons with proper authority. A continual noncompliance with repeated Prescriptions and a continual, or at least repeated, failure to comply with school board policies constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Specific Notice of Charges filed against her, affirming the suspension of Respondent from employment, dismissing Respondent from her employment as a teacher with the School Board of Dade County, Florida, and denying Respondent's claim for back pay. DONE and RECOMMENDED this 6th day of February, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 6th day of February, 1984. COPIES FURNISHED: Madelyn P. Schere, Esquire 1410 Northeast Second Avenue, Suite 200 Miami, Florida 33132 Patricia Williams, Esquire 18583 Northwest 27th Avenue Miami, Florida 33056 Dr. Leonard Brittonp Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue is whether Petitioner may terminate Respondent’s employment as an instructional employee under a professional services contract either for failure to timely correct alleged performance deficiencies pursuant to Subsection 1012.34(3), Florida Statutes (2008),1 or for just cause, within the meaning of Subsection 1012.33(1)(a).
Findings Of Fact The School Board employed Respondent as a resource teacher at Village Oaks Elementary School (Village Oaks) from the start of the 2003-2004 school year until January 15, 2009. Ms. Dorcas Howard was the principal at Village Oaks during Respondent’s employment. Ms. Howard served as principal for 20 years and was responsible for evaluating teachers, including Respondent. Respondent’s duties as a resource teacher at Village Oaks included working with elementary school students who were not proficient in reading and math. Some of the students that Respondent taught read and spoke English as a second language. Respondent typically met with students in breakout sessions comprised of groups of five. Classroom teachers determined which students were to attend Respondent’s breakout sessions on the basis of the individual needs of each student. Respondent typically spent 30 minutes with each group. The Notice of Termination dated December 8, 2008, provides, in relevant part, that the School Board is relying on two statutory grounds for the termination of Respondent’s employment contract. One ground is that Respondent allegedly failed to correct performance deficiencies in violation of Subsection 1012.34(3). The second ground alleges that just cause, defined in Subsection 1012.33(1)(a), exists to terminate Respondent’s employment. For reasons stated hereinafter, a preponderance of the evidence does not support a finding that the alleged performance deficiencies violate Subsection 1012.34(3). However, a preponderance of evidence does support a finding that just cause exists to terminate Respondent’s employment pursuant to Subsection 1012.33(1)(a). The alleged violation of Subsection 1012.34(3) is based on an evaluation system known as the Collier Teacher Assessment System (CTAS). CTAS consists of 12 educator practices that are evaluated as inadequate, developing, and professional/accomplished. The CTAS evaluation of Respondent for the 2007-2008 school year resulted in developing marks in four practice areas: assessment, communication, learning environment, and planning. Assessment, planning, role of the teacher, and communication are integrated concepts. Respondent was often late in picking up students from regular classrooms for breakout sessions. On those occasions, Respondent did not provide 30 minutes of instruction to that group of students. Respondent was often unprepared. Respondent routinely did not explain the goals of the session. Respondent did not provide timely assessments to regular classroom teachers, and Respondent did not provide students with directions before reading and did not review the subject matter of the specific class. Respondent routinely did not review tests or prepare test results. Respondent frequently could not answer questions from the principal and other teachers about how students performed on tests. Respondent had no individualized lesson plans. Students often informed her where they were in a given text. Respondent often gave students inappropriate assignments. A professional services contract instructional employee who receives three or more developing marks is placed on a probationary status identified in the record as “Strand 3.” As a consequence of receiving four developing marks, Respondent was placed on Strand 3. Ms. Deborah Terry, director of staffing for Human Resources, Recruitment and Retention, notified Respondent that Respondent had been placed on Strand 3. Respondent had 90 days from the beginning of probation to correct identified deficiencies. A professional assistance team at Village Oaks was organized to assist Respondent. The principal directed Respondent to focus on non-proficient, third grade students. Throughout the probationary period, Ms. Howard observed that Respondent did not engage students in class. Respondent exhibited poor planning, and Respondent lacked adequate class preparation in reading. A high percentage of students were second language students, and Respondent did not have appropriate English Language Learners (ELL) strategies in place. Nor did Respondent have appropriate vocabulary instruction and developmental plans for her students. Respondent allowed students to engage in round robin reading in which remedial, struggling readers read one-after- the-other. Respondent did not discuss or prepare the students for what they were to read. Respondent did not use word follow up. Respondent did not engage students in discussion, and Respondent did not introduce word drill or word-attack skills to students. Respondent did not provide individualized, differentiated instruction or lesson planning for students. The students in Respondent’s sessions were not gaining academically. The principal and other members of the professional assistance team discussed their concerns with Respondent individually and in group sessions. Respondent did not provide regular classroom teachers with test results or assessments of students. The failure to provide regular test results and assessments was problematic. Resource intervention grades were important to each student’s overall grade. Resource intervention grades were averaged in to overall grades. The failure to receive grades created a gap in the reporting for intervention instructional time. During the professional assistance team meeting conducted on September 24, 2008, the team reviewed with Respondent the team concerns that lesson plans turned in were not used for instruction, follow up activities were inconsistent, daily activities were not based on the academic needs of the children, no formal assessments or reviews of student performance were prepared, and Respondent was continually late in picking up her students. Ms. Olwen Stewart-Bell, a team member, provided Respondent with a timer to assist Respondent in picking up students in a timely manner. In many instances, however, Respondent forgot to turn on the timer. By the end of September 2008, there was no indication of student progress. In addition, regular classroom teachers had become reluctant to send their students to Respondent for instruction. By the end of October 2008, Respondent had not responded to advice and assistance and had not improved. There were several times that Respondent was on the phone when she should have been teaching students. Respondent fell asleep in class, and Respondent was abusive to low-achieving students. At the meeting on October 30, 2008, it was evident students were not improving under Respondent’s tutelage. Planning remained poor, assessments did not drive instruction, no differentiated instruction was being provided, and regular classroom teachers did not want Respondent teaching their students. At the end of the probationary period, the principal determined that of the 12 educator accomplished practice areas, Respondent should receive inadequate marks in assessment, communication, planning, and the role of the teacher. Respondent was still developing in three other areas: continuous improvement, learning environment, and knowledge of subject matter. Ms. Howard informed Respondent of the evaluation. The evaluation fell below appropriate standards provided for in CTAS and set forth in Article 5.03 of the CBA. Article 5.03(f)(4)(vi) of the CBA provides, in relevant part: [T]en or more EAP areas must be rated at the professional level and no EAP may be at the inadequate level. Employees not meeting these criteria will be recommended for termination. As a consequence of Respondent’s failure to correct identified deficiencies and meeting acceptable standards, the principal recommended to the superintendent that Respondent be terminated from her employment. The evaluation of Respondent under Subsection 1012.34(3) was not based primarily on standardized testing data showing that students of Respondent performed poorly on standardized tests. The students that Respondent worked with were those most at risk of failing the Florida Comprehensive Assessment Test (FCAT). However, the School Board submitted no evidence that any of the students under Respondent’s tutelage performed poorly on standardized tests, including the FCAT. Assuming arguendo that any of the students under Respondent’s instruction performed poorly on standardized tests, such as the FCAT, Petitioner submitted no evidence of a nexus showing that Respondent’s instruction caused the poor performance on annual standardized testing. A preponderance of evidence supports a finding of just cause to terminate Respondent’s professional services contract pursuant to Subsection 1012.33(1)(a). Respondent demonstrated an inability to discharge her educational duties by repeatedly failing to perform her educational duties and by repeatedly failing to communicate and relate to children in her classroom. Respondent deprived children in her classroom of a minimal educational experience.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Collier County School Board enter a final order terminating Respondent’s professional services contract as an instructional employee for just cause defined in Subsection 1012.33(1)(a). DONE AND ENTERED this 2nd day of September, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 2nd day of September, 2009.
The Issue The central issue in this case is whether the Respondent should be suspended or dismissed from her employment with the School Board of Dade County, Florida (Board).
Findings Of Fact Based upon the testimony of the witnesses the following findings of fact are made: Respondent was employed as a first grade elementary school teacher at Fulford Elementary School during the 1988-89 school year. In September, 1988, the principal at Fulford Elementary, Mrs. Pope, asked the primary education coordinator for region 2, Mrs. Neely, to perform an observation and assessment of all primary teachers at Fulford. Accordingly, Mrs. Neely observed all classrooms for grades kindergarten through three and made recommendations to the teachers and Mrs. Pope. Mrs. Neely visited respondent's classroom on several occasions and observed the Respondent's treatment of students and her teaching methods. Respondent did not follow the lesson plan for the daily lesson, did not have a schedule to specify times for subjects to be taught, and did not have a based reading program as required by the board. When Mrs Neely attempted to counsel Respondent in order to assist her to correct these deficiencies, Respondent became hostile and argumentative. During one visit Mrs. Neely observed the Respondent chasing students around the classroom. At first Mrs. Neely assumed the conduct to be a game of some type. When the conduct continued for several minutes without interruption or comment from Respondent, Mrs. Neely realized that the class was out of control and that the Respondent was unable to restore order. Consequently, Mrs. Neely took charge and got the children into their seats. When she instructed the class to get quiet, Respondent also took her chair and refused to speak. Ultimately, Mrs. Neely taught the class for the remainder of the lesson. Respondent refused to cooperate with Mrs. Neely and did not correct the deficiencies in teaching and class management which Mrs. Neely observed. During a portion of October and November, 1988, Vincent Golden was assigned to Respondent's classroom to work as a teacher's aide. During the three weeks he was with Respondent's class, Mr. Golden observed Respondent on a daily basis. Twice during this period Respondent grabbed a student named Devon by the throat to reprimand inappropriate conduct. On another occasion Respondent grabbed a female student by the hair in order to chastise the student. In a fourth incident, Mr. Golden heard the Respondent instruct students in the class to chase down another student. This chase resulted after Respondent had thrown off her own shoes, failed at catching the student within the room, and had become frustrated the student bolted from the classroom. Mrs. Pope apprehended the errant student and Respondent's posse in the halls. During the fall of 1988, Mary Williams was employed as a systems aide at Fulford Elementary. On one occasion she observed two students outside of Respondent's classroom who were unable to open the door because Respondent and a student were holding it closed from the inside. One of the students was crying hysterically and was taken to the library to calm down. On a second occasion Respondent refused to allow a new student who was handicapped into her room. Mrs. Williams went to Respondent's classroom almost everyday to ask Respondent for her reading groups. It was Ms. Williams' responsibility to enter the reading group information into the school computer. Respondent refused to provide the reading group rosters. During the fall of 1988, Charles Mixon supervised a maintenance crew at Fulford Elementary. One day while Mr. Mixon was observing a crew mowing the lawn adjacent to Respondent's room, he saw Respondent shove two students out of the classroom. Mixon then overheard Respondent tell the students to fight outside if they wished to continue. The students were then left in the hall unsupervised. On another occasion Mr. Mixon overheard the Respondent tell a teacher to kiss her backside. Mr. Mixon watched Respondent make the comment as she pulled her dress halfway up. Lossie Jordan was an exceptional education teacher at Fulford Elementary during the 1988-89 school year. On one morning Ms. Jordan was in the office copying some materials when Respondent approached her and asked her if she had a squirrel for her. When Mrs. Jordan replied in the negative and asked Respondent why she would ask that, Respondent told her that a woman had come to her house the day before to tell her to ask Mrs. Jordan that question. No further explanation was offered by Respondent. A second incident occurred when Respondent entered Mrs. Jordan's classroom to drop students of for instruction. Mrs. Jordan was in the process of showing another teacher a new blouse she had bought. Upon entering, Respondent told the students that Mrs. Jordan was a thief and that she had stolen the new blouse. A third incident arose when Respondent, Mrs. Jordan and Mrs. Forbes, another teacher, were in the workroom waiting for the copy machine. Respondent was the third to center the room and when Mrs. Forbes told her that they were ahead of her to use the machine, Respondent shoved Mrs. Forbes against Mrs. Jordan who fell against the cabinets. Respondent then left the workroom. On still another occasion, Respondent told Mrs. Jordan to kiss her backside. On October 27, 1988, Mrs. Pope called Respondent into her office for a conference for the record. Mrs. Pope was concerned about the number of incidents which had been reported regarding Respondent's conduct. Mrs. Pope had also observed Respondent's class. During one observation Mrs. Pope watched a group of students who were sitting at a back table in Respondent's class. One student pulled another student's sweater and tied it behind his back so that the student could not use his hands. Mrs. Pope mentioned the problem to Respondent who advised her that since the student had gotten himself into the situation he would have to get himself out of it. On other occasions Mrs. Pope observed Respondent chasing students around the classroom. Respondent failed to properly supervise students in her classroom. As a result, Mrs. Pope was required to return students to Respondent's room after they wandered out into the school halls. Another unsupervised student got her arm caught in a chair and was brought to Mrs. Pope who had to contact Fire Rescue to release the child's arm. On November 2, 1988, Mrs. Pope directed Respondent to come to the office for a conference with a parent regarding allegations the parent's child had made. Respondent refused to meet with the parent. After directives from Mrs. Pope not to lock her classroom door, Respondent locked her door. After directing Respondent not to leave her class unsupervised, Mrs. Pope found Respondent's class unsupervised at least four times. Respondent had physical contact with students to administer discipline after Mrs. Pope directed her to refrain from such conduct. Respondent refused to accept a handicapped student after Mrs. Pope directed her to admit the child into her class. Following a number of the incidents described above, parents asked Mrs. Pope to remove their children from Respondent's class. Respondent's effectiveness was impaired by her behavior and her failure to properly supervise and instruct her class. Mrs. Pope directed Respondent to an employee assistance program. Ultimately, following a conference with Dr. Monroe, Dr. Poiret, a psychiatrist, performed a psychological assessment of Respondent. Following interviews with Respondent on November 22, 1988 and December 1, 1988, Dr. Poiret determined Respondent was not medically fit to carry out her assigned responsibilities. Consequently, Respondent was relieved of her teaching duties and spent the remainder of the school year on leave. During the leave Respondent was to undergo individual psychotherapy on at least a weekly basis and to have a complete physical examination. Later, Dr. Monroe requested that Respondent submit documentation regarding her psychotherapy Respondent did not do so. In August, 1989, Dr. Poiret met with Respondent again to evaluate her ability to return to the classroom. As in the prior instances, Respondent continued to be hostile, noticeably irritable and angry. Since she had made no significant improvement, Dr. Poiret determined Respondent was not medically fit to discharge her teaching duties due to a lack of emotional stability. Respondent repeatedly demonstrated a failure to effectively and efficiently manage the behavior of students assigned to her classroom. She failed to provide a curriculum of education to the students in her class, failed to communicate appropriately with her peer teachers and administrators who attempted to assist her, and failed to carry out her professional1 duties. As a result, Respondent's effectiveness in the school system has been seriously impaired. Respondent failed to take corrective measures to amend her deficiencies, failed to obey reasonable instructions given to her by the principal, and failed to present documentary evidence of her successful completion of therapy required to rehabilitate her for classroom duties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order dismissing the Respondent from her employment with the public school district. DONE and ENTERED this 21st day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 21st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-7035 PETITIONER: Paragraph 1 is accepted. Paragraphs 2 and 3 rejected as irrelevant. Paragraphs 4 and 6 accepted as addressed in paragraph 8, otherwise rejected as irrelevant or recitation of testimony. Paragraph 5 is rejected as irrelevant. Paragraphs 7 and 8 are rejected as irrelevant. Paragraph 9 is accepted. Paragraph 10 is accepted. Paragraph 11 is rejected as hearsay. Paragraph 12 is accepted. As addressed in paragraph 5, paragraphs 13 through 15 are accepted; otherwise rejected as irrelevant or contrary to the weight of the evidence. Except as addressed in paragraph 9, paragraph 16 is rejected as hearsay. Except as addressed in paragraphs 2 through 4, paragraphs 17,18, and 19 are rejected as irrelevant. Paragraph 20 is accepted. The first sentence of paragraph 21 is accepted. The balance of the paragraph is rejected as irrelevant or hearsay. The first six sentences of Paragraph 23 are accepted. The balance is rejected as repetitive, irrelevant or argumentative. Paragraph 24 is rejected as repetitive or irrelevant. Paragraph 25 is rejected as recitation of testimony. Paragraph 26 is accepted to the extent addressed in paragraph 6; otherwise rejected as irrelevant, recitation of testimony or argumentative. Paragraph 27 is accepted. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is rejected as contrary to the weight of credible evidence. Todate, Respondent has not submitted written or other evidences from a treating physician which would establish she is medically able to return to the classroom. Paragraph 2 is rejected as contrary to the weight of the credible evidence. COPIES FURNISHED: Irma Annette Butler Lowe 17350 N.W. 17th Avenue Miami, Florida 33056 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether just cause exists to terminate Respondent from employment with the Brevard County School Board.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. This includes the power to discipline employees, such as teachers. § 4, Article IX, Fla. Const.; §§ 1001.42(5), 1012.22(1)(f), and 1012.33, Fla. Stat.1 Respondent is a classroom teacher, and as such, the terms and conditions of her employment are governed by the collective agreement between the School Board and The Brevard Federation of Teachers, Local 2098. Respondent has a Bachelor’s degree in exceptional education. On or about November 9, 2006, Respondent, pursuant to an annual contract, was hired by the School Board to provide services as a classroom teacher. Beginning in the 2009-2010 school year, Respondent continued her employment with the School Board pursuant to a professional services contract. During all times relevant to this proceeding, Respondent taught at Hoover Middle School, which is under the jurisdiction of the School Board. At the commencement of the 2014-2015 school year, Respondent taught exceptional education (ESE) students in a self-contained, supported-level class. At approximately the midway point of the 2014-2015 school year, Respondent began teaching a resource math class which was comprised entirely of ESE students. Beginning in the 2017-2018 school year, and continuing through the 2018-2019 school year, Respondent taught one resource math class for a single class-period of the day, and she co-taught, or “pushed-in,” for the other five instructional class periods. In both settings, Respondent taught math to ESE students. By correspondence dated March 26, 2019, Superintendent Mullins advised Respondent of the following: Pursuant to Florida Statute 1012.34, you are being recommended for termination of your Professional Services Contract due to unsatisfactory 1 All subsequent references to Florida Statutes will be to the 2018 codification, unless otherwise indicated. Performance …. The actions leading to this recommendation are as follows: On October 29, 2018, you were provided a 90-day notice advising of performance-related concerns based upon three years of unsatisfactory annual evaluations. Several performance review meetings were held with you, your union representative, and your school Principal to discuss your progress. A review of your past evaluations indicates several attempts at corrective activities through the use of District Peer Mentors and Resource Teachers. After the completion of the 90-day plan, adequate progress was not obtained and is grounds to sever the Professional Services Contract. The School Board uses an “Instructional Personnel Performance Appraisal System” (IPPAS) as a guide when evaluating a teacher’s performance. According to the IPPAS manual, classroom teachers are evaluated on a rubric which consists of five dimensions. The first dimension focuses on “instructional design and lesson planning.” The second dimension focuses on the “learning environment” created and fostered by the teacher. The third dimension focuses on “instructional delivery and facilitation.” The fourth dimension focuses on “assessment,” and the fifth dimension focuses on a teacher’s “professional responsibility and ethical conduct.” IPPAS is approved annually by the Florida Department of Education (FLDOE), and the School Board meets regularly with The Brevard Federation of Teachers, Local 2098, to address any issues concerning the evaluation process. Teachers and evaluators receive yearly training, which covers the various components of the evaluation process. Pursuant to IPPAS, and related statutory provisions, classroom teachers are evaluated annually. The overall score given to a teacher on the annual evaluation is determined by how a teacher scores in the areas of “Professional Practices Based on Florida’s Educator Accomplished Practices (Professional Practices),” and “Individual Accountability for Student Academic Performance Based on Identified Assessments (Student Performance).” The Professional Practices category accounts for 67 percent, and Student Performance accounts for the remaining 33 percent of a teacher’s annual evaluation score. For purposes of quantifying a teacher’s annual evaluation, IPPAS identifies the Professional Practices category as “Part 1 of the Summative Evaluation,” and the Student Performance category as “Part 2 of the Summative Evaluation.” Part 1 of the Summative Evaluation is completed in the spring of each school year and consists of the supervising principal’s annual evaluation of the teacher, the teacher’s self-assessment, and the collaboration and mutual accountability score. The evaluative components of Part 1 of the Summative Evaluation are comprised of the previously referenced “five dimensions.” Part 2 of the Summative Evaluation is determined based on student academic performance data (VAM score) as calculated by the FLDOE. VAM scores are released by FLDOE in the fall, and these scores reflect student performance for the preceding school year. Consequently, a teacher will not receive an overall annual evaluation score for the immediate preceding school year until the fall semester during which VAM scores are available. As a practical matter, this explains, in part, why the recommendation for termination letter sent to Respondent by Superintendent Mullins was issued on March 26, 2019.2 2015-2016 SCHOOL YEAR Respondent, on or about April 25, 2016, received Part 1 of her Summative Evaluation for the 2015-2016 school year. Respondent received a score of 27.71 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the category of “Needs Improvement.” On or about November 2, 2016, Respondent received Part 2 of her Summative Evaluation for the 2015-2016 school year. Respondent received a VAM score of 56.71 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2016-2017 SCHOOL YEAR Respondent, on or about April 5, 2017, received Part 1 of her Summative Evaluation for the 2016-2017 school year. Respondent received a score of 20.42 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about November 13, 2017, Respondent received Part 2 of her Summative Evaluation for the 2016-2017 school year. Respondent received a VAM score of 50.42 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2 VAM scores for the 2017-2018 school year were released on or about October 19, 2018. As discussed elsewhere herein, Respondent was placed on 90 days probation following the release of her VAM score. The timing of the release of the VAM score, coupled with the 90-day probationary period and related matters, account for the March 2019 date of Superintendent Mullin’s letter to Respondent. 2017-2018 SCHOOL YEAR Respondent, on or about May 3, 2018, received Part 1 of her Summative Evaluation for the 2017-2018 school year. Respondent received a score of 34.58 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about October 19, 2018, Respondent received Part 2 of her Summative Evaluation for the 2017-18 school year. Respondent received a VAM score of 64.58 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” A PLAN FOR ADDRESSING PROFESSIONAL DEFICIENCIES The School Board, in order to address Respondent’s professional deficiencies as identified during the relevant evaluation periods, provided support to Respondent through the utilization of Professional Development Assistance Plans (PDAPs). PDAPs are designed to provide a teacher with opportunities for professional development, which includes access to online resources, training activities and courses, and opportunities to work with School Board resource and peer mentor teachers. The School Board, acting through Respondent’s supervising administrators, agreed in the PDAPs to support Respondent’s professional growth and development as follows: By providing access to the “District Peer Mentor Teacher for collaboration on dimension 3.” By conducting “informal observations documented in ProGOE with feedback for improvement.” By providing “resources on utilizing formative assessment to check for understanding.” By providing “resources regarding implementing differentiated instruction.” By providing “resources on the utilization of Webb’s Depth of Knowledge.” By providing “exemplary sample lesson plans as a model … to follow.” By providing “pacing guide if needed.” By meeting every two weeks to review weekly lesson plans. By providing Respondent with “an exemplary teacher to observe, as well as a substitute [teacher] for class coverage during observation.” By providing a list of Professional Development courses on classroom management, as well as a substitute teacher to cover Respondent’s class while she attends the course. By providing “assistance and specific feedback from school based coaches.” By completing “informal observations on a bi- monthly basis, and provid[ing] feedback.” The evidence establishes that the School Board honored its commitment to Respondent as outlined in the respective PDAPs. 90 DAYS OF PROBATION, AND RECOMMENDATION FOR TERMINATION By correspondence dated October 29, 2018, the School Board advised Respondent of the following: In accordance with section 1012.34(4), F.S., this shall serve as the District’s notification of unsatisfactory performance. Please be advised that your Professional Service Contract for the 2018-19 academic year is on a probationary status for ninety (90) days. Your contract is being placed on probation due to your receiving an overall “Needs Improvement” rating on your last three (3) consecutive annual performance evaluations. See also section 1012.22, F.S. During the next ninety (90) days, you will be evaluated periodically. You will be apprised of any progress achieved in writing. You will work with the administration of your school to assist you in obtaining opportunities to help correct any noted deficiencies. After February 25, 2019, the ninetieth (90th) day, administration has fourteen (14) days to assess your progress. If no improvement is shown, administration will notify the Superintendent if you do not rate an overall Effective on the Summative Part 1 of your evaluation. Sincerely, Burt Clark, Principal Hoover Middle School Respondent, during her 90-day probationary period, continued to receive professional development services from the School Board, which included working with a peer mentor teacher, participating in CHAMPs training, receiving assistance from a math content specialist, and observing an exemplary math teacher. Burt Clark was the principal at the school where Respondent worked when she was placed on probation. As the principal, Mr. Clark served as Respondent’s supervisor and was responsible for evaluating her performance. During Respondent’s probationary period, Mr. Clark regularly met with Respondent and her union representative to discuss Respondent’s progress and offer assistance. In addition to meeting with Respondent, Mr. Clark also conducted one interim evaluation, four informal observation, and two formal observations of Respondent’s performance. Mr. Clark also conducted a number of “walk-throughs,” which provided additional insight into the status of Respondent’s professional development. While it is true that Mr. Clark’s observations of Respondent mainly occurred in the classroom where Respondent was the teacher of record, as opposed to Respondent’s work as a “push-in” teacher, Mr. Clark credibly testified that he had sufficient data to assess Respondent’s performance. Mr. Clark, at the end of the probationary period, determined that Respondent’s professional deficiencies remained, and on March 6, 2019, he made the following recommendation to Superintendent Mullins: Ms. Lisa Lemieux had an overall unsatisfactory performance appraisal. We have worked with her to try to improve her instructional strategies; but, it has not been successful in changing the behavior to better serve the students assigned to her. As defined in [section] 1012.34(4), [Florida Statutes], February 25, 2019, was the 90th day since the notification of her 90-day probation for this contract year and after demonstrating no improvement on the Summative Part 1, I have assessed that the performance deficiencies have not been corrected. I would recommend the termination of her employment with Brevard Public Schools. Burt Clark, Principal Hoover Middle School After receiving Mr. Clark’s recommendation to terminate Respondent’s employment, Superintendent Mullins reviewed Respondent’s last three years of evaluations, considered the extensive support and training provided to Respondent by the School Board, and concluded that termination of Respondent’s employment was warranted and justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Brevard County enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 16th day of March, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of March, 2020. COPIES FURNISHED: Amy D. Envall, General Counsel Brevard County Public Schools 2700 Judge Fran Jamieson Way Viera, Florida 32940 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Howard Michael Waldman Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Dr. Mark Mullins, Superintendent School Board of Brevard County 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Matthew Mears, General Counsel Department of Education Turlington Building 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Respondent's teaching certificate should be revoked or disciplined on grounds that she is incompetent to teach or to perform her duties as an employee of the public school system and is unable to effectively meet her responsibili- ties as a classroom instructor, and that she intentionally ex- posed her students to unnecessary embarrassment or disparagement.
Findings Of Fact At all times material hereto the Respondent held Teaching Certificate Number 182937, issued by the Department of Education for the State of Florida. This certificate covers the areas of English and administrative supervision. The Respondent was first employed by the Dade County School Board in 1966. She taught elementary levels first through fourth grades at Shadowlawn and Allapattah Elementary Schools. In 1971, the Respondent transferred to Shenandoah Junior High School, where she taught seventh through ninth grade English until she transferred to Highland Oaks Junior High in 1982. (RE 1) Prior to the Respondent's transfer to Highland Oaks Junior High School she received observations and evaluations which rated her performance in the 3.6 to 4.5 range. The Respondent testified that she received excellent to superior ratings on her evaluation sheets. The school system however considers this to be the ratings of an acceptable or satisfactory teacher. Over 4.6 would be considered excellent or superior. (T538, 623) For the 1982-83 school year through the 1984-85 school year (with the exception of a maternity leave of absence), the Respondent has been employed with the Dade County School Board and assigned to Highland Oaks Junior High School as an English language arts teacher. (T536) The Respondent started the 1982-83 school year late due to a back injury. (T223) Within a week the school began receiving complaints from parents dissatisfied with the Respondent. Parents complained that their children who were Level III students (average - above average ability) were being taught at Level II (below average ability). One of the Respondent's Level III classes through no fault of the Respondent's had been mislabeled as a Level II class. This was corrected immediately. The parents from her other Level III classes which were not mislabeled also complained. The Respondent testified that the dissatisfaction and complaints of the parents all stemmed from the mislabeling of her one class. (T221-223, 548) On October 8, 1982, Assistant Principal Nelson had an informal conference with the Respondent following phone calls and complaints from parents. (T182-183) Mrs. Nelson recommended that the Respondent not eat in the classroom and not use the T.V. for watching soap operas. (SE24F) Mrs. Nelson discussed the need for more rigorous assignments for the Level III students. She asked another teacher, Mrs. Susan Ruskin, who was also the department chairman for language arts, to explain the difference between Level II and Level III students to the Respondent. Mrs. Nelson informed the Respondent that she needed to keep her lesson plans up-to-date. She also needed to specify different lesson objectives for the Level II students as opposed to the Level III students. Mrs. Nelson cautioned the Respondent to watch her language and word choice when speaking to her students. She encouraged the Respondent to call the students' parents when a problem arose. (SE24F) On October 12, 1982, Mrs. Ruskin met with the Respondent to assist her in differentiating between Level II and Level III students. She also discussed discipline, homework, and other curriculum problems with the Respondent. Mrs. Ruskin told the Respondent that she was available if the Respondent needed assistance. The Respondent never asked Mrs. Ruskin for help. (T362, 366-367, SE24) On October 13, 1982, the Respondent's seventh grade Level III English class was formally observed by Assistant Principal Nelson. Mrs. Nelson rated the Respondent unacceptable in the areas of preparation and planning and techniques of in- struction. Mrs. Nelson rated the Respondent unacceptable in preparation and planning because the Respondent did not list more rigorous lesson objectives for the Level III students. The Respondent's lesson objectives were too general and her homework assignments vague. (SE24-B) The Respondent was rated unacceptable in techniques of instruction because she did not adapt the materials to the interest and ability of each student. The Respondent's questioning of her students was not done in depth and lacked important follow-up questions. Her lesson lacked closure: there was no overview or conclusion at the end of the class period. The Respondent's homework assignments did not have any value and the Respondent failed to recognize students for having done or not done their homework. (T188-190) Although Mrs. Nelson rated the Respondent acceptable in the area of classroom management, she was concerned that the Respondent wasted twenty (20) minutes getting the class settled down and on task. Mrs. Nelson recommended that the Respondent establish and enforce classroom rules. (T195) On November 9, 1982, Dr. Mildred B. Augenstein, the principal of Highland Oaks Junior High School did a formal observation of the Respondent. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEI) The Respondent was rated unacceptable in knowledge of subject matter because she neither presented her lesson knowledgeably nor used the appropriate teaching methodology. When asked for the definition of science fiction the Respondent answered incorrectly that it was fiction about science. In giving a spelling test, the Respondent merely read the words off instead of following the accepted and simple procedure of pronouncing the word, using the word in context, and then repeating the word. (T20-23) Dr. Augenstein rated the Respondent unacceptable in classroom management because the class was not in control. Students spoke up at-will without raising their hands for acknowledgment. The class was late in beginning because the children would not settle down. The Respondent appeared unable to keep her students focused on the learning process. Children who were trying to learn were distracted by the unruly children. (T28-30) The Respondent was rated unacceptable in the category of techniques of instruction because the Respondent's instructions to the students were unclear. When the students asked questions for clarification, the Respondent could not adequately answer. Dr. Augenstein felt that the Respondent was deficient in the sequence of her lessons. There was no background, no purpose and no follow through. Instead of facilitating a learning experience the Respondent was merely assigning activities. (T3O-40) Dr. Augenstein used the Teacher Assessment Development System (TADS), the approved assessment instrument (jointly developed by the school system administration and the teachers union and approved by the school board and the state) to assess the Respondent. The TADS is meant to act as a support system to help teachers overcome their deficiencies. A part of the system is the TADS prescription manual. This is a large manual which contains various self- assessment activities and learning materials keyed to various problem areas. (T20-26) On November 24, 1982, Dr. Augenstein presented a prescription to the Respondent to address the deficiencies noted at the observations on October 13, 1982 and November 9, 1982. To remediate weaknesses observed by Mrs. Nelson in preparation and planning, Dr. Augenstein made specific recommendations. These included turning in lesson plans every Friday to Mrs. Nelson. They were to be done separately for the Level II and Level III classes. They were to include the days' objectives, activities, assessment procedures, homework assignments, and the materials and media to be utilized. Dr. Augenstein recommended Mrs. Ruski (she language arts department head) and Mrs. Earle (the librarian) as good source people. (SE1-B) To remediate weaknesses observed in the Respondent's knowledge of subject matter, Dr. Augenstein assigned specific pages and exercises in the TADS prescription manual to be completed by December 8, 1982. The Respondent was also instructed to contact the Teacher Education Center (TEC) and enroll in course offerings of language arts by December 15, 1982. Dr. Augenstein suggested that the Respondent visit other language arts classes prior to December 15, 1982. To remediate the Respondent's weakness in classroom management, Dr. Augenstein recommended that the Respondent establish class rules and enforce them. The Respondent was directed to investigate a course on assertive discipline or teacher effectiveness training and to enroll in a TEC course in classroom management by March of 1983. The Respondent was also directed to review the faculty handbook which contained the rules and regulations of the school. She was directed to work with Assistant Principal Fontana to set up her classroom rules. (SEI, T32-36) To remediate the Respondent's deficiencies in techniques of instruction Dr. Augenstein prescribed resources such as the TADS manual exercises on questioning students, verbal interaction, effective teaching strategies, and instruction sequence. These were to be completed by January 15, 1983. Dr. Augenstein felt the Respondent needed to learn how to ask questions which lead the students into more critical thinking. The Respondent was to demonstrate at least one new teaching approach by January 15, 1983. (SEI) On November 29, 1982, a group of nineteen (19) parents met with Dr. Augenstein to lodge complaints against the Respondent. The parents requested that their children be assigned to another teacher for language arts instruction. The parents complained that the Respondent was not adequately prepared to teach, that she did not address separately and adequately the needs of Level II and Level III students, that she used "atrocious" grammar and poor pronunciation, and that she taught at a level below her students' abilities. The parents were angry that at the end of November their children were still in Chapter I of their textbook. They complained that work assignments were without purpose and often meaningless. Furthermore, the parents complained that the Respondent used inappropriate language in the classroom. The Respondent had called a child "a stupid ignorant person, yelled "shut-up" and had referred to the mother of one of her students as a "whore." The Respondent asked one student (in response to a request for a bathroom pass) whether she was "going to smoke or take quaaludes." The parents were upset that their children were subject to the Respondent's verbal abuse. They also complained that the Respondent had retaliated against students whose parents had made complaints by threatening and ridiculing the students by lowering student conduct grades. (SE2, T50-55) The parents reported a change in their children's atti- tude toward learning and school. Their children hated school and did not want to attend. The parents reported that the Respondent would indiscriminately punish an entire class for the misbehavior of various individuals. The Respondent had handed out detentions to two whole classes and then did not show up herself to supervise the students when they reported for the detention. (SE2-A) The parents reported that the Respondent had watched the soap opera "The Young and the Restless" on the educational T.V. in her classroom. They complained that at an open house for parents the Respondent was late and then allowed her own child to disrupt the program. The Respondent did not abide by school procedures requiring notice to parents of their child's unsatisfactory progress before giving a students an "F" in conduct. One parent related that the Respondent initially would not provide homework assignments for a sick child and then finally, after repeated requests, provided an inadequate and incomplete assignment. (SE2-B) The Respondent's response to the parents' comments and concerns was that the parents and students had "fabricated stories" and told "terrible lies" about her. She testified that the disciplinary problems in her class were because the students conspired against her to prevent her from teaching. She said that the students continually disrupted class and prevented her from teaching. The Respondent stated that she was shocked by the profanity that the students used among themselves. The Respondent denied that she had ever "blasphemed" a child. (SE2-E, T550-553) On November 23, 1982, one parent wrote a letter to Dr. Augenstein complaining of the Respondent's unjust treatment of her daughter, one of the Respondent's students. The parent complained that the Respondent punished all the students for the misbehavior of a few, She also complained of the Respondent's word choice, quoting the Respondent as saying in class,, "I'm not taking any crap from you kids." Her daughter had been so upset by the Respondent's treatment that she became physically ill with stomach cramps. When she requested a bathroom pass the Respondent "gave her a very hard time in front of the whole class." After the student insisted that it was an emergency, the Respondent looked at her watch and told her that she had sixty (60) second to go to the bathroom and was being timed. The parent was very upset at the emotional distress her daughter was suffering at the hands of the Respondent. (T2-1) Two other parents wrote the School on November 23, 1982, complaining that the Respondent's treatment of their particular children, and the students as a whole, was abusive. One parent emphasized that he did not want his child "humiliated or mistreated" by the Respondent. Both parents requested that their children be moved out of the Respondent's classroom. (SE2-J, 2-K) After the November 23, 1982, meeting with parents, Dr. Augenstein continued to receive complaints from other parents. On December 7, 1982, several parents met with Mr. Marvin Weiner, Superintendent of the North Area of Dade County Schools, Mr. Roger Frese, Director, and Principal Augenstein, and presented a petition signed by parents of the Respondent's students. They also presented more letters of complaint against the Respondent. (SE3) On December 13, 1982, Dr. Augenstein wrote the Respon- dent a letter to notify her that she had failed to comply with the prescription of November 24, 1982. The Respondent had failed to turn in lesson Plans as directed and the one plan she did turn in did not differentiate between Level II and Level III students. (SE4) On December 16, 1982, another parent wrote to Dr. Augenstein complaining of her son's treatment in the Respondent's classroom. Her son had been involved in an altercation with another student which developed into a fist fight. The Respondent ignored the incident and refused to separate the two boys stating, "let them both hang themselves back there." The parent sent a note to the Respondent requesting a seat change for her child. The Respondent read the note and did not respond to the parent. The Respondent, after some sarcastic words with the boy, refused to change his seat. The parent then received a poor progress report on her son, which the parent felt was either unjustified or due to her son's seat in the back of a noisy and unruly classroom. The parent felt that her son was not physically safe and secure in the Respondent's classroom. (SES-C) On January 6, 1983, another parent wrote complaining of a distressing phone call with the Respondent. The Respondent had told her that her son never came to class on time, never did his homework, and never passed any tests. The parent did not believe the Respondent since the parent closely monitored her child's homework. The parent went on to relate that she had given her son a note for all of his teachers indicating that he would be absent on a Friday and requesting assignments. The Respondent was the only teacher who did not provide any assignments. The letter written to Dr. Augenstein asked why if her son was doing absolutely nothing had she not received any sort of home progress report. (SE6) Teachers are required by the School Board to send notice to the parents any time their child is doing below average work or exhibiting below average behavior efforts. (T59) On January 6, 1983, the Respondent was again formally observed by Dr. Augenstien. The Respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, assessment techniques and teacher-student relationships. (SE7A, T60-67) Dr. Augenstein felt the Respondent's lesson plans were not being used as an important resource for the structure of her class. The plans were done but not followed. The Respondent also displayed an inadequate grasp of her subject matter language arts. She used the grammatically incorrect sentence, "what hour you went to bed last night." Furthermore, the Respondent provided unclear and inadequate instruction when giving a test on homonyms. Her lesson plans lacked cohesiveness and sequential meaning. There was little if any connection between lessons, leaving the students unable to grasp the overall meaning of what was being studied. (T6O-65) Although the January 6, 1983 observation was done near the end of the first semester, there was no evidence of a structured composition program. The county language arts directives require teachers to assign compositions, collect-the assignment, constructively critique it and then reassign it. This is done to benefit students in developing their writing skills. (T66-68) The atmosphere of the Respondent's classroom was uncomfortable and hostile. The teacher and student interchanges were very cold. (T67) No prescription was given following the January 6, 1983 observation due to the fact that the Respondent had not completed the November 24, 1982 prescription. The Respondent was instructed to continue with the old prescription. (T68) On January 11, 1983, Dr. Augenstein gave the Respondent a listing of courses offered by the Teacher Education Center (TEC) to remediate unacceptable areas noted on November 24, 1982 and January 6, 1983. (SE8) On January 19, 1983, another parent wrote Dr. Augenstein complaining that the Respondent had assigned a book report which was inappropriate for seventh graders. Dr. Augenstein agreed that the book report was too elementary for junior high school, particularly the Level III children. (T70) On February 8, 1983, Dr. Augenstein formally observed the Respondent. Since the January 6, 1983 observation, the Respondent had been reassigned lower performance students. This was done with the hopes that she would be able to handle her students more successfully. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEIO, T71) The Respondent mispronounced "architecture" and "denouncement" words that were critical to her lesson. The students were quiet and well behaved as long as Dr. Augenstein was in the room. When the Principal was in the adjoining room, the class became extremely loud. The teacher next door indicated that the Respondent's class was always very loud. The Respondent's lesson lacked closure; rather, it ended when the bell rang. Finally, the Respondent did not adequately answer her students' questions. (T70-73) Although the Respondent had been switched to all Level II students, she exhibited the same problems she had with her other classes. (T74) On February 17, 1983, Assistant Principal Nelson conducted a formal observation of the Respondent's seventh grade, Level II class. She rated the Respondent unacceptable in the areas of classroom management, techniques of instruction and teacher-student relationships. The Respondent's students were very noisy and the Respondent had great difficulty getting them settled. There was an undercurrent of noise throughout the whole class period. There was no focal point to the Respondent's lesson. The lesson should have been reinforced with supportive material such as writing on the chalkboard or an overhead projector to assist the students who were visual rather than auditory learners. Some of the Respondent's students were totally uninvolved with the lesson. A few students monopolized the discussion. The Respondent did not attempt to involve disinterested students. She gave no encouragement to the non- participants. The Respondent had assigned homework and only five students had done it and they received no reinforcement for their effort. The Respondent collected their work but did not grade it or place it in the students' folders. (SE39, T195-198) Assistant Principal Nelson did not assign a new prescription to the Respondent even though the time line on the November 24, 1982 prescription had run out. Instead, she reviewed the areas of the prescription that were incomplete and encouraged the Respondent to complete them, Mrs. Nelson felt that the November 24, 1982 prescription was a good one. (T200) On February 23, 1983, a conference with the Respondent, Dr. Augenstein, Assistant Principal Nelson, and Mrs. Yvonne Perez, a union representative, was held to discuss the status of remediation of observed performance deficiencies and to discuss reemployment of the Respondent. Principal Augenstein stated that she would recommend consideration of a return to annual contract status for the 1983-84 school year. (SE11) On March 2, 1983, the Respondent's seventh grade Level II class was again formally observed by Dr. Augenstein and Mr. Roger Frese, an outside administrator. The Respondent was rated unacceptable in the areas of knowledge of subject matter and techniques of instruction. The Respondent gave her students inadequate instruction. She asked them to read a short story and then write a paragraph describing a character in the story. There was no discussion or instruction on method of character development that could be used to develop the paragraph. Most of the children were unable to complete the assignment. When the children read their paragraphs, many of which were merely a synopsis of the story rather than the assignment, the Respon- dent did not differentiate between acceptable and unacceptable responses. (SE12, SE33A, T78) At the end of the class, the Respondent made a homework assignment but the bell rang before she could adequately discuss or explain the assignment. Again, she did not provide closure on the lesson for the day. (SE33) Throughout the class period the Respondent missed opportunities to clarify the assignment. She did not adequately respond to student's questions and did not ask questions herself. Observers were left in doubt as to whether she, herself, understood the topic and assignment. (T416) As a result of the March 2, 1983 observation, Dr. Augenstein instructed the Respondent to continue with the prescription of November 24, 1982. In addition, the Principal instructed the Respondent to enroll in classes during the summer of 1983 covering the subject matter of (a) critical study and analysis of literature, (b) advanced English grammar, and (c) English rhetoric. (T79, SE13) On May 24, 1983, the Respondent's seventh grade English class was formally observed by Assistant Principal Herman Mills. The Respondent was rated unacceptable in the area of knowledge of subject matter. The subject of the Respondent's lesson was analogy. The sequencing of information disbursed in the lesson was illogical and unclear. (SE26) The Respondent handed out an assignment with a series of words: greater, larger, more bigger, same. The children were to pick out the dissimilar word from the group. The Respondent failed to realize there is no such expression as "more bigger." She should have indicated that a comma between more and bigger was missing. In another series of words: accidental, design, intentional, on purpose, and planned the Respondent incorrectly chose "designed" as the dissimilar word. In other parts of the lesson, the Respondent told the class that Canada was a French speaking country and Korea was a city. (SE26, T258-259) Throughout the 1982-83 school year, administrators at Highland Oaks made it a point to drop into the Respondent's classroom so that their presence would help the Respondent get her class under control. (T267) The Respondent's 1982-83 annual evaluation indicated that Respondent had not remediated the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. It recommended that the Respondent lose her tenure status and be returned to annual contract. The recommendation was not implemented. (SE14, T81) In September 1983, Dr. Augenstein assigned Assistant Principal Mills the task of evaluating the Respondent's progress with the November 24, 1982 prescription. At his first meeting with the Respondent, Dr. Mills discovered that the Respondent had not completed any "required action" on the prescription. At their second meeting, Joan Kaspert of TEC verified that the Respondent had still not completed the "required action" on the prescription. She verified, however, that the Respondent had completed the course "Techniques of Instruction." On September 27, 1983, Dr. Mills instructed the Respondent to obtain "sign- off" on her prescription by September 30, 1983. On October 5, 1983, he determined that the only item signed-off on the pre- scription was the meeting with Assistant Principal Fontana on the subject of classroom management and the already noted course at the TEC. (SE27) On October 19, 1983, Dr. Augenstein again observed the Respondent's seventh grade, Level II English class. She rated the Respondent unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. (SE15) The Respondent was rated unacceptable in preparation and planning because her lesson was planned too sparsely. It did not fill the time allotted. Her homework assignment could not be done by the students because it required a spelling text, which was not a book sent home with the students. The Respondent scheduled a grammar exercise which the class could not do because a large number of the students did not bring the appropriate book to class. (5115) The Respondent was rated unacceptable in the area of subject matter because she could not adequately explain or demonstrate the subject matter of her lesson, the difference between homonyms, and homographs, and homophones. (5115) The Respondent was rated unacceptable in the area of techniques of instruction in that she did not use the chalkboard to reinforce the differences between the spellings, pronunciations, and uses of the words studied. Students were called upon for examples which only furthered the confusion. The Respondent was unable to clarify or rectify the situation. (5115) The Respondent was rated unacceptable in assessment techniques. Her grade book showed grades for only five spelling tests since the beginning of the year. There were no graded compositions or homework assignments in the students' folders. The Respondent did not call for the day's homework assignment. When the Principal asked the class for their homework only six students could produce any and those produced did not seem to be the planned assignment. (SE15) In order to remediate the Respondent's deficiencies observed on October 19, 1983, Dr. Augenstein instructed the Respondent to continue with the November 24, 1982 prescription. She instructed the Respondent to pay special attention to teaching the required content and skills for grade seven literature study, library skills, and composition lessons. She also told the Respondent to enroll in the TEC component "Preparation and Planning." Dr. Augenstein assigned Assistant Principal Mills to monitor the adequacy of the Respondent's weekly plans and the overall accomplishment of course objectives revealed in the plans. She then assigned Ms. Zelda Glazer, Supervisor of Language Arts, to prescribe activities to remediate the Respondent's inadequate knowledge of her subject matter. (SE15) On November 16, 1983, the Respondent's reading lab was observed by Assistant Principal Mills. The Respondent was rated unacceptable in the area of techniques of instruction because her methodology was inappropriate for the reading lab. The purpose of the reading lab is to allow the students an opportunity to work at their own particular reading level. The Respondent was teaching the same lesson to the whole group, entirely missing the point of the reading lab. (SE28) Dr. Mills suggested that the Respondent immediately divide the class into three levels according to diagnostic testing that had been done. He instructed her to provide the requisite materials so that the students could work at their own pace. He also instructed the Respondent to utilize progress sheets so that the progress of the various students could be charted. Dr. Mills assigned a portion of the prescriptive manual to the Respondent and requested that she do all the activities suggested by the manual. Dr. Mills recommended various resource people to the Respondent. He assigned Mrs. Hoffman, a teacher on special assignment, to assist the Respondent in setting up her reading lab. Dr. Mills also arranged for carrels to be placed in the Respondent's reading lab. (SE28) On November 30, 1983, a parental complaint was made against the Respondent for the use of profanity in her classroom. After the matter was investigated it turned out that in chastising a student for profanity, the Respondent had repeated the word several times herself. The Respondent was instructed that repeating the profanity was ill-advised and served no purpose. She was instructed, in the future, to handle such situations using the standard referral procedures. (SE35) A conference for the record was held on December 13, 1983, to discuss the Respondent's progress with her prescription. After reviewing the Respondent's deficiencies and prescription the Respondent was informed that failure to remediate and improve performance to an acceptable rating could have an adverse impact on her employment status. (SE16) On February 14, 1984, the Respondent's ninth grade reading class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of preparation and planning knowledge of subject matter, techniques of instruction and assessment techniques. There was no evidence that the Respondent had applied the readings from the TADS manual that had been prescribed. Dr. Augenstein pointed out to the Respondent' that she had not enrolled in the TEC component on preparation and planning as required by her prescription. The Respondent was rated unacceptable in knowledge of subject matter because she did not understand the difference between assessment activity and programmed instruction. Her students were working on the ninth' grade preparation for taking the state assessment test given in the tenth grade. The Respondent did not orient the students to their assignments. She failed to answer the students' questions and did not review the students' work. The students never knew whether they had answered correctly or not. (T92) The Respondent was rated unacceptable in techniques of instruction because her students spent an entire period doing an activity which was never introduced, explained, monitored or concluded. The Respondent had no follow-up activities planned for the students who finished the assignment early. (T92-94) The Respondent was rated unacceptable in assessment techniques because her grade book showed no grades for the four weeks preceding the observation. The minimum amount of grades expected would be two per week. There was no evidence of graded homework in the students' folders. If the Respondent had become ill it would have been impossible for a substitute teacher to grade her students. (T94-95) In remediation, the Respondent was referred to a memorandum written April 22, 1983, in which Dr. Augenstein had suggested the need for intensive study of subject matter. She was also instructed to refer to the TADS prescription manual as prescribed on November 24, 1982. The principal also referred the Respondent to the prescription given on October 19, 1983. (SE13, 17) On March 6, 1984, the Respondent's language arts class was formally observed by Ms. Zelda Glazer and Dr. Augenstein. The Respondent was rated unacceptable in the areas of knowledge of subject matter and assessment techniques. (SE18) The Respondent was rated unacceptable in knowledge of subject matter because the Respondent was teaching a lesson dealing with parts of speech and she accepted incorrect answers from her students. She identified words as adjectives that were in fact adverbs, verbs and a noun. Furthermore, the Respondent's lesson was improperly sequenced. No background information was provided to the children who consequently did not understand what the Respondent was asking of them. In remediation the Respondent was directed to review with the department chairperson or school administrator the sequencing of a lesson. She was told to prepare a properly sequenced lesson, one which contained the necessary components: review, a drill, and a follow-up application of the skills learned. (T305-310) The Respondent was rated unacceptable in the area of assessment techniques because her students' folders did not contain any compositions. At this time of the year the students should have done between fifteen to twenty (15 to 20) compositions. There was no evidence of any assignments which allowed the students to apply newly learned skills. In remediation the Respondent was instructed to develop a test on a present unit or topic being taught using writing production as one element of assessment. (SE18, T311-313) On March 6, 1984, another conference for the record was held to discuss the Respondent's remediation of performance deficiencies relative to future employment with Dade County Public Schools. After reviewing the Respondent's performance during the 1982-83 and 1983-84 school years, Dr. Augenstein recommended that action be taken toward dismissal for cause. (SE19) In March 1984, the Respondent went on maternity leave. (T97) The 1983-84 year-end evaluation indicated that the Respondent's performance in knowledge of subject matter, techniques of instruction, and assessment techniques was unacceptable. The Respondent was recommended for dismissal. (SE2O, T98-99) The Respondent returned from her maternity leave to Highland Oaks in April 1985. The Respondent received special attention to help acclimate her after almost a year's leave. The Respondent was allowed a full week without the responsibility of a classroom so that she could observe the status of the classes she was assuming and meet with the teacher to discuss the students' progress. Although Dr. Augenstein had never done this before with any other teacher, she wanted to make sure that the Respondent would be adequately prepared. Dr. Mills was also assigned to help the Respondent make the transition. (T99-100, 266-269) On May 2, 1985, the Respondent's eighth grade Level II English class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of subject matter and techniques of instruction. (SE21) The Respondent was rated unacceptable in the area of subject matter because she did not appear to grasp the difference between general and specific research sources. She was subsequently unable to clearly explain techniques of research and writing. The students were frustrated and unable to receive clarification from the Respondent. (SE21, T103) The Respondent was rated unacceptable in the area of techniques of instruction because the Respondent was not addressing the needs of her students. Her students were advanced academic learners with a need for inductive and critical thinking approaches. (SE21, T104) In remediation, Dr. Augenstein recommended that the Respondent observe other Level IV English classes and that she do a research project herself. Respondent was also directed to design lessons using strategies for inductive and critical thinking. Dr. Augenstein assigned Mr. Charles Houghton, the North Area project manager for secondary language arts to assist and critique her demonstration lessons. (5521, T013-105) Because the Respondent had recently returned from maternity leave, her assessment techniques were not evaluated. (5521) On May 15, 1985, Mr. Houghton came to Highland Oaks to assist the Respondent. He observed her class working on a large research project. He discovered that the Respondent did not have a clear understanding of the use of bibliography cards, note cards, and research skills. Mr. Houghton told the Respondent that he would gather materials together to help her and return on Friday, May 17, 1985. Mr. Houghton returned on May 17, but the Respondent was absent that day. He left the materials with a note explaining the materials and inviting the Respondent to call him if she needed further assistance. The Respondent never called him. (T242-248) On May 28, 1985, the Respondent's English class was formally observed by assistant Principal Mills. The Respondent was rated unacceptable in the areas of preparation and planning, classroom management, and techniques of instruction. (SE29) The Respondent was rated unacceptable in preparation and planning because although she had prepared lesson plans she did not follow them. There was no lesson presentation and no reference to the lesson objective a review of composition skills. (SE29) The Respondent was rated unacceptable in classroom management because the class never settled down so that a lesson could be presented. (SE29) The Respondent was rated unacceptable in techniques of instruction because, among other things, there was no systematic method demonstrated for monitoring the students' performance on the learning objectives. The Respondent still did not use media to assist her presentation. There was no lesson presented. (SE29) For remediation, Dr. Mills met with the Respondent and urged her to follow Dr. Augenstein's prescription. He gave her more prescriptive activities which were similar to those already assigned. (SE29, T266-268) On June 6, 1085, the Respondent was observed by Assistant Principal Nelson and Ms. Glazer. The Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. (5E25) Mrs. Nelson observed little improvement on the part of the Respondent. She did not seem to be benefiting from the prescription and TADS system. (T210) The Respondent was rated unacceptable in preparation and planning because she did not follow her lesson plan. The poem which had been assigned reading for that day was inappropriate for the lesson objective: metaphors and similes. The Respondent was rated unacceptable in the area of knowledge of subject matter because not only was she using a poem that did not contain metaphors and similes, but she could not even give an example of a metaphor, when asked by a student. The Respondent referred to the cockney dialect of the poem as a southern dialect. Consequently she interpreted the word again" as dialect for aging and completely misinterpreted a whole line of the poem. (5E25) The Respondent was rated unacceptable in classroom management in that it took her ten minutes to call the roll, after which there was still socializing among the students. Several students came in late and no questions were asked of them. (SE25) The Respondent was rated unacceptable in techniques of instruction because she accepted correct and incorrect responses without comments or suggestions. No background was given on Rudyard Kipling (the poet being studied) or on the form of the poem, the ballad. The Respondent ignored all the appropriate topics raised by the poem and, instead, interjected the terms "metaphor" and "simile "haphazardly. (5E25) The Respondent was rated unacceptable in teacher- student relationships because she ignored the students' responsibilities. She neither praised nor questioned them. Furthermore, she ignored the non-participating students. (SE25) In remediation, the Respondent was referred to the prescription of May 2, 1985 and May 28, 1985. She was also directed to carefully review her lessons so that she would he prepared for students' questions and be ready with appropriate examples. The Respondent was also directed to specific exercises in the TADS manual dealing with feedback, interaction with stu- dents, and recognizing correct and incorrect responses. (SE25, T328-330) The Respondent's 1984-85 annual evaluation rated her unacceptable in the areas of preparation and planning, knowl- edge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Dr. Augenstein noted that the Respondent's unacceptable performance--documented in previous years--continued since her return from leave. She again recommended that the Respondent be dismissed for cause. (SE22) On May 30, 1985, a conference for the record was held to discuss the Respondent's end-of-the-year evaluation. The principal again recommended that dismissal for cause be initiat- ed. (SE23B) The Respondent's final exams distributed in June 1985, indicated that she still had no understanding of what constituted an objective type of exam. (T27, SE30-32) Dr. Augenstein informally observed the Respondent's classroom many times over the years, as she did with all the teachers. Her informal observations substantiated the general deficiencies noted ire formal observations. Problems were continually observed in lesson planning, subject matter, methods and materials. (T106-107) Dr. Augenstein testified that she did not think that the Respondent put out even a minimal effort to overcome her deficiencies. (T108) All the administrators and educators who observed the Respondent's classroom agreed that the Respondent did not adequately grasp her area of specialization, the English language arts. All agreed that she lacked the minimum skills in both content and methodology of English language arts. (T16, 255, 304, 424, 461) Over the three year period, the Respondent was given various prescriptions to encourage and help her in remediation. The Respondent followed and completed only a tenth of the prescriptions given to her. (T170) Dr. Patrick Gray, Assistant Superintendent for the Dade County School Board's Office of Professional Standards, testified that--based on his educational background; his personal evaluation of the Respondent's file, his review of the evidence offered at the Respondent's school board hearing in the Division of Administrative Hearings' Case No. 85-3223; his review of the exhibits introduced on behalf of the Petitioner; his knowledge of the required teaching behaviors for teachers, including the state of the art and research; and the Florida teaching competencies which are expected of every Florida teacher--the Respondent's performance consistently failed to meet the standards of performance of the State of Florida. Dr. Gray recommended that the State permanently revoke the Respondent's teaching license. On September 4, 1985, the Respondent was suspended from her employment with the Dade County School Board. The School Board instituted proceedings to dismiss the Respondent from employment. On June 4, 1986, the School Board of Dade County entered its Final Order upholding the dismissal of the Respondent. (PE77)
Recommendation Based on the foregoing, it is RECOMMENDED that the Respondent's Teaching Certificate Number 182937 be REVOKED. DONE and ORDERED this 30th day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1144 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-100. Adopted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-8. Approved. 9. Approved, as modified to reflect that Respondent did not attend any of the TDS training sessions conducted by Dr. Gray. 10-13. Approved. 14. Approved, as modified to reflect that she was given the correct textbooks soon after parents complained about her performance. 15-21. Approved. 22. Approved as modified to reflect that a secretary made a transposing error on the form so that those areas where Respondent performed satisfactorily were marked unsatisfactory, and vice versa. 23-34. Approved. 35. Approved, but modified to reflect that, nevertheless, Respondent continued to perform below minimal standards and her remediation efforts were not effective. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Laverne Elizabeth Reaves 1430 N.W. 90th Street Miami, Florida 33147
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
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Board is responsible for the operation of the public schools within the Dade County School District. Teachers assigned to the various schools are recommended to the Superintendent for employment or contract renewal by their respective principals. The Superintendent, in turn, presents a recommendation regarding the teacher's employment to the Board. At all times material to the disputed facts of this case, Respondent was a teacher employed by the Board and assigned to a public school within the district. Teachers employed by the Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system records deficiencies which may have been observed during the evaluation review and provides a prescription (a plan) for performance improvement. At all times material to this case, the TADS method was employed to evaluate the Respondent's performance. Respondent began employment with the Dade County public schools in September, 1961, and taught until February 13, 1963. She returned to teaching in March, 1982, and was employed pursuant to a professional service contract. During the 1986-87 school year, Respondent was assigned to a second grade class at Ojus Elementary School (Ojus). Jeanne Friedman was the principal at Ojus and was primarily responsible for Respondent's TADS evaluation. At the conclusion of the 1986-87 school year, Respondent was given an annual evaluation. This evaluation found the Respondent deficient in four of the seven areas of evaluation. Specifically, Respondent was found to be in need of remediation in the following categories: knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relations. A prescription was devised to assist Respondent improve in the areas deemed to be deficient, and she was informed that should she not improve in the areas noted by the end of the next year, that she would not be recommended for employment for the 1988-89 school year. The evaluation for the 1986-87 school year was predicated on observations which had been conducted on December 5, 1986, January 22, 1987, and March 2, 1987. On December 5, 1986, Jeanne Friedman conducted a TADS evaluation of the Respondent. Ms. Friedman met with Respondent on December 11, 1986, to review the evaluation and to assist in the implementation of the prescription. On December 18, 1986, a conference for the record was held to address the Respondent's performance and her future employment status. At this meeting, Respondent was reminded of the suggestions given to correct the deficiencies noted in the evaluation conducted December 5, 1986. Those deficiencies were related to Respondent's preparation and planning. On January 22, 1987, Respondent was evaluated in follow-up to the December review. This observation was discussed with the Respondent on January 23, 1987. Respondent's prescription for the deficiencies noted in this evaluation required corrections to be implemented by February 2, 1987. The deficiencies were in the area of preparation and planning. On March 2, 1987, Respondent was evaluated by Jeanne Friedman and Emilio Fox. The evaluations were performed during the same class period, language arts, but the evaluators did not communicate with one another nor compare their notes regarding Respondent's performance. Both evaluators found the Respondent to be deficient in three of the areas of evaluation: preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent had failed to follow the lesson plan book for the entire class time, had failed to plan the activity which was conducted, wrote several erroneous items on the class board, and did not explain the nature of the lesson to the class. Several of Respondent's errors were brought to her attention by the students (second graders). Margaret Roderick and Leeomia Kelly evaluated Respondent on April 27, 1987. These TADS assessments found Respondent deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. On May 29, 1987, a conference for the record was held regarding Respondent's poor performance year. At that time, Respondent was advised that if she failed to remediate the areas noted to be deficient by the end of the 1987-88 school year, she would not be recommended for continued employment. At her request, Respondent was assigned to a kindergarten class at Ojus for the 1987-88 school year. Approximately 30 students were initially enrolled in Respondent's section. A second kindergarten section was taught by Ms. Kramer. A TADS evaluation conducted by Leeomia Kelly on September 17, 1987, found Respondent to be acceptable in all categories reviewed. After this evaluation, several parents wrote to Ms. Friedman asking that their children be moved from Respondent's class to Ms. Kramer's section. The number of students enrolled in Respondent's class dropped to approximately 23. On October 22, 1987, Jeanne Friedman conducted an observation of the Respondent's class. This evaluation found the Respondent deficient in the area of classroom management. Ms. Friedman met with Respondent on October 23, 1987, to go over the prescription for improvement and outlined a time deadline for each suggested resource. A second evaluation conducted on November 30, 1987, also found the Respondent deficient in the area of classroom management. On December 11, 1987, a conference for the record was conducted to review Respondent's performance. Respondent was reminded that a failure to correct deficient areas would result in termination of employment. Doretha Mingo and Leeomia Kelly conducted evaluations of Respondent on March 1, 1988. These evaluators found Respondent deficient in the areas of classroom management, techniques of instruction, and teacher-student relationships. On March 9, 1988, a conference for the record was held to summarize Respondent's work performance. At that time Respondent was given an annual evaluation which found her to be unacceptable in the following areas of performance: classroom management, techniques of instruction, and teacher- student relationships. Respondent was notified at this conference that the principal would be recommending nonrenewal of the employment contract. Respondent was observed on April 13, 1988, by Ms. Friedman and Michael Conte. Both evaluators found Respondent to be deficient in the areas of classroom management and techniques of instruction. In each of the TADS reviews given to Respondent, conclusions of deficiency were based upon objective observations made during the class period. For example, students found to be off task were observed to be disregarding Respondent's instructions and findings of inadequate planning were based upon inadequacies found in Respondent's plan book (not describing the lesson taught or incompletely stating the subject matter). In each instance, Respondent was given a prescription as to how to correct the noted deficiency. Respondent was given copies of the evaluations at the time they were reviewed with her. Further, Respondent was given copies of the memoranda kept regarding the conferences for the record. Resources were offered to Respondent to assist her to make the corrections required. On April 25, 1988, Respondent was notified that the subject of her continued employment would be raised at the Board meeting to be conducted April 27, 1988. Respondent was advised that the Superintendent intended to recommend nonrenewal of Respondent's contract which, if accepted, would preclude future employment. This letter was written by Patrick Gray, Executive Assistant Superintendent. The Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1988-89 school year. On April 28, 1988, Patrick Gray wrote to Respondent to advise her of the Board's action. In each of the years for which she received unacceptable evaluations, Respondent's students performed satisfactorily on school-administered standardized tests. Such tests were not, however, gauged to measure the subject matter which Respondent had been responsible for teaching in those years. During the 1987-88 school year Respondent failed to correct the deficiencies in performance which had been identified during the 1986-87 school year. Respondent repeatedly failed to perform the duties which were expected of her despite many attempts to assist her with any remediation needed. Further, by her failure to remediate in the areas of classroom management and techniques of instruction, Respondent failed to communicate with her students to such an extent that they were deprived of a minimum educational experience.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE and RECOMMENDED this 20th day of March, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 20th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2798 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 3 are accepted. The first 3 sentences of paragraph 4 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 5 through 12 are accepted. The first two sentences of paragraph 13 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 14 through 19 are accepted. With the deletion of the phrase "sometime in February, 1988," and the following qualification, paragraph 20 is accepted. The opinions expressed by the parents were based upon the observations made and not necessarily the comment of their children. The parents drew the conclusions based upon their observation but no conclusion is reached by the undersigned as to the accuracy of those conclusions. It will suffice for the purposes herein that the-parents believed their conclusions to be correct. No time was clearly established for the parental comments regarding Respondent's ability or performance. Paragraph 21 is accepted. With regard to paragraph 22, with the following qualification, it is accepted. The opinion expressed by Conte that students "were not comprehending what they were doing or what they were supposed to be doing ..." Such comments have not been considered as Mr. Cote's ability to read the minds of the children. Rather, such comments have been read to more accurately mean: based upon his experience and expertise, "the students did not appear to comprehend, etc." The last sentence of paragraph 22 is rejected as argument. Paragraphs 23 through 25 are accepted. Paragraphs 26 through 28 are rejected as irrelevant, argument, conclusions of law or comment not appropriate for a finding of fact. Paragraphs 29 and 30 are accepted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT AS SET FORTH IN THE AMENDED RECOMMENDED ORDER (HAVING PRESUMED IT SUPERSEDED THE EARLIER FILED RECOMMENDED ORDER): Paragraph 1 is accepted as to Respondent's age but the balance is rejected as unsupported by the record. The weight of the evidence established Respondent has not taught for 32 years. She has been a teacher by profession that long but not working all that time. Paragraphs 2-4 are accepted. Paragraph 5 is rejected as argument or a conclusion of law not accurate under the facts of this case. Paragraph 6 is accepted to the extent the subject matter is qualified and addressed in finding of fact paragraph 22, otherwise is rejected as contrary to the weight of the evidence or irrelevant to the conclusions reached herein. Paragraphs 7 and 8 are rejected as contrary to the weight of credible evidence presented. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Frank Harder Twin Oaks Building, Suite 100 Dr. Joseph A. Fernandez 2780 Galloway Road Superintendent Miami, Florida 33165 School Board of Dade County 1450 Northeast 2nd Avenue William DuFresne Miami, Florida 33132 DuFRESNE AND BRADLEY 2929 South West Third Avenue, Suite One Miami, Florida 33129 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
Findings Of Fact During the 1988/1989 school year, Shawanna Shaw was a student in the sixth grade at Madison Middle School. During the 1988/1989 school year Respondent was a student in the reading class of Ms. Willson. At the beginning of the school year Respondent's performance and conduct were acceptable. Shortly thereafter, however, Respondent began to demonstrate a severe disinterest in school. She would only complete about 10% of the homework assignments, would come to class without materials and otherwise unprepared, and refused to do work in class. Moreover, Respondent fell into a pattern of disruptive behavior which seriously interfered with the learning activities in the classroom. This behavior included yelling out in class, thereby breaking the silence required in a reading classroom, and showing open disrespect to her teacher by defying her authority and using abusive and foul language towards her. Respondent's behavior in Ms. Willson's class became so disruptive and unproductive that she was relegated to a separate table so as to separate her from other students. During these separations Respondent would sleep and did not benefit from any of the classroom activities. On other occasions, Respondent would defy her teacher's authority by simply leaving the room without permission. Ms. Willson attempted to improve Respondent's conduct in school by different methods, including a conference with the mother. Notwithstanding, there was no positive change in Respondent's behavior. As a result of Respondent's failure to make progress and depriving other students of making progress, she received a grade of "F3F," which constitutes a failing academic and conduct grade and the lowest rating for effort. Respondent was assigned to Ms. Ruddy, one of the school counselors, during the 1988/1989 school year. Because of the frequent conflicts that Respondent had with different teachers and the fact that she was not making progress Ms. Ruddy spent a disproportionate amount of time with her. Efforts by Ms. Ruddy to reactivate Respondent's interest in school were to no avail. Conferences with Respondent and her parents were ineffective. Respondent's skipping of classes became chronic; frequently Ms. Ruddy would find Respondent wandering the halls during normal class times. Further, Respondent frequently tried to engage other students in fighting both during classes and after school, and on one occasion Respondent pushed another student down the stairs. These latter acts can warrant expulsion. Like other schools within the Dade County School District, it is the practice at Madison Middle School for teachers and administrators to document troublesome student behavior. Written reports are made on Student Case Management Referral Forms, which are reserved to document serious behavior problems. Between September 8, 1988, and January 10, 1989, Respondent received eight Referral Forms from her teachers relating to disruptive and otherwise unacceptable conduct. Ms. Ruddy and the assistant principal, Barbara P. Bell, had numerous conferences with Respondent and her mother in an attempt to improve Respondent's behavior. Numerous techniques were considered, and in the process it was determined that the misbehavior of Respondent was not due to any learning disability, but was primarily the result of poor discipline. Madison Middle School is not geared to address the peculiar needs of students nor can it provide individual students with continuous special attention. For example, Ms. Ruddy, as a guidance counselor, has between 550 and 600 students assigned to her for counseling. The number of students assigned to her simply precludes any sort of in-depth, continuous, or special counseling for Respondent. By contrast, in an opportunity school there are far more counselors available to help develop students with individualized and continuous assistance. Moreover, at an opportunity school there is a full-time psychologist on staff, and the student to teacher ratio is less than half of what it is in a regular school program. As such, students can be provided with a much more structured and individualized program at an opportunity school. Both Ms. Ruddy and Ms. Bell are of the opinion that Respondent is simply not making any progress at Madison Middle School, and her disruptive behavior is preventing other students from benefiting from normal classroom activities. The more structured environment of an opportunity school could be of great benefit to Respondent and help her to resolve the discipline problems she is experiencing. Because of Respondent's poor grades, unacceptable conduct, and behavior which deprived other students of a learning experience, a child study team conference between teachers and an administrator was held at which the decision was reached to administratively assign Respondent to an opportunity school. At various times during the 1988/1989 school year Respondent's mother has requested that Respondent be tested for a learning disability and has refused consent for such testing. She has also requested that Respondent be transferred to the Opportunity School voluntarily and has refused to allow Respondent to be so transferred. During the course of the final hearing, Petitioner agreed that Respondent would be psychologically evaluated by Petitioner, resulting from the parent's request that such evaluation be performed. Although Respondent's Stanford Achievement Test scores are low to below average, it is the opinion of the school personnel having repeated contact with Respondent that her disruptive behavior and failure to do her work are not the result of a learning disability since she has been doing her work prior to October of 1988. They believe her conduct to be a result of lack of discipline. It is expected, however, that should the psychological evaluation indicate the possibility of a learning disability, the School Board of Dade County and Respondent's mother would permit and provide the appropriate testing to determine the presence of any learning disability in order to assist Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Shawanna Shaw to the Opportunity School Program at Jan Mann Opportunity School-North until such time as her performance reveals that she can be returned to the regular school program. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 18th day of July, 1989. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Frank A. Howard, Jr., Esquire Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, FL 33134 Mrs. Alberta Shaw 2360 N.W. 90th Street Miami, FL 33147
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 =================================================================
The Issue The issue is whether, pursuant to section 1002.33(8)(a)3. and 4., Florida Statutes, Petitioner has proved violation of law and other good cause to terminate a charter school agreement with Respondent dated April 17, 2012 (Charter).
Findings Of Fact Respondent is a not-for-profit corporation. By undated application to Petitioner, Respondent requested approval to operate a charter school to be known as Pathways Academy K-8 Center (Pathways Academy or School) at the start of the 2012-13 school year (Application). The Application identifies as Respondent's contact person Yudit Silva, who, at all material times, has been the president of Respondent, but has not served on the Board of Directors. Ms. Silva was also the principal of the School from its inception until some point between August 2015 and April 4, 2016, when Angel Espinosa replaced Ms. Silva as the principal of Pathways Academy. On November 15, 2011, Petitioner approved the Application. Entered into on April 17, 2012, the Charter between Petitioner, also identified as Sponsor, and Respondent is for a term of five years from July 1, 2012, through June 30, 2017. By amendment to the Charter approved by Petitioner on July 24, 2012, Respondent postponed the opening to August 19, 2013, but this amendment did not extend the date of the expiration of the Charter. A second amendment approved in June 2013 identified a new location for Pathways Academy. The Application states that the principal of Pathways Academy will be supervised by an Education Service Provider that will report to the Board of Directors of Respondent, although the principal will report directly to the Board of Directors on policies involving governance. It does not appear that Respondent hired an Education Service Provider or, if it did, that an Education Service Provider was retained to assist with operational responsibilities for a substantial period of time. The Charter assigns to the Board of Directors responsibility for financial responsibility, compliance with state and federal law, compliance with the Charter, and audit review and compliance. Charter section 2.D.1.a provides: Grounds for Good Cause: "Good cause for termination or non-renewal shall include . . . the following: a failure by the School to implement a reading curriculum that is consistent with effective teaching strategies grounded in scientifically-based reading research; * * * (3) a failure by the School to comply with a Corrective Action Plan; * * * a failure by the School to pay payroll taxes to the Internal Revenue Service; the School's filing for voluntary bankruptcy, adjudication of bankruptcy or insolvency, or other state of financial impairment such that the School can no longer operate or is no longer economically viable as determined pursuant to § 218.503, Florida Statutes; * * * the School's failure to submit to the Sponsor a Financial Recovery Plan . . . within thirty (30) days following a determination of financial emergency pursuant to Section 218.503, Florida Statutes; the School's failure to implement any financial recovery plan approved by the Commissioner of Education pursuant to Section 218.503, Florida Statutes; * * * (17) the School's receipt of a finding of financial emergency, pursuant to Section 218.503, Florida Statutes, for two consecutive years or more than once during any one fiscal year where the School has been afforded an opportunity to cure such financial position by adhering to a financial recovery plan . . . and failed to evidence improvement in the School's financial status; * * * (19) a finding, by a court with competent jurisdiction, or by the School Board, after the School has received notice and an opportunity to be heard at a formal hearing, that the School or its representative has perpetuated a material fraud upon the Sponsor or made intentional misrepresentations in the Application . . .; * * * (22) any other good cause shown which shall include . . . any material breach or violation by the School, which is not cured after notice and a reasonable opportunity to cure, of the standards, requirements, or procedures of this Charter such as: * * * (d) the School's failure to comply with the conflict of interest provisions applicable to charter schools; * * * (l) the School's failure to provide Special Education (SPED) students and English Language Learners (ELL) with programs and services in accordance with federal, state and local school district policies; * * * (p) the School's failure to comply with all applicable laws, ordinances and codes of federal, state and local governance including . . . the Individuals with Disabilities Education Act (IDEA); [or] * * * (v) the School's willful or reckless failure to manage public funds in accordance with the law[.] The Charter incorporates the Application, which projects an initial enrollment of 342 students in the first year, 466 students in the second year, 564 students in the third year, 626 students in the fourth year, and 808 students in the fifth year. The Charter does not provide a minimum enrollment. As noted below, actual enrollment for the first four years ranged between 260 to 270 students approximately. For reading and other subjects, the Application assures that the School will "continuously monitor" students' needs by collecting data from various named sources, including standardized test scores, EPs, IEPs, and ELL plans and disseminate this data to teachers and parents. Pet. Ex. 1, p. 9. In particular, the School will identify students not making adequate progress toward the New Generation Sunshine State Standards (NGSSS), which are required for a high school diploma, and take the measures necessary for improvement. Id. at 10. Toward this end, the School's curriculum will correlate with the NGSSS, and teachers will use the "best research based teaching practices." Id. In particular, the School will promote the use of research-based practices such as FCAT Test Maker to allow teachers to target NGSSS benchmarks missed by individual students and assign needed classwork and homework. Id. at 11. The School will align all lessons to the NGSSS, id. at 12, because the NGSSS is the "instructional foundation of the school's curriculum." Id. at 20. The School will require its teachers to document instruction of the NGSSS standards and ELL strategies by completing daily lesson plans, which will identify objectives taught and curriculum benchmarks met. Id. at 21. All middle school students at Level 1 or Level 2 reading will be enrolled in Intensive Reading or Intensive Reading Plus, except for ELLs, who will be enrolled in a special ESOL developmental reading course. Id. at 22. Students at Level 1 or Level 2 in reading will be assessed with the Florida Assessments for Instruction in Reading (FAIR). Id. at 24. The School will follow the District Comprehensive Research-Based Reading Plan (CRRP). Id. at 22. The CRRP requires the School to conduct a screening and diagnostic process to identify the placement of Level 1 and Level 2 students in the appropriate reading classes. The School will also analyze data to enrich instruction for the "middle quadrant" of each grade. Id. at 25. As part of the SIRP, the School will use Read XL, SOAR to Success, and Ladders to Success instructional materials and Reading Coach test-preparation materials. For middle school students scoring at Level 1 or Level 2 on the FCAT 2.0, the School, as well as CRRP, will require, for the following school year, that students replace an elective course with an intensive reading course of 110 minutes per block. Id. at 16 and 40. Among the instructional techniques will be differentiated instruction, in which teachers adapt their instruction to the differing learning abilities and needs of individual students. Id. at 18. Other instructional techniques for reading include systematic instruction and direct instruction. Id. at 43-44. The School will collect progress monitoring data quarterly and disaggregate the data to guide classroom instruction, identify student needs for reteaching, intervention or acceleration, determine performance, and evaluate the instructional program. Id. at 42-43. The Application explains that RTI is part of the process of determining a student's eligibility for ESE services. Id. at 48. RTI is a "data-based framework for instructional delivery" using a "multi-tiered approach to provide high quality instruction and intervention to match student needs" and "learning rates across time to inform important instructional decisions." Id. The Application describes the tiers of instruction and intervention, culminating in Tier 3, in which students receive individualized intervention plans that are implemented, monitored, and revised, as needed. Id. at 48-49. For ESE students, the Application states that the School will provide education in the least restrictive environment ranging from self-contained, in which the ESE student spends 0-40% of the school day in a general education classroom, to resource, in which the ESE student spends 41-79% of the school day in a general education classroom, to inclusion, in which the student spends 80-100% of the school day in a general education classroom. Id. at 48. The School will provide its ESE students with a free appropriate public education and follow Petitioner's policies for ESE and IDEA, as well as Florida Administrative Code Chapter 6A-6. Id. at 67. IEPs will include measurable annual learning goals and supplemental and related services, id. at 68; specially designed instruction, id. at 69; and present levels of academic and functional performance. Id. at 73. The School will implement the IEP of each ESE student, and teachers will be informed of their specific responsibilities regarding implementation. Id. at 76. At the conclusion of each marking period, the School will evaluate the progress of each ESE student in achieving the goals set forth in his IEP. Id. at 78. For ELL students, the Application states that the School will survey all parents on registration. Id. at 83. The school will document the progress of each ESOL-exited student for two years after exiting. Id. at 84. For each ELL student in the ESOL program, the School will develop an EP that will be maintained in the student's ELL folder. Id. at 88. The Application addresses the assessment modifications available to ELL students, including those allowed when taking the FCAT. Id. at 88-89. For management, the Application acknowledges that Respondent, as a not-for-profit tax-exempt organization authorized to operate a charter school, conducts operations in the public trust, so as to create a fiduciary duty between Respondent and its governing board and employees, on the one hand, and the public, on the other hand. Id. at 95. This requires that personnel of Respondent exercise the "utmost good faith in all transactions involved in their duties." Id. The Charter permits transactions with parties with conflicting interests only if the conflict is disclosed to the Board of Directors before the transaction is closed, the person with the conflict is excluded from any discussion of the transaction by the Board of Directors, there is "reliable independent evidence of fair market value" that shall be attached to the minutes of the Board of Directors, and the Board of Directors determine that the transaction is in the best interest of Respondent. Id. Petitioner conducted OSPR visits on October 28, 2013; January 10, 2014; October 9, 2014; February 27, 2015; and April 4, 2016. For each OSPR visit, Petitioner provided Respondent with prior notice that identified the areas to be examined. After each OSPR visit, Petitioner provided Respondent with a written report, which contained preprinted criteria that, if applicable, were checked to indicate that the School was in compliance or not in compliance. After each OSPR visit, Petitioner provided Respondent with a debriefing letter, which highlighted the findings in the OSPR report. After each OSPR visit except the last, the parties entered into a comprehensive corrective action plan, which identified and explained specific deficiencies, identified "action steps" and who was to take them, and set a completion date, which often was merely "ongoing." However, the intervals between OSPR visits represented reasonable opportunities to eliminate all cited deficiencies, so, to the extent that subsequent OSPR visits uncovered deficiencies found in earlier OSPR visits, Respondent has failed to timely eliminate cited deficiencies and failed to comply with these corrective action plans. The first OSPR visit occurred on October 28, 2013, or about two months into the first year of operation. At the time, 266 students were attending Pathways Academy. The reading/literacy coach was Ms. Espinosa, the ESE specialist was Ana Diaz, the ESOL contact was Roxane Mendez, and the School counselor was Yadira Desvergunat. For middle school reading, Respondent failed to implement a core reading program or a research-based reading program or to incorporate NGSSS or CCSS standards. As noted above, the Application notes Respondent's election to use the District's K-12 Comprehensive Reading Plan for middle school, but Respondent had not even purchased the curriculum materials two months into the school year. Nor was the School implementing the RTI process for the students most in need of reading instruction. Lastly, Respondent failed to analyze any student data to evaluate the effectiveness of its reading programs and target instruction. For ESE, Respondent was not in compliance with many of the procedural requirements involving parents. Except for the ESE students served by the speech-language pathologist, the School had failed to generate progress reports on annual goals. Most importantly, the School was not providing the ESE services that it was obligated to provide. And Ms. Diaz, Respondent's ESE specialist, had attended only one of three mandatory District meetings of ESE specialists. For ELL students, of whom 74 such students were enrolled, Petitioner's representatives asked for ten ELL folders, and Respondent was able to produce only five. Respondent had not uploaded to TERMS accurate information concerning the date of an ELL student's EP, his language classification, and reevaluation date. Also, only one of the four ELL folders that Respondent produced contained a list of testing accommodations. The School was not analyzing data in the planning of instruction of ELL students in its ESOL program, and teachers did not know the language classification of their ELL students. Petitioner's representatives auditing the ESOL program visited nine classrooms, and, in general, ELL students were not receiving appropriate core and supplementary materials or instruction based on different levels of proficiency in English, and heritage language dictionaries were not available in classrooms in which they were required. The School failed to dedicate one aide or teacher proficient in Spanish to assist the ELL students in ESOL basic subject area classrooms, so as to comply with the META consent decree, nor did the School maintain translated school flyers and brochures in the front office. Petitioner conducted the next OSPR visit two and one- half months later on January 10, 2014. The personnel identified above continued to serve in their respective roles. For reading, the situation was almost unchanged. Respondent had purchased the curriculum materials to implement the District's K-12 Comprehensive Reading Plan for middle school, but was not using them. However, the School was analyzing data to evaluate the effectiveness of its reading programs and target instruction. For ESE, Respondent was complying with most of the procedural requirements involving parents. Oddly, required members were missing IEP meetings and IEPs were missing measurable annual goals--criteria that Respondent had satisfied during the first OSPR visit. But Respondent was timely completing its IEPs and generating progress reports on annual goals in IEPs, and Respondent's ESE specialist was attending mandatory District meetings of ESE specialists. Respondent was not timely completing reevaluations. Most importantly, again, Respondent was not providing the ESE services that it was obligated to provide. For ELL students, of whom 66 were enrolled, Respondent had misclassified three students, but was able to provide an ELL folder for each one requested and was now providing testing accommodations, as required. Respondent failed to complete timely ELL annual reviews. Petitioner's representatives auditing the ESOL program visited six classrooms, and, in general, the teachers were unable to identify ELL students and their classifications, although they now had a list of ELL students. Again, teachers were not providing differentiated instruction to ELL students, but required heritage language dictionaries were now present in some of the classrooms in which they were required to be available. Respondent still had not provided an aide or teacher proficient in Spanish and dedicated to assist the ELL students in their subject area classrooms. School flyers and brochures were still unavailable in translation. The third OSPR visit took place on October 9, 2014, which was less than two months after the start of Respondent's second academic year. Enrollment at Pathways Academy was 273 students. Ms. Espinosa was now the literacy coach, ESOL contact, and ESE specialist, although Kim Kangal was also listed as a literacy coach. Ms. Desvergunat remained the School counselor. A year had not brought much change to Respondent's reading program. The School's reading plan was not aligned to Florida Standards (the new requirement), and the School was not using approved, research-based curriculum in middle school. Lesson plans did not clearly identify the standards, objectives and strategies being taught. The School was not implementing the District's K-12 Comprehensive Reading Plan, nor was it implementing reading intervention programs. The School was not analyzing data to evaluate the effectiveness of its programs, drive instruction, or monitor student progress. The School was not using an effective RTI process. The School was not uploading accurate student data to TERMS. The School had failed to administer an important reading assessment to kindergarten students. Failing to comply with a requirement that it had previously satisfied, the School now employed reading teachers without the required endorsement or certification. On this visit, Petitioner's representatives auditing the reading program visited four classrooms, spoke to four teachers and the literacy coach, and examined four lesson plans. For ESE students, of whom 23 were enrolled, Respondent was complying with most procedural requirements involving parents. Required members were attending IEP meetings, and the School was timely completing IEPs and reevaluations and issuing progress reports on annual goals, but IEPs lacked present levels of performance and statements of the student's priority educational needs. Again, the School was not providing ESE services that it was obligated to provide, although the teachers were at least able to identify their ESE students. Respondent's ESE specialist was still attending the required monthly District meetings of ESE specialists. On this visit, Petitioner's representatives auditing the ESE program examined five IEPs, visited five classrooms, and examined five lesson plans. For ELL students, of whom 90 were enrolled, Respondent failed to maintain ELL folders for four ELL students, failed to update TERMS with the EP and reevaluation dates for ELL students, failed to administer all required assessments, failed to conduct required ELL meetings and failed to comply with procedures for those that it conducted, failed to conduct annual reviews in a timely manner, failed to conduct timely required reevaluations, failed to exit ELL students properly, failed to monitor exited ELL students, failed to ensure that teachers of ELL students knew their ELL classification codes, failed to implement core and supplementary materials with ELL students, and failed to provide a dedicated aide or teacher proficient in Spanish to assist the ELL students in basic subject area classrooms. On this visit, Petitioner's representatives auditing the ESOL program visited five classrooms, spoke with five teachers, and examined five lesson plans and 12 ELL EPs. The fourth OSPR visit occurred on February 27, 2015. Enrollment was 273 students. The personnel were the same as those present for the third OSPR visit, except that a new contact, Ms. Desvergunat, was added under the name of Ms. Espinosa as another ESOL contact. For reading, Respondent's performance showed some improvement: the School had administered an important assessment to kindergarten students, its reading teachers now had the required endorsements or certifications, and it was using achievement data to monitor student progress and inform instruction. However, Respondent's performance deteriorated in one respect: it again failed to provide the required amount of intensive reading instruction to middle school students at Level 1 or Level 2. On this visit, Petitioner's representatives auditing the reading program visited eight classrooms, spoke to five teachers, and examined six lesson plans. As for ESE students, of whom 30 were enrolled, Respondent continued to fail to meet many procedural requirements involving parents, to include current levels of performance in IEPs, and to identify priority educational needs in IEPs. Even though it had previously satisfied these criteria, Respondent now failed to include measurable annual goals in IEPs and two of eight teachers could not even identify the ESE students in their classrooms. The former failure is puzzling because the ESE specialist had not changed. On this visit, Petitioner's representatives auditing the ESE program visited eight classrooms, spoke to eight teachers, and examined eight lesson plans and five IEPs. For ELL students, of whom 62 were enrolled, Respondent's performance was similarly uneven. Although compliant with the requirement of using District-trained assessors for initial ESOL assessments at the time of the previous OSPR visit, Respondent was no longer using these assessors, as it was required to do. Respondent also failed to review and update annually all ELL folders, ensure that TERMS contained accurate student data for all ELL students, complete annual reviews timely, complete reevaluations timely, exit ELL students from the program properly, and ensure that teachers know their ELL students and ELL classification codes. On the other hand, Respondent eliminated several deficiencies from the previous OSPR visit. Respondent now had ELL folders for all of its ELL students, and it monitored all exited ELL students. Its ELL students were now taking all required District and state assessments, and its ESOL contact attended all District ESOL contact meetings. On this visit, Petitioner's representatives auditing the ESOL program visited ten classrooms, spoke to nine teachers, and examined nine lesson plans and eight ELL EPs. The fifth and final OSPR visit took place on April 4, 2016. Enrollment was 259 students. As noted above, Ms. Espinosa was now the principal. The reading teacher was Francis White, the ESOL contact was Ms. Desvergunat, and the ESE specialist was Judith Evans. As for reading, except for the endorsement or certification of the reading teacher and the administration of the reading assessment to kindergarten students, the School was not in compliance with any of the audited criteria addressing such activities as implementing the District's K-12 Comprehensive Reading Plan, implementing the CIRP and SIRP in middle school, meeting the literacy needs of Level 1 and Level 2 middle school students, providing intensive reading instruction to Level 1 and Level 2 middle school students (who were being taught with Level 3, Level 4 and Level 5 middle school students), analyzing reading performance data (the new reading teacher had been at the school for two months and had not yet performed this task), ensuring that the reading teacher was trained in CIRP and SIRP, using research-based reading curriculum for Level 3, Level 4 and Level 5 reading instruction in middle school, aligning the School's reading plan with Florida Standards, preparing daily lesson plans that identify the standards, objectives and strategies taught in middle school literacy or the differentiated instruction used in middle school literacy, providing Level 1 and Level 2 middle school students with the required amount of time in reading instruction, generating current student data reports, and analyzing data to evaluate the efficiency of programs, drive instruction and place students in proper middle school reading intervention. On this visit, Petitioner's representatives auditing the reading program visited 15 classrooms, spoke to seven teachers, and examined 14 lesson plans. As for ESE students, of whom 31 were enrolled, Respondent had regressed in the number of procedural deficiencies involving parents. However, the required members of the IEP team were attending IEP meetings, IEPs were completed on time, annual goals progress reports were generated timely, IEPs indicated how disabilities were driving priority educational needs, and the ESE specialist was attending mandatory District meetings of ESE specialists, but quarterly annual goals progress reports lacked data-driven comments for parents, reevaluations were not timely completed (two were required and neither was completed), the reevaluation process was incorrect, IEPs failed to reflect students' present performance levels (three of five IEPs lacked present levels of performance), IEPs lacked measurable goals (four of five IEPs lacked measurable goals), supplemental aids and accommodations did not align with present levels of performance, ESE student information was not timely entered into TERMS, updated IEPs were not provided to all teachers of ESE students, teachers were unable to identify all of their ESE students, teachers failed to implement accommodations for ESE students and gifted services for gifted students, and nonESE students were instructed in ESE classrooms. On this visit, Petitioner's representatives auditing the ESE program visited 10 classrooms, spoke to 10 teachers, and examined 10 lesson plans and five IEPs. As for ELL students, of whom 46 were enrolled, Respondent failed to follow procedures for placing into the ESOL program one of 13 students audited. Respondent could not provide two of the requested ELL folders because the students had withdrawn, but Respondent had failed to upload one of the withdrawals on TERMS. Nine of 13 ELL folders that Respondent produced lacked current information. Respondent failed to upload onto TERMS accurate and updated grades, language classifications and plan dates and attendance, failed to follow required procedures for ELL reevaluations, failed to conduct timely reevaluations (three reevaluations were required and all were untimely), failed to implement testing and other ELL accommodations, failed to adapt assessments properly for ELL students, failed to exit ELL students properly, failed to monitor exited students, failed to ensure that the teachers knew their ELL students and language classifications, failed to provide equal access to all ELL students because two ELL students were inappropriately placed in a self-contained ESE classroom, failed to implement ESOL strategies and appropriate supplemental materials, failed to provide one aide or teacher proficient in Spanish dedicated to ELL students, and failed to issue report cards in the parents' home language. On this visit, Petitioner's representatives auditing the ESOL program visited 15 classrooms, spoke to 13 teachers, and examined 14 lesson plans and 13 ELL EPs. A number of factors support by clear and convincing evidence the above-stated findings concerning Respondent's reading, ESE, and ESOL programs, which are drawn from the five OSPR reports. For the most part, Respondent did not make contemporaneous objections to the deficiencies cited in the OSPR reports. In this proceeding, Respondent has produced exhibits, such as lesson plans, documentation monitoring student progress, and student work, intending to show compliance with various items found deficient. In most cases, the deficiencies cited in the OSPR reports are based on findings from a sample of documentation examined by Petitioner's representatives, so it is entirely possible that unsampled folders might contain relevant documentation, but the presence of these materials in unsampled folders would not undermine findings that these materials were not present in sampled folders. More importantly, the OSPR checklist required indications of activity or documentation that was found, not found, or not applicable, so as to demand a high level of engagement by the persons conducting the visit as they completed the sections of the OSPR checklist for which they were responsible. Petitioner's representatives assigned to each of the three areas observed in the OSPR visits were highly experienced in their respective areas, and Respondent's employees in each area were generally inexperienced and not as skilled. For instance, only one teacher from the 2014-15 school year returned for the 2015-16 school year. Turnover was considerable among the persons designated by Respondent as in charge of each of these three programs. The persons in charge of ESE and ESOL in October 2013 were gone one year later, and Ms. Espinosa, who had originally been assigned supervisory duties in reading, had assumed these duties in ESE and ESOL, although another person shared these duties in reading. Five months later, Ms. Desvergunat was assigned to share Ms. Espinosa's duties in ESOL. By the last OSPR visit in April 2016, two and one-half years after the first OSPR visit, turnover among these contacts was now complete. Even the principal had changed, as Ms. Espinosa replaced Ms. Silva. Ms. Desvergunat now bore sole responsibility for ESOL, and two new persons were assigned to take charge of reading and ESE. A recurring theme from Respondent's witnesses was their complaint about a lack of District support. But the OSPR reports document that Respondent's employees failed to attend mandatory District meetings, as noted above, as well as optional District professional development meetings. Even so, at the time of each of the five OSPR visits, Petitioner's employees with expertise in reading, ESE, and ESOL spoke with their counterparts among Respondent's employees about how to remedy the observed deficiencies, and, for the first four OSPR visits, the parties agreed upon corrective action plans that, if followed, would have eliminated the deficiencies. But, as indicated above, over this relatively short period of time, Respondent never achieved substantial compliance with its basic responsibilities in teaching reading, ESE students, and ELL students. For two and one-half years, Respondent made the same mistakes, over and over, in reading, ESE, and ESOL, unwilling or able to improve its performance to a level that might be considered satisfactory. In between the fourth and fifth OSPR visits, Petitioner received a letter dated August 27, 2015, from the FDOE Inspector General. The letter states that a former employee had alleged that Ms. Silva, as principal, had spent School funds for personal use and Ms. Silva and Ms. Espinosa had falsified student records. The FDOE letter asks Petitioner to conduct an investigation into the allegations. Petitioner's Chief Auditor conducted an audit of Respondent and the School and issued an internal audit report in December 2015. Through its then-counsel, Respondent filed a response to the audit by letter dated January 29, 2016. By letter dated March 3, 2016, to Petitioner and Petitioner's Superintendent, the Chief Auditor advised of the completion of an audit and concluded that Respondent had falsified documents, made improper expenditures, failed to pay wages, failed to pay timely vendors, misrepresented the school's enrollment to receive FTE funds to which it was not entitled, used School funds for improper purposes, failed to secure signatures in student files, improperly hired a relative of the principal, and failed to follow state guidelines on children's vaccinations. Petitioner failed to prove by clear and convincing evidence that most of the expenditures were improper with four exceptions. On or about April 29, 2015, Respondent paid by a check in the amount of $500 to Palm Beach County School District and a check in the amount of $500 to Miami-Dade County School District for certain "dues & fees" that were not obligations of the School. Instead, these payments were for applications for approval of other charter schools to be operated by Respondent. The third improper expenditure is related to an application of Respondent for a charter school in Palm Beach County. On or about August 4, 2015, Respondent issued a check in the amount of $4000 to Impact Learning Strategies LLC as "consultants." This check was in payment for consulting services having nothing to do with the School. In response to the audit findings, Respondent's counsel failed to address one $500 payment, but attributed the other $500 payments to an error by a former accountant and erroneously defended the $4000 payment to Impact Learning Strategies LLC as proper. Attached to the attorney's letter was a copy of a consulting contract between Impact Learning Strategies LLC and Respondent for assistance in obtaining the renewal of the Charter. Respondent signed the contract on July 31, 2015, but Impact Learning Strategies LLC did not sign it until December 30, 2015. The contract calls for services from February 1, 2016, through December 16, 2016, a total payment of $5500, and monthly payments of $500, evidently starting in February 2016, although the contract acknowledges the payment of a $500 "retainer." A $4000 payment in August 2015 did not relate to this contract, which was not even fully signed until four months later. The agreement to which the $4000 payment pertained is a consulting agreement between the same parties, but having nothing to do with the School. Calling for the consultant to provide Respondent with assistance in obtaining a charter for New Horizons K-8 in Palm Beach County, this contract was signed by both parties in July 2015, called for services entirely within July 2015, and required payment of $4000 by August 3, 2015; the $4000 payment on August 4, 2015, clearly pertained to this contract. Interestingly, Respondent has never corrected the inaccurate statement of its counsel. In its proposed recommended order, Respondent claims that an error by the former accountant led to this $4000 payment in August 2015, but cites an exhibit at Bates page 777 as support for this claim. This is a reference to the misstatement by the former attorney, as set forth in the preceding paragraph. At this point, given Respondent's failure to acknowledge the error, there is no basis on which to infer that Respondent ever obtained a credit for the payment of this payable of Respondent in connection with a matter unrelated to the School. The fourth improper payment is actually a number of related payments for airfare and miscellaneous travel expenses that Ms. Silva's husband incurred in his attending a conference in New Orleans from June 20-25, 2015. The airfare for this trip was booked on May 29, 2015, which was during the period, as discussed below, that Respondent was failing to pay crucial School creditors. The travelers were Ms. Silva and her husband, Ms. Espinosa, Ms. Desvergunat, Leonard Glickel, and Gladys Valladares. The latter two individuals were members of the Board of Directors. The airfare on Spirit Airlines for the New Orleans trip was $1561, and five nights at Harrah's for four rooms was $6214, including over $100 of room service and about $18 of movie rentals. But Ms. Silva shared a room with her husband, so the cost of the room was not proved to be improper. The airfare of about $260 and an unknown amount spent for food and beverages for the husband constitutes the total of the wrongful expenditure. Petitioner's Chief Auditor generously limited his findings of a wrongful expenditure to the amount spent on Ms. Silva's husband. The entire group spent an extra night in New Orleans at School expense because the conference ended on June 24 at noon and could have spared the School the expense of the first night, if they were willing to miss the only event scheduled for June 20--a "Reception Parade" from 6:00 to 8:00 p.m. Uncharacteristically, Respondent acknowledged the impropriety of all of the expenses of the New Orleans trip. Its counsel's letter advises that "all monies referenced for this Conference are being repaid to the Charter School," and Respondent would develop a "travel and expense reimbursement policy" to "avoid future concerns of this nature." These four improper payments evidence financial mismanagement. The record does not support an inference, by clear and convincing evidence, of fraud in the first three improper payments. Respondent claims that one of the $500 checks was drawn on the School's account by mistake, offers no defense as to the second $500 check, and offers an erroneous defense of the $4000 check. Even this checkered performance in accounting for these expenditures, long after the fact, is proof of ineptitude, not fraud. A major problem with these expenditures is that, although improper, they were not large enough to be readily noticeable and thus support an inference of fraud. For the first year of operation, projected monthly expenditures totaled about $200,000, as set forth in the Application. Expenditures of $1000 and $4000 would thus represent only 0.5% and 2.0% of the expenditures in the months that the checks were issued and presented. The smaller pair of expenditures remained undetected for five months and the larger expenditure remained undetected for a little less than two months. However, the payment of the air and food expenses of Ms. Silva's husband on the trip to New Orleans was an intentional misallocation of School funds that amounted to fraud. Ms. Silva's husband had no School business justifying his travel. The presence of his wife--the principal of the School and president of Respondent--and two board members attributes this fraud directly to Respondent itself. Petitioner also proved by clear and convincing evidence the falsification of School documents. Mr. Ramjit, who, as noted above, later filed the complaint with FDOE, served as assistant principal from May 2015 until early August 2015. Not long after starting, Mr. Ramjit was assigned teacher evaluations. Ms. Espinosa told him to assign low scores to certain teachers, whom Respondent had already decided not to retain. Mr. Ramjit refused this request. Later, someone replaced his evaluations with fraudulent evaluations reflecting the lower scores that Ms. Espinosa had demanded and forged the teacher signatures onto the new evaluations. The person who falsified these evaluations was either Ms. Espinosa, Ms. Silva, or someone acting at the direction of either or both women because they later met with Mr. Ramjit and, tacitly approving of this fraud, told him in the future to follow directions, regardless of his ethical reservations. Another incident of falsification of documents occurred in connection with students' files. Directed to examine the students' cumulative files for compliance for completeness, Mr. Ramjit found that dozens of acknowledgements of receipt of the Code of Student Conduct were missing. When Mr. Ramjit informed Ms. Desvergunat, the School counselor, of these facts, she directed him to "make the forms up." Mr. Ramjit refused, even after Ms. Silva, who had overheard the conversation, also ordered him to do so. The next morning, Mr. Ramjit saw Ms. Desvergunat fraudulently signing acknowledgement forms and giving them to a secretary to be placed in the students' cumulative folders. The misrepresentation of student enrollment involves the School's failure to remove from its enrollment 19 students who were no longer attending the School. Because this failure extended to the two-week period in October 2015 during which FDOE counts students for the purpose of FTE payments, Pathways Academy obtained an overpayment of about $49,000 from its failure to update TERMS with accurate enrollment information. At all material times, TERMS was operational. One of Respondent's witnesses claimed that a related data-reporting program, PINNACLE, was broken, but this testimony is rejected. Any problem that the School ever had with PINNACLE was due to the School's inability to learn how to sign into the program after the departure of a gradebook manager who was familiar with PINNACLE. Respondent's defense to these 19 phantom students was, first, to claim that fewer than 19 students were improperly reported. This claim is rejected as unsupported by the evidence. Second, Ms. Desvergunat attempted to downplay the gravity of an overreporting of 7-8% of the School's total enrollment by claiming that "overpayments happen" and FDOE will recover in one month any overpayments that they made in an earlier month. This attempted explanation reveals only Respondent's cavalier approach toward discharging an important responsibility that is imposed upon a charter school. Again, though, the record does not support the characterization of Respondent's misreporting of student enrollment as fraudulent, for the reasons set forth above concerning the three improper expenditures. However, this misrepresentation was more than negligent. TERMS contains safeguards and checks to ensure accurate reporting of student enrollment, Respondent received substantial financial benefit by overreporting enrollment by 19 students, and Respondent's key employee exhibited a cavalier attitude toward a reporting function that is clearly of utmost importance in allocating public funds in accordance with the law. Unlike the situation with the three improper expenditures, these 19 phantom students represented a relatively large percentage of the School's total enrollment, thus causing this misreporting to stand out. Overall, according to the projected budget in the Application, FTE payments represent about 80% of Respondent's revenues. On these facts, Petitioner has proved, by clear and convincing evidence, that Respondent recklessly misreported 19 students as enrolled at the School when they were not. At the time of the audit, Respondent had failed to remit over $13,000 in payroll taxes owed to the IRS for more than 90 days. It is unclear how long this debt had remained unpaid, but it had been for a sufficient period of time that the IRS had obtained a tax lien against Respondent's property, and the IRS did not release the lien until approximately February 24, 2016, when Respondent entered into an agreement for installment payments. At the time of the audit, Respondent owed nearly $36,000 to 13 vendors for at least 90 days. Of this debt, over $19,000 was owed for more than 180 days and about $10,000 was due for more than 18 months. The evidence as to unpaid teachers is a little vague, as the start dates are unclear and Respondent eventually paid all monies owed to its teachers. However, the failure timely to pay creditors and to remit funds collected from employees to the IRS is clear and convincing evidence of financial mismanagement. Incredibly, Respondent's response to the audit letter attributes these nonpayments to errors by the former accountant that, by implication, were unknown to Respondent. Highlighting several of the unpaid accounts reveals that they were for services at the very core of the operation of the School, were sent to the School itself rather than the accountant, and were unpaid for considerable lengths of time--clearly dispelling error or mere neglect by the former accountant or anyone else in their nonpayment. A "final notice" dated February 6, 2015, from AdvancED Florida for SACS, the school-accrediting entity, for an unstated amount warns that the School's accreditation will be forfeited if the outstanding invoices are not paid by March 1, 2015. The letter identifies ten outstanding invoices going back to February 6, 2014. The letter is addressed to Ms. Silva or "current Head of School" at the location of the School. In a letter dated February 9, 2015, to the attention of Ms. Silva at the School, Coventry Health Care of Florida advised that it was preparing to send to collection a payable of about $650. By letter dated July 3, 2015, to Ms. Silva at the School, Humana advised that it had canceled an employees' group policy four weeks earlier for nonpayment on an unspecified premium. And a letter dated March 16, 2015, to Pathways Academy at the School advises that the School's alarm system had been canceled for nonpayment of an unspecified amount, and the payable would be assigned to collection in 15 days. Two months after the New Orleans trip, on September 1, 2015, Respondent paid $5000 to Ms. Silva's husband for "repairs & maint." Respondent has never produced an invoice for this expenditure. Based on information provided to him by Respondent's new accountant, the Chief Auditor stated in his December 2015 audit report that this payment was for the lease of two buses from Ms. Silva's husband. However, the letter from Respondent's counsel disputes this statement and reports that this expenditure was for repairs following the purchase of the buses and blamed the unavailability of an invoice on the former accountant. This was a lease payment. After Petitioner's audit uncovered the $5000 payment to Ms. Silva's husband for the buses, Respondent's Board of Directors ratified the transaction, which it described as a lease of the two buses. Petitioner has proved that Respondent entered into this related-person transaction in violation of its Charter, which requires prior Board approval and documentation of the fair value of property. Petitioner also proved by clear and convincing evidence that eight of the 40 student files examined by Petitioner during the audit contained no state-required vaccination records and five student files contained incomplete records. There is also no doubt that Respondent was on notice of all deficiencies as they occurred. The audit period is not clearly identified in the audit report, but appears to be from the start of the 2014-15 school year to a point late in 2015. It is important to note that the audit uncovered myriad improprieties in a period of about 15 months, leaving it nearly impossible for the principals of Respondent not to be aware and, thus, accountable for these matters. More importantly, for nearly the entire period in question, including nearly all, if not all, of the audit period, the principal of the School and president of Respondent was Ms. Silva. As noted above, Ms. Silva was directly involved in many of these deficiencies, as was her successor, Ms. Espinosa. The School never enrolled more than about 270 students, so the principal/president would have known exactly what was going on with respect to the audit items detailed above. For reasons noted in the Conclusions of Law, only certain of the above-described deficiencies and failures in connection with the OSPR visits and audit are available as good cause for termination of the Charter. These are the deficiencies noted in OSPR reports concerning the reading, ESE, and ESOL programs that are not corrected by the time of the next OSPR visit--or, alternatively, the items in corrective action plans that Respondent failed to correct by the next OSPR visit. Available deficiencies or failures are also the following items from the audit: 1) the falsification of teacher evaluations and student records; 2) the inaccurate reporting of student enrollment; 3) the failure to pay payroll taxes to the IRS; and 4) the failure to maintain required vaccination records. For reasons noted in the Conclusions of Law, it must be assumed that Respondent has produced outstanding student academic achievement, outstanding student academic achievement must be balanced against the negative factors identified in the preceding paragraph in determining if good cause exists for terminating the Charter, and student academic achievement is the most important factor among all of these factors. Balancing all of these factors in accordance with these principles, Petitioner has proved by clear and convincing evidence good cause for the termination of the Charter, as more fully discussed in the Conclusions of Law.
Recommendation RECOMMENDED that Petitioner enter a final order terminating the Charter for violation of law and other good cause, as provided by section 1002.33(8)(a)3. and 4. DONE AND ENTERED this 9th day of January, 2017, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 9th day of January, 2017. COPIES FURNISHED: Robert Paul Vignola, Esquire Office of the General Counsel Eleventh Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) Christopher Norwood, Qualified Representative Governance Institute for School Accountability 14844 Breckness Place, Suite 100 Miami Lakes, Florida 33016 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Robert Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Floor 10 Fort Lauderdale, FL 33301-3125 Judy A. Bone, Esquire Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 (eServed)
