The Issue The issue is whether Respondent properly considered prior teaching experience when calculating an appropriate salary for Petitioners.
Findings Of Fact All Petitioners were employed by the Board as full-time Florida certified public school teachers under a series of successive annual contracts. The Board operates under a Collective Bargaining Agreement known as the "Master Contract." The Master Contract includes, among other things, a salary schedule that is the result of negotiations with the Escambia Educational Association (EEA), the collective bargaining agent that represents teachers. A negotiated salary schedule is then recommended by the superintendent of Escambia County Schools pursuant to Subsection 1012.27(2), Florida Statutes (2007), to the Board for approval and adoption. The salary schedule adopted by the Board governs the compensation payable to instructional personnel. The salary schedule includes "steps" with corresponding "salary." Placement on the salary schedule step depends, in part, upon prior teaching experience. Generally, more prior teaching experience credited for placement on the schedule results in a higher level of compensation. All Petitioners received an annual instructional contract under the authority of Subsection 231.36(3), Florida Statutes, or later, Subsection 1012.33(3), Florida Statutes. Petitioners' annual instructional contracts set forth the contract salary on an annual basis payable through 12 monthly installments. The contracts specify the number of days to be worked and the daily rate of compensation. The Board's standard form contract provides that "[t]his annual contract shall be deemed amended to comply with all laws, all lawful rules of the State Board of Education, all lawful rules and actions of the School Board and all terms of an applicable ratified collective-bargaining agreement." All Petitioners performed the agreed-upon instructional services and, individually, were paid the agreed-upon contractual amount, as provided in the "Master Contract 1999-2002" or "Master Contract 2004-2007," as appropriate. This included the amount paid for years of service or "steps" as provided in the Master Contracts. Petitioners Davis, Elleard, Lanier, Malone, Outzen, and Taylor, however, protested the steps they were assigned. As shall be addressed below, the Master Contract allowance for steps was less than that required by Florida law subsequent to July 1, 2001. Petitioners' annual instructional contracts specify the salary paid through 12 monthly installments with a daily rate of compensation identified. The amount of compensation can be further broken down into an hourly rate based upon 7.5 hours per day, and provides for annual leave and sick leave. As is customary, if the employee takes leave and has no accrued leave balance, her pay will be reduced to compensate for the hours of leave without pay taken. The Board maintains ledgers with all the compensation information for its employees, including Petitioners. Petitioner Margaret Benson has been employed by the Board as a full-time public school teacher since August of 2002. Prior to her employment with the Board, Ms. Benson was a full-time public school teacher in New Jersey and Tennessee for 17 years. For each of those 17 years, Ms. Benson received satisfactory performance evaluations. Upon being hired by the Board, Ms. Benson was given credit for 15 of the 17 years of her prior teaching experience. Ms. Benson has requested that the Board recognize each of her 17 years of teaching service. In March or April 2007, the Board recognized one additional year of Ms. Benson's experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to whether Ms. Benson requested recognition of her entire teaching service, prior to the filing of this lawsuit. Petitioner Reba Davis was employed by the Board as a full-time public school teacher for the 2003-2004 and 2004-2005 school years. Prior to her employment with the Board, Ms. Davis was a full-time public school teacher in Florida, Oklahoma, Alabama, and Kentucky for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Davis received satisfactory performance evaluations. Upon being hired by the Board, Ms. Davis was given credit for all but five years of her prior teaching experience. Ms. Davis has requested that the Board recognize each of her 25 years of teaching service. The Board has denied the request for the period of 2003-2005 school years. Ms. Davis retired from teaching in 2005, but is not using the five years of teaching credit toward her retirement benefit, which was earned outside the State of Florida. At the time she began her service with the Board Ms. Davis made inquiry with Mary Helen Fryman of the Board's Human Resources Office as to why she was not given credit for all of her prior experience. She was informed by Ms. Fryman that the matter was, "Still under negotiation and that she knew I would be given . . . my experience for my years in Florida." She made additional inquiries of the teachers union and the Board and was told that, "They were still in the bargaining stages and they were still not clear." Petitioner Deborah Elleard has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Elleard was a full-time public school teacher in Alabama for 29 years. For each of those 29 years as a full-time public school teacher, Ms. Elleard received satisfactory performance evaluations. Ms. Elleard retired from the State of Alabama and when hired by the Board, Ms. Elleard was not given credit for her 29 years of prior teaching experience. Ms. Elleard has requested that the Board recognize each of her 29 years of teaching service. In March or April 2007, the Board recognized her 29 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2003 through May 31, 2006. When Ms. Elleard was hired she made inquiry as to why she was not receiving credit for her 29 years of teaching service. She was informed then and several times thereafter that the Board was working on the matter and that it would be resolved. Petitioner Deborah Gregory was employed by the Board as a full-time public school teacher beginning August 2002 until her resignation following the conclusion of the 2005-2006 school year. Prior to her employment with the Board during the relevant time, Ms. Gregory was a full-time public school teacher in Alabama, Escambia County, and Orange County for 16 years. For each of those 16 years as a full-time public school teacher, Ms. Gregory received satisfactory performance evaluations. Upon being hired by the Board in 2002, Ms. Gregory was given credit for 15 of her 16 years of prior teaching experience. Ms. Gregory has requested that the Board recognize each of her 16 years of teaching service. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to when or if Ms. Gregory requested recognition of her entire teaching service. Petitioner Ida Lanier has been employed by the Board as a full-time public school teacher since August 2001. Prior to her employment with the Board, Ms. Lanier was a full-time public school teacher in Alabama for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Lanier received satisfactory performance evaluations. Ms. Lanier retired from the State of Alabama, and upon being hired by the Board, Ms. Lanier was denied credit for her 25 years of prior teaching experience. Ms. Lanier has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Lanier's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. When she was hired, Ms. Lanier inquired as to why she did not get credit for prior service and she was told it was because she was retired from another state. She was informed that the collective bargaining agreement prevented the credit but that the situation might change. She continued over time to make inquiry to both her union and the Board. Petitioner Phyllis Malone has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Malone was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Malone received satisfactory performance evaluations. Ms. Malone retired from the State of Alabama and upon being hired by the Board, Ms. Malone was given credit for 15 of her 25 years of prior teaching experience. Ms. Malone requested that the Board recognize each of her 25 years of teaching service. In August 2006, the Board recognized each of her 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Malone had conversations with the Board's Human Resources Office and wrote a letter to Dr. Scott of the Board and talked to Judy Fung of the Board, inquiring as to why she was not receiving credit for past experience. During the time she taught, she continued to make inquiries. Petitioner Vicki Outzen has been employed by the Board as a full-time public school teacher since August 2002. Prior to her employment with the Board, Ms. Outzen was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Outzen received satisfactory performance evaluations. Ms. Outzen retired from the State of Alabama and upon being hired by the Board, Ms. Outzen was not given credit for her 25 years of prior teaching experience. Ms. Outzen has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Outzen's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Outzen made inquiries of the Board at the time she was hired and continuously during her employment with regard to the Board's refusal to give her the requested credit. She was informed that negotiations with the union were in progress and that she should continue to "check back" with the Board. She continually checked back with Ms. Fryman, Director of Human Resources at the Board, and was told in a letter that because she was retired from another state she must start teaching at step zero. Petitioner Janet Taylor has been employed by the Board as a full-time public school teacher since September 11, 2002. Prior to her employment with the Board, Ms. Taylor was a full-time public school teacher in Alabama for 30 years. For each of those 30 years, Ms. Taylor received satisfactory performance evaluations. Ms. Taylor retired from the State of Alabama and upon being hired by the Board, Ms. Taylor was not given credit for her 30 years of prior teaching experience. Ms. Taylor has requested that the Board recognize each of her 30 years of teaching service. Respondent has failed to recognize any of Ms. Taylor's prior years of teaching experience. The Board led Ms. Taylor to believe that she would be notified by the Board when she would be eligible to receive credit for prior teaching experience. For the years Petitioners are seeking credit, those years were not earned under the Florida Retirement System (FRS) as codified in Chapter 121, Florida Statutes (2007). If the Petitioners had been paid as they assert, the Board would be required to pay Petitioners as follows: Margaret Benson for an additional step for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Reba Davis for five steps for school years 2003-2004 and 2004-2005. This amount totals $11,423. Deborah Elleard for 29 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $52,895. Deborah Gregory for one step for school years 2002- 2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Ida Lanier for 25 steps for school years 2001-2002, 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $83,561. Phyllis Malone for 10 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $28,692. Vicki Outzen for 26 steps for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $66,338. Janet Taylor for 30 steps for school years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. This amount totals $101,427.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board recalculate Petitioners' salary as of April 2, 2005, so that their salaries reflect the amount each should have earned if Petitioners had been given credit for each year of full-time public school teaching service earned in the State of Florida or outside the state, and pay them that amount. It is further recommended that Petitioners receive pay at all future times as provided by Subsection 1012.33(3)(g), Florida Statutes (2007), and this Recommended Order. It is further recommended that the Escambia County School Board remit to Petitioners a reasonable attorney's fee. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 H. B. Stivers, Esquire Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
Findings Of Fact The hearing officer's findings of fact are hereby approved and adopted. There is competent, substantial evidence to support the the hearing officer's findings of fact. Petitioner takes his vacation between school board meetings or by asking the school board to be excused from attending said meetings. No leave time is actually used for such absences. (Petitioner's Exhibit O) Prior to 1979 the Division had not determined Cooney was an employee being paid from a regular salaries account who was eligible for FRS membership. His actual position and employment status was not questioned until 1980. Following an extensive review of Cooney's position, which had not changed since 1965, the Division determined Cooney was not eligible for FRS membership because he was not filling a regularly, established position. The 1979 rule changes defined "regularly established position", but did not redefine employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Richard W. Cooney eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 6th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1984.
Findings Of Fact Petitioner John T. Barnes is currently employed by Santa Rosa County in the capacity of Veterans Service Officer. At some undisclosed date, apparently in 1985, Petitioner submitted a request to Respondent that he be permitted to "purchase" a period of employment with the Santa Rosa County School Board from 1939-1941 as creditable service under the Florida Retirement System (testimony of Petitioner, Hearing Officer Exhibit 2). In his petition, Petitioner claims that he worked as a full time employee as a janitor at the Chumuckla High School from July 1, 1939 to June 30, 1941. He was a student at the school during this period, but would have been unable to return in the fall of 1939 since his father died and it was necessary for him to work to support the family. With the janitorial job, Petitioner was able to attend school while performing his janitorial duties before and after regular school hours, plus weekends. He testified that his salary was $30 per month, which was paid by check that he received from the Superintendent each month. Petitioner performed his duties under the supervision of the school principal. Petitioner is unsure as to whether or not he had a written agreement with the Superintendent. Both the Superintendent and Principal at that time are now deceased. Petitioner was the first janitor to be employed at the Chumuckla High School (testimony of Petitioner, Petitioner's Exhibit 1). In order to establish his claim of prior service, Petitioner requested that the School Board of Santa Rosa County search the School Board's records concerning his employment from 1939-1941. Pursuant to this request, the School Board Personnel Officer, Gertrude E. Wolfe, searched the School Board records for the period in question, but was unable to find any mention of Petitioner. However, subsequent to that search, a copy of the minutes of a regular meeting of the Board of Public Instruction of Santa Rosa County on June 3, 1941 was discovered. It stated that the sum of $7.50 was paid to Petitioner for an unstated purpose and was simply characterized as a "bill." Petitioner submitted the affidavits of his sister, Clara B. Lloyd, who had been a teacher at the Chumuckla School during the period of June 1, 1939 to May 31, 1941 and therein certified that Petitioner had served as a janitor at the school during that period and had received a salary of $30 per month from the Santa Rosa County, Florida school system. Another affidavit to like effect was submitted by a "student and co-worker," Jack D. Jernigan, to the same effect, except that it showed the period as July 1, 1939 to June 30, 1941. Another affidavit from Mrs. A. L. Gillman, who was a teacher and assistant principal at the school during the time in question, certified also that Petitioner had been employed by the School Board during that period at a salary of $30 a month (testimony of Barnes, Wolfe, Petitioner's Exhibits 1- 2). By letter, dated February 27, 1987, the Respondent's State Retirement Director denied Petitioner's request for retirement service credit on the basis that he had been a temporary student employee during 1939-41 and did not therefore meet the definition of a regularly established position, and thus the service was not creditable and could not be purchased under the Florida Retirement System. The letter noted, however, that Respondent had received a letter from the Superintendent of Schools, presumably of Santa Rosa County, which stated "We have researched our records for the employment of John T. Barnes for the school terms of 1939-40 and 1940-41 as janitor for the Chumuckla High School and failed again to find such employment for him. We feel that it is possible that Mr. Barnes was paid by the Principal with School Funds or General Funds which each school had funds of this type. If he were paid in this manner, the County office would have no record to substantiate his salary or employment." (Hearing Officer's Exhibit 2) Based on the foregoing uncontroverted evidence, it is found that the Petitioner did in fact perform janitorial duties for the Santa Rosa School Board during the period July 1, 1939 to June 30, 1941, at a salary of $30 a month.
The Issue The issues are whether Respondent violated Section 231.2615, Florida Statutes (2000), and Rule 6B-1.006, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 711503, covering the areas of elementary education, varying exceptionalities, and pre-kindergarten handicapped. Respondent's certificate was valid at all times material to this proceeding. Respondent began teaching in 1995. There have been no complaints against Respondent prior to the allegations in this case. Over the years, Respondent has attempted to help students over and beyond her classroom duties. On at least two occasions, she temporarily has taken students into her home in time of need. Flagler County School Board employed Respondent as an exceptional student education (ESE) teacher at Flagler Palm Coast High School (FPC) in the Flagler County School District during the 2000-2001 school year. That school term was her first year on the faculty at FPC. J.E. was a 17 year-old male student who attended FPC during the 2000-2001 school year. J.E. was classified as an 11th-grade ESE student because he suffered from attention deficit disorder. J.E. also worked as a part-time firefighter with the Flagler Beach Fire Department. J.E.'s employment as a firefighter was sponsored by the Boy Scouts of America Explorer Program. At some point during the month of October 2000, J.E. transferred into Respondent's math class. Initially, J.E. was unable to make a passing grade in math due to his learning disability. J.E.'s academic problems were aggravated by several in-school and out-of-school disciplinary suspensions, which caused him to miss class. Toward the end of November or the beginning of December 2000, J.E. was arrested for fighting with his sister. He was in the custody of the juvenile authorities for several days before being placed on juvenile home detention. When J.E. returned to school, Respondent contacted J.E.'s mother, D.B. Respondent requested permission to tutor J.E. after school to help him make up missed assignments. After receiving the approval of the juvenile authority staff, D.B. agreed that Respondent could tutor J.E. Respondent and D.B. agreed that, after each tutoring session, Respondent would transport J.E. to the place where D.B. was employed. Respondent then informed the assistant principal that she would be assisting J.E. after school in her classroom. The tutoring sessions began on December 12, 2000, and lasted for almost two weeks. The sessions terminated when FPC recessed for the holidays. During the tutoring sessions, Respondent and J.E. spent time working on J.E.'s math assignments. However, as time passed, they progressively spent more time discussing personal issues. These conversations included discussions regarding J.E.'s problems and history of abuse, as well as the physical abuse that Respondent experienced during her marriage to her ex-husband. Respondent revealed that she had been molested as a child, a fact that Respondent had shared only with her long-term boyfriend, her sister, and her closest friends. Respondent told J.E. about her two children and her relationship with her boyfriend. At times, Respondent spoke negatively about her boyfriend, referring to him as an "asshole." Respondent and J.E.'s student-teacher relationship became more personal as they spent more time together. J.E. began visiting Respondent during her planning period, during which they would discuss personal issues. Occasionally, J.E. would visit Respondent during her science class even though he was scheduled to be in another class. The personal conversations continued during the time that J.E. waited in Respondent's car for his mother at the school bus compound, sometimes for 20 to 30 minutes. Prior to one tutoring session, Respondent allowed J.E. to ride with her to a fast-food restaurant. She then took J.E. by the fire station before returning to the school. Respondent did not have anyone's permission to transport J.E. off campus. Sometime before the holiday break, J.E. told Respondent that he liked the music of a certain rap artist. The last day of school before the holiday break, Respondent gave J.E. a gift bag containing a compact disk (CD) of the artist's music. The gift bags that Respondent presented to other students contained only cookies and trinkets. On the afternoon of December 27 or 28, 2000, J.E. invited Respondent to visit the fire station with her children, a 9-year-old son and an 11-year-old daughter. Respondent and her children spent approximately one hour at the station while J.E. showed them the facility and firefighting equipment. Next, J.E. told Assistant Fire Chief Shane Wood (Chief Wood), that he was going to a nearby park with Respondent and her children. He advised Chief Wood that he would return to the station if it received a call. J.E. rode to the park in Respondent's vehicle. Francis Abramczyk, another student firefighter and J.E.'s friend, rode a bike to the park at J.E.'s request. When the group arrived at the park, Respondent asked Mr. Abramczyk to watch her children so she and J.E. could talk in a nearby gazebo. About 45 minutes after Respondent and J.E. left to go to the park, Chief Wood got off from work. Chief Wood then rode his motorcycle to his parent's house near the park. Chief Wood visited his parents for 10-15 minutes before riding his motorcycle to the park where he spoke briefly to J.E. Respondent and J.E. were sitting in the gazebo when Chief Wood came by on his motorcycle Once in the gazebo, Respondent and J.E. spent at least 30 minutes talking about Respondent's recent trip to North Carolina, among other things. During this time, Respondent and J.E. sat side-by-side. At one point in time, Mr. Abramczyk saw Respondent's hand resting on J.E.'s hand, which was resting on his leg. Respondent jerked her hand back when she made eye contact with Mr. Abramczyk, who was retrieving a ball from the far side of the gazebo. While sitting in the gazebo, Respondent asked J.E. if he was willing to baby-sit for her that evening while she went out with a girlfriend. Respondent told J.E. that she would not be returning home until late and suggested that he spend the night at her residence. J.E. did not think his mother would approve of Respondent's suggestion. In the meantime, Mr. Abramczyk decided to walk to a nearby store to get some ice cream. Respondent's son tagged along with Mr. Abramczyk. When Mr. Abramczyk returned to the park, Respondent and J.E. were sitting in Respondent's vehicle. While J.E. was sitting in Respondent's vehicle, two or three girls came to the park in a car. One of the girls was J.E.'s former girlfriend. At first J.E. did not want the girls to see him, but eventually he got out of Respondent's vehicle and talked to Mr. Abramczyk and the girls. During this conversation, J.E. was teased about hanging out with his teacher. Mr. Abramczyk rode the bike back to the fire station after this conversation. At approximately 5:00 p.m., J.E., Respondent, and Respondent's children went back to the fire station. J.E. then called his mother to ask permission to baby-sit for Respondent. D.B. told him that he could baby-sit. In a later conversation between Respondent and D.B., Respondent stated that she would not be home that evening until approximately 2:00 a.m. Respondent asked D.B. if J.E. could spend the night at her residence. D.B. responded negatively, telling Respondent to take J.E. home or to the fire station where there was adult supervision at all times. After leaving the fire station, J.E. rode with Respondent and her children to a convenience store where Respondent purchased soft drinks and snacks for her children. She also purchased several wine coolers for herself. At approximately 6:00 p.m., Respondent, her children, and J.E. arrived at Respondent's residence. J.E. changed out of his work uniform before walking to a nearby beach with Respondent and her children. The children played on the beach and in the clubhouse area while Respondent talked to J.E. During this time, Respondent consumed one of her wine coolers. J.E., Respondent, and her children returned to Respondent's home after spending about an hour at the beach. Next, Respondent prepared dinner for J.E. and her children. She then got dressed to go out while J.E. played video games with the kids in the living room. The evidence is not clear and convincing that Respondent walked out of her bedroom into the living room wearing only a skirt and bra during this time. Between 8:00 and 9:00 p.m. Respondent left her residence to meet her girlfriend, taking her wine coolers with her. The girlfriend was not at home, so after waiting for a while, Respondent returned to her home between 9:30 and 10:30 p.m. The evidence is not clear and convincing that Respondent was heavily intoxicated when she returned. Respondent's long-term boyfriend was spending time that evening with one of his male friends. The boyfriend usually stayed with Respondent but decided that evening to stay at his separate residence in St. Augustine, Florida, because he had consumed some beer and did not want to risk driving back to Respondent's residence. However, Respondent did not know that the boyfriend would not come to her house later that evening. When Respondent returned to her residence, her children were asleep and J.E. did not want to go home. Without checking with J.E.'s mother, Respondent decided to let J.E. stay. J.E. listened to music in Respondent's bedroom while she straightened up the house and did the laundry. Respondent took time to talk to J.E. and to listen to some music with him. Sometime during the evening, Respondent spoke to her boyfriend on the telephone. During this call, Respondent learned for the first time that her boyfriend probably would not be returning to her home that night. Respondent talked to her boyfriend a second time that night from her garage. When she went back into the house, J.E. pretended to be asleep but when Respondent approached him, he sat up and appeared to have been crying. Respondent assumed that J.E. was upset because he was jealous of her boyfriend. The evidence is not clear and convincing that Respondent provided J.E. with alcohol or engaged in inappropriate sexual conduct with him while he was in her home. However, Respondent admitted during the hearing that J.E. might have consumed beer kept in her refrigerator while she was gone because she found one beer can in her closet weeks later. At approximately 2:00 a.m., Respondent drove J.E. to the fire station. The lights were off in the station. After waiting a few minutes to see if any of the adult firemen were going to return to the fire station, Respondent drove J.E. home, arriving there between 2:30 and 3:00 a.m. On the way to J.E.'s house, Respondent made J.E. promise not to tell anyone that he baby-sat at her residence. She paid J.E. $20 for baby-sitting. When J.E. got home, his mother was asleep on the couch. D.B. woke up as J.E. entered the house. She did not smell any alcohol on him or see any signs of intoxication. Respondent went with her children to the fire station two days later on December 29, 2000. The purpose of the visit was to return one of J.E.'s CDs that he had left at her house. Respondent visited with J.E. for about 15 minutes. During the visit on December 29, 2000, J.E. appeared upset. He told Respondent that he was worried because a man from his past was about to be released from jail. He also stated that he had been fighting with his mother. J.E. told Respondent that he was afraid the fire chief would not like him having visitors. He wanted Respondent to leave, telling her that he would talk to her later. By the end of December, Respondent knew that the other students were teasing J.E. about their close relationship and that he was embarrassed about the situation. J.E. and Respondent had agreed that they would not continue with the after-school tutoring and that they would not socialize at school or at the fire station. Despite this agreement, Respondent returned to the fire station on December 31, 2000. The purpose of the visit was to give J.E. a six-page handwritten letter that included references to Respondent's personal experiences. Several of J.E.'s friends from FPC were at the fire station when Respondent arrived. When J.E.'s friends told him that Respondent was in the lobby area, he told them he did not want to see her and hid in a back room in an effort to avoid her. Two of J.E.'s friends then told Respondent that J.E. was not at the fire station. Respondent started to leave when she realized that her son, who had been waiting in the car, had probably gone into the fire station through the open bay doors. Respondent then went into the station through the bay doors to look for her son. Upon entering the bay, Respondent noticed that J.E. was at work. Instead of asking about her son, Respondent approached J.E. holding the letter. As Respondent walked toward J.E., his friends began to tease him again. J.E. was visibly upset and demanded to know what Respondent was doing at the station. Respondent knew or should have known that she was giving the other students reason to pick on J.E. J.E. was angry and embarrassed by Respondent's presence. He told Respondent to come back later just to hasten her departure. He shredded the letter as soon as she left the station. Notwithstanding J.E.'s extreme displeasure during Respondent's visit, Respondent returned to the fire station later that day about 5:00 p.m. J.E. was not there when Respondent arrived. At that time, Chief Wood told Respondent that J.E. was gone and that she needed to stop visiting him at the station because it did not look right for her to be there "hanging all over J.E." The relationship between J.E. and Respondent dropped off beginning in early January 2001. Shortly after the holidays, J.E. became angry with Respondent. He told her to go screw her boyfriend. Respondent just ignored this comment. On another day during the first week of January, J.E. attempted to leave Respondent's class on a pretext that he was required to go to the school attendance office. J.E. became angry when Respondent would not let him leave the classroom. A short time later, during the same class period, two of J.E.'s friends walked by and looked into the classroom through the window in the door. J.E. noticed his friends, went to the door to speak with them, and asked them to help get him out of class. Respondent again refused to let him leave, causing him to be even more angry. Respondent told J.E. that if he left the class without permission, she would write him up. He then said, "You're gonna write me up? Well, I could do something about that." The first semester ended on January 8, 2001. Although J.E. was failing math in early December, he received a grade of B in Respondent's class for the semester. He then transferred to another teacher's math class for the second semester. After the transfer, J.E.'s grades began to decline again. The other students continued to tease J.E. about Respondent. On or about January 19, 2001, a rumor surfaced that Respondent was pregnant with J.E.'s child. Respondent first learned about the rumor during her science class. The class discussion involved the harmful effect of fumes from spray bottles on the environment and humans. Someone in the class stated that fumes could harm a fetus like Respondent's fetus. Another student said, "Oh, I wonder who the father is." A third student responded, "Oh, it's J.E." The class then began laughing. Respondent made no effort to report the incident to FPC's administrators. Instead, on a day when Respondent was extremely depressed and disillusioned with her career, and when she was feeling "emotionally cheated" and/or "manipulated" by J.E., Respondent wrote J.E. an e-mail message that states as follows: Hi I hope your Term 2 classes are going well so far, and life in general. I heard you're in Mr. Krenichen's class for Algebra now. If you need any help or need a place to escape to you know where to go. I still have 3rd period planning, except for lunch duty 3rd lunch. Even if you still are or stay mad at me forever, I'm still rooting for you to make it. I hope you're staying out of trouble. Well, I just wanted to say hi. I was thinking about you and my kids have been asking about you too. They think you're so cool! Yeah, I guess you're all right most of the time. Ha Ha. I miss you. I miss you talking to me every day most of all. Well, see you around. K. p.s. I also wanted to thank you for keeping your word. Means a lot. Gives me a little bit of hope the whole thing wasn't a lie all along. That helps even if that's all I'll ever have. Well, there's other things I need to talk to you about but don't want to say in an e-mail, so will just let you go now. Bye. Respondent's statement in the e-mail that she hoped J.E. was not still mad at her referred to her refusal to let J.E. leave class. She thanked him for keeping his word about not dropping out of school, not telling anyone that he baby-sat at her home, and not revealing her personal confidences. The e-mail was not specifically romantic in nature but clearly and convincingly evidences an inappropriate personal relationship between Respondent and J.E. After receiving this e-mail, J.E. asked Chief Wood to help him draft a reply that would break off his relationship with Respondent. Chief Wood declined to help but told J.E. he would proofread the message after J.E. wrote it. After reading the e-mail, Chief Wood decided that J.E. had adequately communicated his message to Respondent and did not make any changes. On or about January 24, 2001, a fellow student told J.E. that Respondent had said she was pregnant with J.E.'s child. J.E. became frightened by the false rumor. That same day, J.E. lied to his mother, stating that Respondent had given him alcohol and that, while he was in an intoxicated state, Respondent had forced him to have sexual intercourse on the night that he visited her home. D.B. immediately contacted the sheriff's office. On January 26, 2001, the principal of FPC confronted Respondent with J.E.'s allegations regarding the alcohol and sexual misconduct. During this conversation, Respondent stated that she wished she had never had J.E. baby-sit in her home. She admitted that her relationship with J.E. was inappropriate. Respondent immediately drafted and submitted her resignation effective February 6, 2001, the day of the next scheduled school board meeting. Following Respondent's resignation, J.E. continued to endure severe teasing at the hands of his classmates. Some students referred to J.E. as a "teacher fucker." Understandably, such comments caused J.E. a great deal of stress. J.E. eventually dropped out of FPC and entered the adult education program, where he admitted to one student that he did not have sex with Respondent. He told the student that he wished he could take it all back. Respondent is now employed in a real estate office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That EPE enter a final order suspending Respondent's certificate for two years followed by five years of probation. DONE AND ENTERED this 2nd day of September, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 2nd day of September, 2003. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Matthew K. Foster, Esquire Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated section 1012.795(1)(d) or (1)(f), Florida Statutes (2019), and, if so, what penalty should be imposed.1 1 Unless otherwise noted, all references to the Florida Statutes herein are to the 2019 version, which was in effect when the actions alleged in the Administrative Complaint took place.
Findings Of Fact Petitioner is the chief educational officer of the state, who recommends members for appointment to the Education Practices Commission—the statewide commission with the authority to discipline Florida educators. See §§ 1001.10(1), 1012.79(1), and 1012.795(1), Fla. Stat. (2021). Respondent, Calvin Chin, holds State of Florida Educator’s Certificate 737639, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2026. Respondent has served as an educator for 27 years, primarily with the Marion County School District (“District”). He was first employed by the District as a math teacher at Dunnellon High School (“Dunnellon”) in 1994, where he continued for 12 years. Respondent was promoted to dean of students at Dunnellon in 2002 and served in that capacity through 2012. During that time-frame, Respondent was also a part-time math instructor at a local community college. Respondent served as dean of students for College Park Elementary School from 2012 through 2016, when he returned to Dunnellon to continue teaching math for college readiness and dual enrollment math for students enrolled for college-level credit math instruction. Respondent also had a 19-year career with the U.S. Marine Corps. He originally enlisted in 1978 after graduating from high school, then joined the Marine Reserves while he pursued his college education. Respondent graduated from the University of Florida in 1983 and became a commissioned officer through the Reserve Officer Training Corps (“ROTC”) program in December of that year. Respondent served in the Marine Corps through 1994. In 1996, Respondent established the Young Marines at Dunnellon, a program similar to ROTC that teaches discipline and military structure to youth. Respondent is passionate about teaching and shaping the lives of young people. Respondent has never had any disciplinary action taken against his license or against him by either the District or any school at which he has taught. Relationship with Joanne Mandic Respondent and Joanne Mandic are not married, but have been in a relationship for 19 years. Respondent and Ms. Mandic have lived together as a couple for over 18 years. The couple has one child together, C.C., who lives with her parents. C.C. was 13 years old and home-schooled by Ms. Mandic at all times relevant hereto. Ms. Mandic has another child, Nyasha Mandic-Mandaza, from a prior relationship. Ms. Mandic-Mandaza was 22 years old at all times relevant hereto. She does not live with her mother and Respondent; however, on the date of the incident, Ms. Mandic-Mandaza was staying at their home. October 25, 2019, Incident On Friday, October 25, 2019, Respondent came home from Dunnellon and prepared himself an alcoholic drink. At some point during the evening, he asked Ms. Mandic what she was preparing for dinner and she responded that she was too tired to cook. Respondent became upset that Ms. Mandic was not preparing dinner. By this time, Respondent had consumed several alcoholic drinks, and he and Ms. Mandic got into a verbal altercation about dinner. During the verbal altercation, Respondent came out of his bedroom holding his handgun. He said to Ms. Mandic, “Don’t piss me off. I am a Marine and I know how to shoot,” or similar words. Respondent “racked” the gun, which made a distinctive sound audible to Ms. Mandic. Afterward, Respondent returned to his bedroom. Ms. Mandic is familiar with the gun and familiar with Respondent’s habit of storing the gun and ammunition separately. According to Ms. Mandic, the gun was unloaded when Respondent brought it out of the bedroom. Ms. Mandic testified that she knew the gun was unloaded and that she was not in fear of Respondent. Ms. Mandic testified that this incident was not indicative of her relationship with Respondent and that he has never been violent toward either her or the children. She further testified that there has been no similar incident since that date. C.C. was home in her bedroom and heard, but did not see, the altercation between her parents. No evidence was introduced regarding C.C.’s reaction to the incident or its effect on her. Ms. Mandic-Mandaza both heard and saw the altercation between Respondent and her mother. Ms. Mandic-Mandaza had come to the house after work and was preparing to leave for the evening, when she stepped into the hallway in response to the verbal altercation. She saw Respondent walking down the hallway with his handgun. Ms. Mandic-Mandaza was in fear as Respondent appeared to be approaching her in the hallway; however, Respondent passed by her and moved towards her mother, who was in the kitchen. Ms. Mandic-Mandaza retreated to a bedroom where she called the police to report the incident, then left the house shortly thereafter. Respondent’s Arrest In response to the 911 call, Marion County Deputy Sheriffs Joseph Diaz and Christopher White, as well as Sergeant Moore, were dispatched to the Chin home. Both Respondent and Ms. Mandic were interviewed by the officers. During his interview with the officers, Respondent was forthcoming about his actions. He demonstrated to the officers how he held and racked the gun, and repeated the statements he made as he held the gun. Ms. Mandic downplayed the incident when she was interviewed, describing Respondent’s actions as simply “showing us his handgun.” Deputy White also contacted Ms. Mandic-Mandaza via telephone and interviewed her, as well as meeting with her to take her statement. She was reticent to discuss the incident with Deputy White and expressed that she did not want to get Respondent in trouble. Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the Commission of a Felony, and was incarcerated from October 25 to November 2, 2019. On November 21, 2019, the State Attorney for the Fifth Judicial Circuit filed an “Announcement of No Information” on the allegation of Use of a Firearm During the Commission of a Felony and charged Respondent solely with Aggravated Assault with a Deadly Weapon (without Intent to Kill). On March 11, 2020, Respondent plead nolo contendere to the lesser charge of Improper Exhibition of a Firearm, which is a misdemeanor defined in section 790.10, Florida Statutes, and adjudication was withheld. Respondent received credit for eight days served, was placed on a year of probation, assessed court and prosecution costs of $350, and was required to submit to random alcohol screens at least two times per month during probation. Subsequent Events Following his incarceration, Respondent voluntarily participated in mental health counseling and alcohol evaluation. Respondent testified that he “talked about drinking” with the counselor. Respondent further testified that, since the incident, he has “not been drunk like that.” The District placed Respondent on administrative leave with pay through December 2020. Respondent was placed on administrative leave without pay in December 2020, but returned to teach at Dunnellon in March 2021 just before spring break. Following spring break, due to the COVID-19 pandemic, the school moved classes to an online format and Respondent continued teaching in that format throughout the remainder of the 2020-2021 school year. Respondent remains employed by the District and is currently teaching at Dunnellon. Neither Dunnellon nor the District imposed any disciplinary action against Respondent due to the incident and his subsequent arrest. Respondent testified that neither any student nor any fellow teacher has questioned him or made any remark about the incident or his arrest. Petitioner introduced no evidence of any press coverage or community concern regarding the incident. Character Witnesses Stephen Ayers is the director of student assignment and school choice for the District. Mr. Ayers has worked in various educational capacities with the District for 27 years, including as a math teacher, dean, assistant principal, principal, and coordinator for the District. Mr. Ayers met Respondent in 1994 when they were both pursuing their graduate degrees. Mr. Ayers later worked at Dunnellon as assistant principal, then principal, while Respondent served as dean of students. In those capacities, Mr. Ayers was Respondent’s supervisor at Dunnellon. Mr. Ayers described Respondent as “an exemplary dean” and “a mentor with … youngsters.” Mr. Ayers was aware of Respondent’s October 25, 2019 arrest and “the basis and reason for that arrest.” Mr. Ayers testified that he has no doubt Respondent can continue to perform his duties effectively and does not consider Respondent’s effectiveness in the community to be diminished by that arrest. Bobby James retired from the District in 2018 after serving the District for 47 years as a teacher, coach, principal, school board member, and school board chairman for three terms. Mr. James was the principal at Dunnellon in 1994 and hired Respondent as a math teacher. Mr. James remained principal for 12 years and moved Respondent into the dean of student’s position. Mr. James initiated the Young Marines program at Dunnellon and chose Respondent as the first instructor in the program. After leaving Dunnellon for a position with the school board, Dunnellon remained a school in which Mr. James, as a school board member, exercised oversight authority. Mr. James frequently visited Dunnellon and met Respondent and administrative leaders there. Mr. James described Respondent’s performance as an educator and leader of young people as “exceptional,” especially in working with youth who have difficult life challenges. Mr. James was familiar with Respondent’s arrest and “had heard” that a firearm was involved in the October 25, 2019 incident. He was not aware of the specific statements alleged to have been made by Respondent to Ms. Mandic. During cross-examination, Mr. James admitted that, if Respondent had said, “Don’t piss me off, I have a gun and I know how to use it,” that would not be appropriate conduct for an educator, or for that matter, “for any person.” However, Mr. James testified that, given his 25 years of experience with Respondent in service to the District, even knowing the specifics of the incident, he believes Respondent can remain an effective educator. Mr. James testified that Respondent’s character with students and District employees is proven, and indicated that, if he were in a position to do so, Mr. James would rehire Respondent. Ryan Malloy met Respondent through the Young Marines program in middle school when Respondent was the commanding officer of the program (for both high school and middle school). Mr. Malloy left the Young Marines program before high school but has maintained a mentoring relationship with Respondent through his recent graduation from the University of Florida. Respondent taught Mr. Malloy the game of golf and the two play golf regularly. Mr. Malloy testified that Respondent has served as a constant mentor in his life; that when he is really struggling with something, he talks to Respondent. He related that Respondent encourages him to consider both sides of a situation and avoid quick judgments. Mr. Malloy was generally familiar with Respondent’s arrest and the circumstances surrounding the arrest. Mr. Malloy testified that Respondent’s effectiveness as a mentor has not been diminished by the incident. He testified that Respondent has helped him acknowledge his own mistakes and learn from them. Mr. Malloy stated that Respondent taught Mr. Malloy that true character is built by taking ownership of one’s mistakes and using them for self-improvement. Mr. Malloy believes that is an important trait for all teachers to be effective role models. Linda Malloy, Mr. Malloy’s mother, retired from the District in May 2019, was a fellow teacher with Respondent at Dunnellon for 24 years, and second in command of the Young Marines with Respondent for 10 years. She described Respondent as strict, honest, and fair. She admired his ability to reach students through Young Marines and help them turn their lives around when they were headed “down the wrong path.” Ms. Malloy was familiar with Respondent’s arrest and the fact that a gun was involved in the October 25, 2019 incident. Ms. Malloy testified that Respondent can remain an effective educator because she “believe[s] in his core values.” She trusted him with her own child and still would to this day. Ms. Malloy has not heard anyone in the education community suggest that Respondent should not continue to teach. Sharon Lambert has taught at Dunnellon for 22 years and currently teaches business technology and serves as the teachers’ union representative. Respondent was in charge of the Young Marines when Ms. Lambert began teaching at Dunnellon. Her impressions of Respondent as an educator are that he cares about his students, wants to help them succeed, and “would do anything to help them learn what he’s supposed to teach.” Ms. Lambert was familiar with Respondent’s arrest. She testified that the incident has not had any negative affect on his ability to teach his students. To her knowledge, since Respondent returned to the classroom, there has been “no talk amongst the students or the teachers” concerning the incident or Respondent’s ability to teach. Respondent also introduced a letter from Jay Easom, who served as president of the Dunnellon School Advisory Council (“SAC”) from 2007-2010 and is familiar with Respondent in that capacity, as well personal conversations with him. The letter relates as follows: I am writing on behalf of “Captain Chin.” I am acquainted with him for more than ten (10) years. I’ve had the opportunity to know him in his capacity of leadership at our local high school as well as our personal conversations detailing his desire to be responsible to his family. He always plans well and stands firmly in his commitment to reach his personal goals for the benefit of his family. I can’t tell you how surprised I was when [Respondent] shared with me the events of October 25, 2019 that resulted in him being charged. I instantly detected his regret and disappointment. The idea of [Respondent] bringing harm to anyone escapes my consideration especially in the handling of a firearm. My children attended and graduated from [Dunnellon]. I know [Respondent] in this period during my participation as president of the [SAC] from 2007-10. I learned more about [Respondent] when as a part of our meetings, he introduced proud young men and women to share their outlook for the future that had joined Young Marines. He provided a path of personal development for them and I am sure that his peers will tell you that his hard work, dedication, and friends in the community supported the program because of his commitment. I expect that [Respondent] has a plan to be sure that there will never again be such an event in his life as this. I hope that you may have the opportunity to give him further consideration as his employer, students, peers, and friends have over a very difficult year and a half. Thank you. Respondent also introduced the following letter from Jeffery Daniel Ratliff: To whom it may concern, Captain Calvin Chin has been, and still is, one of my largest influences throughout my life. I still remember the very first time I met him, and that was over 20 years ago. It was my first day in a new school, an entirely new state, at [Dunnellon]. While waiting with my parents in the front office to get registered for classes, in walks this Marine wearing freshly starched cammies with flickering silver and gold on his uniform, and it was at that moment that I decided to become a Marine. Over my high school career Captain Chin shaped and guided me in a way that only a true leader can. When my temper or overzealousness got the best of me, he did not hesitate to punish me but always ensured that a lesson was learned. When I was unable to understand the mathematic teachings of Mr. Gaitanis’ overeducated ramblings, Captain Chin would break it down simply for me and insist that I already knew how to do it. And he was right! When I left for Marine Corps bootcamp, he gave me some last-minute advice, but insisted that I would do fine … as long as I didn’t ask too many questions. He was right about that too. When I got back from Iraq and needed another Marine to vent to about what I saw, he was there for me. He wasn’t judgmental at all. After the Young Marines program was removed from the high school, he chose to keep it active and open it up for all ages from 8 to eighteen. He even encouraged me to come volunteer after I had gotten out of the Marines. I did not have the patience or understanding to deal with such young children at the time, but Captain Chin did. Even though I have two loving parents who are still together, and love me very much, I still refer to Captain Chin as my Adopted Asian Dad. I have seen this man motivate, influence and inspire so many young minds over the years that I lose count. As Dean at the high school, the kids who he had to punish still respected him and find him years later to tell him that they are doing so much better now, because he showed them respect first. It is impossible to fit everything that Captain Chin has done to help me, influence me on one page. Just know that this is one of the most selfless human beings I have ever met, that has committed his entire life to serving and helping others, and will continue to do so until he is no longer physically able. Respondent also introduced his final evaluation from the District for the 2020-2021 school year on which he received the rating of “Effective” on all four instructional practice domains in which he was assessed. Respondent became emotional during his testimony at the final hearing. Petitioner introduced, and played for the undersigned, body-camera footage from the responding officers on October 25, 2019. Respondent was ashamed and remorseful of his behavior on the night of the incident. Respondent was dismayed by his own behavior and it obviously pained him to watch the video footage.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526
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 violated section 1012.795(1)(f), but, based on the Findings of Fact herein, including substantial factors in mitigation, take no action against Respondent’s certificate. DONE AND ENTERED this 29th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's employment should be terminated, as recommended by the then-Interim Superintendent of Schools, and, if not, whether Respondent (who has been suspended without pay pending the outcome of this dismissal proceeding) should be reinstated with "back salary."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, including the stipulations of the parties, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida, including Plantation Middle School (Plantation). Jean Jones is now, and has been since the beginning of the 1998-99 school year, the principal of Plantation. The 1998- 99 school year was her first as a principal of any school. She had served as an assistant principal for seven years before becoming Plantation's principal. Thomas Fegers is now, and has been since 1993, an assistant principal at Plantation. Milton Roseburr is now, and has been since August of 1995, an assistant principal at Plantation. At all times material to the instant case, Carol Mendelson has been an assistant principal at Plantation. Respondent is a veteran educator. He has been teaching since 1964. Respondent has been employed by the School Board as a teacher since 1975. He holds a continuing contract of employment, which provides, in pertinent part, as follows: The Teacher agrees to teach the full period of service for which this contract is made, in no event be absent from duty without leave or to leave his position without first being released from this contract by the School Board, to observe and to enforce faithfully the laws, rules regulations, and policies lawfully prescribed by legally constituted school authorities insofar as such laws, rules, regulations, and policies are applicable to the position held by him. The Teacher agrees that the last salary payment in each academic year may be withheld upon proper notice to the Teacher as to the reasons for said withholding if all duties have not been performed as required by law and regulations of the School Board and the State Board of Education. The services to be performed hereunder shall begin on the beginning date shown above [August 23, 1978] and thereafter as determined by the School Board and are to be performed in the position and school as assigned from time to time by the said School Board. . . . 8. This continuing contract of employment shall remain in full force and effect from year to year, subject to all the provisions herein set forth, unless modified by mutual consent in writing by the Parties hereto, except the teacher may be suspended or removed for cause as provided by law. The Teacher agrees that he may not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Teacher be entitled to any compensation subsequent to the cancellation of this contract. This contract may also be terminated by the written resignation of the Teacher submitted not later than four (4) weeks before the close of the post-school conference period, to take effect at the end of the school year. Such resignation shall be submitted in substantially the form hereto attached described as Exhibit A, and by reference made a part hereof. . . . Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions hereof, unless prevented from so doing by reason of personal illness of the Teacher or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice and, if timely requested by the Teacher, hearing. The contract shall at all times be subject to any and all laws and all lawful rules and regulations, and policies of the State Board of Education and the School Board now existing or hereafter enacted. . . . 14. This contract may be changed or modified only by an amendment in writing executed in the same fashion as the original or by a collective bargaining agreement ratified by the School Board and bargaining agent. No person, officer or employee may modify the provisions of this agreement or make any other contract with the Teacher for and on behalf of the School Board without expressed ratification by the School Board. Provided, however, in accordance with paragraph two hereof both parties agree that this contract shall be modified by the adoption of a subsequent salary schedule as provided in paragraph two and that adoption of such amended salary schedule by the School Board shall constitute expressed ratification. At all times material to the instant case, Respondent was a classroom teacher at Plantation. For the three school years immediately preceding Ms. Jones' arrival at Plantation (the 1995-96, 1996-97, and 1997-98 school years), Respondent was supervised and evaluated by Mr. Roseburr. During this period of time, Respondent had an extremely difficult and challenging teaching assignment. He taught a "self-contained" class of sixth, seventh, and eight grade "drop out prevention" students. "Drop out prevention" students generally struggle academically, lack motivation and focus, have short attention spans, are easily distracted, come to class ill-prepared, do not complete all of their classwork, and are unruly and disruptive in class. Respondent and these "problem" students remained together in the same classroom the majority of the school day, with Respondent providing the students with instruction in all of their academic subjects. Because conventional teaching and behavior management methods did not always work with these students, Respondent needed to be creative and innovative to effectively discharge his classroom duties. Mr. Roseburr was in Respondent's classroom on a daily basis during the three-year period he supervised Respondent. Impressed with Respondent's performance and his "unique knack of knowing what to say and how to say it to students that are difficult," Mr. Roseburr gave Respondent satisfactory evaluations each of the three school years Respondent was under his supervision. The first quarter of the 1998-99 school year, Respondent had the same teaching assignment he had had the previous three school years, notwithstanding his expressed desire to have his assignment changed. In or around September of 1998, Respondent spoke with Ms. Jones about the possibility of having a parent volunteer (Sybil Moton) assist him in the classroom. Shortly after his discussion with Ms. Jones, Respondent sent her the following letter, dated September 14, 1998: I have been assigned to teach 6th, 7th & 8th grade self-contained D.O.P. for several years. I have been doing this at a great disadvantage. There are many Teachers, Team Leader and Department Heads, at this school who would not accept this assignment or be successful with it. I have accepted this assignment and I'm ready to do the best job I can under the circumstances. I have to plan for three grade levels, while other teachers only plan for one. I have to prepare for five subjects, while other teachers only prepare for one. I have five subject area meetings to attend, while other teachers only have one. I have not read any research that support[s] the notion that a teacher, who has as many duties and responsibilities as have been placed upon me, will be more successful or as successful as a teacher, who teaches one subject area or one grade level. Does the research indicate that children placed in this kind of class situation, will be more successful than in the traditional class situation? Is it possible that the children might be at a disadvantage? Each of the previous times when I requested an assistant, I was denied. It was all about money. Now when I ask a parent to help "FOR FREE," I'm told, "I don't think I'll be able to approve Ms. Moton as a parent volunteer." All I'm saying is that, now that I have been loaded down with all of the above, where is the help that goes with it? As of now, I feel that I have been placed in a situation that is headed for failure, and that's not me. I want to be successful at whatever I do, that's why I keep asking for help. These children need so much help, and I want to help them very badly. My difficulty comes from the situation I've been placed in, more so tha[n] the children I work with. After receiving the letter, Ms. Jones circled the last sentence of the fourth paragraph of the letter, and, on the upper right hand corner of the letter, wrote the following concerning the representation made by Respondent in this sentence: This is blatantly untrue. If you quote people, make sure you quote them correctly. See me please. She then returned the letter (with her handwritten notations on it) to Respondent. Respondent thereafter, as directed, met with Ms. Jones, who cautioned him that he could not "just . . . go out and recruit parents to work in [his] classroom and not have them approved by the School Board." Mr. Roseburr, although he remained an assistant principal at Plantation, did not supervise Respondent during the 1998-99 school year. Respondent's new supervisor was another assistant principal at the school, Carol Mendelson. On October 7, 1998, Ms. Mendelson conducted a classroom observation of Respondent. Following the observation, she sent Respondent the following memorandum, dated October 12, 1998: OBSERVATIONS During my observation of your class, you were introducing personal narratives to your students. You explained the concept of the first draft and the idea that students would choose their own topic for this assignment. Students were walking around the classroom, talking, drawing, had heads down on the desk without consequences from you. A review of your planbook indicates that plans for the day do not coincide with the lesson being taught by you. SUGGESTIONS Please consider the following recommendations to better assist the students: Setting clear, precise, classroom management rules that are reviewed daily with students will help enforce the rules. Consequences must be fair and consistent. Students were walking around the classroom, talking, drawing, had heads down without consequences from you. It is imperative that you establish and implement specific behavioral and procedural expectations, rules, and consequences in order to stop inappropriate behavior before it becomes more serious. Develop plans which match the curriculum you are addressing on each given day. Please make sure that your grade/planbook is in compliance with School Board policy and includes grades, entry dates, transfer dates, absences, interim grades, ESOL strategies, Standards of Service, and all mandated, pertinent information. Please meet me on Monday, October 22 during your planning period with your grade/planbook up- to-date with the abovementioned information. At the end of the first quarter of the 1998-99 school year, in approximately the first week of November of 1998, Respondent was given a new teaching assignment at Plantation, as well as a new classroom (an uncarpeted portable, smaller than his old classroom). He was assigned to a team consisting of four teachers (including himself) responsible for teaching approximately 120 students divided into four separate groups (Groups A through D), one of which (Group D) contained the students who had been in the "self-contained" class of "drop out prevention" students that Respondent had taught during the first quarter of the school year. Although only one of the four groups had students who were in the school's "drop out prevention" program, many of the students in the other three groups were as difficult for the teachers on the team to deal with as were the "drop out prevention" students. Respondent was the team's math and advanced communication skills teacher. The leader of Respondent's team was Ronald Jackson, the team's social studies teacher. Like Respondent, Mr. Jackson joined the team in November of the school year. In addition to Respondent and Mr. Jackson, there was also a language arts teacher, as well as a science teacher, on the team. On November 19, 1998, shortly after he had undertaken his new assignment, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum describing what she had observed during the observation: This letter is being written to inform you that on this date, I came to your classroom on two different occasions and found the following: Students not on task (talking, 1/ no materials) Students out of their seats and/or being permitted to sit wherever they wished with no management from you and no consequences for non-compliance. 2/ Your plan book was not updated by November 13 as requested. You have been asked to rectify this situation by Friday, November 20. Your plan book reflected no attendance or grades for students. 3/ Your lesson plans are not written appropriately, do not reflect the Sunshine State Standards, and do not reflect acceptable practice for lesson plans as discussed with all teachers during the pre- planning days. Your back is turned to students during your lesson 4/ and you are not aware or monitoring what is happening in your classroom while you are instructing. There is very little instructional organization and no classroom participation from the students. There is no indication that you are doing the daily FCAT warm-ups required for all math students in the school. There is no FCAT folder required for each student to use on a daily basis. Ms. Jones again observed Respondent in the classroom on Tuesday, December 1, 1998, during first period. Respondent had been off from work the previous five days (Thursday, November 27, 1998, Thanksgiving Day, through Monday, November 30, 1998). Upon his arrival at school that morning, before entering his classroom, he was called into an unscheduled student services meeting. Because of the length of the meeting, he arrived at his classroom a "couple [of] minutes" after the first period bell had rung. When he opened the classroom door, he noticed that "the fire extinguisher had been sprayed all over the room." With the students' assistance, he cleaned up as best he could and then started his lesson. When Ms. Jones entered the room, Respondent was in the back of the room taking attendance. The students were "out of control." They had no books and there was no assignment on the blackboard. Following the observation, Ms. Jones sent Respondent the following memorandum, dated December 1, 1998, describing what she had observed during the observation: On this date I visited you classroom and observed the following: It was 9:00 a.m. and the students were totally out of control. There was no assignment on the board, students had no books. You were in the back of the room finishing your attendance, oblivious to what was going on around you. There were absolutely no reprimands from you for their behavior. In fact, it was I who had to quiet the class down. The class was so loud and unruly, that you did not even hear Ms. Milligan call you over the loudspeaker. I also had to inform you that someone was calling you over the public address system. Although your plan book appears to be updated, you were not following the plans as outlined. In fact, no FCAT warm up was on the board, no books were in use and absolutely nothing in terms of teaching and learning was occurring. This was one half hour after class had started. After I quieted the class down, you proceeded to give out paperwork to students apparently to review it. You handed out papers one by one to students who began to be unruly again. At 10:00 a.m. I visited your classroom again, because I wanted to speak with Mr. Roseburr who was outside your door. However, when I went inside the classroom, there was still no work on the board for students, although books were on the desks. Students were talking and looking around and not on task because there was no task to be on. When I questioned what the students were doing, you explained that you had papers to return and that you[] were going to review their work. Once again, you passed out papers one by one, taking away from instructional time and giving students opportunity to misbehave. 5/ It is apparent to me that there is a lack of classroom management in terms of student behavior, and a greater lack of lesson management since there are no clear expectations for students and no method for simple housekeeping chores as attendance and returning papers. You are oblivious to their behavior 6/ and provide no consequences. Most obvious, is the lack of meaningful work for students. There was none provided. Given those circumstances, students will find an easy opportunity to misbehave. Should these conditions, including delivering lessons as outlined in your plan book, not improve immediately, you will be placed in documentation for unsatisfactory performance. On December 7, 1998, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated December 16, 1998, in which he described and commented on what he had observed during the observation: On Monday, December 7, 1998 I observed you teaching your class from 9:15-9:45 A. M. Based upon my observation the following are suggestions/comments for your consideration. I found the classroom to be orderly; however, your students were talking loudly as you attempted to teach by talking louder. The class continued talking out loud with no consequence or redirection by you. While the entire class was being disruptive you gave one check to a student for talking, even though the entire class was talking. Never once did you get the class under control and, for some unknown reasons, you continued talking with no one listening. Please be advised that this is unacceptable. It does not make sense to try to shout louder than your class. You must first bring the class under control by confronting the misbehavior. This did not occur. Your attendance was neatly done, listing tardies and absences. Grades were virtually non-existent, and the few that were there did not have names to identify who they belong to. Grades must be clearly recorded next to the appropriate student's name. 7/ Lesson plans from 11/9/98-11/30/98 were incomplete. There were no warm up activities. Additionally, you identified the 504 student's strategies as they were to "do 1/2 of the assignment." The strategies need to be based on the student's needs as they related[] to the written 504 plan. 8/ ESOL strategies written were, "Students may sign out a book if requested." This is unacceptable. Please let me know if I can be of further assistance. On December 17, 1998, Respondent received a memorandum from Ms. Jones notifying him that his "performance [was] unsatisfactory and that [he was being] placed in the Documentation process of the IPAS System effective December 17, 1998." In the memorandum, Ms. Jones explained that she was "moving [Respondent] from Development to Documentation" because of her "concern" regarding his performance in the areas of "lesson presentation," "classroom management," and "behavior management." The memorandum further advised Respondent that "the 1997 Florida Legislature [had] amended Florida Statu[t]e 231.29 [to] state[] that the School District shall place a teacher on performance probation for 90 calendar days from the receipt of this notice of unsatisfactory performance." Respondent signed the memorandum and dated it (December 17, 1998), acknowledging his receipt of the document. "IPAS" is the acronym for the School Board's "Instructional Personnel Assessment System." Under "IPAS," "lesson presentation," "classroom management," and "behavior management" are three of the ten "performance areas" in which instructional personnel are evaluated. The other seven are "instructional planning," "lesson management," "student performance evaluation," "communication," "records management," "subject matter knowledge," and "professional competencies." 9/ Ratings of either "S" (satisfactory), "N" (needs improvement), or "U" (unsatisfactory) are given in each "performance area." With input from Respondent and Gary Itzkowitz, a Broward Teachers Union field staff representative, Ms. Jones, Mr. Fegers, and Dr. Cathy Kirk, the School Board's coordinator of teacher evaluation, developed Performance Development Plans for Respondent in the "performance areas" of "lesson presentation," "behavior management," and "classroom management." Each plan was dated January 7, 1999, and indicated that Mr. Fegers would be the "assessor" and that the "follow- up/review date" was March 5, 1999. The "lesson presentation" Performance Development Plan read as follows: Identified Deficiencies Fails to create interest through the use of materials and techniques appropriate to the varying abilities and backgrounds of students (6B-5.004). Fails to use different types of questions to obtain desired learner responses. Fails to ask questions which are clear and requires students to reflect before responding. Fails to circulate about the room as students engage in seatwork and assist students as needed. Strategies for Improvement, Corrections, and Assistance Ms. Greifinger [the chairperson of Plantation's math department] will meet and discuss various motivational teaching techniques such as (a) Use of visual aids, manipulatives, and critical thinking activities, etc. by January 14, 1999. Ms. Cranshaw will assist with scripting questions related to the content during lesson planning 2-3 weeks in a row by January 29, 1999. Mr. Jones will observe Ms. Greifinger focusing on questioning techniques and follow-up by discussing implementation in classroom during his planning time by January 22, 1999. Mr. Jones will read the FPMS Domain document (domain 3) on circulating and assisting and discuss with Mr. Fegers. Follow-up assistance will be provided by Mr. Fegers and/or Mrs. Jones via observation and follow-up conferencing. Expected Outcomes and Timeline Teacher Will: Create interest through use of material and techniques appropriate to the varying abilities and backgrounds of students (6B- 5.004) by April 13, 1999. Use different types of questions to obtain desired learner responses by April 13, 1999. Ask questions which are clear and require students to reflect before responding by April 13, 1999. Circulate about the room as students engage in seatwork and assist students as needed by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "behavior management" Performance Development Plan read as follows: Identified Deficiencies Fails to maintain consistency in the application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction (6B-5.007). -Fails to demonstrate an awareness of what all students are doing. Strategies for Improvement, Corrections, and Assistance Mr. Jones will observe Ms. Greifinger's class to witness her technique in behavior management. Discussion to follow by January 21, 1999. Mr. Jones will observe Mr. Lyons' class to witness his techniques in behavior management by January 28, 1999. Discussion with Mr. Fegers and Mr. Lyons to follow. Mr. Jones will observe Mr. Watkins' class to witness his techniques in behavior management by January 28, 1999. Mr. Jones will receive assistance from Ms. Mendelson, Mr. Fegers, Mr. Roseburr and selected teacher(s) to develop a behavior management plan including rules, rewards and including consequences by January 14, 1999. Mr. Jones will develop a phone log system which will indicate conversations, conferences with parents, specific student infractions, and disposition of all of the above with the assistance of Ms. Mendelson by January 21, 1999. Mr. Fegers will observe classroom to help identify inappropriate behaviors and follow-up with discussion to include appropriate ways to desist inappropriate behavior by January 28, 1999. Expected Outcomes and Timeline Maintain consistency in the application of policy and practice. Establish routines and procedures for the use of materials and the physical movement of students by April 13, 1999. Formulate appropriate standards for student behavior by April 13, 1999. Identify inappropriate behavior and employ appropriate techniques for correction (6B-5.007) by April 13, 1999. Demonstrate an awareness of what all students are doing by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "classroom management" Performance Development Plan read as follows: Identified Deficiencies Fails to create and maintain an organized and pleasant working environment in the classroom. Fails to encourage students to participate and contribute to class activities. Fails to establish an environment conducive to positive peer interaction. Fails to identify individual social, emotional and/or physical needs that might affect school success. Strategies for Improvement, Corrections, and Assistance Mr. Watkins will assist in the setting-up and organizing of the classroom to include aesthetically appealing academic and social environment by January 14, 1999. Ms. Greifinger will discuss different student activities that will foster participation and interaction 2-3 times by February 11, 1999. Should a 504 student be assigned to your team, Ms. Hogan will review 504 plans and discuss ways to modify curriculum and implement in classroom (Date to be determined). Expected Outcomes and Timeline Create and maintain an organized and pleasant working environment in the classroom by April 13, 1999. Encourage students to participate and contribute to class activities by April 13, 1999. Establish an environment conducive to positive peer interaction by April 13, 1999. Identify individual social, emotional and/or physical needs that might affect school success by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "[s]trategies" set forth in the Performance Development Plans were reasonably designed to enable Respondent to improve his performance in the areas of "lesson presentation," "classroom management," and "behavior management." These "[s]trategies" were implemented. Those at the school asked to assist Respondent provided him the requested assistance (with Respondent's cooperation). 10/ On January 27, 1999, Respondent was observed in the classroom by Mr. Fegers. On February 1, 1999, Mr. Fegers and Ms. Jones met with Respondent to discuss Mr. Feger's January 27, 1999, observation. In addition, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during the observation: This is a follow up to our conference on Monday, February 1, 1999. On Monday, February 1, 1999, we met to discuss my observation of your teaching that occurred on Thursday, January 27, 1999 from 1:38-2:13 P.M. Ms. Jeanie Jones, our Principal, was also present at the follow up conference. Based on my observation we discussed the following suggestions/comments for your consideration: All students were seated when I arrived. Your rules were not posted. 11/ You were working on F-CAT testing exercises. At 1:55 A.M. I observed eight students not doing any work. I stated my concerns that the students should not be given 30 minutes to do an assignment without you following up to see if they are on task. I recommend that additional assignments be given so that students do not sit and do nothing. The class is becoming increasingly noisy with no redirection from you. This is unacceptable. Finally, you stated to the class, "Alright people listen up!" Nothing followed that comment so the class continued talking. The talking continued because of down time, with students having nothing to do. You then started passing out papers one- by-one to students randomly which took a great deal of time. By this time most of the class was off task. This is unacceptable. Varied instructional activities as well as pacing of assignments would eliminate the majority of the misbehavior. This did not occur. We agreed that I would come back this week for another observation. Mr. Fegers next observed Respondent in the classroom on February 5, 1999. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during his February 5, 1999, observation: On Friday, February 5, 1999, I observed you teaching your class from 8:50-9:20 A.M. Based on my observation are the following suggestions/comments for your consideration. I found the classroom to be orderly with all students seated at t[]he beginning of my observation. You reviewed the rules and expectations with your class. Your rules were also posted. One student was seated with a washcloth on top of his head. He was not asked to remove it. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. I observed you passing out six writing assignments to students for talking. I observed you circulating and assisting students on division, simplifying fractions and multiplication. I observed you redirecting inappropriate behavior back to the assignment. Some students were requesting pencils at 9:15. Please make sure all students have something to write with at the beginning of the class. This should also be part of your discipline plan, that students come to class with paper and pencil prepared to work. Please let me know if I can be of further assistance. Respondent provided Mr. Fegers with the following written response to Mr. Feger's memorandum concerning the February 5, 1999, observation: #1. Thanks for the positive observation. #2. Yes this is true. I will follow your suggestion. #3. Thanks for the positive observation. #4. Thanks for the positive observation. #5. I have tried your suggestion, it doesn't work. They don't care and they don't want to work. That's why they don't come prepared. On February 17, 1999, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum, dated February 17, 1999, regarding her "observation [of] February 17, 1999." It read as follows: On this date I observed your C group in a math class. You were teaching least common denominators for fractions and had several examples on the board. Students came into the room noisily and it took about 7 minutes to get them quieted down and settled for work. You reminded them of the behavior rules. Some students were unprepared for work and had no notebook paper or pencils. Although there were stated consequences for students who misbehaved, there were no consequences for unprepared students. At the beginning of the lesson, you had a student hand out SAT review packets to each student and told them it was due on Friday and that the packet would be their homework for the next two days. You said that anybody could help them with the answers. I am questioning why you would give such a large body of work to these students and then ask them to complete it on their own. These students would benefit far better from you working out each problem with them, and/or allowing them to work in cooperative groups on a small number of problems at a time. This assignment is a concern to me, because I feel that it is a frustrating assignment to these students. Additionally, and most importantly, this is review for the SAT and they need your direct instruction and supervision. They will give up on this assignment because it is too much for them to "bite off" at one time. Students need to be taught to their instructional level, not their frustration level. Again, I feel that teacher directed instruction and cooperative learning activities would be more successful with these students, especially for the SAT review which is critical. I did not feel the answers to the examples should have already been up on the board; however, you did go over each problem thoroughly and had the students figure out how you arrived at the answer. You stopped disruptive behavior and gave two writing assignments out to disruptive students. You helped them learn how to use their calculators properly. You got students to raise their hands for answers and had students contributing to the lesson. You told the students you were going to give them examples of similar math problems to work out themselves, but the four problems you gave them were not exactly the same as the examples i.e., you did not provide a problem with mixed numbers. I see that you are making an effort to work with your students and that you are preparing lessons for them. Your classroom discipline appears to be improving, but still needs some work as students are still coming unprepared for classwork. Please continue to pay attention to the needs of your students, particularly when it comes to assignments that you request they do on their own. On March 3, 1999, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated March 5, 1999, in which he described and commented on what he had observed during the observation: On Wednesday, March 3, 1999, I observed you teaching your class from 1:35-2:05 P.M. Based on my observation the following are suggestions/comments for your consideration: The students were extremely noisy. You were seated on a stool in the front corner of the room. 12/ You were not redirecting student misbehavior. No attempt to stop the misbehavior occurred. I did not observe you reviewing the rules and expectations that students were to follow. I strongly recommend that you follow the discipline plan as [you] indicated you would. You had three math problems on the overhead for students to do. One of which was the following, "5 is what % of 20?" The students were confused with not only this problem but also the other two. You went over the problem, but not step by step so that the students could follow along. They were confused. It would have been much more beneficial if the exercise or problems were broken down into simpler forms so that your class could understand. You did not take into consideration the appropriate levels or activities of classwork that meet the students' needs. Also the directions should have been clear, brief, and explicit for student understanding. This did not occur. 13/ Two students were reading a magazine, 14/ five were sleeping (literally), right under your nose, one was working with your attendance sheet while class was supposedly going on. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. Additionally, I question why a student was working with a confidential document. 15/ I observed an atmosphere of animosity within the class, as evidenced by your voice inflection and you telling several students to shut up. You also asked me to speak to a student who you claimed had a beeper. I removed the student after the observation was finished and escorted him to the office. The student did not have a beeper. You accused the wrong student. You had claimed that the beeper went off in class, which it may have, but it was not the fault of the young man you requested I remove. Based on the observation done to date your performance in the areas identified in your Performance Development Plan are unsatisfactory. Ms. Jones, on March 5, 1999, filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." That same day, she and Mr. Fegers met with Respondent and Mr. Itzkowitz to discuss this "mid-point evaluation," which Ms. Jones showed to Respondent during the meeting. Respondent was advised that he ”needed to utilize appropriate instructional techniques to engage his students, encourage his students to participate and contribute to class activities, demonstrate an awareness of what his students are doing and stop all inappropriate behavior before it spreads or becomes more serious." In addition, he was reminded that "the 90th day [of his probationary period] was April 13 per Florida Statutes 231.29 and the documentation process of the IPAS system." Pursuant to a request made by Mr. Itzkowitz, on Respondent's behalf, at the "mid point evaluation" meeting, the following additional "strategy" was added, effective March 5, 1999, to the "Strategies for Improvement, Corrections, and Assistance" portion of the "lesson presentation" Performance Development Plan: Mr. Fegers, Ms. Greifinger and Mr. Jones will meet to plan a lesson, modeled by Ms. Greifinger and implemented by Jones & observed by Fegers by 3/17/99. On or about March 17, 1999, in accordance with the "model[ing]" requirement added to the "lesson presentation" Performance Development Plan, Ms. Greifinger, in Respondent's presence, taught a lesson to Respondent's students. Mr. Fegers was present for approximately five to ten minutes of the lesson. During the lesson the students behaved, by and large, as they did when Respondent was teaching them. There were students off task and walking around the classroom to whom Ms. Greifinger "had to speak." Respondent noticed that there was one student who had his head on the desk and was listening to a Sony Walkman. Ms. Greifinger said nothing to this student. Mr. Fegers was supposed to observe Respondent teach the lesson that Ms. Greifinger had "modeled." He had initially planned to conduct such an observation the week before spring break, but upon reconsideration (without consulting with Respondent or Mr. Itzkowitz) he determined that, in fairness to Respondent, such an observation should be conducted after spring break. The last school day before spring break was March 26, 1999. Respondent worked that day. It was the last day he reported to work. Sometime after the beginning of spring break, Respondent determined that, because of job-related stress and anxiety (resulting, in part, from his belief that he was being treated unfairly by school administrators), he was not able to perform his assigned duties at Plantation. Accordingly, he did not return to work on April 5, 1999, after the end of spring break, and he remained out of work thereafter. In accordance with School Board policy, each week that he was out (prior to the initiation of disciplinary action against him), he provided advance notice that he would be absent by telephoning "sub- central" and advising of his anticipated absence and the resultant need for the School Board to hire a substitute teacher to teach his classes. On occasion, Respondent also telephoned Ms. Jones' secretary (at the secretary's home) to let the secretary know that he would be absent. Respondent, however, did not initiate any direct contact with Ms. Jones. On or about April 12, 1999, Ms. Jones sent to Respondent, by certified mail, a letter, which read as follows: Please be informed that your 90th day according to Florida Statute 231.29 and as indicated on your Performance Development Plan is April 13. Due to your absenteeism, we were unable to meet for a final evaluation. We will meet in my office on Monday, April 19 at 12:15 P.M. Please call this office as soon as possible to inform us if you will be attending this meeting. Respondent neither telephoned Ms. Jones, nor attended a meeting with her on April 19, 1999. On that date (April 19, 1999), Ms. Jones filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." In Ms. Jones' view, although at certain times during the probationary period Respondent had shown some improvement in his performance, "[t]here was nothing [in the way of improvement] on a consistent basis." At no time, however, did Ms. Jones believe that Respondent's performance was so deficient as to warrant his immediate removal from the classroom. Although Mr. Roseburr was not charged with the responsibility of supervising Respondent, he did have occasion to go to Respondent's classroom and see Respondent interact with his students. During these visits, it appeared to Mr. Roseburr that Respondent was discharging his teaching duties in the same satisfactory manner he had during the three previous school years. Respondent was "always in control and working with the students." Mr. Jackson, the leader of Respondent's team, also had a favorable view of Respondent's performance during the 1998-99 school year. According to Mr. Jackson, Respondent "always showed professionalism, spoke to the students in a positive light, . . . [and] would go out of his way to try to get them interested to do their work," employing "[v]ery creative" tactics to accomplish his objective. Another teacher at the school who had the opportunity to see Respondent perform in the classroom during the 1998-99 school year was Claire Peterson. Ms. Peterson provided special instruction to low performing students in the school's "pull out" program. She had occasion to visit Respondent's classroom about every other day to "pull out" students in the program. During these visits, she noted that Respondent's students "seemed to be on task" and "doing what he asked of them," for the most part, and that "education was taking place." 16/ She thought that Respondent was doing a "great job." On or about April 19, 1999, Ms. Jones began her efforts to make telephone contact with Respondent. Her efforts were unsuccessful. She left messages on Respondent's answering machine asking that he inform her when he intended to return to work. Respondent did not return Ms. Jones' telephone calls. By memorandum dated April 22, 1999, Ms. Jones recommended to Dr. Dorothy Or, the then-Interim Superintendent of Schools, that Respondent's employment be terminated. The memorandum read as follows: Pursuant to Florida Statute 231.29, I am writing to inform you that Eugene Jones, teacher, has completed his 90 calendar day performance probation and has failed to correct his performance deficiencies. I do not believe that Mr. Jones can correct said deficiencies and his employment should be immediately terminated. I have complied with all applicable provisions of Florida Statutes 231.29 and have appropriate documentation (see attached). Please inform me of your final decision in this matter. By letter dated April 30, 1999, Ms. Orr advised Respondent that she was recommending that the School Board formally suspend him, without pay, from his teaching position for "unsatisfactory job performance." On or about May 3, 1999, Mr. Itzkowitz, on behalf of Respondent, sent Ms. Jones the following letter: I have recently spoken with Eugene Jones. As you are aware, Mr. Jones has been ill and is currently under a doctor's care. He has informed me that you have tried to contact him by mail but that he is not in receipt of said correspondences. As a result, on behalf of Mr. Jones I request copies of any letters sent to him by your office in the past ninety days. Upon receipt, I shall forward them to Mr. Jones. Additionally, I request that a meeting be scheduled for the purpose of discussing Mr. Jones' annual assessment for the current school year. Both Mr. Jones and I would like to meet with you. I look forward to hearing from you on each of these matters. The meeting that Mr. Itzkowitz had requested in his May 3, 1999, letter was held in "the middle of May." At the meeting, Ms. Jones did not ask any questions regarding Respondent's absence from school. After seeing a physician about the stress and anxiety he was experiencing, Respondent applied for social security and long-term disability benefits. In applying for long-term disability benefits, Respondent submitted a completed Long Term Disability Claim Employee's Statement form, dated May 14, 1999, to the School Board's carrier, UNUM. The following are questions that were on the form concerning his "disability" and "the condition causing [his] disability" and the entries Respondent made in response to these questions: Why are you unable to work?-- c[h]ronic anxiety state/job stress. Does your current condition prevent you from caring for yourself?-- No. Before you stopped working, did your condition require you to change your job or the way you did your job?-- Yes. I could not perform my job d[ue] to my condition. Is your condition related to your occupation?-- Yes. Last day you worked before the disability-- 3-26-99 Did you work a full day?-- Yes. Date you were first unable to work?-- 4-5- 99. Have you returned to work?-- No. If you have not returned to work, do you expect to-- Yes, if I'm allowed, full time, (date) unknown. As part of the application process, Respondent also had his treating physician, Edwin Hamilton, M.D., complete and submit to UNUM a Long Term Disability Claim Physician's Statement. On the form, dated June 3, 1999, Dr. Hamilton stated, among other things, the following: Respondent's primary diagnosis was "chronic anxiety state"; Respondent's symptoms were "inability to sleep, stress, [and] nervousness"; Respondent's symptoms had first appeared "prior to 4/99"; Respondent had first been unable to work "prior to 4/99"; Respondent's first visit to his office had been April 1, 1999, and his last visit had been April 20, 1999; Respondent's condition was work related 17/ ; Respondent had been referred to a medical social worker and advised to see a psychiatrist 18/ ; Respondent should not and could not "work in the present school classroom environment"; Respondent's prognosis was "guarded at this point"; Respondent had not "achieved maximum medical improvement"; he "expect[ed] fundamental changes in [Respondent's] medical condition" in "more than 6 months"; Respondent "should remain out of the school classroom environment for the time being"; and Respondent "may be able to improve on medical/psychiatric consults." By letter to Ms. Orr, dated May 17, 1999, Mr. Itzkowitz "request[ed] a formal 120 hearing on [Respondent's] behalf." On May 18, 1999, the School Board took action to suspend Respondent, without pay, pending the outcome of the "formal 120 hearing" Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board enter a final order immediately reinstating Respondent and paying him his "back salary." DONE AND ENTERED this 13th day of April, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 13th day of April, 2001.
