Findings Of Fact The Respondent holds Florida Teaching Certificate 297447 covering the area of elementary education. At all times pertinent hereto, the Respondent was employed as an elementary school teacher in the Dade County School District. During the 1983-84 school year, the Respondent was employed as a second grade teacher of Chapter I students at Lillie C. Evans Elementary School. During the 1984-85 school year, the Respondent was again employed at Lillie C. Evans Elementary School as a second grade teacher. In March 1985, Respondent was transferred to Miami Springs Elementary School for the remainder of the school year as a result of an altercation involving an irate parent. During her tenure at Lillie C. Evans Elementary School, Respondent was assigned approximately 16 students in her second grade classes each year. Respondent was assigned a fourth grade class at Miami Springs Elementary School from March through June 1985. The Respondent's class contained approximately 30 students. Respondent was a first year annual contract employee of the Dade County Public Schools during the 1983-84 school year and a second year annual contract employee of the Dade County Public Schools during the 1984-85 school year. Respondent was not reappointed for the 1985-86 school year as an employee of the Dade County Public Schools because she failed to perform at an acceptable level of professional performance at two different schools, under two different administrations, with two different sets of students. The principal of Lillie C. Evans Elementary School, Willie Mae Brown, is a thirty-six year employee of the Dade County School System. Ms. Brown was Respondent's principal during Respondent's employment at Lillie C. Evans Elementary School. Ms. Brown has been trained to observe and evaluate the professional performance of classroom teachers and has observed and evaluated hundreds of teachers in her position as principal. On May 31, 1984, Brown prepared the Respondent's annual evaluation for the 1983-84 school year. She rated Respondent as unacceptable in the category of classroom management and noted in the remarks section of the evaluation that Respondent "should continue participating in workshops that will enable her to acquire techniques in instruction and classroom management." Brown requested that Respondent attend workshops on techniques of instruction and classroom management during the 1983-84 school year and that she observe fellow teachers in the school in order to improve Respondent's performance in the classroom. During the 1984-85 school year, Brown continued to observe serious problems with Respondent's control of student conduct and classroom management. On October 1, 1984, Brown overheard a child screaming loudly in the Respondent's classroom as if the child was in pain. When Brown observed Respondent on October 5, 1984, she noted that Respondent was unable to manage the class, failed to use non-verbal techniques and few verbal techniques to deal with students who were off-task. Brown observed that pupils were moving about and making noise in the classroom. Respondent's lesson plans did not appear to have enough activities to occupy the students' attention. Respondent was provided with "prescription plan" activities and recommended resources for implementation of the prescriptions. Brown provided a time line for improvement of October 29, 1984. On October 24,1984, Brown prepared a log of assistance which had been provided to Respondent. Brown's log noted that on October 1, 1984, Mrs. Mayme Moore, North Central Area Chapter I Resource Teacher, provided special assistance to Respondent concerning control of student conduct. In addition, Brown documented assistance provided to Respondent by Teacher Lena Hoskins; Teacher Sharon Sbrissa; Mr. Mitchell, School Guidance Counselor; Walter Foden, Assistant Principal; and others. As a follow-up to the October 5, 1984 observation, Brown again observed Respondent's classroom performance on October 29, 1984. Brown observed that the Respondent's performance was deficient in preparation and planning and classroom management. Brown observed a large number of children off-task. Respondent still appeared to be unable to manage her students. Again, Respondent failed to provide enough activities to occupy the students for the full class period. Brown noted that two pupils fell asleep during the class. Once again, Brown prescribed plan activities and recommended resources to Respondent with a time line of November 15, 1984. Brown continued to provide Respondent with assistance through the Teacher Education Center and through fellow teachers. On November 21, 1984, Brown found four of Respondent's students creating a disturbance in a bathroom. Upon returning these students to Respondent's classroom, she observed eight or nine of the twelve students in the classroom running around making noise. During the course of the 1984-85 school year, Ms. Brown received three or four written complaints and several additional telephone calls from parents complaining about Respondent's class. The nature of the parental complaints concerned Respondent's lack of control of student conduct in the classroom. On December 10, 1984, a conference for the record was held by Brown with Respondent and her union representative to address parent complaints, the complaint of the primary helping teacher for Respondent, Respondent's performance assessment to date and her employment status. At the conference, Respondent was advised of letters of complaints from parents and peers regarding her classroom management. Respondent was afforded the opportunity to identify a fellow teacher with whom she could confer and observe. Respondent did not indicate a preference for peer assistance. As primary helping teacher, Ms. Scurry complained that Respondent's inability to control students in her classroom was requiring Ms. Scurry's assistance almost every day. Scurry expressed concern to Brown about Respondent's continuous need for assistance with her students which was interfering with Scurry's instruction of her own class. In addition to Scurry, two other teachers, Ms. Drawley and Ms. Bell, made written complaints to Brown concerning the disruption of their respective classes due to excessive noise emanating from Respondent's classroom. At the request of Principal Brown, on November 1, 1984, Respondent prepared a summary of assistance which the Respondent received during the year. Respondent's handwritten narrative discloses that she received assistance from Mrs. Sbrissa, Mrs. Hoskins, Mrs. Moore, Mrs. Knight, Ms. Johnson, Ms. Brown, and Mr. Foden. Brown continued to require that Respondent attend prescriptive in- service courses through the Teacher Education Center in the latter half of the 1984-85 school year. Specifically, Brown requested that Respondent attend courses concerning classroom management and preparation and planning. On February 15, 1985, a joint observation of Respondent's professional classroom performance was conducted by Brown and Mrs. Eneida Hartner, the Area Director for the North Central Area of the Dade County Public Schools. Each observer evaluated Respondent's performance separately. Respondent received advance notice of the observation. The combined evaluations of Brown and Hartner resulted in an overall rating of unacceptable, with specific ratings of unacceptable in the areas of preparation and planning and classroom management. Respondent was once again provided with prescription plan activities, recommended resources with which to implement the activities and a time line for improvement. Both observers noted that Respondent failed to provide sufficient activities for the class period to occupy the students' time for the entire period and, as a result, students were off-task. Respondent failed to motivate her students to be interested in the task at hand and failed to provide appropriate feedback concerning the students' behavior. In March, 1985, Brown again received a memorandum from the Teacher Education Center regarding prescriptive in-service courses for the Respondent. Brown requested that Respondent attend the course on classroom management. Subsequently, on April 15, 1985, Ms. Brown was notified by memorandum that the Respondent had failed to attend the classroom management course prescribed for her. During the 1984-85 school year, many educators from Lillie C. Evans Elementary School and from the school district provided Respondent with assistance at the request of Brown in an effort to remediate Respondent's observed deficiencies. In addition to Principal Brown, Assistant Principal Walter Foden observed and evaluated Respondent's performance. On November 19, 1984, Foden conducted an observation of Respondent's classroom and found her to be deficient in the area of classroom management. In the TADS observation form, Foden identified the areas of deficiency, prescribed plan activities for improvement, indicated recommended resources, and provided a time line for Respondent's improvement. Foden observed that Respondent was unaware of childrens' off-task behavior in the classroom despite the fact that there were only 12 to 13 children in her classroom at the time. Foden recommended six individuals to provide Respondent with assistance, and each of the six did provide assistance to her. Foden also observed Respondent on September 12, 1984. Based upon this observation, Foden concluded that Respondent was deficient in classroom management and in the teacher-student relationship. The students ignored Respondent, would not listen to her and appeared to lack respect for her. In addition, Respondent's instructions were unclear. Foden recommended four resource persons to Respondent. These individuals provided Respondent with the assistance requested. Gwendolyn Bryant, Primary Education Coordinator for the Dade County School System, provided assistance to Respondent at the request of Principal Brown. Bryant met with Respondent in her classroom on December 12, 1984, and on January 9, 1985. Bryant observed that Respondent needed assistance with classroom management and with the implementation of the primary education program. Bryant returned on January 9, 1985, and reviewed the procedures for implementing PREP, RSVP (Reading Systems Very Plain) and TMP (Total Math Program). During her January visit, Bryant found that Respondent had not yet evaluated her students to determine their needs under these programs. The evaluations of the students' individual needs should have been completed at the beginning of the school year. Bryant concluded that Respondent was in need of continuing assistance with classroom organization and management. Margaret Rogers, teacher on special assignment to the Reading Department, provided assistance to Respondent in April 1985 at Miami Springs Elementary School. Rogers reviewed RSVP with Respondent, reviewed the Respondent's grouping of students for reading, provided the Respondent with handouts on teaching a directed reading lesson and classroom management, rearranged the students' desks to comply with fire code and to provide access to the blackboard, and provided Respondent with numerous suggestions on control of student conduct. On the following day, April 2, 1985, Rogers demonstrated a writing lesson for Respondent and provided Respondent with information on RSVP and teaching a directed reading lesson. During her tenure at Miami Springs Elementary School, Respondent received assistance from Helen B. Francis, Assistant Principal. It was Ms. Francis who requested that Mrs. Rogers provide assistance to Respondent. On April 15, 1985, Ms. Francis conducted a formal observation and evaluation of Respondent's classroom performance. Ms. Francis rated Respondent deficient in the categories of preparation and planning, classroom management and techniques of instruction. Francis observed that Respondent failed to control student conduct, resulting in constant disruptions and interference in the reading lesson which she was attempting to conduct at the time. Ms. Francis was in the Respondent's classroom almost on a daily basis because of constant complaints from parents and other teachers. Francis concluded that Respondent was unable to provide her students with appropriate instruction because she could not maintain control of the children's behavior. On March 29, 1985, Principal Margot J. Silverman observed and evaluated Respondent's teaching performance. Based upon that observation, Dr. Silverman rated Respondent deficient in the areas of preparation and planning, classroom management and techniques of instruction. Dr. Silverman provided an intensive description of the observed deficiencies and numerous specific suggestions for improvement. Silverman observed Respondent's performance again on May 13, 1985. Based upon the observation, Dr. Silverman evaluated Respondent's performance to be unacceptable in the categories of preparation and planning, classroom management, techniques of instruction and teacher-student relationships. Again, Dr. Silverman provided a detailed description of the observed deficiencies as well as specific suggestions for improvement. On May 30, 1985, Dr. Silverman prepared Respondent's annual evaluation for the 1984-85 school year. On the evaluation, Silverman rated Respondent's performance as unacceptable in the categories of preparation and planning, classroom management, techniques of instruction and teacher-student relationships. Silverman rated Respondent's overall performance as unacceptable and recommended that she not be re- employed for the following school year. Dr. Patrick Gray, Executive Assistant Superintendent in the Office of Professional Standards for the Dade County Public Schools, testified at formal hearing that in his professional opinion, Respondent has proven to be incompetent as a classroom teacher, by the standards of both the County School System and the Florida Department of Education. In Dr. Gray's expert opinion, Respondent's personal performance in the classroom has seriously reduced her effectiveness as an employee of the Dade County School Board. Dr. Gray determined from a review of all of the observations, both internal and external, that Respondent's professional performance was worsening, rather than improving, despite extensive assistance to help her remediate her deficiencies. Gray's review of Respondent's personnel file discloses that the Respondent did not achieve an acceptable level of performance in any of the nine classroom observations conducted of her during the 1984-85 school year. Gray is unaware of any additional assistance which the Dade County School System could provide to Respondent to assist her in remediating perceived deficiencies beyond the assistance which has been previously provided to her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint and permanently revoking Respondent's Florida Teaching Certificate. DONE and RECOMMENDED this 11th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1987. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-46 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 47 has been rejected as being unnecessary, and Petitioner's proposed finding of fact numbered 48 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or conclusions of law. Respondent filed posthearing correspondence which contains ten unnumbered paragraphs. The eighth unnumbered paragraph is the only one which constitutes a proposed finding of fact, and it is rejected since it is not supported by the evidence in this cause. The remainder of the unnumbered paragraphs in Respondent's correspondence have been rejected as not constituting findings of fact. COPIES FURNISHED: J. DAVID HOLDER, ESQUIRE POST OFFICE BOX 1694 TALLAHASSEE, FLORIDA 32302 JOYCE L. PENCHANSKY 610 N.E. 177TH STREET NORTH MIAMI BEACH, FLORIDA 33162 KAREN B. WILDE, EXECUTIVE DIRECTOR EDUCATION PRACTICES COMMISSION 125 KNOTT BUILDING TALLAHASSEE, FLORIDA 32399 MARTIN B. SCHAPP, ADMINISTRATOR PROFESSIONAL PRACTICES SERVICES 319 WEST MADISON STREET, ROOM 3 TALLAHASSEE, FLORIDA 32399
The Issue The issue in this case is whether there is just cause to terminate Tangela Smith’s employment with the St. Lucie County School Board based upon the allegations made in its Petition for Termination.
Findings Of Fact During the 2018-2019 school year, Smith was a facilitated support teacher that had various days where she either was late or missed her scheduled classroom time. When Smith missed classroom time, those ESE students assigned to her did not receive their specialized instruction. Smith missed classroom time because she was unable to fulfill all her facilitated support job responsibilities because her job duties had conflicting times. In addition to her scheduled classroom time, she was also assigned other duties such as ESE testing or IEP preparation, which were sometimes to be performed at the same time she was to provide push-in services. Smith’s tardiness was directly attributable to her daily schedule of multiple 30-minute classroom segments of time without even a minute break between each 30-minute allotted block before Smith was to be in the next classroom providing push-in services to ESE students. No time was scheduled for Smith to walk between classes or set up for the next class. At hearing, Smith credibly testified, “I don’t have sufficient time to fulfill [the] schedule.” All Smith’s duties she performed benefitted ESE students. ESE Department Chair Spies told Smith what to do related to ESE services, and she was expected to follow his instructions. No evidence was presented at hearing that Smith misused her work time. Instead, the record only showed Smith had conflicting duties to perform at the same time. She was expected to attend her daily classroom schedule and provide ESE testing or work on IEP-related assignments at the same time. At hearing, Smith testified credibly and persuasively, “I couldn’t be in two places at one time. So, I just tried to make up the time with the students I missed.” At times, when Smith was scheduled to be with students in a teacher’s classroom, the ESE department chair instructed Smith to complete FTE forms in his office to secure payments for the District. Other times, Smith would test ESE students, and, because most ESE students had no time limits for testing, Smith would still be testing when she was supposed to be providing push-in services. When Smith was unable to make scheduled classroom times, because she was performing other job duties, she attempted to try to make up for some of her push-in services missed. However, most of the time Smith was not able to make up the time because either the teachers or her ESE students were unavailable at the new time. At hearing, Smith testified compellingly that, “I did the best I could when testing was over to try to make up time.” Smith’s schedule was so tight that she did not even have time to talk to teachers about her students. On September 11, 2018, Smith acknowledged her scheduling challenges and tried to resolve them by notifying Principal Logue that she was having problems performing her push-in duties. Smith specifically expressed her inability to talk to the teachers to get a handle on what her students were doing. By email the next day, Logue pointed to times before and after school or Smith’s planning periods, where the ESE chair scheduled Smith to attend IEP meetings, as time periods Smith could meet with other teachers. Logue also dropped in the same language from her 2017-2018 evaluation regarding his expectation that she follow a strict schedule. After Smith notified Principal Logue of her time challenges, besides the email, he did not suggest or provide Smith any extra time or adjust or change her unmanageable work schedule in order to meet with the teachers and complete her scheduled duties. Smith could not have met Principal Logue’s expectations because the strict schedule had no breaks to get from one classroom to the next classroom, and Smith also had numerous conflicting duties to perform at the same time. At hearing, Auciello testified that it was not unreasonable for Smith to arrive late to class because of the way the schedule was structured and the fact that Smith had to travel from classroom to classroom. After addressing her challenges with Principal Logue, Smith continued to try to juggle her schedule and complete all her job duties that oftentimes had time conflicts. Smith prioritized third-grade testing following the instructions of the ESE department chair who told her to make that her work priority. Principal Logue was well aware that Mariposa ESE students were missing specialized instruction because teachers were reporting and complaining to Logue that Smith was either late or failed to show up to provide ESE facilitated support. He also received complaints that Smith was testing other students at various times when Smith should have been in a particular teacher’s classroom. Auciello specifically complained to Principal Logue on two occasions that instead of Smith being in her room providing her students push-in specialized instruction, Smith was testing elsewhere. After receiving the teacher complaints about Smith, Logue never notified nor addressed the no show allegations with Smith, took any action to remedy the missed services or did anything to rectify Smith’s time conflicts to prevent any further recurrences. Logue did not even issue any orders or directives regarding her failure to show up for facilitated support. Logue’s first action regarding the allegations against Smith was to report her to human resources on September 25, 2018. Logue’s chart outlining Smith’s alleged hours of missed instruction totals 42.5 hours after removing N.G.-R. and D.H., the two students included in the original calculations not assigned to Smith. Smith has never been warned, reprimanded verbally or in writing, or suspended during her tenure with the School Board. On September 26, 2018, Smith received her first discipline when she was placed on leave while Clements investigated the allegations of her failure to follow her schedule.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED that the St. Lucie County School Board enter a final order (1) rescinding its previous decision to suspend Smith without pay pending dismissal and (2) awarding Smith the back salary, plus benefits, that accrued during the administrative proceedings. DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2020. COPIES FURNISHED: Barbara L. Sadaka, Esquire St. Lucie County School Board Legal Department 9461 Brandywine Lane Port St. Lucie, Florida 34986 (eServed) Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) E. Wayne Gent, Superintendent St. Lucie County School Board 501 Northwest University Boulevard Port St. Lucie, Florida 34986 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Board refused to re-employ Ms. Smith as a teacher's aide for the 1985-1986 school year in retaliation for a Complaint that she filed with the Florida Commission on Human Relations in January, 1983?
Findings Of Fact Ms. Smith is a graduate of a high school in the Gadsden County School system. Ms. Smith successfully completed a business education course at Gadsden Vo-Tech after receiving her high school diploma. Ms. Smith was rated qualified to work as a teacher's aide in the Gadsden County School system by the Central Administration office in 1982 and in 1984. Ms. Smith was employed as a teacher's aide at Gretna Elementary School (hereinafter referred to as "Gretna") during the 1982-1983 school year. She began her employment at Gretna in October, 1982. Ms. Smith's immediate supervisor at Gretna during the first month of her employment was the Principal, Mr. Witt Campbell. Mr. Campbell left Gretna in November, 1982. For the remainder of the 1982-1983 school year, Ms. Smith's immediate supervisor was Rosa Barkley, who replaced Mr. Witt as Principal. Ms. Smith was pregnant during the 1982-1983 school year. On January 24, 1983, Ms. Smith became ill because of her pregnancy and had to go to the hospital. Ms. Smith did not return to Gretna during the remainder of the school year. On March 14, 1983, Ms. Barkley went to visit with Ms. Smith at her home. Ms. Smith told Ms. Barkley that she would return to work approximately two weeks after her baby was born. This meant that Ms. Smith would return after the start of the 1983-1984 school year. Ms. Barkley helped Ms. Smith request a leave of absence. This leave of absence was approved by the Board on March 29, 1983. In March, 1983, Ms. Barkley gave Ms. Smith a satisfactory rating on a Gadsden County Non-instructional Personnel Assessment form which was filed with the Board. Ms. Barkley gave Ms. Smith the benefit of the doubt in completing this form because Ms. Smith had been under Ms. Barkley's supervision only from November, 1982 to January, 1983. Ms. Barkley also recommended to the Superintendent that Ms. Smith be re-employed for the 1983-1984 school year. By letter dated June 17, 1983, Ms. Barkley asked the Superintendent to terminate Ms. Smith. Ms. Barkley made this request because she wanted to have an aide that would start the school year in August, 1983 and not in November, 1983, when Ms. Smith planned to return. Ms. Barkley indicated in the letter that Ms. Smith had been absent because of her pregnancy. The Superintendent, Mr. Bishop, decided to grant Ms. Barkley's request. The decision to terminate Ms. Smith was made by the Board and not by Ms. Barkley. Although the Superintendent generally relies heavily on the recommendation of a principal, the decision to terminate Ms. Smith was that of the Board. The Board, based upon the information it was provided, should have told Ms. Barkley, that a leave of absence, and not termination, was the proper remedy to Ms. Barkley's problem. By letter dated July 27, 1983, Ms. Smith was terminated by the Board. Ms. Smith filed a Complaint with the Florida Commission on Human Relations on January 19, 1984, alleging sex discrimination against Ms. Barkley. Upon the filing of the Complaint the Board investigated and decided that Ms. Smith should be rehired. The Board realized that it had caused the problem and not Ms. Barkley. Ms. Smith was offered the first teacher's aide position available. The position was at Chattahoochee Elementary School (hereinafter referred to as "Chattahoochee"). Ms. Smith accepted the position and began work at Chattahoochee in March, 1984. Ms. Smith worked with fourth grade Chapter 1 children (children who have been disadvantaged with regard to their educational opportunities). Ms. Martha Downs was her teacher. While at Chattahoochee, Ms. Smith had difficulty performing her duties as a teacher's aide. Her primary area of deficiency was in math. Mr. Corbin Scott, the Principal at Chattahoochee, attempted to help Ms. Smith by having Ms. Ella Ponder, a helping teacher, assist her. Although it was alleged that Ms. Smith was required to take a Criteria Reference Test normally taken by fourth graders, the evidence failed to support this allegation. Based upon Ms. Smith's poor performance, Mr. Corbin did not recommend that Ms. Smith be returned to Chattahoochee for the next school year. Although Ms. Smith admitted that she has some problems with math she failed to accept the fact that she was not adequately performing her duties as a teacher's aide. Instead, she believed that Mr. Corbin expected her to "teach" and that he was unfair when he did not recommend her continued employment at Chattahoochee for the next school year. Ms. Smith believed that the Complaint that she filed in January, 1984, affected the way that she was treated at Chattahoochee. This unfounded belief affected Ms. Smith's attitude while at Chattahoochee and later. The Board decided that the period of time that Ms. Smith was employed at Chattahoochee (March, 1984 to June, 1984) was too short. Therefore, in an effort to be fair with Ms. Smith and to settle the dispute with Ms. Smith, the Board decided to place Ms. Smith in another teacher's aide position for the 1984- 1985 school year. During the Summer of 1984, Ms. Smith and the Board settled the Complaint which Ms. Smith had filed in January, 1984. Pursuant to this settlement, Ms. Smith dismissed her Complaint for back-pay and her re-employment at Gretna. Ms. Smith was employed at Gretna during the 1984- 1985 school year as a teacher's aide pursuant to the settlement. Ms. Barkley, Ms. Smith's immediate supervisor at Gretna, was not consulted before the Board decided to return Ms. Smith to Gretna. Principals of schools are not consulted by the Board before employees are assigned to their schools. Although Ms. Smith agreed to return to Gretna as part of the settlement of her Complaint against the Board, she believed that Ms. Barkley would not treat her properly. This belief, which was unfounded, affected Ms. Smith's attitude toward Ms. Barkley and her job during the 1984-1985 school year. Ms. Smith was assigned to assist two teachers for most of the 1984- 1985 school year at Gretna: Ms. Corine D. Palmer and Ms. Charlotte Price. Neither Ms. Palmer nor Ms. Price talked to Ms. Smith about problems which they perceived in Ms. Smith's performance. Ms. Price's attitude was that she was there to teach students and, therefore, she did not want to be bothered with Ms. Smith. Ms. Palmer's attitude was to work around Ms. Smith; she gave up trying to use Ms. Smith effectively because of Ms. Smith's lack of effort. Both ladies essentially stuck their heads in the sand and ignored the problem since neither of them were responsible for evaluating Ms. Smith. Employees at Gretna were required to sign in and sign out on a sheet provided for them at the administrative office of the school. During the school year Ms. Smith was late arriving at school a total of fifteen times. Most of those times she was late more than a few minutes. She was late seven times during 1984 and eight times in 1985. At least three other teachers' aides (Inez Morris, Ida Miller and Mary Wright) were late to school more often than Ms. Smith. While Ms. Smith received an unsatisfactory rating for punctuality for the school year, the other three aides received a satisfactory rating. Many of the times that the other three aides were late, they were late only a few minutes. When they were late more than a few minutes, they notified Ms. Barkley or someone else at Gretna that they would be late, and indicated why. Ms. Smith, on the other hand, did not always notify Ms. Barkley or anyone else that she would be late, or indicate why she was late until she was asked. During the first week of the 1984-1985 school year (August 20-24, 1984), Ms. Smith was late three times. Ms. Smith rode to school with another employee who was late getting to school. On August 27, 1984, Ms. Barkley discussed Ms. Smith's lateness with her and gave her a letter indicating that she was expected to be at school at 8:05 a.m. Ms. Smith was late once during each of the next three weeks. She corrected the problem, however, by arranging to ride with someone else. After the week of September 10-14, 1984, Ms. Smith was late only one other time during 1984. During 1985, Ms. Smith was late at least once a week during seven of the eleven weeks ending March 15, 1985. In addition to being late reporting to school, Ms. Smith was late going to her assigned classroom after arriving at school and after lunch. Ms. Smith was required to be in her morning class no later than 8:15 a.m. Her lateness was reported by Ms. Palmer and Ms. Price and was also noted by Ms. Barkley. Ms. Smith was in the employee lounge on many occasions when she should have been in a class. On October 15, 1984, Ms. Barkley spoke with all of the aides about being in the lounge in the morning when they should be in their classes. Despite Ms. Barkley's comments, that afternoon Ms. Smith was in the lounge when she should not have been, and she continued to be late to her assigned classroom in the mornings. Ms. Palmer and Ms. Price told Ms. Barkley that Ms. Smith was late to class. Both of them tended to do without her and to avoid any effort to try to correct the problem. On February 15, 1985, Ms. Barkley gave Ms. Smith a letter that indicated that Ms. Smith was in the lounge when she was not supposed to be. A similar letter was given to Ida Miller and Dorothy Smith. Ms. Miller and Ms. Dorothy Smith corrected the problem. Ms. Smith did not. Ms. Barkley rated Ms. Smith's attendance as "unsatisfactory". This rating was not based upon the number of days that she was absent. It was based upon the number of times that Ms. Smith was not in her assigned classroom. Ms. Barkley kept a notebook in which she noted the dates of some events involving employees' actions. She has kept these notes since she became a principal. Most of the notes concerning Ms. Smith did not give the reason for absences or lateness. Ms. Smith did not, however, always report the reason for her lateness. Most of the observations involved lateness and absences. The notes concerning Ms. Smith were provided to the Board because she was requested to provide any documentation concerning Ms. Smith. She did not know where her other notes were. Ms. Barkley noted the conference she had with Ms. Smith on August 27, 1984. In this note, she referred to Ms. Smith as "Ms. Attitude." This notation and a later notation that Ms. Smith was in the lounge one day "chomping" show a lack of judgment by Ms. Barkley in the manner that Ms. Barkley referred to Ms. Smith. This lack of judgment is not sufficient, however, to prove that Ms. Barkley terminated Ms. Smith at the end of the 1984-1985 school year in retaliation for the Complaint filed by Ms. Smith in 1983. Ms. Barkley's explanation for these notations is rejected. Ms. Barkley talked to teachers and other aides about Ms. Smith. Ms. Barkley did not, however, limit her inquiries to Ms. Smith. Ms. Barkley was responsible for the supervision of all of the employees at Gretna. She was very active in managing her school. She observed her employees in the halls of the school, in the lounge and in the classroom. She did not single out Ms. Smith. Ms. Barkley asked teachers and other aides about all employees and she checked up on all her employees. Ms. Smith was observed in class by Ms. Barkley. Ms. Smith was seen giving wrong answers and performing sloppy work. When Ms. Barkley talked to Ms. Smith about some of her problems, Ms. Smith's attitude was defensive. She did not believe that she had any problems and believed that Ms. Barkley was being unfair to her. She therefore did not indicate that she agreed with Ms. Barkley or that she would make any efforts to correct her problems when Ms. Barkley spoke to her about her problems. Ms. Price indicated that Ms. Smith had evidenced a poor attitude about her performance with her also. On March 15, 1985, Ms. Barkley met with Ms. Smith and informed her that she would not be recommended for employment during the 1985-1986 school year. Ms. Barkley sent a letter to the Board dated March 15, 1985, recommending that Ms. Smith not be re-employed during the 1985-1986 school year. Ms. Barkley also rated Ms. Smith "unsatisfactory" on five characteristics listed on a Gadsden County Non-instructional Personnel Assessment form dated March 8, 1985. This form was signed by Ms. Smith on March 15, 1985. Ms. Smith was given an unsatisfactory rating for utilization of time, compliance with school and district policies, attendance, punctuality and leadership. This evaluation was similar to the evaluation given Ms. Smith by Mr. Corbin. Ms. Barkley, Ms. Price and Ms. Palmer were given a Personal Reference Form for Teacher Aide Applicants by Ms. Smith. Ms. Smith told Ms. Price and Ms. Palmer that the forms were going to be used by her to apply for a job outside of its school system. Although both teachers had misgivings about Ms. Smith's ability and did not want her back as a teacher's aide, they both liked her personally and wanted to help her find a job. They also wanted to avoid any conflict with Ms. Smith. Therefore, even though they should have known better, they completed the forms giving Ms. Smith affair rating and indicating that they would employ her as a teacher's aide. Ms. Barkley completed the form given to her by Ms. Smith on April 30, 1985. She gave her a poor rating and indicated that she would not employ her as a teacher's aide. Ms. Barkley had completed a Gadsden County Non-instructional Personnel Assessment form when Ms. Smith left Gretna in 1983. Ms. Barkley gave Ms. Smith a favorable evaluation. She did so, however, because Ms. Smith had only worked at Gretna during the 1982-1983 school year for approximately four months and Ms. Barkley had only been there during three of those months. Therefore, Ms. Barkley did not believe it would be fair to give Ms. Smith an unfavorable evaluation. The Board did not refuse to re-employ Ms. Smith for the 1985-1986 school year in retaliation for any dispute between Ms. Smith and Ms. Barkley or any other person. Ms. Smith was not re-employed because she lacked the necessary job skills to work as a teacher's aide and had failed to perform adequately. On or about July 15, 1985, Ms. Smith filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that the Board had discriminated against her on the basis of retaliation. The Executive Director of the Florida Commission on Human Relations issued a "Determination: No Cause" on May 12, 1987. Ms. Smith filed a Petition for Rehearing. On or about July 13, 1987, the Executive Director entered a "Redetermination: No Cause." Ms. Smith filed a Petition for Relief. The Florida Commission on Human Relations forwarded the Petition the Division of Administrative Hearings by order dated August 18, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Smith's Petition for Relief be DENIED. DONE and ENTERED this 9th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 1. 2 2. 3 Irrelevant. 4-5 3. 6-7 22. 8 4. 9 23. 10 5. 11 12. The date of termination was July 27, 1983. 12 10. 13-14 13. 15 20-22. 16 10. 17 8. 18 9. 19 22. 20 23. 21 11. The evidence failed to prove that the Board acted solely on the recommendation of Ms. Barkley. 22 25. 23 26. 24 Not supported by the weight of the evidence. 25-26 27. 27 28. 28 While Ms. Smith may have corrected the "ride problem" she continued to be late during the 1984-1985 school year. 29-31 27. 32-33 33. 34-36 Although these proposed findings of fact are correct they are irrelevant. 37 41. 38-39 Not supported by the weight of the evidence. 40 Irrelevant and not supported by the weight of the evidence. 41 35. Not supported by the weight of the evidence. Irrelevant. 44 35. 45-46 36. Not supported by the weight of the evidence. Although it is true that Ms. Smith did improve her punctuality arriving at Gretna during 1984 she failed to continue to arrive on time during the rest of the school year. See 28. Respondent's Proposed Findings of Fact 1 45. 2 21. 3 10 and 11. 4 14. 5 16. 6 Not supported by the weight of the evidence. See 16. 7 16-18. 8 20 and 22. 9-10 37. 11 41. 12 42. 13 28 and 33. 14 28-29 and 33. 15 45. COPIES FURNISHED TO: EDWARD J. GRUNEWALD, ESQUIRE LEGAL SERVICES OF NORTH FLORIDA, INC. 400 NORTH MADISON STREET QUINCY, FLORIDA 32351 CLAUDE B. ARRINGTON, ESQUIRE 211 EAST JEFFERSON STREET QUINCY, FLORIDA 32351 DONALD A. GRIFFIN EXECUTIVE DIRECTOR 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 DANA BAIRD GENERAL COUNSEL 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
Findings Of Fact At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D." On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening. All counseling with the parents in the 1984-1985 school year appear to have dead-ended. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July 7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail. The regular Dade County school program resources have been exhausted as regards Respondent.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South. DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
Findings Of Fact The Respondent Myers holds teaching certificate number 329276. The Respondent's certificate is a Rank 3 covering the area of elementary education. The Respondent Myers holds a fourth annual contract as a teacher with the Dade County public schools which expires at the end of the 1983-84 school year. During the 1982-83 school year, she was employed at North Hialeah Elementary School as a second grade teacher. Allen C. Starke was the principal of that school. Mr. Starke and Ms. Myers met during the first week of the school term when Starke asked Myers to balance a student's grades, which Myers had neglected to do the previous year. A student's grade is balanced when the teacher gives a final grade balancing all four nine-week reporting period grades. The Respondent took the student' file home and notwithstanding that there was nothing in the file to warrant a failing grade, gave the student all F's. Starke requested that the Respondent regrade the project, giving the appropriate grades. The task was accomplished. The 1982-83 school year was the Respondent's third year of service with the Dade County public schools. Had her performance that year been satisfactory, she would have been eligible for continuing contract (tenure) status. As a third year teacher, she was subject to being observed in the classroom by her supervisors. Maria Pernas, the assistant principal at North Hialeah Elementary School, scheduled such an observation of the Respondent for October 5, 1982. However, when Ms. Pernas arrived in the classroom, it was in such a state of chaos and confusion that she approached the Respondent and told her that she would come back at a later date, hoping to give the Respondent the benefit of the doubt. Ms. Pernas returned to Respondent's classroom on November 2, 1982, but found the same state of affairs which she had observed on October Again she decided to give the Respondent another chance and did not officially observe her on that date. Ms. Pernas' official observation of the Respondent took place on November 18, 1982. The classroom climate was again chaotic and confused. The Respondent, however, appeared unaware of the lack of student interest or of the difficulties being encountered by her students. When students raised their hands, the Respondent either did not notice or paid no attention to them. The Respondent was attempting to conduct a reading lesson but she lacked the basic elements for implementing the same. It is an accepted technique in the teaching of reading for the teacher to physically divide the class into approximately three ability groups. The teacher then conducts approximately 20 minutes of teacher-directed lesson with one of those groups while the other groups do independent, previously assigned work. The teacher concludes with the first group, assigns them independent study, moves to the next group, etc. until the School Board mandated one consecutive hour of reading is complete and she has conducted a teacher-directed lesson with each group. The Respondent conducted no teacher-directed reading lesson and assigned no independent work. She did not have appropriate lesson plans and the class did not last the required one hour notwithstanding the fact that the Respondent was aware of this requirement. Ms. Pernas recommended several sources of help to the Respondent, including books and documents. Subsequent to this observation, Mr. Starke, Ms. Pernas and the Respondent participated in a conference-for-the-record held on November 30, 1982. The Respondent was advised to study various texts and to enroll in a course in "techniques of instruction" through the Teacher Education Center. The Teacher Education Center is an educational center mandated by the Florida Legislature. Its purpose is to provide in-service staff development courses and workshops for instructional personnel. Cathia Darling had also been called in to assist the Respondent. Ms. Darling is a teaching specialist who implements workshops for beginning teachers in the Dade County school system who may be having difficulty. On October 18, 19, and 21 1982, she had been at North Hialeah Elementary School providing teachers an update on the PREP program, a Dade County program designed to give students expanded services, both academically and physically, in the classroom. She was called back by Ms. Pernas on November 4 and 10 to go over the implementation of a reading program (RSVP) 1/ with two of the teachers at North Hialeah Elementary School who required further help. The Respondent was one of those teachers and Ms. Darling met with her for approximately one-half hour to 45 minutes at that time. Ms. Pernas observed the Respondent again on January 21, 1983. At that time she was teaching a science class and the topic was "Body Temperature." Pernas noted that the Respondent had insufficient visual aids and/or manipulative devices. Further, she did not appear to understand the substance of what she was teaching. She wrote a "102 degree Fahrenheit temperature" as "1.02." Pernas advised her that there should be no decimal point when recording such a temperature. When a student answered a question in Celsius (the student was Hispanic and accustomed to Celsius), the Respondent said the answer was wrong. Pernas suggested that the Respondent review literature regarding Fahrenheit and Celsius. She also recommended that the Respondent attend a TEC workshop in preparation and planning. The Respondent did not attend the prescribed workshop on preparation and planning, because the course was too far away from her home. Another course was offered but she did not attend that one either, stating that her sister was ill. Subsequent to Pernas' second evaluation, the Respondent told Mr. Starke that she believed Ms. Pernas was being unfair. Accordingly, Starke offered to observe the Respondent and she agreed. The observation took place on February 11, 1983. Starke found the classroom to be disorganized and confused. When he entered the classroom, the Respondent picked up a book and began to read. The children did not have their books open. They were walking about the classroom, generally entertaining themselves. They were not involved in the lesson and they were not paying any attention to the Respondent who continued to read verbatim from the book. From time to time, she would say "Sit down, sit down, can't you hear I'm reading?" The children continued to walk about. Starke felt they exhibited this behavior because they didn't know what they were supposed to be doing. After observing the classroom for a period, Starke began to check the Respondent's student folders. Teachers in the Dade County school system are required to keep folders to show samples of students' work. He found that as of February 11, 1983, no papers had been graded and placed in the folders since November 18, 1982. Starke pointed out that if the children's work had not been graded, a diagnostic, prescriptive approach to teaching could not be utilized. In short, the Respondent could not possibly have known at what level her students were functioning if she did not grade their papers. Accordingly, she could not teach them what they needed to know. Starke made several suggestions in his recommended prescription as to how the Respondent could improve her performance. He asked her to become familiar with the lesson before attempting to deliver it and he told her to read the teacher's guide and use it throughout the period as appropriate. He prescribed that in order to cut down on classroom disruption, she obtain the children's attention before attempting to introduce a lesson and that she distribute the books and other needed materials before the class activities began. He asked her to use the grade level chairperson as a resource. She was directed to report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and did not see the grade level chairperson. The Respondent was also told to correct and grade the students' papers as mandated and to place at least two graded papers per student per subject matter per week in each work folder. She did not comply with this directive, nor did she comply with Starke's repeated direction to contact the TEC to enroll in the course. At this point, Starke advised the Respondent that since her teaching performance had been unsatisfactory during that school year, he would not recommend her for continuing contract for the school year 1983-84. He did state, however, that he would recommend that she be granted a fourth year annual contract. He had not given up on her at that time and wanted to give her all the possible assistance he could. Starke observed the Respondent again on March 24, 1983. According to Starke's master schedule, the Respondent was to be teaching a reading lesson. However, when he entered the class- room, she was not teaching reading. Again, the class was chaotic. The students were unprepared for work. The Respondent herself had no lesson plans for the lesson. The students in the Respondent's class never moved into reading groups and she never gave a teacher-directed lesson to any group. Instead, she called on four students to read orally out of four different texts, each book representing an ability group. The students who were not studying a particular book derived no benefit from the reading. After 30 minutes, the Respondent asked the students to put their reading books away, and started a spelling lesson. Starke noted that she had only one grade in her record book for eight weeks of instruction. She should have had 16 or 18 or at least one grade per week per subject. Additionally, the Respondent had not graded any papers since November 18, 1982. Starke gave her another prescription telling her to have lesson plans before attempting to teach and to arrange her students into reading groups. He asked that she introduce all lessons and make sure materials were in place before instructions were given. She was told again to teach reading for 60 consecutive minutes and she was directed to grade her students' papers -- at least one grade per student per subject per week. Starke, at that point, kept eight of the folders that he had been going through in Ms. Myers' room. Subsequently, he replaced five of them, and three were introduced into evidence in this case. A review of these files indicates that when the papers were graded (prior to November 18, 1982), they were graded incorrectly. Credit was given for obvious errors. Sometimes the corrections themselves were incorrect. Corrections were written as "Not rite," or "Not finiseb." A math paper was graded A when 6 of the 15 problems were done incorrectly. Incorrect answers were marked "correct," correct answers were marked "incorrect," and some answers were not marked at all. The Respondent testified that all of the grades which appear in Exhibits 10A, B and C are marks which she did not personally put there and that she does not know who graded those papers or when. The Hearing Officer finds that the Respondent's explanation lacks credibility and that the Respondent graded the papers incorrectly. Another conference-for-the-record was held on March 30, 1983. At that time, the Respondent and Starke discussed her inadequate lesson plans. The Respondent stated, "I had lesson plans, but they did not represent what I was teaching." When questioned about not grading her students' papers, the Respondent stated that some of the papers were graded but that she didn't have time to grade them all. At that conference, Starke also noted that he had come upon the Respondent sitting with her grade book in front of her and placing grades in that book. He noted that there were no papers in front of the Respondent from which she could be recording the grades. When he inquired about it, she said that she was putting grades in the book. He asked how she could put grades in her book with no papers to copy from and she said she just knew what the children had done. Starke believed that this was impossible, considering the size of her class. Subsequently, at the conference of March 30, the Respondent said that, in fact, the grades had always been in the book but that she just hadn't seen them, and that when Starke had come upon her she was just checking students present or absent. Starke advised the Respondent that based upon her total performance, he was changing his recommendation from an extended annual contract to dismissal for cause. Notwithstanding this recommendation, Starke testified that if the Respondent had suddenly given some evidence that she was going to become a competent teacher, he would have changed his recommendation. On April 5, 1983, Mr. Starke gave the Respondent a memorandum from John N. Ranieri, the director of the Dade-Monroe Education Center, outlining numerous courses which Starke felt would be of benefit to Ms. Myers in improving her deficiencies. These were courses which he had prescribed for her and which she had not taken. John Ranieri testified that the Respondent did in fact enroll in three TEC courses during the 1982-83 school year. She enrolled in Techniques of Instruction twice and she enrolled in a class in Classroom Management. The system does not permit credit for taking a course over, therefore she did not get credit for the second time she took the Techniques of Instruction course. She did receive credit, however, for taking that course once. The Respondent failed the Classroom Management course. The records of the Teacher Education Center indicate that she did not turn in her assignments, she did not pass the test (she received the second lowest test score in a class of 90) and she was late to class three out of the four times the class met. Each time she was late over twenty minutes. The Respondent had numerous excuses for her lack of success in this class. She stated that she was late for the first class because the traffic was heavy. She stated that even though Starke had told her she could leave school 15 minutes early, her relief teacher did not show up on time and she therefore did not leave on time. She testified that she told Starke about her problem with the substitute teacher, but Starke testified that this was not so. The Respondent said that she failed the test in the course because the instructor gave her the wrong test and that when he gave her the right test, she only had 20 minutes left out of an hour class to take the test. The Hearing Officer finds this testimony by the Respondent not credible. On April 29, 1983, Cathia Darling returned to North Hialeah Elementary School to once again attempt to assist the Respondent in establishing a reading program. While Darling had been working with the Respondent in November, she had explained how to initiate the pre-testing, instruction, and, finally, post- testing. When Darling returned in April, the Respondent had still not mastered what she had been taught in November, and the process had to be started over again. Darling returned again in May to follow up, and the Respondent still had not implemented any of the testing. This testing should have been started at the beginning of the school year. At that point, Darling implemented the Respondent's testing program and charted the results. In Darling's opinion, the Respondent never implemented a reading program in her second grade classroom. In an attempt to explain her failure to implement the program, the Respondent stated that she asked for an RSVP kit four or five times but was never given one. Allen Starke testi- fied that the Respondent never asked him for any instructional materials and that he had never denied her request for an RSVP kit at any time during the 1982-83 school year, nor to his knowledge had anyone ever denied her access to the kit. Cathia Darling noted that the booklets necessary to implement the program were in the school, although they were not in Daisy Myers' classroom when Darling visited that classroom. No teacher at North Hialeah had complained to Darling about not having access to the RSVP kits or booklets. On May 5, 1983, Eneida Hartner, a school system area director who supervises 18 schools including North Hialeah Elementary School, observed the Respondent teach a reading class. Hartner was called in to observe the teacher as an objective outside observer. She noted for the record that it is always possible that an outside observer might feel that a teacher could improve her performance. Hartner observed that a significant amount of class time was wasted by students talking to each other. This occurred because they had not been given any clear direction as to what they were to do, The Respondent was not using a lesson plan nor was she using the teacher's guide for the reading lesson. She interacted with the children for a very limited amount of time when she should have worked with each group of children for 20 minutes. She was not teaching decoding skills, which she should have been teaching (decoding teaches the sound a letter makes). Ms. Hartner looked at the student folders and found that the answers in the fo1ders were not marked right or wrong. Grades were given to the students but there was no indication as to whether the answer to the question was correct. When Ms. Hartner asked the Respondent about her diagnostic/prescriptive folders (testing, teaching, testing) which every teacher is required to maintain, Myers said that she did not have any. She had no records of what the children knew or what they did not know. Hartner saw no visible evidence that any child had learned anything from the Respondent. Subsequent to her observation of the Respondent, Ms. Hartner gave Mr. Starke a prescription to be delivered to the Respondent. The prescription consisted of a group of activities having to do with self-assessment, self- analysis, making changes and trying them out in the classroom. The Respondent did not fully comply with the prescription, and Hartner testified that it was her opinion that no further remediation would he successful in making the Respondent a competent teacher. The Respondent was observed one more time during the 1982-83 school year. On June 9, 1983, Maria Pernas observed what was scheduled as a reading lesson. In fact, the Respondent was teaching writing. Pernas noted that the Respondent's plans did not match what she was teaching. She also found that the Respondent continued to be unacceptable in teaching techniques, assessment techniques and professional responsibility. Pernas testified that if she were to rank all of the teachers that she has evaluated during her years as an assistant principal, the Respondent would be in the very last place. She does not believe that the Respondent's students gained anything by being in her class during the 1982-83 school year. Allen Starke agreed with Ms. Pernas' evaluation. In fact, he felt that the Respondent's second grade students had learned so little during their year in Respondent's class that he broke the class up into smaller groups, assigning them to numerous other teachers for the third grade. He did this because he felt that the students might learn more from other students who had had a successful experience in the second grade than if they were all kept together. Starke does not believe that the Respondent should be a classroom teacher. The last witness to testify for the Petitioners was Patrick Gray, Executive Director of the Division of Personnel Control for the School Board of Dade County, Florida. He stated that having reviewed the file of the Respondent, based on his extensive experience in the field of personnel control and education, it was his judgment that she had been provided every opportunity to demonstrate competence or to become competent in an instructional capacity in the public school system, that she had failed to evidence the required standard of instructional competence and that she should therefore not be licensed to teach children by the State of Florida; neither is she competent to be employed by the school in the Dade County public school system. Dr. Gray testified that the Respondent had been ranked acceptable for her performance for the 1980-81 school year and the 1981-82 school year; however, that both of the principals who evaluated her those years noted that there were categories which required improvement. He also noted that in a letter from the Respondent's 1980-81 principal, Ms. Culver, the principal declined to testify on her behalf at this hearing. She stated that she recalled that the two areas in which the Respondent required improvement as a teacher in 1980-81 were preparation and planning and classroom management and that her reviews of the observations of Myers' teaching made during the 1982-83 school year showed that time and time again the same areas were listed as unacceptable. Ms. Culver felt that the Respondent's planning should have been greatly improved by the end of her second year of teaching. She also noted that during the 1980- 81 school year, she had released the Respondent on several occasions to observe and work with other classroom teachers who excelled in the area of classroom management. Both Ms. Culver and the assistant principal had recommended books in both areas to the Respondent. Ms. Culver observed that the Respondent had taken courses in RSVP as early as 1980-81, which she felt should have benefited her in teaching reading. Yet, the 1982-83 observations showed that the Respondent lacked competence in the area. Ms. Culver concluded that the Respondent is a fine person but, apparently, she lacks the basic skills to be a teacher.
Recommendation Based on the foregoing, it is recommended that: The teaching certificate of Respondent Daisy Myers be permanently revoked; and The suspension of the Respondent, Daisy Myers by the School Board of Dade County, Florida, be sustained, and that Respondent Myers be dismissed from employment with the School Board of Dade County, Florida, and any claim for back pay be denied. DONE and ORDERED this 11th day of January, 1985, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985.
The Issue Validity of Respondent's placement decision concerning Petitioner, as set forth in letter of Wylamerle G. Marshall, dated March 28, 1978. This cases arises from Petitioner's request for a hearing to review a decision of the Director, Exceptional Child Education, Dade County Public Schools, that placement of the Petitioner in a learning disabilities program was an appropriate placement in the Dade County School System. The decision was effected by letter of March 28, 1978 from Wylamerle G. Marshall to Mrs. Constance Garrett, the mother of petitioner Thomas Garrett. She-thereafter requested review on behalf of her son by letter from legal counsel dated April 6, 1978. The case was referred to the Division of Administrative Hearings for appointment of Hearing Officer on April 12, 1978. Although the hearing in this matter was originally set for May 11, 1978, the Hearing Officer granted Petitioner's request for a continuance and the case was heard on June 14, 1978.
Findings Of Fact Petitioner Thomas Garrett, a seven year old boy, who is the son of Constance Garrett, Miami, Florida, was enrolled in the first grade at Orchard Villa Elementary School, Miami, Florida, in September, 1977. Several days after school began, Thomas brought home classroom papers indicating that he had failed on certain tests. Mrs. Garrett spoke to his teacher who informed her that Thomas was hyperactive, disruptive and not able to do classroom work properly. She then went to the principal who told her that letter grades should not have been given in the first grade classes and suggested that the child be placed again in kindergarten. Mrs. Garrett asked that Thomas be tested to determine if he had any learning deficiencies and the principal agreed to initiate administrative processing in that respect. (Testimony of C. Garrett) The normal procedure followed in the Dade County Public School System for placement of a child in a learning disabilities program is for the student's teacher to bring the matter to the attention of the local school authorities who refer the case to a school "team." The team assists the teacher in dealing with any problems arising in the classroom. If the team recommends that the child needs evaluation, the school sends a visiting teacher to the home to obtain the social history of the child to prepare for possible psychological testing and evaluation of the particular case. This information, together with routine school hearing and visual tests, and evaluation of the student's teacher are provided to a psychologist in the school system who performs psychological testing at the school to determine the need for special education. The results of testing are thereafter reviewed by a committee of the county area concerned and final approval of any placement is made by the area staff director of student services for special education. Normally, the local schools are reluctant to test a small child early in the year until school personnel have worked with the child for a reasonable period of time. (Testimony of Shkoler) On September 15, 1977, a visiting teacher was sent to the Garrett home where he obtained necessary data as to the child's background and procured the parent's consent for psychological testing. He turned this material over to school authorities on the same day. At the time of his visit, Mrs. Garrett informed him that she intended to have a private psychologist test her son, and also utilize the services of a public school psychologist, after which she would compare the results. (Testimony of Walton) In the middle of September, a school psychologist was assigned to test Thomas but did not actually perform the testing because Mrs. Garrett obtained the services of a private psychologist who tested her son on September 20. It was therefore necessary for him to postpone any testing until he could see what testing had been done by the private psychologist. In the meantime, however, Mrs. Garrett had been urging the area director of student services, Mrs. Betty Shkoler to hasten psychological testing, but had not made her aware of the fact that private testing had been accomplished. It was not until the latter part of October, however, that Mrs. Garrett took the report of the private psychologist to Mrs. Shkoler, although she had shown it to the Orchard Villa principal. The report stated that Thomas had a need for a fully clinical school with emphasis on motor and perceptual skills and academic learning experiences presented with manipulative-associative techniques. The director of student services had the report reviewed by an area psychologist and it was determined that Thomas should be placed in a learning disabilities program. Mrs. Garrett was contacted and agreed to placement at Westview Elementary School after personal visitation there. Thomas was thereafter placed in the first grade class of Martha L. Chinn at that school. The authorization for placement, dated October 27, 1977, stated that the child's primary educational needs were activities to remediate visual motor deficits, visual closure activities, visual association, and visual sequential memory activities, and a program for gross motor development. Mrs. Garrett signed a consent form to the placement on November 4, 1977. (Testimony of Armour, Shkoler, C. Garrett, Exhibits 1, 3 - 4) Normal transportation arrangements were made by area school authorities whereby the parent is responsible for taking the child to the home school -- in this case Orchard Villa -- where school bus transportation would be provided to the new school, Westview Elementary. However, since Mrs. Garrett had specifically asked that Thomas be picked up by bus at his home for delivery to Orchard Villa, a special request was made to the school transportation office for this type of transportation. Pending receipt of information concerning such transportation, Mrs. Garrett personally transported Thomas to and from Westview Elementary on his first two days of class, October 31 and November 1, 1977. Although she anticipated having him picked up by bus on the following school day, November 3, as a result of Information provided in a note sent to her by the school teacher, this was not done because the school bus transportation office had not received a formal written request for such special treatment. Accordingly, Mrs. Garrett took Thomas to school on that day and was thereafter assured by school bus personnel that he would be picked up that afternoon from school. Conflicting testimony was presented at the hearing as to whether or not Mrs. Garrett was informed that the teacher would be notified as to the fact that Thomas would be picked up by bus that afternoon. In any event, Mrs. Chinn was not so informed and Thomas proceeded to wait for his mother outside the school after class. He was observed by his teacher waiting for his parent at the customary place, and she reassured him after some lapse of time that his mother would be there. She had assumed that Mrs. Garrett would pick him up since she had brought him to school that morning. Thomas later wandered off the school grounds and Mrs. Garrett, who had been waiting to meet the bus, became apprehensive when it did not arrive. She was later informed by the school secretary that Thomas had been found by a man some 24 blocks away from the school and returned there. Mrs. Garrett proceeded to school to pick him up and Thomas would not tell her what had happened, but was like a frightened animal." The next day Mrs. Garrett took him back to school, although he had had nightmares and did not want to return. She talked to a new assistant Principal at the school concerning the incident and was upset by what she perceived to be a callous attitude. On the following Monday, November 7, she took Thomas to the Orchard Villa School for bus pickup, but he was frightened and remained on the floor of the car. She thereafter did not let him return to Westview. Several days later, she was informed that bus pickup could be provided at home; however, she enrolled Thomas in Vanguard School, a private school in Coconut Grove in late November. (Testimony of C. Garrett, Chinn, Shkoler, Hart) The class at Westview Elementary School where Thomas attended for several days is a full-time class for students with learning disabilities. It is taught by a teacher certified in that specialized area who is assisted by an aide certified in elementary education. By the end of the 1977-78 school year, there were 19 children in the class. However, individual attention is given by the teacher to each student to deal with their "deficits" and prepare "prescriptions" to assist in improving weak areas. It was found by Mrs. Chinn that Thomas was weakest in the "motor" area and consequently she prepared materials to deal with this problem. Although he had no particular problem in understanding instructions, he possessed a visual motor perceptive defect which causes difficulty for him to process and retain visual and auditory information. His condition results in inconsistent actions in response to auditory commands whereby in some instances he is capable of carrying out instructions but sometimes cannot do so. Although ideally he should be in a class with a low teacher/child ratio of ten or less children, this ratio may be higher in situations where an aide is present to assist the teacher. Thomas's teacher at Westview found that he seemed no different than any other child in her class and when he returned to school on November 4 after the unfortunate bus incident, he did not appear to be upset or pose any difficulty. (Testimony of Chinn, Armour, Cullen, Exhibit 2) The learning disabilities program in the Dade County Public Schools is adequate for most children and Respondent refers children to private schools only in extreme cases involving children who cannot be properly handled in the public school system for unusual reasons. Although Thomas initially could have received a negative image of public schools from his receipt of failing grades at Orchard Villa, this would not necessarily predispose him against public schools. Although the bus incident undoubtedly produced a temporary stress and fear reaction, there is no evidence that it resulted in a phobia or any other permanent adverse result, although Thomas has never told his mother the details of the incident. (Testimony of Cullen, C. Garrett) Mrs. Garrett paid tuition of approximately $350 a month at the Vanguard School, including transportation by van to and from school. (Testimony of C. Garrett)
Recommendation That Petitioner's request for relief be denied by the Dade County School Board. DONE and ENTERED this 7th day of July, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phyllis O. Douglas, Esquire Dade County School Board Lindsey Hopkins Building 1410 N.E. 2nd Avenue Miami, Florida 33132 Harold Long, Jr., Esquire Suite 2382 - One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioners are entitled to the Best and Brightest Scholarship as established and defined by section 1012.731(3)(c), Florida Statutes (2017).
Findings Of Fact In 2015, the Legislature enacted, by way of a line item in the annual appropriations bill, the Best and Brightest Program to award cash scholarships to Florida teachers who have been evaluated as “highly effective” by their school districts and who scored at or above the 80th percentile (top 20%) on the SAT or ACT when they took the test. Ch. 2015-232, § 2, line item 99A, Laws of Fla.1/ In 2016, the Legislature enacted a stand-alone statute for the Best and Brightest Program, codifying the appropriations bill language and providing that the program is to be administered by the Department of Education (the “Department”). Ch. 2016-62, § 25, Laws of Fla., codified at § 1012.731, Fla. Stat. (2016). Rather than enacting a statutory scholarship amount, subsection (5) of the 2016 version of section 1012.731 provided that the scholarships would be awarded to every eligible classroom teacher “in the amount provided in the General Appropriations Act.”2/ The 2016 statute also explained that the Best and Brightest Program was intended to provide “categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic achievement.” § 1012.731(2), Fla. Stat. (2016). Section 1012.01(2) defines “instructional personnel,” including “classroom teachers,” as follows: INSTRUCTIONAL PERSONNEL.— “Instructional personnel” means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel: Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists. Librarians/media specialists.-- Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. Other instructional staff.--Other instructional staff are staff members who are part of the instructional staff but are not classified in one of the categories specified in paragraphs (a)-(c). Included in this classification are primary specialists, learning resource specialists, instructional trainers, adjunct educators certified pursuant to s. 1012.57, and similar positions. Education paraprofessionals.--Education paraprofessionals are individuals who are under the direct supervision of an instructional staff member, aiding the instructional process. Included in this classification are classroom paraprofessionals in regular instruction, exceptional education paraprofessionals, career education paraprofessionals, adult education paraprofessionals, library paraprofessionals, physical education and playground paraprofessionals, and other school-level paraprofessionals. In 2017, the Legislature amended section 1012.731(3) to establish that the scholarship award would be $6,000 for those classroom teachers rated “highly effective” who also had the requisite SAT or ACT scores: (3)(a) To be eligible for a scholarship in the amount of $6,000, a classroom teacher must: 1. Have achieved a composite score at or above the 80th percentile on either the SAT or the ACT based on the National Percentile Ranks in effect when the classroom teacher took the assessment and have been evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded, unless the classroom teacher is newly hired by the district school board and has not been evaluated pursuant to s.1012.34. * * * In order to demonstrate eligibility for an award, an eligible classroom teacher must submit to the school district, no later than November 1, an official record of his or her qualifying assessment score and, beginning with the 2020-2021 school year, an official transcript demonstrating that he or she graduated cum laude or higher with a baccalaureate degree, if applicable. Once a classroom teacher is deemed eligible by the school district, the teacher shall remain eligible as long as he or she remains employed by the school district as a classroom teacher at the time of the award and receives an annual performance evaluation rating of highly effective pursuant to s. 1012.34 or is evaluated as highly effective based on a commissioner- approved student learning growth formula pursuant to s. 1012.34(8) for the 2019-2020 school year or thereafter. Ch. 2017-116, § 46, Laws of Fla. The 2017 amendment to section 1012.731 also added a new subsection (3)(c), providing that lesser amounts could be awarded to teachers rated “highly effective” or “effective,” even if they could not demonstrate scores at or above the 80th percentile on the SAT or ACT: Notwithstanding the requirements of this subsection, for the 2017-2018, 2018- 2019, and 2019-2020 school years, any classroom teacher who: Was evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded shall receive a scholarship of $1,200, including a classroom teacher who received an award pursuant to paragraph (a). Was evaluated as effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded a scholarship of up to $800. If the number of eligible classroom teachers under this subparagraph exceeds the total allocation, the department shall prorate the per-teacher scholarship amount. This paragraph expires July 1, 2020. Id. By December 1 of each year, each school district must submit to the Department the number of eligible classroom teachers who qualify for the scholarship, as well as identifying information regarding the schools to which the eligible classroom teachers are assigned. § 1012.731(4)(a)-(c), Fla. Stat. For the 2017-2018 school year, the December 1, 2017, submission deadline was extended to January 2, 2018, due to a hurricane. The School Board’s deadline for teachers to apply for the scholarship was accordingly extended from November 1, 2017, to December 1, 2017. By February 1 of each year, the Department is required to disburse scholarship funds to each school district for each eligible classroom teacher to receive a scholarship. § 1012.731(5), Fla. Stat. By April 1, each school district is required to award the scholarship to each eligible classroom teacher. § 1012.731(6), Fla. Stat. In 2018, the Legislature amended section 1012.731 to provide that a school district employee who is no longer a classroom teacher may receive the $6,000 award if the employee was a classroom teacher in the prior school year, was rated highly effective, and met the requirements of this section as a classroom teacher. § 1012.731(3)(b)2., Fla. Stat. (2018). The Legislature did not add a similar provision stating that former classroom teachers who are still school district employees remain eligible for the $1,200 and $800 awards. § 1012.731(3)(c)2., Fla. Stat. (2018). The Legislature funds the Best and Brightest Program. The School Board had no role in creating the Best and Brightest Program. The School Board is required to determine the eligibility of classroom teachers who qualify for the Best and Brightest Program pursuant to the requirements of the statute. Petitioners in this case claim entitlement only to the $1,200 award established by the 2017 version of the statute. Brenda Troutman, director of Instructional Personnel, is the School Board employee in charge of the Best and Brightest Program application and submission process. Ms. Troutman has worked for the School Board for 17 years. She has been a junior high classroom teacher and an assistant principal and vice principal at the high school level. Though no longer teaching in the classroom, Ms. Troutman retains her certifications in math grades 5-9, exceptional student education (“ESE”), educational leadership, and school principal. When working as a high school administrator, Ms. Troutman was the master scheduler for her school, meaning that she built the schedule for every teacher at the school. This task required that she become very familiar with the School Board’s course code directory. Ms. Troutman also had to understand the certification system in order to hire and assign teachers. If a teacher asked to teach a certain course, Ms. Troutman had to know both the course requirements and the teacher’s certifications to determine whether the teacher was eligible to teach the course. As part of her current position in the School Board’s human resources department, Ms. Troutman is required to know the School Board’s various job titles and descriptions. She is responsible for replacing obsolete job descriptions and posting current job descriptions on the School Board’s website. Ms. Troutman testified as to how she manages the application and submission process of the Best and Brightest Program. She starts by making herself familiar with any changes the Legislature may have made to the program. She then issues a notice to teachers about the program and the current eligibility requirements. For the 2017-2018 Best and Brightest Program, Ms. Troutman prepared a draft email that Superintendent Addison Davis reviewed and sent to all of the school district’s teachers and administrators on September 28, 2017. The email explained that to be eligible for the $6,000, $1,200 or $800 scholarship, an applicant must meet the definition of classroom teacher as set forth in section 1012.01(2)(a). Ms. Troutman developed the School Board’s application for the Best and Brightest Program, based upon her understanding of the statutory requirements. All completed applications for the Best and Brightest Program come into Ms. Troutman’s office. Ms. Troutman testified that she received approximately 2,000 applications for the 2017-2018 award. Ms. Troutman, with the aid of her assistant, reviews and verifies the information on the applications. If Ms. Troutman has any questions about an application, she seeks the opinion of her direct supervisor David Broskie, the director of Human Resources. In some cases, they also have discussions with Superintendent Davis and School Board Attorney David D’Agata. The School Board employs two major data programs. FOCUS is the program/database that holds all student information, including attendance, grades, disciplinary actions, test information, and demographics. TERMS is the program/database that houses all employee information. When verifying information on the Best and Brightest Program applications, Ms. Troutman uses both FOCUS and TERMS, and on occasion conducts additional investigation. The School Board’s application asks for the teacher’s assignment. Because the application was titled “2017-2018 Clay County Application: Florida Best & Brightest Teacher Scholarship,” Ms. Troutman believed that the teachers were required to provide their 2017-2018 teacher assignments. As will be discussed in more detail below, the year of the teacher assignment was a major point of disagreement between Petitioners and the School Board. The application provided a checkmark system for the teacher to indicate which scholarship was being sought. The $1,200 scholarship line provided as follows: I am applying for the $1,200.00 highly effective scholarship. I have attached a copy of my 2016-2017 highly effective final evaluation (with student performance measures). The application’s language led Petitioners to believe that the 2017-2018 scholarship awards would be based on their teacher assignments and evaluations for 2016-2017. Ms. Troutman explained that this belief was incorrect. Eligibility for the 2017-2018 scholarship was based on a teacher’s assignment for the 2017-2018 school year. The plain language of the statute requires that one must be a “classroom teacher” in order to be eligible for the scholarship; having been a classroom teacher in a previous year does not suffice. Ms. Troutman stated that she verified with Mr. Broskie, Mr. Davis, and Mr. D’Agata that the School Board should base the award on the teacher’s 2017-2018 assignment. Petitioners, on the other hand, argue that the statutory language requires only an evaluation of “highly effective” for the 2016-2017 school year. The statute is silent as to whether a teacher applying for the $1,200 scholarship must be teaching in a classroom situation during the 2017-2018 school year. Petitioners argue that the School Board is reading a requirement into the statute that is not evident from the plain language. Ms. Troutman further explained that the applications for the 2017-2018 scholarships were to be submitted prior to the conclusion of the 2017-2018 school year. Therefore, as required by section 1012.731(3)(a)1. and (3)(c), the application requested the evaluation for “the school year immediately preceding the year in which the scholarship will be awarded.” Ms. Troutman testified that it is sometimes obvious from the teaching assignment that the teacher qualifies as a “classroom teacher.” If an application states that the assignment is “chemistry teacher” or “algebra teacher” or “fifth grade classroom teacher,” it is clear that the applicant meets the definition. Aside from verifying the assignment in the TERMS database, Ms. Troutman takes no further action. However, some applications require additional research before Ms. Troutman can conclude that the applicant qualifies as a classroom teacher. For example, Petitioner Abbie Andrews identified her assignment on her application as “classroom teacher.” Ms. Troutman went to TERMS and saw that Ms. Andrews was designated as an “ESE Support Facilitator” for the 2017-2018 school year. Ms. Troutman testified that ESE Support Facilitators are sometimes assigned to teach classes and therefore could be classified as “classroom teachers” for purposes of the Best and Brightest Program. Ms. Troutman examined both the master schedule and the teacher’s personal account in FOCUS to determine whether Ms. Andrews was assigned to teach any courses. Ms. Andrews had no teaching assignments for 2017-2018 in FOCUS. Ms. Andrews and fellow Petitioners Cherry Deaton, Donna Foster, and Danielle Perricelli held the position of ESE Support Facilitator during the 2017-2018 school year. The School Board concluded that these Petitioners did not qualify for the $1,200 scholarship because their schedules did not assign them the professional activity of instructing students in courses in a classroom situation, as required by the statute. It was undisputed that these Petitioners had been rated “highly effective” for the 2016-2017 school year. It was also undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the statutory definition of a classroom teacher for the 2016-2017 school year. The School Board’s general job description for an ESE Support Facilitator provides as follows: The teacher is responsible directly to the Principal. He/she provides for the instruction, supervision, and evaluation of assigned students on an as needed basis. He/she supports both general education and ESE teachers. He/she serves in a staff relationship with other teachers and supports and promotes ESE inclusion activities. (Emphasis added). The School Board contrasts this job description with that of “Classroom Teacher,” which provides: “The teacher is responsible directly to the principal for the instruction, supervision, and evaluation of students.” The classroom teacher is fully responsible for the “instruction, supervision, and evaluation” of the students in her classroom, whereas the ESE Support Facilitator performs those activities only “as needed.” The School Board also points out that, unlike a classroom teacher, an ESE Support Facilitator is not required to be certified in-field for the position. The ESE Support Facilitator is not the teacher of record for any particular course. Their schedule is fluid. The ESE Support Facilitator comes and goes as needed (“pushes in,” to use the teaching vernacular) in the classroom, and is expected to be wherever the ESE student assigned to them needs their services. Sometimes they push into the classroom and sometimes they pull students out of the class to work on a specific concept or skill. An ESE Support Facilitator is assigned “contact students” for whom individualized educational plans (“IEPs”) are prepared. The classroom teacher of record is responsible for giving the student course credit or a grade and is responsible for recording attendance in FOCUS. One-third of the classroom teacher’s evaluation is tied to student performance. Only the classroom teacher has default access to FOCUS in order to enter attendance and grade information for the students in the class. An ESE Support Facilitator must seek and be granted access to student’s FOCUS information. An ESE Support Facilitator is expected to meet with each contact student at least once a month; in practice, these meetings tend to occur more frequently. The ESE Support Facilitator goes over accommodations the student needs and assignments the student did not understand. The facilitator reteaches the course material if need be and stays in touch with the student’s teachers and parents, making sure all stakeholders in the student’s success are on the same page. The evidence presented at the hearing indicated that all of the students served by the ESE Support Facilitators in this case attended classes in regular classrooms, not in separate ESE classes. In such “inclusion” classes, the ESE Support Facilitator’s role is to push in and assist contact students in the regular classroom, ensuring that their IEP requirements are met and that the students are progressing satisfactorily through the course material. Based on these definitional and operative distinctions, Ms. Troutman considered ESE Support Facilitators to be “other instructional staff” as defined by section 1012.01(2)(d), rather than “classroom teachers” as defined by section 1012.01(2)(a). Ms. Andrews was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Andrews met the definition of a “classroom teacher” for the 2016-2017 school year. During the 2017-2018 school year, Ms. Andrews was a full-time ESE Support Facilitator at Middleburg High School, not assigned to teach any courses. In FOCUS, she was assigned as the “contact teacher” for approximately 60 students, meaning that she was primarily responsible for writing their IEPs and ensuring that they made adequate progress in their classes. She met with all of her contact students on an as needed basis, at least once per month but often as much as twice per week. However, Ms. Andrews was not listed in FOCUS as the teacher of record for any class. Even though she routinely pushed into classes to support her assigned ESE students, Ms. Andrews was not the primary teacher of record. She was there to assist her contact students with whatever they needed to learn the course, but the course was not assigned to her to teach. Ms. Andrews did not have a traditional classroom. She was not the teacher of record in any course for which students received academic credit, and she did not assign grades to students for the material she was teaching. Ms. Andrews prepared IEPs that were individualized to particular contact students. She did not prepare daily lesson plans in the manner of a classroom teacher. Ms. Andrews described her job as an ESE Support Facilitator as follows: My job is to teach, mentor, challenge students to make them -- make them ready for graduation, become productive members of society. I believe that’s the same thing a classroom teacher does. I am using the Florida standards to prepare lessons for remediation if a student needs it. I am constantly having conversations with not just students, but their parents, keeping them on track or making sure their students are on track because ultimately, a parent wants that student to graduate on time as well. I believe that the questions that are asked of me as a support facilitator are the same questions that parents would ask of a classroom teacher because they are very concerned. I am not just answering questions based on one classroom. I'm answering questions based on six classes. I'm responsible for that student being successful in six classes. The IEPs that I write, they're legally binding. I am involved in the academics, behavior, discipline. I deal with discipline problems. All of these things are the same things that a classroom teacher would deal with. I do not have a schedule in Focus; however, when a need arises, I'm there, I'm in a classroom, I'm helping, and I'm doing what's needed to be done for the kids to be successful. Ms. Deaton was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Deaton met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Deaton was a full-time ESE Support Facilitator at Middleburg High School, with approximately 60 contact students assigned to her in FOCUS. She was not assigned to teach any courses. If she pushed into a class to support her assigned ESE students, she was not the primary teacher of record. She was not designated as a co-teacher,3/ but she would assist teaching classes on an as-needed basis if she was not busy testing students or preparing IEPs. For those classes, she was provided access to view grades in FOCUS, but she did not have access to give grades. She would meet students as needed in her office, in another teacher's classroom, or in the computer lab. She did not develop lesson plans on her own, but provided suggestions and advice on lesson plans to the primary teacher. As an ESE Support Facilitator, Ms. Deaton did not have a classroom or teach a classroom full of students. She had no schedule assigned to her in FOCUS, but had contact students assigned to her in FOCUS. Ms. Foster was employed as an English/language arts and ESE Inclusion Teacher during the 2016-2017 school year. She taught four classes as ESE inclusion teacher. The remaining two periods were devoted to her position as ESE department head. Ms. Foster had a schedule in FOCUS. She had her own classroom and students, prepared daily lesson plans, and assigned grades. Students in her classes received academic credit. Ms. Foster was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Foster met the definition of a “classroom teacher” for the 2016-2017 school year. Ms. Foster was employed as an ESE Support Facilitator and ESE department head during the 2017-2018 school year. She retired at the end of the school year, effective June 7, 2018. As an ESE Support Facilitator, Ms. Foster did not have a set schedule. Ms. Foster’s assigned ESE students did not receive academic credit for the services she provided, but her assistance was integral in helping them pass their courses. Ms. Foster assisted with an American history class during the 2017-2018 school year, but was not assigned as the primary teacher in FOCUS. Ms. Foster testified that she did not believe she had ever been identified as a co-teacher in FOCUS, though she thought she should have been. Ms. Foster testified that she had IEPs for the American history class that listed both the class setting and the service delivery method as “co-teach.” She explained that because the class had both general education and ESE students, the teacher had to be certified in both the subject matter and ESE. Because the primary teacher was certified only in the subject matter, it was necessary for Ms. Foster to co-teach the class. Ms. Foster testified that she split lesson plan preparation with the primary teacher. Ms. Foster believed she was not listed in FOCUS as the co-teacher because the school administration never bothered to remove the name of Kristin Heard, the ESE teacher originally assigned to the class, who was moved to a science class early in the year. Ms. Foster pursued the matter with the assistant principals at Lakeside Junior High, but nothing came of it. Mallory McConnell, the principal at Lakeside Junior High School during the 2017-2018 school year, confirmed that Ms. Foster was not listed as a co-teacher on the master schedule. Ms. McConnell testified that in 2017-2018 there were no “true co-teacher” situations, by which she meant two teachers who equally shared responsibility for the instruction and grading of every student in the class. Ms. McConnell was aware of situations in which a student’s IEP mandates co-teaching in a class, but she testified that she was unaware of any student at Lakeside Junior High School in 2017-2018 whose IEP required a co-teacher. Ms. McConnell conducted infrequent walkthrough observations of the American history class. She testified that she saw Ms. Foster providing support services to the ESE students but never saw Ms. Foster teaching at the front of the class. Ms. McConnell stated that she would not have expected to see Ms. Foster teaching the class or creating lesson plans for the class as a whole because those tasks were not her job responsibility. Ms. McConnell was in no position to state whether Ms. Foster did, in fact, prepare lesson plans and teach the class. Ms. McConnell was able to state that for at least one month during the school year, Ms. Foster administered tests to her ESE students, meaning that she could not have been co- teaching the American history class. Ms. Foster did not tell Ms. Troutman that she had assisted teaching the American history class during the 2017- 2018 school year, nor did she include such information on her application for the Best and Brightest Program, because she believed the award was based upon her position in 2016-2017 and because she believed the school administration’s failure to include her as teacher of record in FOCUS was an “in-house” issue. Ms. Perricelli was employed as an ESE Support Facilitator, ESE department head, and MTSS intervention team facilitator at Orange Park Junior High School. “MTSS” is an acronym for Multi-Tiered System of Support, a framework for providing support to students who are struggling academically or have an identified need in a specific area such as speech, language, or behavior. MTSS interventions may be used for regular education or ESE students. Ms. Perricelli testified that she was not the teacher assigned by FOCUS for any class in 2016-2017. In addition to her regular ESE duties, Ms. Perricelli taught “grade recovery” to two students in language arts, science, and math. Grade recovery is a class offered to students who have failed a course and lack the credits to move on to the next grade level. Ms. Perricelli designed lesson plans and curriculum assessments for each subject, graded papers and tests, and reported the students’ grades to the school. Ms. Perricelli testified that she was not given the authority to enter the grade recovery students’ grades into FOCUS in 2016-2017. She requested a course code but was never provided one. Ms. Perricelli taught grade recovery for two periods, one for each student. For the other four periods of the school day, Ms. Perricelli would push into classrooms and work with ESE students, usually in small groups with students who needed remediation. She had around 40 contact students and developed IEPs for each of them. Most of her contact students were in the classrooms that she was going into, so she would see them throughout the week. She would meet with her other contact students about once a week. Ms. Perricelli would work with the assigned teacher to modify the course material to meet the needs of the ESE students. Ms. Perricelli was evaluated as “highly effective” for the 2016-2017 school year, based on standard classroom teacher criteria. She was observed working with her grade recovery students and in the classrooms in which she pushed in. Ms. Perricelli testified that her assignments were the same for the 2017-2018 school year. She taught one student in a grade recovery course. Due to her persistence, Ms. Perricelli was able to get a course code from Ms. Troutman for the grade recovery course in 2017-2018. The grade recovery course was named “Unique Skills.” In 2017-2018, Ms. Perricelli was assigned around 70 contact students for whom she prepared IEPs. As department head, Ms. Perricelli oversaw 22 ESE instructors. She was the only ESE Support Facilitator at the school. Janice Tucker was vice principal at Orange Park Junior High School in 2017-2018. She testified that early in the school year, the assigned teacher for seventh grade math left for another county. A long-term substitute, Lashonda Campbell, took over as teacher of record. Ms. Perricelli testified that she developed some of the curriculum in Ms. Campbell’s math classes, which included ESE and non-ESE students. She stated that she taught the class alone once a week when Ms. Campbell started, then tapered off into pulling out small groups of ESE students who needed remediation. She worked with four periods of seventh grade math classes that year. Ms. Perricelli testified that she gave grades to students in those courses and gave them to Ms. Campbell for entry into FOCUS. Ms. Tucker testified that Ms. Perricelli was not a co- teacher for the math class. Ms. Campbell was the teacher of record. Ms. Tucker testified that when she observed the math class, she saw Ms. Perricelli working with small groups in the back of the class or at a table in the hallway, and Ms. Campbell at the front teaching the class. Ms. Tucker never saw Ms. Perricelli at the front of the class teaching. Ms. Tucker conceded that she had no knowledge whether Ms. Perricelli was involved in creating lesson plans or assigning grades for the math class. Ms. Perricelli was evaluated by Ms. Tucker for the 2017-2018 school year. Ms. Tucker observed Ms. Perricelli in the seventh grade math class and in the Unique Skills class. Ms. Perricelli was again rated “highly effective.” Ms. Perricelli testified that she did not mention teaching the math class on her scholarship application. She stated that she did not tell Ms. Troutman about the math class because at the time, the school was still attempting to get a full-time teacher for the class. Ms. Troutman obviously knew about the “Unique Skills” class, having issued the course code to Ms. Perricelli. Ms. Troutman testified that she consulted with Mr. Broskie and Mr. D’Agata as to whether having one assigned class in FOCUS should qualify Ms. Perricelli for the scholarship. They concluded that teaching one class with one student was insufficient to qualify as a “classroom teacher” for purposes of the Best and Brightest Program. Ms. Troutman testified that this conclusion was consistent with the School Board’s historic practice of considering two or more classes as the “cutoff” for a classroom teacher. Ms. Troutman believed that if an ESE Support Facilitator taught two classes, then she would qualify as a “classroom teacher.” Petitioner Easter Brown taught a fourth grade classroom at Grove Park Elementary School during the 2016-2017 school year and was rated “highly effective.” It is not disputed that Ms. Brown met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Brown was a full-time SPRINT specialist. “SPRINT” stands for Supervisor of Pre-Interns and New Teachers. SPRINT specialist is a support position for teacher trainees and new teachers, operating under an agreement between the School Board and the University of North Florida (“UNF”), each of which pays half of the SPRINT specialist’s salary. Ms. Brown taught field classes at UNF and conducted workshops for clinical educator training and professional development. Ms. Brown kept Grove Park Elementary as her home base and shared a classroom there with two other teachers. She taught UNF students in classes at the university and worked with new teachers at the school. She estimated that she spent half her time at UNF and half at Grove Park Elementary. Ms. Brown had no K-12 courses or K-12 students assigned to her in 2017-2018. She had no courses assigned to her in FOCUS. She gave grades to only UNF students. Ms. Brown did not create traditional lesson plans but did assist new teachers in writing lesson plans. Ms. Brown testified that she did some teaching in a regular classroom for purposes of modeling teaching techniques for her student teachers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Finding that Petitioners Abbie Andrews, Cherry Deaton, and Donna Foster were not eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were not classroom teachers during the 2017-2018 school year; and Finding that Petitioners Easter Brown and Danielle Perricelli were eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were classroom teachers during the 2017-2018 school year, and directing staff to take all practicable measures to secure the scholarship monies for Ms. Brown and Ms. Perricelli. DONE AND ENTERED this 18th day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2019.
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
