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
Findings Of Fact Introduction At all time relevant hereto, respondent, Delores V Crumiel, held Teaching Certificate No. 342743 issued by the State Department of Education. The certificate covers the specialization of elementary education, grades one through six. During school years 1979-80 through 1984-85, Crumiel was employed by petitioner, School Board of Dade County, as a tenured elementary teacher at West Little River Elementary School (WIRES) in Miami, Florida. Crumiel received a bachelor of science degree in elementary education from Florida Memorial College. Except for a leave of absence during school year 1982-83 due to the death of her husband, she was employed as an elementary school teacher in Dade County for the eleven years immediately preceding her dismissal. WLRES is located in a low socio-economic area of Miami. It has qualified as a Chapter I school, which means it receives federal monies to provide supplementary instruction in basic skills for low-achieving students from the low-income areas of the community. Under this program, instruction is focused on basic skills such as mathematics, language arts and reading, and the teacher has no responsibility in content areas such as science, social studies and health. However, in order to compensate for the lack of content areas, the Chapter I teacher is required to interweave topics from the missing content areas into language lessons in order to give a "language experience" to the students. The language experience is an important part of the federal program. The size of Chapter I classes at WLRES is roughly half of a normal class, and typically numbered from thirteen to fifteen students. It was established that a Chapter I class is easier to teach than a class in the regular school program because of smaller classroom size, less discipline problems, and easier subject matter content. The lesson plans are also easier to prepare than regular lesson plans because only language arts and mathematics are included in Chapter I plans. During the relevant time period, Crumiel was assigned to teach either fifth or sixth grades. By virtue of required classroom observations being conducted by supervisory personnel, Crumiel was found to be deficient in classroom management and teacher-student relationships in school year 1979-1980, deficient in preparation and planning, knowledge of subject matter, techniques of instruction and assessment technique in school year 1983-84, and deficient in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction and assessment techniques in school year 1984-85. After Crumiel declined a School Board offer to relinquish her teaching job, and accept a teaching aide position, the School Board voted on October 21, 1985, to dismiss Crumiel from employment with the Board on the basis of incompetency. This action confirmed her earlier suspension effective October 2, 1985, and she has remained suspended without pay since that date. The Board's action prompted the instant proceeding. Petitioner, Ralph D. Turlington, as Commissioner of Education, thereafter filed an administrative complaint seeking revocation of Crumiel's teaching certificate on the same ground. The two matters have been consolidated for hearing purposes. School Year 1979-1980 During school year 1979-1980, Crumiel was assigned to teach in a fifth grade classroom at WLRES. At that time Dr. John Johnson, II was her principal. Crumiel was formally observed by Johnson on December 4, 1979 and February 26, 1980 when he made routine visits to her classroom to evaluate her teaching skills. On these two visits Johnson found Crumiel to be deficient in the areas of classroom management and teacher- student relationships. More specifically, Johnson observed hostility and screaming in the classroom, and found her "upset, emotional and loud." He described her as being in "total disarray." He also felt the students were "acting out." Because of this, she received an unacceptable annual evaluation for the 1979-80 school year. In an effort to assist Crumiel, Johnson assigned a systems aide to work with Crumiel in the classroom. Crumiel was also assigned to work with a master teacher during the following summer (1981). The results of this effort are noted in a subsequent finding. Dr. Johnson gave her written prescriptions to help improve her performance and asked that the assistant principal work with Crumiel. A prescription is a course of action that must be carried out by a teacher in order to remediate a deficient performance. This type of assistance continued until Johnson departed WLRES in 1983. During this period of time Johnson received numerous complaints regarding Crumiel's classroom management from other teachers, and had to go to her class on a number of occasions to calm the students. During school year 1979-80, a first-year teacher taught in the classroom adjacent to respondent's classroom. She confirmed that Crumiel's classroom discipline was very poor, and that the students were noisy and disruptive. In addition, even though Crumiel was supposedly a "seasoned" teacher, the first year teacher frequently found Crumiel seeking assistance from her regarding subject matter content and teaching techniques. Despite the unacceptable annual evaluation given Crumiel in school year 1979-80, Johnson continued to recommend Crumiel for employment. However, he noted that Crumiel's performance was going "down" as time progressed, and except for the fact that he was leaving WLRES in 1983, he would have recommended she be dismissed from the school system. C. 1980-83 During the summer of 1981, Dr. Johnson assigned crumiel to team teach with Alstene McKinney, a master teacher, so that Crumiel could learn some ideas and techniques from McKinney. They taught two regular size classes of twenty-five to thirty Chapter I students in a pod. A pod is a free standing building utilizing the open space concept where a number of classrooms are separated by partitions. At least two classrooms would share common bathrooms and water fountain facilities. McKinney observed that Crumiel has a problem with classroom management, and that her class was always noisy. On various occasions McKinney had to stop teaching and ask Crumiel's students to quiet down. On one occasion McKinney observed Crumiel instructing her students that a quarter past the hour meant 25 minutes after the hour. When she later mentioned it to Crumiel, Crumiel corrected herself and said, "I meant 20 minutes after." Crumiel's husband unexpectedly died on September 1, 1982, from injuries received in an accident. By the following spring, respondent has accumulated some forty-five days of absences, and her absences were affecting her students' progress. In addition, she developed a pattern of calling in the evening and informing the school secretary htat she would report to work the next day, and then in the morning, calling to inform the school she would be absent. At that time, Dr. Johnson referred Crumiel to the Employee Assistance Program (EAP) in an effort to aid her in coping with her family crisis. The EAP is a program designed to assist teachers having academic, personal or psychological problems. Crumiel eventually took a leave of absence April, 1983 for the remainder of the school year. She was medically cleared to return to work in August, 1983. The medical clearance noted that Crumiel did not have any medical condition that would impair or restrict her performance as a teacher. School Year 1983-84 Respondent returned to WLRES on August 24, 1983. She was given a Chapter 1 fifth grade classroom assignment on that day by her new principal, Glenda Harris. The class was to be taught in an air-conditioned pod to be shared with two other teachers, Pauline Maloof and Merrial Daniels Radford. There were a total of forty-five students assigned to the entire pod. Although the adequacy of the size of the room was questioned by one of respondent's witnesses, it is found that respondent's classroom contained adequate space for the number of children being taught. In fact, in the prior year, two teachers and sixty-four students had shared the same space. Moreover, the pod concept is common in the Dade County school system, and even today, Crumiel's former pod classroom is still set up structurally in the same manner. During this school year, Chapter I classes were restricted to a maximum of sixteen students, with the average being fifteen students. This compared with a regular class that would have from twenty-eight to thirty-five students. An essential component in the Chapter I program is the oral language development segment. Through this component, the teacher gives the children a better example of speech patterns so that students who are not proficient in the use of standard English become aware of the standard patterns and usage. This enables the students to use appropriate language when entering the job market. To improve and enhance the teacher skills in the foregoing area, all Chapter I teachers, including Crumiel, received five in-service training sessions during the school year. On November 16, 1983, Harris visited Crumiel's classroom to make a formal observation of respondent's teaching. Harris was so stunned by what she observed that she chose not to record her visit as an official observation. During the visit, it became apparent to Harris that Crumiel had no grasp of Chapter I requirements. More specifically, Crumiel was not interweaving the content areas of science and social studies into the language experience. She confused the students by accepting incorrect answers as correct and vice-versa. Crumiel also demonstrated a lack of basic English skills, making such statements as, "Is there anyone who do not understand?"; "I am sorry, boys and girls--my book do not have . . . "; "Why you think it's 'drink?'"; and "Who do not understand?" In addition, Crumiel was using an outdated reading technique (round-robin reading), and did not use the diagnostic prescriptive approach by setting up reading groups within her class. It was evident to Harris that Crumiel had not read the lesson prior to teaching the children, and was totally unprepared. Because of this, the children in Crumiel's classroom did not receive a minimal educational experience on that day. Harris asked Crumiel where her teaching aid materials were, and was told by Crumiel they were in the bottom of one of her desk drawers. Crumiel also acknowledged that she had not read them. Harris returned for a formal observation of Crumiel on November 21, 1983. She found respondent's performance to be no better than it was on November 16, 1983. It was evident that respondent had not read the lesson prior to teaching the class and did not understand the point of the story being told. The students were also having great difficulty reading. Crumiel's interpretive skills were very poor and she still accepted incorrect responses from the students and vice-versa. For example, when one student gave an example of a compound word, charcoal, Crumiel told the student that it was incorrect because "char" was not a word. Respondent continued to mispronounce words such as "jack-o-later" for "jack-o-lantern," "likeded" for "liked," and "terranium" for "terrarium." She also used very poor grammatical structure. Based upon her observations, Harris rated Crumiel as being unacceptable with specific deficiencies in the areas of preparation and planning, knowledge of subject matter and techniques of instruction. She also concluded that the students failed to receive a minimal educational experience. After the observation was concluded, Harris and Crumiel discussed the problems Harris had noted that day. Crumiel acknowledged she had done poorly, and asked that Harris observe her another day when she would be better prepared. Harris again formally observed respondent on November 29, 1983. She was given an overall rating of unacceptable with specific deficiencies in preparation and planning, knowledge of subject matter, techniques of instruction and assessment techniques. Harris noted that Crumiel had not set up a reading program even though this is required in both regular and Chapter I classes. In addition, respondent's lesson plans merely listed page numbers rather than activities, materials and evaluations. Further, while she had grouped the children, she had not given them the appropriate reading books based upon their diagnostic tests. Crumiel had also failed to preview the lesson prior to teaching the class. Respondent continued to mispronounce words such as "shevel" for "shovel," and "depenable" for "dependable," and displayed poor grammar throughout the instruction. Her subject verb agreement was virtually nonexistent and she misused possessives. For example, Crumiel stated, "This machine what is called the steam shovel. . . what is the little boy name? . . . Yes it does scoops up dirt." She was unable to define a steam shovel for a student until she looked the term up in a dictionary. She continued to accept incorrect information from the children as correct and vice-versa. Finally, Harris found respondent's techniques of instruction unacceptable since Crumiel merely read directions to the class. After the observation was completed, Harris met with Crumiel and discussed all areas of her evaluation. On December 8, 1983, a conference-for-the-record was attended by Harris, Crumiel and Jack Grayson, the assistant principal at WLRES. At that time, the observations and visits of November 16, 21 and 29, 1983 were discussed. In an effort to assist Crumiel, Harris and Grayson devised a prescription designed to meet Crumiel's needs. In this case, the prescriptive plan required Crumiel to enroll in a basic English course and a Methods and Materials course in the teaching of reading. She was told to do this by the second semester of the school year. She was also told that Grayson would give her assistance with her reading plans, and visit her classroom on December 13, 1983 to become more familiar with her classroom style. In addition, Harris offered to make available further training in the Dade County Diagnostic Prescriptive Reading System. She was asked to set up a schedule of visitations to other classrooms so that she might learn teaching techniques from other faculty members. Finally, Crumiel was given a set of procedures to be used in critiquing her own plans and presentations of lessons. After the conference, Harris and Grayson spent an hour- and-a-half showing Crumiel how to set up her reading program. They were surprised when they found that respondent, despite having taught for eight or nine years in the system, did not know how to do this. Respondent was next formally observed by Grayson during a lesson on invitations on December 13, 1983. Respondent was given an overall rating of acceptable. However, Grayson later discovered that another teacher, Merria1 Radford Daniels, had actually written the lesson plan, and had demonstrated to Crumiel how to teach that day's class. She did so after Crumiel came to her seeking help before Grayson's visit. Daniels had made displays for Crumiel, and had written the lesson on Crumiel's blackboard with the key words to be used. She also demonstrated the lesson in Crumiel's presence. Daniels then had Crumiel demonstrate the lesson for her, and told respondent to go home and practice in front of a mirror. Respondent admitted this to Grayson. Respondent was informally visited by Harris on January 23, 1984. Although the students were supposed to be in their seats and ready to begin at 8:30 a.m., Harris found them up and out of their seats at 8:58 a.m. when she entered the classroom. Crumiel had not prepared a lesson for that particular class, so she taught a lesson originally scheduled for another time. Even so, she merely read instructions and handed out materials. Harris found no evidence that respondent was carrying out the prescription previously given to her on December 8, 1983. She concluded that the children did not receive a minimally acceptable educational experience that day. Respondent was again formally observed by Harris on June 5, 1984. At that time she was given an overall rating of unacceptable with specific deficiencies in knowledge of subject matter and techniques of instruction. Although respondent had developed lesson plans for the class, the classroom activities did not reflect evidence of effective instructional planning. More importantly, Harris did not see any progress by Crumiel since she had been given the prescription on December 8, 1983. She found Crumiel still reading directions to the students rather than teaching them subject matter content. A large part of the classroom instruction was taken up by students performing meaningless exercises. Respondent still lacked a basic understanding of the subject matter, abbreviations. This was evidenced by respondent's inability to answer questions from students indicating when abbreviations are to be used. For example, she could not answer why the abbreviation for doctor is capitalized, or why the abbreviation for ounces is oz. rather than oun. She still continued to use improper English such as "Be sure your name and date is on all your papers." On June 6, 1984, Grayson revisited Crumiel's classroom to conduct a formal evaluation of Crumiel's mathematics class. Grayson rated respondent's performance as unacceptable with a specific deficiency in the area of techniques of instruction. He found the lesson too simple for the students and therefore a waste of their time. Crumiel's instructions and directions were confusing, and she was unable to clarify them for the students' benefit. Crumiel was again observed by Harris on June 8, 1984. Respondent had asked Harris to return after her prior visit on June 5 because she had learned something in a class she was taking and wanted to demonstrate it to Harris. After observing respondent Harris rated her as unacceptable with deficiencies in the areas of planning, knowledge of subject matter and techniques of instruction. She was found barely acceptable in classroom management. Although Crumiel had a lesson plan, it was not effective and was inappropriate for students of the fifth grade level. Moreover, her classroom management appeared to Harris to be staged and practiced as in a performance. At hearing, Crumiel contended the pod was a poor environment in which to teach, and stated her class was frequently disrupted by outside students coming in to her area to use the restroom and drinking fountain. However, during school year 1983-84, Crumiel voiced no complaints to the administration about teaching in a pod, or that she experienced the disruptions she described. Indeed, no such disruptive activity was ever observed by the administrators who made classroom evaluations or by other teachers in the pod. If such activity did occur, it was only after someone inside the classroom unlocked the door since Crumiel's door was always kept locked. During the school year, the disruptive children were always evenly distributed between Maloof, Daniels, and Crumiel. After Harris became aware of Crumiel's classroom management problems, several students with behavioral problems were reassigned from Crumiel's classroom to that of Maloof and Daniels. Moreover, Crumiel received the highest academic level in the three groups. On her annual evaluation for the 1983-84 school year, Crumiel was rated unacceptable in the areas or preparation and planning, knowledge of subject matter and techniques of instruction. However, Harris refrained from recommending Crumiel for termination, choosing instead to write another, more detailed prescription in the hope that Crumiel could improve over the summer. On June 21, 1984, another conference-for-the-record was held by Harris, Crumiel, Grayson and a teacher union representative. At that time, Harris outlined the prescription and asked that Crumiel continue with the EAP. Crumiel had previously participated in the EAP but had ceased attending, Crumiel was told to prepare her lesson plans in behavioral terms and was given various reading materials to help her with this task. She was further given an excerpt from the teacher Assessment and Development System (TADS) manual on techniques of instruction. In addition, she was directed to take certain courses offered by the Teacher Education center (TEC) to assist her in deficient areas. However, Harris suggested that the outside course work could be postponed until the fall so that she could spend a restful summer. Finally Crumiel was told she would be informally observed during the first nine weeks of the following school year, and formally observed in the second nine week period. This information was incorrect since any teacher on prescription must be formally observed during the first six weeks of the next school year. In conjunction with the EAP respondent began individual psychotherapy and supportive counseling with a licensed clinical psychologist that summer. She remained his patient until September, 1985. During school year 1983-84, Crumiel received help from Maloof and Daniels, who shared her pod. Maloof gave Crumiel assistance in grouping her children, shared materials with her, and made various suggestions on how to improve her teaching techniques. However, when they discussed educational topics, Crumiel did not seem to understand the subject matter. Daniels showed respondent how to order materials for the different levels of students. Finally, a reading specialist gave a workshop session in October, 1983 that addressed the procedures for pre- testing, post-testing and leveling students. Crumiel attended this workshop. School Year 1984-85 Beginning in the 1984-85 school year, WLRES implemented the Teacher Assessment and Development System (TADS) of teacher observation for all teachers. In the prior year, only annual contract teachers were under the TADS observation scheme. Since Crumiel was under a continuing contract, she was not subject to this observation method prior to school year 1984-85. Under the TADS system, teachers are required to have objectives, activities and a way of monitoring student progress in and through their lesson plans. At the beginning of the school year, Harris moved Crumiel to Room 212, a self-contained classroom. This move was prompted by complaints about noisy, disruptive students in Crumiel's classroom from the teachers who shared the pod with Crumiel during the prior year. Room 212 contained approximately the same amount of space that Crumiel previously had in the pod, but the classroom was not air-conditioned. However, around two- thirds of the teachers in the school did not have air- conditioning at that time. Harris also changed respondent's grade level from grade five to grade six. This was done to relieve her of the additional pressures of preparing the students for the state assessment test (SAT). WLRES had been adjudged deficient during the previous school year, and fifth grade classes were scheduled to be tested on the SAT in the first nine weeks of the school year. Crumiel protested her reassignment to a higher grade level and told Harris that sixth grade mathematics were beyond her teaching ability. However, Harris reminded Crumiel that she was certified for the sixth grade, and that the chances of her actually teaching sixth grade math in a Chapter I class were remote. Children were assigned to respondent in very much the same manner that they had been assigned the previous year. The administration made certain that slow learners and students exhibiting behavior problems were evenly distributed among the various teachers. Harris visited respondent's classroom on September 20, 1984 to conduct an informal observation. Respondent's lesson plans were not written in behavioral terms as directed by her June 21 prescription. Further, she had not grouped the children or pretested them in reading. Harris also found Crumiel's presentation of subject matter and classroom management skills unacceptable. Harris concluded that the children did not receive a minimally acceptable educational experience. Harris met with respondent following the informal visit. At that meeting, Harris reviewed Crumiel's prescription and the efforts being made by Crumiel to fulfill its goals. Harris discovered that respondent had "forgotten" to inquire about the various courses taught at the Reacher Education Center and displayed an unconcerned attitude towards the requirements of the prescription. She was told by Crumiel that the sixth grade level objectives were too difficult for her, and that she did not know how to write lesson plans in behavioral objectives. Harris then told Crumiel she would visit respondent's classroom on September 25, 1984. Harris also began showing Crumiel how to write objectives in behavioral terms. Harris was unable to visit respondent's classroom on September 25 because respondent called in sick that morning. Crumiel did, however, bring her lesson plans to Harris the following day. Harris found them lacking any behavioral objectives. Harris again encouraged Crumiel to read the material furnished her. Respondent's mathematics class was formally observed by Grayson on October 1, 1984. A formal observation was required at that time since Crumiel was on prescription from the prior year. She was rated unsatisfactory in preparation and planning because her lesson plans did not have the items required by the TADS system. In other words, Crumiel had no way to assess her students in order to monitor their progress. Grayson recommended that respondent continue with the prescription given by Harris, and to turn in her lesson plans on a weekly basis for his review. Grayson continued to review those plans until her dismissal some two years later, and to offer suggestions on how they could be improved. During the school year, the teacher occupying the adjacent classroom continually complained about the noise in respondent's room. Because of this, Crumiel was moved to room 206, a larger self-contained classroom which had been recently renovated and filled with new furniture. It was uncontradicted that room 206 was far superior to the other classroom spaces in the building that were used by Chapter I classes. Respondent was formally observed again by Harris on January 23, 1985. Harris found that the children were not receiving a minimal educational experience. Using the TADS system, Crumiel was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction and assessments techniques. Respondent was rated unacceptable in preparation and planning because she was still using November lessons plans with only the dates changed, and was not using the prescribed plan. Crumiel was rated unacceptable in knowledge of subject matter because she gave no instruction. She was found to be unacceptable in classroom management because the children were not prepared to begin the lesson. In the area of techniques of instruction, Crumiel received an unacceptable rating because she was not using appropriate methods or differentiated materials, and she failed to use two or more learning styles as required by TADS. Finally Crumiel was found to be deficient in assessment techniques because she failed to use the information given her in the TADS prescription manual. In addition, because her grade book and student folders were not properly maintained, and there was no way to tell what had been taught and tested, or to access the students' improvement. As a result of the January 25 visit, Harris prescribed help for respondent from the TADS prescription manual, which is written on a level that the average teacher can understand. However, Harris did not suggest that Crumiel use the manual after that occasion since Crumiel admitted she was unable to understand the information in the manual. At respondent's request, Harris performed another formal observation on January 29, 1985. Respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management and techniques of instruction. Harris also concluded that the students did not receive a minimal educational experience. Crumiel was rated unacceptable in preparation and planning because her lesson plans were not written in conformity with her prescription. She appeared unprepared and wasted classroom time on repetitious, meaningless exercises. Respondent was rated unacceptable in the area of knowledge of subject matter because she did not understand the lesson she was suppose to be teaching, and told the children that adding an "s" at the end of a verb would make it plural. Crumiel's classroom management was rated unacceptable because the classroom environment was not conducive to learning. Harris found the room unkempt and materials in disorder, and noted that Crumiel did not start the lesson promptly due to a number of unnecessary delays. In the area of techniques of instruction Crumiel received an unacceptable rating because the majority of the materials used were inappropriate for the objectives. Further, the methods of instruction never varied, and respondent did not give consideration to the various learning styles in the classroom. Harris concluded that the materials and methods used often insulted the age level of the students. After the observation was concluded, Harris asked Crumiel to review and study the materials given her in the prior prescription. Crumiel was also told that Eneida Hartner, director of the North Central area, would provide her with additional help. Finally, Harris taught a reading lesson to Crumiel's class in an effort to improve Crumiel's teaching style. While Harris was in the classroom, respondent did relatively well with teacher-student relationships. However, when no administrator was present, respondent could often be heard shouting and cajoling the children to behave. There were instances when children were seen hanging out of the windows and shouting. Respondent was heard telling a student on one occasion, "Sit your black butt down." On February 8, 1985, Harris and Hartner visited respondent's classroom for approximately one hour to informally observe Crumiel. Even though Hartner had designed certain activities for respondent to use that day while teaching, Hartner and Harris concluded there was no teaching in the classroom. They also noted that respondent was not following the diagnostic prescriptive approach which is required of all elementary teachers.. Hartner recommended that Crumiel receive assistance from a Chapter I educational specialist, Pat Kanovsky, who was assigned to help Crumiel with the language experience approach used in Chapter I classes. Hartner also directed a prep specialist, Gwen Bryant, to monitor Crumiel in the areas of basic skills, such as reading, writing and mathematics, and to help respondent in the prescriptive diagnostic approach. She also recommended that Crumiel receive assistance from the assistant principal, department chairman and master teacher, and to make use of certain excerpts from the TADS prescription manual. Bryant visited Crumiel's classroom four times in February 1985 in an attempt to provide her with assistance. On her February 14 visit, Bryant observed that respondent was not using the "RSVP" program in an appropriate manner. This is a program that is used for all children in both Chapter I and regular classes. Bryant also noted that Crumiel had not used her pacemaker chart correctly, and was therefore unable to determine if the children were being taught subject matter at a pace commensurate with their level of ability. On her February 27 visit, Bryant found the students confused and not understanding what they were expected to do in class that day. They were yelling, and many were out of their seats. Respondent was unsuccessful in her efforts to manage behavior. After seeing this, Bryant made a number of suggestions to respondent. She also went over the instructional material and demonstrated how to properly use it. She explained how the students were to be placed and instructed according to their reading levels. Bryant gave further tips on teaching techniques, suggestions on managing classroom behavior and how to properly begin a lesson. On February 11, 1985, Kanovsky spent approximately two hours with Crumiel in an effort to improve Crumiel's lesson plan preparation. Among other things, Kanovsky told respondent that her grammar was inappropriate for use in a Chapter I classroom. Hartner, accompanied by Harris, visited respondent's classroom on March 27, 1985, for the purpose of making an external observation. This type of observation was required since Crumiel had already received two negative evaluations from WLRES administrators. Respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction and assessment techniques. She was given an unsatisfactory rating in preparation and planning because she failed to properly include a language experience activity in her instruction. She was rated unacceptable in knowledge of subject matter because she continued to use poor grammar while teaching. For example, Crumiel made such statements as, "Their eyes be red" and "How do their face look?" Crumiel was found to be deficient in techniques of instruction because the lesson lacked sequence, and she failed to adjust her instruction when she did not get anticipated responses from the students. She also accepted responses from the students without telling them whether they were right or wrong. Further, it did not appear that Crumiel had made use of any of the suggestions regarding teaching techniques given by Bryant on February 27. Finally, respondent was given an unsatisfactory in assessment techniques because a review by Hartner of the students' folders revealed that Crumiel had failed to use the diagnostic prescriptive approaches in reading and mathematics that were required by the Dade County school system. Having formally observed Crumiel, Hartner concluded that respondent's students did not have a meaningful educational experience on March 27, 1985. She further concluded that respondent lacked adequate command of her area of specialization, elementary education, and that she lacked the necessary motivational skills necessary to promote oral language development. She also concluded that Crumiel would be unable to teach non-Chapter I students because of the greater number of students and more difficult subject matter in those classes. In short, she found Crumiel unable to teach in any capacity at the elementary school level. In addition to her visits on February 14 and 27, Bryant met with Crumiel on at least two other occasions to help Crumiel understand the diagnostic prescriptive approach to reading. Bryant came away from those meetings with the belief that Crumiel did not understand her directions or the teaching materials. She also concluded the Crumbie was unqualified to teach the sixth grade. An educational specialist, Shirley Fields, also visited respondent's classroom on April 19 and 22, 1985, to discuss the oral language development segment of instruction. On one of her visits, she demonstrated for Crumiel's benefit an actual lesson from the program. Harris returned to respondent's classroom on June 3, 1985 for the purpose of conducting a formal observation. She found no improvement on Crumiel's part and concluded it would be counter-productive to fill out a formal observation form. The subject matter of the class was fractions, and Crumiel appeared to have no knowledge of the subject matter. During the school year, Harris and Grayson received a number of verbal complaints about respondent's classroom management. This was confirmed by testimony from the other teachers and a teacher liaison who frequently observed or heard disruption and noise in respondent's classroom. Harris, Crumiel and a teacher union representative attended a conference-for-the-record on June 12, 1986 to discuss Crumiel's teaching performance. However, it was necessary to discontinue the conference shortly after it was begun because Crumiel lost her composure. The conference was reconvened on June 24, 1985. At that meeting Crumiel rejected an opportunity to be reclassified as a teacher aide, a position that would enable her to continue working with children, but only under the direct supervision of another teacher. On her annual evaluation for 1984-1985, respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, assessment techniques and professional responsibility. In addition, she was not recommended for employment the following school year. Psychological Testing In an effort to find some type of alternative position for Crumiel, the classroom teacher's union recommended that she undergo a battery of psychological tests. In this vein, Crumiel was referred to both a psychiatrist and a psychologist to determine if there was a reason for her poor performance in classroom teaching. The psychologist, Dr. Bradman, had previously seen the patient since June, 1984 in conjunction with the EAP. On June 14 and 18, 1985 Bradman administered the Wechsler Adult Intelligence Scale-Revised (WAIS-R) Test to Crumiel. This test is more commonly known as an IQ or intelligence quotient test. At the time of testing, Bradman found no evidence of depression although Crumiel experienced some mild anxiety. The test segment which would most likely be affected by depression was the Digit Symbol Subtest. However, Crumiel scored within the average range on this segment, and it represented one of her highest scores. Respondent obtained a Full Scale IQ of 74 which is in the borderline range of intelligence. Stated differently, approximately 95% of the people taking the test would achieve a higher score than Crumiel. Bradman found this result to be accurate and valid, and that neither stress or depression could account for Crumiel's low performance. During the course of the two sessions on June 14 and 18, Bradman asked Crumiel a number of questions to test her intellectual skill and capacity. In response to a question asking her to name four men who have been president of the United States since 1950, she responded, "Roosevelt, Lincoln, George Washington and Theodore Roosevelt." When questioned further, she added, "Jefferson." Crumiel also told Bradman that there were 48 weeks in a year and that Labor Day is in May. She did not know who Louie Armstrong was, and thought that to get from Chicago to the country of Panama one would travel east. She could not correctly define the words "assemble," "enormous," "conceal," "consume," "regulate," "commence," "domestic," "tranquil" or "ponder." Finally, Crumiel could not answer basic arithmetic questions such as "If raffle tickets cost twenty-five cents each, how much would it cost to buy six tickets?" and "If soft drinks are sold six cans to a package, if you want 36 cans, how many packages must you buy?" Based upon the results of the WAIS-R, Dr. Bradman concluded that respondent was not capable of teaching the higher elementary school grades. However, he was unable to form an opinion as to whether Crumiel could teach the lower grade levels based strictly upon the testing he had performed. On August 29, 1985, Crumiel was also evaluated by a board certified psychiatrist, Dr. Waldo M. Ellison, who was accepted as an expert in that field. He examined Crumiel to ascertain if there was a psychological reason for her dysfunction as an elementary school teacher. Ellison noted that respondent experienced some mild anxiety during the examination but had no depression. Further, he found no evidence of any medical problem or condition. Although Crumiel told Dr. Ellison that mathematics was her favorite subject, she was unable to determine two-thirds of the number sixty. She also could not correctly define the word "motivate," and was unaware of important current events such as the name of the mayor of Miami, or the fact that a hurricane was then approaching the City of Miami. Based upon his evaluation, Ellison concluded that respondent's intellectual deficiencies would interfere with the ability to provide her students with a minimum educational experience. Miscellaneous It was the general consensus of all administrators and faculty who observed Crumiel during the relevant time periods that she did not possess the skills necessary to teach elementary students, either at a regular or Chapter I level. More specifically, they found that she lacked an adequate command of her area of specialization, elementary education, and that her lack of minimum skills and competency resulted in her students being deprived of a minimal educational experience. Respondent's own testimony helped confirm the above observations since it was replete with inappropriate English grammar and language. Her lack of fundamental mathematics skills also became apparent during cross-examination by the Board counsel. Respondent's Case Respondent blamed her problems in 1984-85 on her assignment to a small, self-contained classroom without air- conditioning. However, this classroom was approximately the same size as used by two other teachers in the pod, and they did not experience the same difficulty as did Crumiel. Moreover, two- thirds of the faculty at WLRES that year had no air-conditioning. Even so, she was moved to a larger, more modernized classroom during the year but her performance did not improve. Respondent also cited over-aged, disruptive students being assigned to her Chapter I classes as a cause for her classroom management difficulty. But credible testimony established that disruptive students were evenly assigned to all Chapter I teachers, that Crumiel's class had no more than other Chapter I teachers, and several were taken out of her classroom in an effort to aid her performance. Crumiel also contended that her classes were frequently disrupted by students wandering into her classroom from an adjacent physical education area to use the restroom and water fountain facilities. No administrator ever observed this while visiting in her class, and it was shown that even if it did happen, she could have prevented this by refusing to unlock her door. Crumiel further stated that she attempted to follow through with her prescriptions, but that Harris and Grayson were never satisfied. However, independent administrators not associated with WLRES confirmed her failure to follow the prescriptions. Respondent also stated she received a "B" in a college course taken one summer at a local college as evidence of her effort to improve her skills. But a fellow teacher placed this testimony in serious doubt when she testified that Crumiel had taken notes into the final examination and improperly used them while filling out her examination booklet. Through the deposition testimony of Dr. Capp, a psychologist, respondent attempted to refute the IQ score of 74 by showing that she received a score of 99 on the test on February 4, 1986, and that she was functioning within the normal range of intelligence. Dr. Bradman had no scientific explanation for this result, but opined that Crumiel may have studied for the second test, or had remembered the questions from the first time the test was administered. Dr. Capp agreed that this was possible. In any event, the testimony of Drs. Bradman and Ellison is deemed to be more persuasive and credible, and their results and conclusions are found to be more accurate. Union Contract Respondent was a member of the United Teachers of Dade County. That body has a labor contract with the Dade County School Board. Among other things, section 6 of the contract provides in relevant part as follows: Any teacher assigned in any observation category shall be entitled to a prescription of professional growth practices (remedies) which shall include reasonable time-frames for implementation . . .. The function of such practices is to assist the teacher in professional growth . . .. Failure to implement prescribed professional growth practices or to correct deficiencies for which professional growth was prescribed shall constitute just cause for disciplinary action in accordance with the due process provisions in this Article . . .. In the instant case, respondent was placed on prescription at the end of school year 1983-84. Respondent was told she would remain on prescription during the first nine weeks of school year 1984- However, in order to comply with a TADS requirement, a teacher who ends the year on prescription must be observed during the first six weeks in the following school year. To meet this requirement, a formal observation was made by Grayson on October 1, 1985 which was within the time-frame for improvement set forth in the prescription. At that time, Grayson gave a second prescription to Crumiel with instructions that a lesson plan be submitted by each Wednesday. Another formal observation was made by Harris on January 23, 1985, or well after the first and second prescriptive periods. Crumiel was then placed on another prescription effective January 28, 1985 by prescription dated January 23, 1985. Certain prescriptives were ordered to be complied with no later than the next visit. This was followed by a formal observation by Harris on January 29, 1985. When the next formal observation was made by Hartner on March 27, 1985, no time-frames were in effect. All such observations, prescriptive periods and remedies were in conformity with the contract. Even respondent did not file a grievance complaining that the contract was violated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of incompetency, and that she be terminated from employment with the School Board of Dade County, and her teaching certificate number 342743 be REVOKED. DONE and ORDERED this 24th day of July, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1986. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Bldg., Suite 301 1450 NE Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire 215 Fifth Avenue, Suite 302 West Palm Beach, Florida 33401 Daniel F. Solomon, Esquire 1455 Northwest 14th Street Miami, Florida 33125 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 215, Knott Bldg. Tallahassee, Florida 32301 APPENDIX Petitioner (Case No. 85-3673): Covered in finding of fact 2. Covered in findings of fact 1 and 2. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 6. Rejected as not being necessary to resolve the issues. Rejected as not being necessary to resolve the issues. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 7. Covered in finding of fact 7. Rejected as being irrelevant. Rejected as being irrelevant. Covered in finding of fact 9. Covered in finding of fact 9. Covered in finding of fact 9. Covered in finding of fact 10 Covered in finding of fact 11 Covered in finding of fact 12 Covered in finding of fact 12 Covered in finding of fact 8. Covered in finding of fact 6. Covered in finding of fact 12 Covered in finding of fact 12 Covered in finding of fact 13 Covered in finding of fact 13 Covered in finding of fact 13 Covered in finding of fact 13 Covered in finding of fact 14 Covered in finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 3. Covered in finding of fact 15 Covered in finding of fact 15 Covered in finding of fact 15 Covered in finding of fact 13 Covered in finding of fact 13 Covered in finding of fact 13 Covered in finding of fact 13 Covered in finding of fact 28 Rejected as being unnecessary Covered in finding of fact 29 Covered in finding of fact 28 Covered in finding of fact 29 Rejected as being unnecessary Covered in finding of fact 29 Covered in finding of fact 16 Covered in finding of fact 16 Covered in finding of fact 17 Covered in finding of fact 16 Covered in finding of fact 16 Covered in finding of fact 16 Partially covered in finding of fact 16. Covered in finding of fact 16 Covered in findings of fact 18 and 19. Covered in finding of fact 18 Covered in finding of fact 18. Covered in finding of fact 18. Covered in finding of fact 18. Covered in finding of fact 19. Covered in finding of fact 19. Covered in finding of fact 20. Covered in finding of fact 20. Covered in finding of fact 20. Covered in finding of fact 20. Covered in finding of fact 20. Covered in finding of fact 20. Covered in finding of fact 20. Covered in finding of fact 20. Covered in finding of fact 20. Rejected as being unnecessary. Covered in finding of fact 20. Covered in finding of fact 21. Covered in finding of fact 21. Covered in finding of fact 21. Covered in finding of fact 21. Covered in finding of fact 22. Covered in finding of fact 23. Covered in finding of fact 24. Covered in finding of fact 24. Covered in finding of fact 25. Covered in finding of fact 25. Covered in finding of fact 25. Covered in finding of fact 25. Covered in finding of fact 26. Rejected as being unnecessary. Covered in finding of fact 26. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 27. Covered in finding of fact 30. Covered in finding of fact 31. Covered in finding of fact 31. Covered in finding of fact 32. Rejected as being unnecessary. Covered in finding of fact 33. Covered in finding of fact 34. Partially covered in finding of fact 34. Covered in finding of fact 35. Covered in finding of fact 35. Covered in finding of fact 36. Covered in finding of fact 37. Covered in finding of fact 37. Rejected as being unnecessary. Covered in finding of fact 37. Covered in finding of fact 37. Covered in finding of fact 38. Covered in finding of fact 38. Covered in finding of fact 39. Rejected as being unnecessary. Covered in finding of fact 38. Covered in finding of fact 40. Covered in finding of fact 41. Covered in finding of fact 42. Covered in finding of fact 43. Covered in finding of fact 43. Covered in finding of fact 43. Covered in finding of fact 43. Covered in finding of fact 43. Covered in finding of fact 43. Covered in finding of fact 44. Covered in finding of fact 43. Covered in finding of fact 45. Covered in finding of fact 45. Covered in finding of fact 45. Covered in finding of fact 45. Covered in finding of fact 45. Covered in finding of fact 46. Covered in finding of fact 45. Rejected as being unnecessary. Covered in finding of fact 45. Covered in finding of fact 47. Rejected as being unnecessary. Covered in finding of fact 45. Covered in finding of fact 48. Covered in finding of fact 48. Covered in finding of fact 48. Covered in finding of fact 49. Covered in finding of fact 49. Covered in finding of fact 49. Covered in finding of fact 49. Covered in finding of fact 50. Covered in finding of fact 50. Covered in finding of fact 51. Covered in finding of fact 51. Covered in finding of fact 51. Covered in finding of fact 51. Rejected as being unnecessary. Covered in finding of fact 52. Covered in finding of fact 52. Covered in finding of fact 52. Covered in finding of fact 53. Covered in finding of fact 53. Covered in finding of fact 53. Covered in finding of fact 53. Covered in finding of fact 53. Covered in finding of fact 53. Covered in finding of fact 53. Covered in finding of fact 54. Covered in finding of fact 55. Covered in finding of fact 55. Rejected as being unnecessary. Rejected as being unnecessary. Covered in finding of fact 56. Covered in finding of fact 57. Covered in finding of fact 58. Covered in finding of fact 58. Covered in finding of fact 58. Covered in finding of fact 59. Covered in finding of fact 59. Covered in finding of fact 60. Covered in finding of fact 61. Covered in finding of fact 61. Covered in finding of fact 61. Covered in finding of fact 62. Covered in finding of fact 63. Covered in finding of fact 64. Covered in finding of fact 65. Covered in finding of fact 66. Covered in finding of fact 66. Rejected as being unnecessary. Covered in finding of fact 67. Covered in finding of fact 68. Covered in finding of fact 68. Covered in finding of fact 68. Covered in finding of fact 57. Petitioner (Case No. 86-1116): Covered in finding of fact 1. Covered in findings of fact 2 and 5. Covered in finding of fact 3. Covered in finding of fact 13. Covered in findings of fact 16 and 17. Covered in findings of fact 18 and 20. Covered in finding of fact 20. Covered in finding of fact 21. Covered in finding of fact 23. Covered in finding of fact 24. Covered in finding of fact 25. Covered in finding of fact 26. Covered in finding of fact 27. Covered in findings of fact 30 and 31. Covered in findings of fact 35 and 36. Covered in finding of fact 35. Covered in finding of fact 37. Covered in finding of fact 38. Covered in finding of fact 39. Covered in finding of fact 40 except that the observation took place on October 1, 1984. Covered in finding of fact 41. Covered in finding of fact 43. Covered in finding of fact 45. Covered in finding of fact 53. Covered in finding of fact 58. Covered in finding of fact 50. Covered in finding of fact 11. Covered in findings of fact 3 and 29. Covered in finding of fact 56. Covered in findings of fact 11 and 33. Covered in finding of fact 71. Covered in findings of fact 5, 6, 9 and 10._ Covered in findings of fact 61, 65 and 66. Covered in findings of fact 61-63. Covered in finding of fact 69 Covered in findings of fact 13 and 35. Rejected as being unnecessary. Rejected as being unnecessary. Rejected as being unnecessary. Covered in finding of fact 70. Rejected as being a conclusion of law. Respondent:* Covered in background. Covered in background. Covered in background. Covered in background. Covered in background. Covered in background. Covered in finding of fact 34. Rejected as being unnecessary. Rejected as being unnecessary. Covered in finding of fact 30. Covered in finding of fact 45. Partially covered in finding of fact 53. Rejected as being unnecessary. Rejected as being unnecessary. Rejected as being unnecessary. Covered in finding of fact 21. Partially covered in finding of fact 53. The second sentence is irrelevant since no formal external observation was performed by Hartner on February 8, 1985. Rejected as being irrelevant since no formal observation was conducted on February 8, 1985. Covered in finding of fact 48. Covered in finding of fact 48. Covered in finding of fact 53. Rejected as being unnecessary. Rejected as being unnecessary. Findings of Fact Covered in finding of fact 2. Covered in finding of fact 43. Covered in finding of fact 1. Rejected as being a conclusion of law. Rejected as being contrary to the greater weight of evidence. Covered in finding of fact 45. Rejected as being contrary to the greater weight of evidence. Covered in finding of fact 48. Covered in finding of fact 49. Essentially covered in findings of fact 48-58. Rejected as being contrary to the greater weight of evidence. Covered in finding of fact 53. Rejected as being contrary to the greater weight of evidence and irrelevant. Rejected as being contrary to the greater weight of evidence. Rejected as being unnecessary. Rejected as being contrary to the greater weight of evidence. Rejected as being contrary to the greater weight of evidence. Rejected as being a conclusion of law. *Respondent's filing contained two sections entitled "Proposed Findings" and "Findings of Fact."
The Issue Whether just cause exists to terminate Respondent from her employment with the Sarasota County School Board.
Findings Of Fact GENERAL BACKGROUND Petitioner is responsible for operating the public schools in the Sarasota County School District and for hiring, firing, and overseeing both instructional employees and non- instructional “educational support” employees within Sarasota County, Florida. At all times pertinent to this case, Respondent was employed by the Sarasota Board as a teacher at Booker. Respondent holds a multi-grade integrated teaching certificate, which allows her to teach middle school through ninth grade students. Respondent taught high school level algebra during the 2012-2013 and 2013-2014 school years, and social studies during the 2014-2015 and 2015-2016 school years at Booker. Booker is a Title I public school which has approximately 800 to 900 students, and 60 to 80 instructional personnel. Ms. Frost is now the principal at Booker, having previously served as one of its assistant principals. At the beginning of each school year, teachers report one week prior to the students (planning week). During planning week, teachers are reminded of the school’s expectations for the coming year, they develop lesson plans for the coming year, they set up their individual classrooms, and they are provided additional professional development. Booker’s administrators set high standards for their teachers and students. The pertinent parts of the performance responsibilities within the job description for instructional teachers are as follows: *10) Establish and maintain effective and efficient record keeping procedures.7/ * * * *(13) Participate in the development and implementation of IEP’s, EP’s & 504 Plans for exceptional education students, as appropriate. * * * *(15) Interpret data for diagnosis, instructional planning and program evaluation. * * * *(21) Apply appropriate instructional modification for students with special needs. * * * *(27) Communicate effectively, both orally and in writing, with other professionals, students, parents and the community. * * * *(35) Prepare all required reports and maintain all appropriate records. There was no dispute that a collective bargaining agreement (“CBA”) existed between the School Board and the Sarasota Classified/Teachers Association (SC/TA). Article XIX of the CBA references the evaluation of students. The pertinent part of Article XIX includes: Teachers shall maintain the responsibility to determine grades and other evaluations of students within the terms of the grading regulations of the Sarasota County School system. Ms. Frost believes that every child deserves a “high quality education” and she looks for highly effective teachers to ensure they are providing quality education for all Booker’s students. Ms. Frost maintains that “regardless of what the socioeconomic situation might be for [the] children, they deserve to be educated, obtain a college- and career-readiness education.” Booker teachers are expected and required to teach the Florida standards, which are “much more rigorous standards than” before. These standards require “teachers to be more deliberate about their planning, . . . classroom procedures, and instructions” and develop a student-centered classroom. A Weingarten hearing (Weingarten) is conducted as a fact-finding meeting where an employee is asked to attend and answer questions about whatever situation is being investigated. The employee may appear with or without representation. Based on the facts obtained during a Weingarten hearing and the investigation, a determination is made whether any disciplinary action is necessary. A Professional Learning Community (PLC),8/ is composed of all teachers in a specific grade level and subject area. During a PLC meeting, its members may discuss lesson planning, joint tests or assessments for each unit, goals, and students’ accomplishments. The PLC leader (or one of its members) is required to document attendance and the content of the discussions to Booker’s administrator. The PLC meeting times are established during the planning week at Booker and attendance is required. In the event a teacher is off-campus during the regularly scheduled PLC meeting time, their absence may be excused. The Student Information System (SIS) maintains students’ schedules, contact information for students and their parents or guardians, and other pertinent student information. The SIS is controlled through user name and password protection, and all the information contained in the SIS is not available to teachers. Gradebook is an electronic system by which teachers are to input students’ grades (assignments, projects, tests and exams) on a regular basis. Parents can access their student’s grades via the internet (including a telephone application) to monitor the student’s progress in each class. Booker’s expectation is that grades will be inputted on a regular basis, preferably within a week of the completion of the assignment or test. Once all the grades are entered, Gradebook calculates mid- term or final grades for the students. During the planning week teachers are provided time to set up their Gradebook, and a standardized schedule of when the mid-quarter and quarter grades are to be completed. The teachers are reminded of these deadlines throughout the year. If a teacher fails to enter the mid-quarter or quarter grades by the stated deadline, the system locks the teacher out, and the grades must be handwritten. Additionally, Gradebook is used by Booker (and other schools) to take student attendance. Taking attendance in the first five days of each school year is critical because those attendance numbers are used to determine the appropriate funding for Booker (and other schools in the school system). In order to access Gradebook, each teacher is assigned a confidential “A” number and password. Grades are to be entered by teachers, not paraprofessionals or volunteers. When there are two teachers in a classroom, such as the inclusion room at Booker, the main teacher is responsible for inputting the grades. Each night, information from the Gradebook (the grades posted that day) is uploaded to the SIS. A performance improvement plan (PIP) is basically an action plan to assist an underachieving teacher to succeed. The administrator who supervises the teacher provides coaching and criticism in an effort to improve the teacher’s performance. The CBA provided for progressive discipline. Turning to Article XXV of the CBA, entitled “Disciplinary Actions,” the pertinent parts state: Scope of Article This article covers actions involving oral or written warnings, written reprimand, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against a teacher except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. All facts pertaining to a disciplinary action shall be developed as promptly as possible. Actions under this Article shall be promptly initiated after all the facts have been made known to the official responsible for taking the action. * * * A teacher against whom disciplinary action is to be taken may appeal the proposed action through the grievance procedure. A teacher against whom action is to be taken under this Article shall have the right to review all of the information relied upon to support the proposed action and shall be given a copy upon request. The Union shall be provided with a copy of all correspondents that is related to the action of the teacher the Union is representing. The teacher and his/her representative shall be afforded a reasonable amount of time to prepare and present appropriate responses to the proposed actions under this Article, through Step One of the Grievance Process. This amount of time is to be mutually agreed upon by the parties. * * * Previous charges or actions that have been brought forth by the administrative may be cited against the teacher if these previous acts are reasonably related to the existing charge. All previous charges or actions must have been shared with the teacher. The discipline, dismissal, demotion, and suspension of any teacher shall be for just cause. Where just cause warrants such action(s), a teacher may be demoted, suspended, or dismissed upon recommendation of the immediate supervisor to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the district or other flagrant violation, progressive discipline shall be administered as follows: Verbal reprimand. (Written notation placed in site file.) Written reprimand filed in personnel and site files. Suspension with or without pay. Dismissal. * * * K. During the pendency of an investigation into an allegation of wrongdoing on the part of a teacher, the teacher may be temporarily reassigned only if the charges, if proven to be true, could lead to the teacher’s termination or suspension or if the teacher’s conduct poses a threat to any individual’s safety. Booker’s administrators Frost, Dorn, and Jenkins, corroborated the collaborative or triangulation leadership style they utilized at Booker. If one administrator learned of a situation, all three administrators were involved in the investigation and determination of any necessary corrective measures. All three Booker administrators try to coach underperforming teachers through informal counseling or verbal assistance, and memoranda of instructions, both of which are not considered disciplinary actions. In most instances, when a teacher is apprised of a concern, the verbal assistance is sufficient to correct the concern. When the verbal assistance or memoranda of instructions are ineffective, the administrators use progressive discipline. Respondent was verbally counseled at different times by AP Dorn and AP Jenkins of the need to take attendance and/or timely input grades. In October 2012 and February 2014, Respondent received a Memorandum of Instruction from AP Jenkins. The October memo highlighted the need for Respondent to take attendance each day, “within the first fifteen minutes” for each class. The February memo advised Respondent to enter her grades “weekly for parents to access and monitor.” DISCIPLINE AT ISSUE A Memorandum of Understanding (MOU or agreement), dated October 29, 2015, was executed by Respondent, Barry Dubin, executive director of the SC/TA, and Deputy Superintendent Lempe. This MOU resolved three outstanding disciplinary actions (one recommendation for a suspension, and two recommendations for employment termination) against Respondent. The contents of the MOU provided: With regard to the grievance filed on behalf of Ms. Judy Conover a Teacher currently assigned to Booker Middle School, the undersigned parties do hereby agree to the following terms: The Board agrees to withdraw its two termination actions pending against Ms. Conover. Ms. Conover agrees to serve a three (3) day unpaid suspension. Should Ms. Conover fail to execute this Memorandum and elect to challenge the proposed suspension, this suspension will be withdrawn and the matter to be decided by either an arbitrator or DOAH hearing officer will be the matter of all pending discipline including the two pending terminations. Ms. Conover agrees to remain on assistance (PIP) until such time as her teacher Evaluation Score is within the Effective range.[9/] The parties agree that by executing this Memorandum, this brings all matters pertaining to presently proposed disciplinary actions and grievances to a close. Ms. Conover understands that the next step of progressive discipline called for under the terms of the Instructional Bargaining Unit Agreement should there be a further transgression of the rules could be termination of her employment. Prior to her executing the MOU, Respondent returned to Booker for the 2015-2016 school year as a social studies teacher. Principal Frost welcomed her back to school during the teacher’s planning week in mid-August 2015. Principal Frost continued to supervise Respondent’s PIP progress.10/ Shortly after the students returned for 2015-2016 school year, AP Dorn reminded Respondent to take attendance. In mid-September 2015, while conducting a random review of grades, AP Dorn emailed Respondent about the lack of grades for all of her classes, and that her Gradebook had not been set up. In that email, AP Dorn asked Respondent to see him. Respondent did not do so. Just before the mid-quarter grade deadline, Respondent input grades back to August 28, 2015, the end of the first week of classes. Respondent was notified of a Weingarten meeting scheduled for September 30, 2015. Based meeting was rescheduled for and held on November 9, 2015. During the Weingarten meeting, Respondent did not recall receiving or responding to AP Dorn’s email about her grades and gradebook. Respondent acknowledged her understanding of “the need to get in grades” and that the administration had previously spoken with her about entering grades. However, Respondent did not furnish any facts other than non-answers. A second Weingarten meeting was also held on November 9, 2015. The second Weingarten meeting sought information about Respondent sharing her “A” number and password with a paraprofessional who worked with her. Respondent admitted that she gave her “A” number and password to the paraprofessional, who then input grades into Gradebook. Respondent served the agreed three-day suspension in December 2015. On February 22, 2016, Superintendent White issued a certified letter to Respondent. This letter provided that Respondent had been: [I]nsubordinate in performing your assigned duties as they relate to accurately recording and the placing of student grades in the student information system. [W]e have concluded you have committed the following offenses among others: misconduct in office, willful neglect of duties and incompetency. Therefore, . . . I have just cause to terminate your employment with the Sarasota County School Board. This February letter was the result of the two Weingarten hearings that were held on November 9, 2015. On March 8, 2016, the regularly scheduled PLC meeting for the 6th grade social studies teachers was held. Respondent did not attend the meeting. Although Respondent was on campus that day, and initially told the PLC leader that she would be late, she did not attend. Respondent was notified of a Weingarten meeting scheduled for March 24, 2016. This meeting was rescheduled to April 6, 2016, to accommodate Respondent’s request for representation to be present. The meeting was rescheduled again and held on April 12, 2016. The Weingarten meeting was to determine whether Respondent attended the March 8 PLC meeting, her reason(s) for missing the PLC meeting, and what Respondent may have discussed with her PLC members regarding how administration determined Respondent was not at that PLC meeting. Prior to attending the Weingarten meeting, Respondent telephoned her PLC leader, Ms. Scherzer, and asked who had informed the administration of Respondent’s absence from the PLC meeting. Ms. Scherzer sensed that Respondent was upset that the administration knew Respondent had missed the meeting. Respondent’s demeanor was less than cordial toward Ms. Scherzer. Of the 16 questions posed to her during the April 12 Weingarten meeting, Respondent answered three: 1) her current position; 2) her duty day at Booker; and 3) her knowledge that there was a PLC meeting on March 8, 2016. The remaining Weingarten questions provided Respondent with the opportunity to explain her PLC absence, yet she declined to answer the questions, except to say she didn’t feel comfortable answering them without representation. There was no testimony that she advised Booker’s administration at that time, that she was represented by a representative or an attorney. Respondent’s testimony that she was upset that her paraprofessional had been called to the front office, and that no one bothered to question Respondent about her absence from the PLC meeting, is not accurate. Respondent was afforded the opportunity to provide answers and choose not to do so. On April 26, 2016, Superintendent White issued another certified letter to Respondent. This letter provided that Respondent had been: [I]nsubordinate in performing your assigned duties and exercising professional judgement and integrity. [W]e have concluded you have committed the following offenses among others: misconduct in office, willful neglect of duties and incompetency. Therefore, . . . I have just cause to terminate your employment with the Sarasota County School Board. This April letter was the result of the Weingarten hearing that was held on April 12, 2016. Deputy Superintendent Lempe’s job is to run the business operation of Petitioner and he is involved with the grievance process as the “formal level one grievance authority.” He was directly involved with the MOU negotiations, and drafting of the “last chance agreement.” As outlined in the CBA, Petitioner utilizes a four-step progressive discipline structure. One of Deputy Superintendent Lempe’s duties involves the grievance process as the “formal level one grievance authority.” He was directly involved with the MOU negotiations, drafting of the last chance agreement, and referred to this last chance agreement “as step five in our four- step progressive disciplinary [sic] process.” At the hearing, Respondent again acknowledged her understanding of the MOU provision: “that the next step of progressive discipline called for under the terms of the Instructional Bargaining Unit Agreement should there be a further transgression of the rules could be termination of her employment.” RESPONDENT’S PRIOR DISCIPLINARY HISTORY There was ample testimonial and documentary evidence presented regarding Respondent’s disciplinary history. The following is a summary of the evidence regarding Respondent’s disciplinary history: February 24, 2014: Respondent was given a verbal reprimand11/ for her use of disparaging comments and behaviors toward students in her class. Respondent did not grieve this action. April 8, 2014: Respondent was given a written reprimand12/ for an incident that affected Booker’s FTE (full-time employees) survey, which directly related to Booker’s funding for employees, and another colleague’s VAMS (value added model system) score. Respondent inappropriately retained a student in her class when the student had been administratively transferred to and was on another teacher’s rooster. Respondent did not grieve this action. October 29, 2014: Superintendent White notified Respondent that, acting on Principal Frost’s recommendation, Superintendent White would recommend to the school board that Respondent be suspended for three days without pay. Respondent had been insubordinate, used inappropriate language, and had inappropriate interactions with students. December 1, 2014: Principal Frost recommended Respondent’s employment be terminated. Respondent refused to allow a student back in the classroom after the student had completed a suspension period. April 6, 2015: Principal Frost placed Respondent on “administrative leave pending an internal investigation.” A substitute teacher had found Respondent’s handwritten note, which contained derogatory and offensive language regarding certain students in her class(es). Principal Frost had also entered Respondent’s classroom, observed Respondent on the phone, and heard Respondent use obscenities that could be heard by students. Following the Weingarten meeting on this matter, Respondent was reassigned to the Landings, the School Board’s administrative offices, during the course of the investigation. On April 7, 2015, Superintendent White notified Respondent that, acting on Principal Frost’s recommendation, Superintendent White would recommend to the School Board that Respondent’s employment be terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner terminate Respondent's employment as a classroom teacher for Sarasota County School Board. DONE AND ENTERED this 5th day of January, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2017.
The Issue The issues are whether Respondent violated Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6(3)(e), Florida Administrative Code, and if so, what discipline should be imposed.
Findings Of Fact Respondent is licensed to teach emotionally handicapped children in the elementary schools of Florida. She holds Florida teaching certificate number 696889 which is valid through June 30, 1998. At all times material to this proceeding, Respondent was employed by the Volusia County School Board as a teacher of emotionally handicapped children in a self-contained classroom at New Smyrna Middle School. Prior to November 13, 1995, Respondent had no prior disciplinary history. The 1995-96 school year was Respondent's first year as a teacher at New Smyrna Middle School. Her previous teaching experience consisted of serving as a resource teacher. In that circumstance the students went to Respondent's class for a portion of the school day for instruction in certain academic areas. In August of 1995, Respondent requested a conference with the assistant principal, Sue Wolter. One of the items that Respondent wanted to discuss was the procedure she should follow in case a student had a weapon in the classroom. Ms. Wolter instructed Respondent that she should press the buzzer in the classroom three times. When the office staff receives this signal, they know there is a severe problem in the classroom. When a teacher presses the buzzer a light turns on beside the room number. Ms. Wolter also told Respondent that she could use the school intercom and say "Code 3" to alert the office about an emergency situation without letting the class know that she was calling for help. Lastly, Ms. Wolter advised Respondent to send her teaching assistant to the office for assistance. Respondent used these methods to summon help to her classroom on numerous occasions prior to the incident at issue here. In November of 1995, Respondent's class consisted of 12 sixth-grade students. The students' chronological ages varied from 11-to-14 years of age. Respondent's class consisted of students with "varying exceptionalities." Many of the students were dually diagnosed as having psychological and emotional disorders as well as mental retardation. The students' I.Q.'s were exceptionally low. Respondent's students were impulsive, volatile, and often exhibited poor judgment. They had difficulty at times distinguishing between right and wrong. Therefore, it was essential for Respondent to exercise appropriate classroom control at all times. Respondent had a difficult time maintaining discipline in the class. Students were frequently out of their seats or leaving the classroom without permission. Due to the chaotic classroom environment, several different teaching assistants were assigned to Respondent's classroom prior to November 13, 1995. On November 13, 1995, Ms. Linda Baker was Respondent's teaching assistant. Respondent and Ms. Baker did not have a successful working relationship. Ms. Baker felt that Respondent was a poor classroom disciplinarian. Ms. Baker also resented what she perceived as Respondent's condescending attitude. Respondent, on the other hand, resented Ms. Baker's admitted refusal to follow instructions which, at times, amounted to blatant insubordination. As a result of their communication problems, Respondent often wrote notes to Ms. Baker setting forth her classroom duties instead of speaking to her directly. Lavagus Brown, Michael Binder, and Klara Mills were students in Respondent's classroom on the morning of November 13, 1995. Klara Mills was the only girl in the class. As class began that morning, Lavagus Brown told Respondent that Klara had something in her bag that the teacher should know about. Next, Michael Binder told Respondent that Klara had a knife in her bag. Ms. Baker was sitting in the back of the room. She also heard from the children that Klara had a knife. Respondent wrote a note to Ms. Baker and took it to her in the back of the classroom. Respondent asked Ms. Baker to take the note to the office and get an administrator. Respondent did not reveal the contents of the note or explain to Ms. Baker why it was necessary for an administrator to come to the classroom immediately. Ms. Baker took the note and left the classroom. She returned later without an administrator. When questioned by Respondent, Ms. Baker told Respondent that she had delivered the note to the office. Respondent still did not discuss the seriousness of the situation with Ms. Baker. Respondent asked Klara to get her things together so that they could go to the office. Klara took her backpack purse and left the room with Respondent. She did not take her bookbag with her. Ms. Baker stayed in the classroom with the remaining students. She began taking the boys down the hall to the restroom. In order to get to the main office, Respondent and Klara had to walk out of one building, down the main walkway past a second building, and into the second entrance of a third building. Respondent did not attempt to retrieve Klara's backpack purse during the walk through the campus. When Respondent and Klara arrived at the office, Jasmine Gutierrez, a teacher's aide, was waiting in the outer office to see Ms. Wolter, who was in her office with the door partially closed. Cheryl Tucker, one of two secretaries, was also in the outer office. Ms. Tucker was busy answering the phone and writing passes for students. While she was waiting for Ms. Wolter, Ms. Jasmine Gutierrez helped Ms. Tucker write passes for students so they could go to class. Respondent and Klara stood in a corner of the office where they had an argument. Klara denied that she had a knife, claiming that she only had a toy in her bookbag, which was still in the classroom. Klara wanted to go back to the classroom. Respondent wanted Klara to give an object to Respondent or someone that Klara trusted. Respondent asked Ms. Tucker if Ms. Wolter was in the office. Ms. Tucker responded in the negative. Respondent then asked Ms. Tucker to watch Klara while she looked for an administrator. Respondent did not see anyone in Ms. Wolter's office through the partially opened door. Respondent walked toward the office workroom to check her mailbox. Klara was still in the office when Respondent walked back toward the office and around a corner to go to the clinic. Respondent thought that Ms. Wolter might be in the clinic helping the nurse. Unable to locate Ms. Wolter in the clinic, Respondent returned to the office. Ms. Tucker was no longer in the outer office. Ms. Debra Gutierrez, the main secretary, was at her desk next to the office door which was slowly closing. Klara was not in the office. Learning that Klara had returned to class, Respondent left the office without telling anyone in the office that Klara possibly had a knife in her possession. Respondent caught up with Klara before she re-entered the classroom. Respondent told Klara to go to her desk and gather all of her things, including her backpack purse and bookbag, because they needed to return to the office. When Respondent entered the classroom, Ms. Baker was sitting at her place in the back of the room. Respondent immediately began to deal with a student who was in the time-out room, screaming and yelling. Respondent attempted to calm the student down. The time-out room is a small closet with a desk where students can go when they want to work undisturbed. Respondent also used the room for students who were behaving inappropriately and needed time to cool off before returning to class. At times, Respondent would put herself in the time-out room when she felt she was losing patience with the children. While Respondent was in the time-out room with the other student, Ms. Baker took Klara to the restroom. In the hallway, Ms. Baker asked Klara if she had a knife. Klara denied having a knife. As Ms. Baker and Klara entered the classroom, other students began asking Klara about her knife. Klara did not respond to their comments. When Ms. Baker and Klara came back into the classroom, Respondent was standing in the doorway of the time-out room with the door partially closed. From that vantage point, Respondent could talk to the student who was upset and watch Klara who was sitting at her desk. Ms. Baker sat at her place in the back of the room for a few minutes. Then she went to the office where she located Elaine Haskins and Lenny Carr, campus advisors, advising them that Klara possibly had a weapon in the classroom. Ms. Haskins used her walkie-talkie to advise Ms. Wolter that she and Mr. Carr were proceeding with Ms. Baker to Respondent's room because there was a problem. When Ms. Haskins, Mr. Carr, and Ms. Baker arrived at Respondent's classroom, Klara was working quietly at her desk. Ms. Haskins entered the room and told Klara to get all of her things and accompany her to the office. Mr. Carr and Ms. Baker stayed in the hall. At this time, Respondent was still in the time-out room with the other student. Ms. Haskins walked to the time-out room and knocked on the partially-open door. Ms. Haskins advised Respondent that she was taking Klara to the office. Respondent did not advise Ms. Haskins that Klara possibly had a knife. Mr. Carr escorted Ms. Haskins and Klara back to the office. On the way, Ms. Haskins radioed Ms. Wolter to tell her that they were taking Klara to the office. Ms. Haskins told Ms. Wolter that Klara possibly had a weapon in her bag. The school resource officer met the campus advisors and Klara in Ms. Wolter's office. Klara admitted to Ms. Wolter that she had a knife in her bookbag. As Klara emptied her bag on Ms. Wolter's desk, she took out a large hunting knife. The knife was approximately eight and three-quarter inches in length when the retractable blade was extended. The blade alone was four inches long. Subsequently, Ms. Haskins went back to Respondent's classroom to tell her that Klara would not be coming back to class. There is no persuasive evidence of the following admissions by Respondent: (a) to Ms. Haskins that she knew Klara had a knife and "just hadn't responded on that" and (b) to Ms. Baker that she (Respondent) was too busy to handle the situation with Klara and the knife. About one week after the incident involving Klara, Respondent and Ms. Baker had a major disagreement. Ms. Baker was removed as the teaching assistant in Respondent's classroom. Respondent knew from the beginning that she had a potentially dangerous situation in her classroom. The potential for violence created an extremely unsafe environment for all the children involved, including Klara. The Volusia County School District's Student Code of Conduct states that possession of a weapon is a major offense which requires a recommendation of expulsion. Pending a decision on expulsion, a student will be suspended and lose all extracurricular privileges. Respondent was familiar with the Student Code of Conduct. However, the Volusia County School District has no written policy explaining the proper procedure a teacher should follow in searching a student when confronted with actual knowledge or a reasonable suspicion that the student has possession of a concealed weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Petitioner's teaching certificate for two weeks and imposing two years of probation. DONE AND ENTERED this 16th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1997. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver and Associates, P.A. Post Office Box 10825 Tallahassee, Florida 32302-2865 Paul Kwilecki, Esquire 433 Silver Beach Avenue, Suite 104 Daytona Beach, Florida 32176 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Jerry Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon 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 Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(5)(a), 6B-1.006(5)(d), 6B-1.006(5)(e), and 6B-1.006(5)(h), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Cardona holds Florida Educator’s Certificate 634334, covering the areas of athletic coaching, sociology, and exceptional student education. His certificate is valid through June 30, 2011. At all times pertinent to the allegations in the Administrative Complaint, Mr. Cardona was employed as a vocational exceptional student education teacher at Gateway School (Gateway) in the Orange County School District (School District). Gateway is a specialized day school for emotionally- disabled students, grades six through twelve. Valerie Simons (Ms. Simons) was an art teacher at Gateway. Kathy Nash (Ms. Nash) was also employed at Gateway as a behavior technician. Ms. Nash would help instructional staff work with students who were having emotional behavior problems. From July 2005 until April 2006, Mr. Cardona was engaged in a romantic relationship with Ms. Simons. The relationship included, but was not limited to, dating, visiting one another’s homes, and exchanging gifts. In or about March 2006, Mr. Cardona borrowed $1,400 from Ms. Simons. He later repaid $700 of the loan. Although Ms. Simons has made numerous requests for him to pay the balance owed, he had failed to do so. On or about April 7, 2006, Mr. Cardona and Ms. Simons had their last date. On or about April 10, 2006, Ms. Simons had major surgery. After Ms. Simons’ surgery, the romantic relationship between Mr. Cardona and Ms. Simons ended. Unbeknownst to Ms. Simons, Mr. Cardona had also been having a romantic relationship with Ms. Nash at that the same time that he was seeing Ms. Simons. Mr. Cardona continued his romantic relationship with Ms. Nash after the relationship with Ms. Simons ended. In the spring of 2006, W. Thomas Oldroyd, Jr. (Mr. Oldroyd), was the principal at Gateway. One of his assistant principals, Collette Rance (Ms. Rance), came to him and told him that Ms. Nash had come to her and was upset. A student had complained to Ms. Nash about a romantic relationship between Ms. Simons and Mr. Cardona. There had been rumors about romantic relationships between Mr. Cardona and Ms. Simons and between Mr. Cardona and Ms. Nash, who was married. A student also approached Ms. Rance during the spring of 2006 and told Ms. Rance that he had overheard a conversation between Mr. Cardona and Ms. Nash. Mr. Cardona had told Ms. Nash that Ms. Simons was crazy. The emotionally-handicapped student was excited and animated when he disclosed the information to Ms. Rance. Ms. Rance gathered from the student that the student understood that there had been a romantic relationship between Mr. Cardona and Ms. Simons. The day after Ms. Rance reported her conversation with Ms. Nash to Mr. Oldroyd, Mr. Oldroyd called Mr. Cardona, Ms. Simons, and Ms. Nash in his office and told them that whatever personal relationships going on among them was their business, but that he did not want the students to get involved and to discuss the personal lives of Gateway staff. He also told them that, if the talk did not cease, he would involve the employee relations office to do an investigation into the matter. Mr. Cardona, Ms. Simons, and Ms. Nash did not acknowledge that were any personal relationships among themselves; however, they did agree to act professionally and to do what they could to stop the talk among the students. During the 2006 summer school session at Gateway, Ms. Rance had to discipline a student who had yelled at Ms. Simons, telling Ms. Simons that Ms. Simons had broken up Ms. Nash’s marriage and that it was Ms. Simons’ fault that Ms. Nash was getting a divorce. It was clear that the environment that was created concerning the romantic relationships of Mr. Cardona, Ms. Simons, and Ms. Nash was being disruptive to the learning environment. In July 2006, Elaine Scott, Ph.D. (Dr. Scott), replaced Mr. Oldroyd as principal at Gateway. Dr. Scott began to hear comments about the relationships between Mr. Cardona and Ms. Nash and Ms. Simons. She asked Ms. Rance about the comments, and Ms. Rance advised Dr. Scott about Mr. Oldroyd calling Mr. Cardona, Ms. Nash, and Ms. Simons into his office and telling them to act professionally. In August 2006, during the pre-planning session prior to the students returning to school, there was an incident involving Mr. Cardona and a staff member concerning the issuance of keys. Mr. Cardona had complained to Ms. Rance that he thought that Ms. Simons was using her master key to go into his office. Ms. Rance advised him that she would not be issuing master keys to anyone. Mr. Cardona became agitated that he would not be getting a master key. As a result of the incident concerning the keys, Mr. Cardona was given a written directive dated August 28, 2006, in which he was told to conduct himself in the following ways: You are to avoid even the appearance of verbal intimidation while dealing with staff members. This includes, but is not limited to yelling, comments of a disparaging nature, or actions that subject a person to embarrassment. You must also avoid the appearance of retaliation toward any person who may have been a part of this matter. You are reminded that conduct of a sensational nature can adversely impact the professional reputation and effectiveness of a teacher. I expect you to exercise discretion and judgment, such that you do not discredit yourself, the school, or the district. Dr. Scott continued to her comments by others about the unprofessional manner in which Mr. Cardona, Ms. Simons, and Ms. Nash were interacting. Dr. Scott became concerned to the point that she asked the employee relations department of the School District to investigate, and an investigation was commenced. On or about October 19, 2006, Mr. Cardona went to Ms. Simons’ classroom during work hours. He brushed Ms. Simons’ shoulder and said he was trying to see if she had any chips on it. Mr. Cardona also unzipped his pants and pressed against Ms. Simons and asked if he could come to her house that evening. On or about October 24, 2006, Mr. Cardona approached Ms. Simons while she was in the school library, while they were there to view a video as part of the teacher training. Mr. Cardona asked Ms. Simons if he could give her proof that he was free from any sexually transmitted disease and acquired immune deficiency syndrome. On or about October 30, 2006, Mr. Cardona went to Ms. Simons’ home uninvited. He began to bang on a window and banged so hard on the front door that he dented the door. Ms. Simons went to the door, looked through the peephole, and saw that it was Mr. Cardona. He tried to convince her to let him in, but she refused. Mr. Cardona eventually left. Ms. Simons complained to the School District about Mr. Cardona’s harassment. She also filed a petition in circuit court for a restraining order against Mr. Cardona. On October 31, 2006, a Temporary Injunction for Protection Against Domestic Violence Without Minor Child(ren) was issued by the Circuit Court of the Ninth Judicial Circuit in and for Orange County, prohibiting Mr. Cardona from having contact with Ms. Simons. On November 13, 2006, a Final Judgment of Injunction for Protection Against Domestic Violence Without Minor Child(ren) (After Notice) was issued by the same court against Mr. Cardona, prohibiting Mr. Cardona from having contact with Ms. Simons. Ms. Simons advised Ms. Rance of the issuance of the injunctions. After Ms. Rance became aware of the injunctions, she observed Mr. Cardona standing near Ms. Simons’ classroom, sorting through what looked like junk mail. There was no reason for Mr. Cardona to be near Ms. Simons’ classroom. Ms. Rance confronted Mr. Cardona about standing near Ms. Simons’ classroom after the issuance of the injunctions, and Mr. Cardona became angry with Ms. Rance. On November 18, 2006, a staff meeting was held concerning a student. Present at the meeting were the student, his guardian, several vocational teachers, Ms. Simons, and Mr. Cardona. During the meeting, Ms. Simons was commenting on what she had observed of the student’s performance and was giving her professional opinion on whether the student should be on a particular diploma track. While Ms. Simons was speaking, Mr. Cardona made sidebar comments such as: “Yeah, in her professional opinion. . . . What profession is that?” Mr. Cardona also would roll his eyes and shake his head at Ms. Simons’ comments. These types of comments continued throughout the meeting. Susan Fronheiser (Ms. Fronheiser), then a teacher at Gateway, was present during the meeting. During the meeting, the guardian of the student asked Ms. Fronheiser what was going on with Mr. Cardona’s comments and actions. At the end of the meeting, other teachers asked Ms. Fronheiser what was going on with Mr. Cardona. Mr. Cardona’s conduct at the meeting was unprofessional and disturbing to the attendees of the meeting. Ms. Fronheiser advised Ms. Rance of what had occurred during the meeting. On November 30, 2006, Mr. Cardona gave notice to the School District that he would retire from his position on December 29, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Cardona is not guilty of violating Subsection 1012.795(1)(c), Florida Statutes; finding Mr. Cardona guilty of violating Subsections 1012.795(1)(f) and 1012.795(1)(i), Florida Statutes; finding that Mr. Cardona is guilty of violating Florida Administrative Code Rules 6B-1.006(5)(d) and 6B- 1.006(5)(e); finding that Mr. Cardona did not violate Florida Administrative Code Rules 6B-1.006(5)(a) and 6B-1.006(5)(h); and suspending his teaching certificate for two years. DONE AND ENTERED this 15th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of January, 2010.
The Issue At issue is whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Rudolph Gordon Mirjah, is now and has been at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0589544. Since November 2, 1994, if not before, Respondent has been employed by Post, Buckley, Schuh, and Jernigan, Inc., a broker corporation located at 2001 Northwest 107th Avenue, Miami, Florida, as a right-of-way agent. Incident to his employment, Respondent works primarily as a consultant for the Florida Department of Transportation to acquire real estate for road improvements. Elements of such activities require his licensure as a real estate salesperson. In or about early 1998, the Department provided Respondent with a renewal notice, which reminded him that his salesperson license was due to expire March 31, 1998. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the appropriate renewal fee, and the Department renewed his license. By letter of May 22, 1998,1 the Department advised Respondent that his license had been selected for audit to determine whether he was in compliance with the continuing education requirements for licensure. Pertinent to this case, the letter provided: Your license number has been selected at random for an audit of the education required to comply with Rule 61J2-3.015(2). By submitting the renewal fee to the Department, you acknowledged compliance of the "Commission-prescribed education" requirements for the license period beginning April 1, 1996, ending March 31, 1998. Please submit this letter along with the proof of the Commission approved course or equivalency education required at the time of you renewal, no later than 10 days from the date of this letter. (Emphasis in original.) In response to the Department's request, Respondent provided a certificate (reflecting 14 hours of continuing education), dated January 21, 1996. The Department responded (by letter of June 15, 1998) that the tendered certificate reflected proof of 14 hours of continuing education for the period beginning April 1, 1994, and ending March 31, 1996, and, therefore, evidenced satisfactory completion of the continuing education requirement for renewal of Respondent's license March 31, 1996, and not the renewal of March 31, 1998. The Department again requested evidence that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning April 1, 1996, and ending March 31, 1998, that would support the renewal of his license for March 31, 1998. By letter of June 19, 1998, Respondent replied to the Department's request, as follows: This letter is in reference to the attached letter from the Department of Business & Professional Regulation dated June 15, 1998, and our recent telephone conversation. I honestly was not aware that I have to take the 14 hour Continuing Education course every renewal period, although you stated it on the renewal notice. I thought this was a reminder to take the course which I had already taken. When I had completed this 14 hour course with Gold Coast School of Real Estate, I asked the instructor if I had to take any additional courses, and he told me that was the last course. It was a misunderstanding on my part. I apologize to the Department for not fulfilling this requirement, but ask for an extension to complete the course. On June 20, 1998, Respondent enrolled with Gold Coast School of Real Estate for 14 hours of continuing education (to fulfill his prior obligation), and on June 26, 1998, successfully passed the examination and was awarded a certificate of completion. Notwithstanding, on August 19, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 2 At hearing, Respondent acknowledged his failure to take a continuing education course during the renewal period at issue, and reiterated that the cause for such failure was his misunderstanding of the statement (heretofore noted) made by the instructor at the course he completed in January 1996. Here, Respondent's testimony was candid, and the explanation offered for his failure to complete a continuing education course during the subject renewal period is credited. Consequently, it is resolved that, at the time he submitted his renewal application, Respondent did not intend to mislead or deceive the Department, nor did he act with reckless disregard for the truth. In so concluding, it is observed that following licensure, Respondent duly completed the 45 hours post-licensing educational course requirement prior to the first renewal following licensure, as required by Rule 61J2-3020(1), Florida Administrative Code (Petitioner's Exhibit 6), and 14 hours of continuing education (classroom hours) prior to the second renewal of his license, as required by Rule 61J2-3009(1), Florida Administrative Code (Petitioner's Exhibit 5). It was during the later course that Respondent received the information (that this was the last course he was required to take) which he now understands he misunderstood to apply to any future educational requirements, as opposed to merely that renewal period. Also pertinent to the foregoing conclusion, it is observed that during the period of Respondent's licensure, as well as before, he actively pursued self-improvement in his profession through attendance at numerous educational courses presented by the International Right of Way Association. Such continuing education included a 16-classroom-hour course in Land Titles (completed November 5, 1993); an 80-classroom-hour course in Principles of Real Estate Acquisition (completed December 8, 1995); an 8-classroom-hour course in Ethics and the Right of Way Profession (completed September 27, 1996); a 24-classroom-hour course in Communications in Real Estate Acquisition (completed February 14, 1997); a 16-classroom-hour course in Eminent Domain Law Basics for Right of Way Professionals (completed November 14, 1997); and a 24-classroom-hour course in Interpersonal Relations in Real Estate (completed July 10, 1998). Moreover, between November 1996 and November 20, 1997, Respondent took and passed examinations offered by the International Right of Way Association in Law, Negotiations, Appraisals, and Engineering, and on October 15, 1998, Respondent was approved for registration as a Senior Member of the International Right of Way Association. Given the commitment reflected by Respondent's educational efforts to improve his skills as a right-of-way agent, it is most unlikely that, absent a misunderstanding, Respondent would not have complied with the Department's continuing education requirement. Consequently, given Respondent's candor and history, it must be concluded that the proof fails to support the conclusion that Respondent "obtained [his] license by means of misrepresentation or concealment," as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1999.
The Issue The issues in this matter are as follows: (a) whether Petitioner followed all procedural requirements before deciding to terminate Respondent's employment as a teacher; and whether Petitioner properly determined that Respondent's employment as a teacher should be terminated.
Findings Of Fact In 1985, Respondent received her Florida Teacher Certification, qualifying her to teach elementary education, Grades 1-6. She continues to hold that certification. Respondent worked as a substitute teacher in Petitioner's elementary, middle, and high schools for 13 years before she was hired as a full-time teacher in 1998. Thereafter, Respondent taught the following classes at the following schools: (a) from 1999–2003, “literacy” and language arts to sixth and seventh graders at Paxon Middle School; from 2003-2004, third graders at John E. Ford Elementary; from 2004-2006, first graders at Lake Lucina Elementary (Lake Lucina); (d) from 2006-2007, first graders at Arlington Heights Elementary (Arlington Heights); and (e) from 2007-2008, fourth graders at Sabal Palm Elementary (Sabal Palm). Throughout her tenure as a full-time teacher, school principals evaluated Respondent's performance on an annual basis. During school years 2006-2007 and 2007-2008, Petitioner used the Teacher Assessment System (“TAS”) as the primary method to evaluate Respondent's teaching ability. The TAS measures teaching performance based on nine different “Competencies.” These Competencies, listed in the 2006-2007 and 2007-2008 versions of the TAS include the following: (a) Promotes student growth and performance; (b) Evaluates instructional needs of students; (c) Plans and delivers effective instruction; (d) Shows knowledge of subject matter; (e) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (f) Shows sensitivity to student needs by maintaining a positive school environment; (g) Communicates with parents; (h) Pursues professional growth; and (i) Demonstrates professional behaviors. Under the TAS, a school administrator (usually the principal) evaluates teachers based on three scheduled classroom observations. During the observations, the principal uses the Teacher Assessment Instrument (“TAI”) to collect data and identify “indicators” associated with each Competency. In evaluating a teacher’s overall performance, principals may also consider informal, unannounced observations. The Classroom Observation Instrument (“COI”) is an earlier version of the TAI. The COI contains the same Competencies as the TAI, though they appear in different order. The “Evaluation of Professional Growth of Teacher” is a summative evaluation form used during the final annual evaluation conference. The form reflects the teacher’s final rating as to each Competency and the principal’s overall performance rating for the school year. The TAS procedures provide as follows in pertinent part: TAS Procedures-Principal/Supervisor PLEASE NOTE: One purpose of the TAS is to assist the employee to improve performance. Performance problems are best addressed early. If an informal observation or classroom visit indicates possible performance problems then the principal should immediately arrange to initiate a formal classroom observation using the TAI. Conduct an initial orientation for all instructional employees to be evaluated by the TAS. This should occur during pre- planning and include at minimum, 1) an overview of the forms and procedures, 2) a description of the competencies and their indicators, and 3) your schedule for observation activities. Pre-arrange with the employee at least one instructional session to be formally observed. Conduct a pre-observation conference with the employee. Discuss with the employee information regarding the lesson plan, targeted students and methodology. A pre-observation conference must occur. Conduct the observation using the TAI. All competency indicators that are observed during this observation will be checked on the TAI. Complete the TAI for all competencies/indicators not completed during the classroom observation. After the instrument has been completed, review and rate the data, and prepare the report to share with the employee. Within five (5) working days, schedule and conduct a post-observation conference with the employee to provide feedback. During the post-observation conference, review the TAI with the employee. Identify any problematic areas. At this time, schedule a conference to develop a success plan for employees who potentially may receive an overall unsatisfactory evaluation. This action must take place within two (2) weeks of the post conference but prior to February 1. During this time, a letter of Potential Unsatisfactory Evaluation must be given to the employee. Close the conference by signing all appropriate documents and securing the employee's signature of receipt. Follow the time line provided in the manual to ensure compliance with the reappointment process and to ensure due process for the employee. If a teacher demonstrates deficient performance under any Competency, a "Success Plan" is written in collaboration with the teacher. The Success Plan identifies areas of weakness by Competency, sets out objectives, and provides timelines to meet the objectives. A Success Plan Team includes the teacher, school administrators, colleagues that have expertise in the relevant subject matter, “resource” teachers or “coaches,” and, at times, a teachers’ union representative. According to the TAS, personnel decisions will be appropriate if the timeline and the following steps are followed: Notify the employee in clear and simple written communication(s) regarding your specific performance expectation as identified by the competency indicators on the TAI. Explain to the employee in oral and written detail the deficiency(ies) from the previously stated expectation(s). (Be specific by noting the time factors, place, circumstances, principal observations). Arrange with and/or for the employee to receive appropriate training or other assistance as needed in order to improve the deficiency(ies) noted on the TAS Success Plan. Record in writing any offers of help. Time any communication(s) to the employee so there is sufficient opportunity for the employee to correct deficiencies. The Success Plan Team (including the identified employee) must meet frequently to review the status of the implementation of the plan and the employee’s progress. While teaching first graders at Lake Lucina, Respondent elected to transfer to Arlington Heights in school year 2006-2007. Robert L. Snyder was, and still is, the principal of Arlington Heights. Upon meeting Respondent, Mr. Snyder considered Respondent as a pleasant and likeable person. However, because Respondent received an unsatisfactory evaluation the prior year, Mr. Snyder arranged for the development of a Success Plan for Respondent. With Respondent's input, the Success Plan Team drafted a Success Plan to be implemented at Arlington Heights. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. It was finalized and signed by Ms. Hunt in October 2006. The Success Plan Team included experienced teaching coaches. The coaches modeled instruction in Respondent's class on several occasions. Mr. Snyder conducted three formal observations and observed Respondent’s teaching performance informally on several occasions. During his visits to the classroom, Mr. Snyder would see students doing worksheets amounting to “busy work” which had no apparent connection to instruction or evaluation. Mr. Snyder kept personal notes documenting Respondent's tardiness to school on several occasions. He also noted her tardiness to workshops and in-service programs, including an in-service program focused on a reading assessment system for first graders known as Developmental Reading Assessment (DRA). On or about January 30, 2008, Mr. Snyder intended to deliver a letter to Respondent, advising her that she was at risk to receive an unsatisfactory evaluation for the year. When he went to Respondent's classroom, Mr. Snyder discovered that Petitioner was absent and had left no plans for the substitute teacher. The school policy required teachers to have three days of substitute plans in case of an unexpected absence. While Mr. Snyder assisted in the development of plans for the substitute teacher, he observed incomplete and blank DRA data collection forms. The forms did not indicate the students' levels of reading ability or the strategies put in place to enhance areas of weakness. Mr. Snyder also observed the teaching assistant doing work which should have been done by Respondent, such as grading papers. When Respondent submitted her lesson plans to Mr. Snyder, he observed that Respondent was not actually teaching the lesson plans to her class. Mr. Snyder also noted a lack of grades in Respondent's grade book. Mr. Snyder brought these concerns to Respondent's attention verbally and in writing. Throughout the school year, Respondent had a full-time paraprofessional/teacher’s assistant (“TA”) in her classroom. Mr. Snyder observed tensions between Respondent and her TA, as well as a second TA. The working relationship between Respondent and her TA deteriorated through the year. On one occasion, Respondent left her class of first graders completely unattended by an adult for twenty minutes. Mr. Snyder knew Respondent was in the office working on the computer when he saw Respondent's unsupervised students. On another occasion, Mr. Snyder saw Respondent who appeared to be videotaping students in a common hallway. The school did not have parental permission to videotape some of the students in another teacher's class. Mr. Snyder retrieved the videotape and discarded it. Respondent did not attend certain conferences with Mr. Snyder (including at least one formal pre-observation conference). Additionally, it was difficult to conduct meetings with the Success Plan Team because Respondent always insisted that an outside union representative instead of the building representative attend the meetings with her. Scheduled meetings with Respondent were delayed or cancelled on a number of occasions because an outside union representative was not available. Mr. Snyder formally observed Respondent and completed TIAs on December 15, 2006, February 6, 2007 and March 14, 2007. Mr. Snyder had a conference with Respondent before and after each formal observation to discuss the TIAs. Respondent signed each TIA. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 15, 2007. Reflecting the findings on the TIAs, the annual evaluation showed unsatisfactory performance in the following Competencies: Promoting Student Growth and Performance; Planning and Delivering Effective Instruction; and Demonstrates Professional Behaviors. The evaluation also showed a “Needs Improvement” rating in the following Competencies: Evaluates Instructional Needs of Students; Utilizes Appropriate Classroom Management; and Parent Communications. Respondent received and signed the annual evaluation. In school year 2007-2008, Respondent elected to transfer to Sabal Palm. At the new school, Respondent taught reading, writing and science to a fourth-grade class. Respondent's co-teacher, Kim Stancil, taught math and social studies. There were approximately 26 students in the class. The principal at Sabal Palm was, and still is, Mary Mickel. Because Respondent received an unsatisfactory evaluation the prior year, Ms. Mickel initiated a Success Plan for Respondent. Respondent signed a final copy of the plan on December 11, 2007. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. The Success Plan Team consisted of Ms. Mickel, other teachers, a “standards coach," and a “reading coach.” Ms. Stancil retired on October 29, 2007. A new co- teacher, Christie Callison, began teaching in January 2008. Ms. Mickel became concerned when Respondent failed to attend grade-level meetings. After receiving encouragement from Ms. Mickel, Respondent began attending the meetings but did not actively participate. Ms. Mickel had several parents call to complain about how Respondent treated their children or how their children were doing in Respondent's class. Ms. Mickel participated in at least one parent/teacher conference to resolve a parent's concerns. Ms. Mickel visited Respondent's classroom from time to time throughout the school year. Ms. Mickel conducted four formal evaluations of Respondent's performance. The formal observations took place on the following dates: September 13, 2007; November 19, 2007; January 28, 2008; and March 5, 2008. Ms. Mickel provided Respondent with advanced notice of the formal observations. Ms. Mickel had a conference with Ms. Hunt before and after the observations. During the formal observations, Ms. Mickel used the COI instrument to document indicators of performance under the nine Competencies. Respondent does not challenge Ms. Mickel's use of the COIs versus the TIAs. Ms. Mickel observed Respondent using materials and teaching subjects that were not age-appropriate for fourth graders. For instance, Respondent based a lesson on a book typically used with 1st graders. Ms. Mickel discussed this with Respondent and commented on the subject in the COIs. As time passed, Ms. Mickel observed Respondent's continued failure to properly assess student performance and failure to tailor instruction to student needs. Respondent had opportunities to participate in grade- level training on a weekly basis. She was allowed to observe other teachers in her school without having to take personal time. Respondent's coaches came into her class, prepared a lesson plan with her, and modeled the instruction. According to Ms. Callison, Respondent refused to collaborate with planning and instruction. Respondent did not want, give or receive assistance from her co-teacher. Respondent typically did not provide direct instruction to the students. Instead, Respondent gave the students “busy work” via worksheets that had nothing to do with the required curriculum. Respondent openly classified students by ability, using terms such as “middle group” and “low group.” Respondent would then have students grade each others’ papers and report the grades out loud to Respondent in class. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 14, 2008. Reflecting the findings on the COIs, the annual evaluation showed unsatisfactory performance under the following Competencies: Evaluates Instructional Needs of Students and Plans and Delivers Effective Instruction. Respondent obtained a “Needs Improvement” rating in the following Competencies: Promotes Student Growth and Performance; Communicates with Parents; and Demonstrates Professional Behaviors. Respondent received and signed the annual evaluation. Respondent testified that teaching fourth grade is particularly challenging compared to teaching other grade levels. According to Respondent, fourth-grade is difficult to teach because students must take the Florida Comprehensive Assessment Test (FCAT) in math, reading and writing. Although Respondent was without a co-teacher for a portion of the 2007-2008 school term, she is certified to teach all fourth-grade subjects. More importantly, Respondent has had experience teaching reading and writing to sixth and seventh- grade students, some of whom were working at the fourth-grade level. Respondent worked with and was evaluated by seven different principals throughout the last eight years of her employment. During those eight years, Respondent's summative evaluations showed her performance as follows: (a) eight consecutive years with unsatisfactory performance in the Parent Communication Competency; (b) five consecutive years with unsatisfactory performance in the Student Growth and Performance Competency; (c) five consecutive years with unsatisfactory performance in the Planning and Delivery of Instruction Competency; (d) four consecutive years with unsatisfactory performance in the Evaluation of Student Needs Competency.
Findings Of Fact The Respondent, Raphu Williams, presently holds Florida Teacher's Certificate Number 3436, Life Graduate State, Rank 3, and is employed in the public schools of Dade County, Florida. By way of background, Respondent was a teacher employed in the public schools during 1937 through 1942 and from 1961 to the present time. He attended Tuskegee Institute, where he received a Bachelor of Science degree. Respondent is presently certified in the fields of Auto Mechanics, Industrial Arts, Business Administration, and Guidance and Counselling. During his educational pursuit, he attended Boston University, Pittsburgh State, FAMU, Harvard, Suffolk Law School, and the University of Miami. When Respondent was re-employed as a teacher during 1961, he taught at Mays for approximately five years and returned to Booker T. Washington High School, where he was employed through school year 1970. At the end of the 1970 school year, he was transferred to Riviera Junior High School, where he remained until 1975. Throughout his career, he always taught "trainable" students. This, according to Respondent, is a student classification based on students whose IQ's range from 55 down to 30. During the 1975-76 school year, he served as an itinerant teacher receiving assignments from his supervisor, Mrs. Wylamere Marshall. Pauline A. Young, an educational specialist for Dade County for approximately eight years, met Respondent while he was employed at Riviera Junior High School. Miss Young was called upon to observe the vocational unit as a liaison from the area office; and in her opinion, Respondent's performance was inadequate. This opinion rested upon her observation that when she visited the Respondent's classroom, he was asleep. She observed the Respondent asleep on two occasions. On the first occasion, she awakened him and the second time, she browsed around his room for several minutes; and he never knew that she was there. She testified that the students were "just milling round the room -- doing nothing in particular". She testified that when she awakened the Respondent on the first occasion, he acknowledged the fact that he was asleep, and Respondent said "What can you expect? They can only do so much". The Respondent was then teaching trainable mentally-retarded students. While observing Respondent's class, Miss Young requested that Respondent show her his lesson plans, whereupon he responded that he had no lesson plans, his plans were in his head and that he had no plans for Mr. Jones, Mr. Whigham, or Mr. Turner. Respondent advised Miss Young that the "white man owed him this salary and that he was going to continue to stay on even though he made more money on other jobs and, in fact, did not need this job". Miss Young further testified that when Respondent was presented with new reading techniques, he resisted change. Respecting Respondent's classroom contact with students, Miss Young observed that Respondent opened the class by calling the class roll and thereafter, he had no structured format to conduct his class. Miss Young observed Respondent criticizing a student, Darlene Mickens' dress complaining that "she should not wear tennis shoes because she was black and further that because she was black, she need not look bad". In Miss Young's opinion, the student was neat and appropriately dressed. Finally, she testified that she never observed Respondent doing anything productive during her observation of him during his classes. Dora Whitaker Wright, an instructor employed by the Dade County School Board for approximately 21 years and presently the Assistant Principal and teacher at Richmond Heights in charge of guidance, testified that she has known the Respondent for approximately two years. During this period, she visited Respondent's classroom to observe on one occasion, and she also noted that his classroom was unsupervised on approximately three occasions. She further testified that the Respondent failed to report for duty when scheduled. On the three occasions in which Respondent left his class unsupervised, she remained with the students for approximately 15 minutes on the first occasion; approximately 20 minutes on the second occasion; and on the third occasion, the students were left unsupervised and roamed the halls without a pass. She examined Respondent's lesson plans and noted that they contained little, if any, guidance in which to advise emergency substitute teachers or administrators what the teacher (Respondent) was teaching his students. She, thereafter, gave the Respondent sample lesson plans that were submitted by other instructors as a guide to prepare his lesson plans. When Mrs. Wright advised Respondent that he would be held accountable for the return of the classroom books, he rebelled in front of students complaining that it was not his responsibility to account for books given to students. He also contested Mrs. Wright's authority stating that he, like Mrs. Wright, had a Master's degree and had taught as much as she. He further remarked that he had more teaching experience than anyone presently teaching in that school. Among other things, Mrs. Wright's duties include the proper classification and testing of "trainable students" and to ascertain that the instructors are utilizing proper teaching methods. When she discussed the "core" lesson plans systems with Respondent and the teaching guidelines that were published and approved by the school district, the Respondent objected to the use of such plans. Additionally, she testified that he refused to accept the textbooks for each student based on his position that he would not be held accountable for the textbooks under any circumstances. She testified that the School Board, although desirous of giving each student an individual textbook, instructional level, lacked the funds for such an expenditure. Respondent threatened to hurt a student (Lorenzo Richardson) if he was not removed from his class. When cautioned that the supervisor would be visiting his classroom on various days, Mrs. Wright testified that the Respondent rebelled, stating that "he would teach things the way he wanted". Respondent advised Mrs. Wright that he was hit with a soda can while he was laying his head down on his desk. She testified that during her observance of the Respondent, she noticed him playing checkers with students and offered them one dollar if they beat him in a game of checkers. Helen Gentile, the curriculum secretary, who is responsible for calling substitutes, maintaining inventory records, ordering materials and maintaining emergency lesson plans, testified that she received two complaints from substitute teachers regarding the failure of Respondent to provide adequate emergency lesson plans. She examined the Respondent's lesson plans and the only thing contained therein was "personal philosophies of what Respondent noted about each student, with no direction for course structure for students". She recalled Respondent being tardy on at least three occasions and that he failed to call to advise that he would be late. She testified that from time to time, it was necessary that she call upon instructors to cover for classes during the "free period" but that when she would ask Respondent to do this, he yelled at her, stating that it was not his responsibility to cover classes. She did, however, testify that after Respondent shouted to her, he later apologized. Zackery Lee Hagen, a 14-year-old student of Respondent for approximately two years, testified that he was struck by a desk that was pushed by Respondent. Hagan recalled incidents in which the Respondent slept in class and recalled one instance in which he awakened the Respondent by banking on his desk. He also recalled the Respondent using profanity, such as "damn" in class. Hagen testified that his reading skill level had improved under the Respondent's teaching. Jane Boyer, secretary to the principal, Lonnie Coleman, testified that the Respondent failed to follow the established policy of the School Board. Specifically, she testified that he would not timely call to advise of his absence which created hardships in locating substitute teachers. She recalled instances in which students were locked out of their classrooms and were sitting in the hall approximately eight to ten times. On the other hand, she testified that when Respondent wanted requests, he wanted an answer the very instant in which the request was made. Mrs. Boyer observed the Respondent using profanity on at least two occasions. On one occasion, she recalled the Respondent using profanity while escorting a student to Mr. Coleman's office, and the second occasion occurred during a telephone conversation with a parent. She testified that the Respondent, on the second occasion, was talking to a neighbor of a parent and wanted the neighbor to summon the student home "before he killed him". She testified that the Respondent indicated to her that the student had struck the Respondent with a book, whereupon the Respondent called the student a "little bastard". Cynthia Grace, a 13-year-old student of Respondent, also recalled instances in which the Respondent used profane language when the class was unruly. Students, Charles Gardner and Oscar Bryant, also recalled the Respondent using profanity during his teaching. Gardner also confirmed earlier testimony that the Respondent was asleep when he was struck on the head by a coca-cola can. Mitchell Watson, a student, also recalled an instance in which the Respondent fell asleep in class. He testified that the Respondent observed a fight between two students and made no attempt to control the situation or to halt the fight. Clarence H. Gilliard, an instructor and department chairman for special education at Richmond Heights, explained his difficulty in receiving emergency lesson plans and Respondent's failure to accept responsibility for textbooks. He also testified that the Respondent continuously balked when requested to follow established procedures set forth by the school board. Donald Helip, an Assistant Principal at Richmond Heights Junior High School, was called upon to try to resolve the differences which Respondent was having in following procedures. He testified that in so doing, he observed the Respondent's classroom; and on several occasions, the students were left unsupervised. When he cautioned Respondent regarding this problem, the Respondent balked. He testified that after repeated requests, Respondent ultimately turned in emergency lesson plans which were inadequate inasmuch as they only contained "philosophical statements", as opposed to directives that substitute teachers could follow during the Respondent's absence. He recalled one instance in which the Respondent reported late for work and his students had to be reassigned to another instructor. Immediately thereafter, he passed the teacher's lounge and the Respondent was there talking to another instructor. Mr. Helip counselled the Respondent about this problem whereupon the Respondent advised that "he was new and a nice guy and that he should not be used by the system". He further cautioned Mr. Helip that he should not "cross him or if he did, he would be crushed". Mr. Helip perceived these remarks as a threat. Finally, the Respondent advised Mr. Helip that he should advise what kind of flowers he liked so that he would receive them if he, in fact, got hurt. Mr. Helip also voiced his opinion that the Respondent was not an effective school board employee inasmuch as he (1) failed to report timely for work, (2) enjoyed a poor relationship with students, including sleeping while on duty, and (3) based upon his failure to follow established procedures. Lonnie C. Coleman, the principal of Richmond Heights Junior High School for approximately three years, testified that the Respondent was assigned to his school as an itinerant school teacher (surplus) during the past school year. During October, he was assigned classes. Coleman testified that Respondent repeatedly balked at assignments and due to his repeated protests, he removed him from the class due to the number and magnitude of problems he encountered from Respondent. Specifically, he testified that the Respondent averaged two to three disciplinary referrals to him daily and Respondent continuously ejected students from his class because they did not have writing paper. He testified that when this problem increased, he had to issue a directive to Respondent that students were to be kept in class despite the fact that they did not have writing paper. He testified as to the inadequacy of the Respondent's emergency lesson plans which were submitted only due to repeated requests from his department head. He testified that when the Respondent was provided a sample lesson plan as a directive in preparing his plans, the Respondent refused and based on the repeated problems from Respondent, he requested and was granted permission to remove him from the classroom. He termed the Respondent's attendance as being "spotty" and recalled an instance in which the Respondent attended a meeting away from his assigned area without permission. Based thereon, in his opinion, the Respondent's effectiveness had been reduced and should not be permitted to remain an instructor in the Dade County School System. He denied that he and respondent had any personal problems or personality clashes and, in fact, testified that when he confronted the Respondent with procedural problems and afforded the Respondent an opportunity to correct such, the Respondent failed to take any corrective action. Wylamere Marshall, area director and coordinator for the Guidance Division, testified that she offered Respondent a position in order that the could tap his resources as an employability skills teacher to work with special education students. Initially, she assigned the Respondent as an itinerant teacher and experienced problems with him reporting to duty as assigned. She indicated that the Respondent was generally irresponsible and repeatedly slept on the job. She testified that the Respondent requested and was, in fact, granted a transfer during 1975-76 to Richmond Heights Junior High School. She testified that some of the deficiencies in the Respondent's performance included his failure to plan or supervise class activities. He also permitted students to randomly select class assignments. She testified that although the Respondent had numerous shortcoming as a teacher-educator, she felt that he was an able administrator. As to her opinion of Respondent as a teacher, she testified that he was totally inefficient and was not an effective teacher in the educable mentally-retarded program (special education). Bennie Pollock, a Social Studies teacher at Richmond Heights Junior High School during the school year 1975-76 and the beginning of the school year 1976-77 and presently employed as a bargaining agent representative for United Teachers of Dade, testified that he met Respondent during his tenure at Richmond Heights Junior High School. He testified that during the fall of 1976, while the Respondent was serving as a surplus teacher, he had a conversation with Lonnie Coleman regarding the Respondent. He had been approached by the United Teachers of Dade to accept a position which he ultimately accepted around October 13, 1976. He testified that Coleman told him "Bennie, I've got a problem, they want me to take Ralphu (Respondent) in another teacher's place, who had recently resigned (Diana Hunt). I don't want the man. I am going to do everything I can to get rid of him if they make me take him." Pollock responded "We have a contract; it's not a buffet table. There are ways of doing things." He testified that Coleman indicated to him that "We might have to clash on this", whereupon Mr. Pollock replied "Make sure you've got yourself right and do it because if, you know, I'll go by the contract 100 percent." The Respondent expressed his opinion that he was not an administrator but was, rather, a teacher, a profession which motivates him. He recalled that one instructor, Diana Hunt, also had no teaching plans. He testified that, initially, he conducts an orientation in his class to determine the category in which students should be placed. He prefers individual assignments for each student, as opposed to the "core" system, wherein all students are taught around the "core". While he agreed that students are permitted to come in class a certain way, for example, wearing jeans, sneakers, etc., he wanted students to come to school looking and smelling clean before he could teach them. He also indicated that he wanted three or four instructional level texts for each student, whereas the county only gave one book to each student. He expressed his opinion that this thwarted growth and did nothing to stimulate students to read. He expressed the belief that he was being singled out because he was called in without exception to report his lateness. He recalled only one instance in which he was "tied up" and, therefore, called in late. He testified that during school year 1976-77, while assigned teaching duties, he was absent approximately four days. Respondent voiced the opinion that there was no difference in the emergency lesson plan submitted by him as compared to that of instructor Gilliard, who is also an instructor at Richmond Heights Junior High School (Respondent's Exhibit Nos. 2 and 3). Respondent was evaluated by Mr. Coleman for the school year 1975-76, at which time he received an average score of 3.8 out of a possible 5.0. See Respondent's Exhibit No. 1). Based upon the evidence adduced herein, including the conflicting testimony of the various witnesses, I find that there is sufficient substantial and competent evidence to conclude that the Respondent, on numerous occasions, failed to follow established guidelines and, therefore, ran afoul of the dictates of Chapters 232.27 and 231.09(2), (3), (4), and (6), Florida Statutes. Additionally, by striking the student with the desk, he ran afoul of Chapter 232.27, Florida Statutes, respecting corporal punishment, and he failed to follow Chapter 231.28, Florida Statutes, by his failure to follow State Board of Education Rules contained in Chapter 6B-5, which are entitled "Standards for Competent Professional Performance". Numerous witnesses testified that the Respondent was asleep in his classroom on various occasions. Chapter 231.28, Florida Statutes, provides that an educator's certificate may be revoked or suspended on several different grounds. The evidence here reveals that the Respondent repeatedly refused to follow written directives from administrators regarding corporal punishment, the filing of lesson plans, his use of abusive language during his classroom instruction, the use of threatening language to other instructors and/or administrators, and the striking of another student, apparently innocent, with a desk, and his eviction of students from his classroom constitute conduct from which sanctions should flow based on the department's rules. It is true that almost all of the student witnesses who testified indicated that their reading level had improved under the Respondent's instructions. They all consistently testified that he used abusive and profane language during class time and fell asleep during class periods. I have also considered the Respondent's contention that he is a victim of a disparity of treatment in that other teachers file similar lesson plans without criticism by administrators. However, in proving a case of disparity, it must be shown that other instructors were permitted to file plans and that they were not counselled and failed to take other corrective steps to remedy the stated deficiencies. In this regard, no such showing has been made and, therefore, the proof falls short. I shall, therefore, recommend that the Respondent be found guilty of unprofessional and unethical acts and conduct based upon testimony which revealed that he pushed and hit a student in an effort to evict a student from his classroom in violation of Subsection 232.27, Florida Statutes, and 6B5.07.1 and (4) of the Rules of the Board of Education. I shall further recommend that the Respondent be found guilty of using abusive, inappropriate, profane and threatening language, as set forth in detail above, in violation of Chapter 239.09(2), (3), (4) and (6), Florida Statutes, based on conduct set forth in detail above. In consideration of the Respondent's total dedication to the teaching profession and his educational pursuits, I shall only recommend that his teacher's certificate be suspended for a period of two years.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, I hereby recommend: That the Respondent's teacher's certificate be suspended for a period of two years. DONE and ENTERED this 22nd day of August, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 E. College Avenue Tallahassee, Florida Elizabeth J. DuFresne, Esquire 1809 Brickell Ave., Ste. 208 Miami, Florida Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32304 Tom Benton Professional Practices Council 319 West Madison Street Tallahassee, Florida
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
