Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
The Issue The central issue in case no. 88-2368 is whether Respondent should be suspended for thirty workdays due to misconduct in office. The central issue in case no. 88-3315 is whether Respondent should be dismissed from employment due to misconduct in office, gross insubordination, and incompetency.
Findings Of Fact COPIES FURNISHED: Marlene Rodriguez 16333 Wood Walk Miami Lakes, Florida 33014 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132
Recommendation Based on the foregoing, it is RECOMMENDED: With regard to case no. 88-2368, that the School Board of Dade County enter a final order affirming the administrative decision to suspend Respondent for a thirty workday period for misconduct in office. With regard to case no. 88-3315, that the School Board of Dade County enter a final order affirming the administrative decision to dismiss Respondent from employment for misconduct in office, incompetence, and gross insubordination. DONE and RECOMMENDED this 1st day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 1st day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2368, 88-3315 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the exception of George C. Clark, Mr. Clark's testimony was offered by deposition. Paragraph 2 is accepted. Paragraphs 3-4 are accepted. Paragraph 5 is rejected as a recitation of testimony, not specific facts adduced by such testimony; some of the recitation being without basis. It is found that Respondent did not follow school policies regarding the discipline administered to students, that Respondent was aware of the correct procedures, and that Respondent continuously had trouble regarding classroom management. Paragraph 6 is accepted. Paragraph 7 is accepted. Paragraph 8 is accepted. Paragraph 9 is accepted but is unnecessary to the conclusions reached in this cause. Paragraph 10 is accepted not for the truth of the matters asserted therein but as a indication of the student-teacher relationship between Respondent and one of the students she taught. Paragraphs 11, 12, and 13 are accepted. Paragraph 14 is accepted not for the truth of the matters asserted therein but see p.9 above. Paragraph 15 is accepted. Paragraph 16 is accepted not for the truth of the matters asserted therein but see p.9 above as it relates to the hearsay contents of the letter. Other portions of the paragraph which conclude respondent knew discipline procedures but did not follow them, or knew notice policies but did not follow them are accepted. Paragraphs 17 and 18 are accepted. Paragraphs 19,20,21, and 22 are accepted only to the extent addressed in findings of fact, paragraphs 7,8,9, and 10; otherwise, the proposed findings are rejected as contrary to the weight of the evidence or unsupported by admissible evidence. Paragraphs 23, 24, and 25 are accepted. With regard to paragraph 26, the first two sentences are accepted, the balance is rejected as hearsay or unsupported by the record in this cause. Paragraphs 27, 29, and 30 are accepted. (Petitioner did not submit a paragraph 28) In the future, proposed findings submitted which do not conform to the rules of the Florida Administrative Code will be summarily rejected. Petitioner is cautioned to review applicable rules, and to cite appropriately. RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted with the clarification that Clark's testimony was offered by deposition. Paragraph 2 is accepted. With regard to paragraph 3, according to the evidence in this case, Repodent taught at Miami Gardens Elementary School (Leon was her principal there) and North Carol City Elementary School (Sawyer and Brown were her principals there). Other schools may have been assigned during her periods of "special assignment" but the record is insufficient to establish Respondent's performance while on such assignments. The record is insufficient to make the legal conclusion addressed in paragraph 4, consequently, it is rejected. The Board addressed a recommendation to terminate Respondent's employment; however, the record does not establish final action was taken. The facts alleged in paragraph 5 are too voluminous to address in one paragraph. Petitioner's continued use of a recitation of the testimony does not constitute findings of fact. Pertinent to this case are the following facts adduced from Petitioner's paragraph 5: that Respondent's overall performance was unacceptable, that Respondent failed to direct students who were off task, that Respondent made an excessive number of referrals for discipline, and that the atmosphere in Respondent's class was not conducive to learning. With the exception of the last sentence in paragraph 6, it is accepted. The last sentence is rejected as contrary to the weight of the evidence. See finding made regarding paragraph 5, case no. 88-2368. Paragraph 8 is rejected as contrary to the specific evidence presented. Paragraph 9 is accepted. Paragraphs 10-14 are accepted. Paragraph 15 is rejected with the exception of the last sentence; the time sequence referred to is not specified in the record. The record does establish, however, that Respondent did not make progress in correcting noted areas of deficiency. Paragraphs 16 and 17 are accepted. Petitioner's proposed findings of fact have duplicate numbers for the following paragraphs: 15,16, and 17. The second set of these paragraphs are addressed below. Second paragraph 15 accepted not for the truth of the matters asserted but as an indication of the teacher-student relationship between Respondent and her student. Second paragraph 16 is accepted. Second paragraph 17 is accepted. Paragraph 18 is accepted. Paragraphs 19-22 are accepted.
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
The Issue Whether just cause exists to terminate Respondent from employment with the Brevard County School Board.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. This includes the power to discipline employees, such as teachers. § 4, Article IX, Fla. Const.; §§ 1001.42(5), 1012.22(1)(f), and 1012.33, Fla. Stat.1 Respondent is a classroom teacher, and as such, the terms and conditions of her employment are governed by the collective agreement between the School Board and The Brevard Federation of Teachers, Local 2098. Respondent has a Bachelor’s degree in exceptional education. On or about November 9, 2006, Respondent, pursuant to an annual contract, was hired by the School Board to provide services as a classroom teacher. Beginning in the 2009-2010 school year, Respondent continued her employment with the School Board pursuant to a professional services contract. During all times relevant to this proceeding, Respondent taught at Hoover Middle School, which is under the jurisdiction of the School Board. At the commencement of the 2014-2015 school year, Respondent taught exceptional education (ESE) students in a self-contained, supported-level class. At approximately the midway point of the 2014-2015 school year, Respondent began teaching a resource math class which was comprised entirely of ESE students. Beginning in the 2017-2018 school year, and continuing through the 2018-2019 school year, Respondent taught one resource math class for a single class-period of the day, and she co-taught, or “pushed-in,” for the other five instructional class periods. In both settings, Respondent taught math to ESE students. By correspondence dated March 26, 2019, Superintendent Mullins advised Respondent of the following: Pursuant to Florida Statute 1012.34, you are being recommended for termination of your Professional Services Contract due to unsatisfactory 1 All subsequent references to Florida Statutes will be to the 2018 codification, unless otherwise indicated. Performance …. The actions leading to this recommendation are as follows: On October 29, 2018, you were provided a 90-day notice advising of performance-related concerns based upon three years of unsatisfactory annual evaluations. Several performance review meetings were held with you, your union representative, and your school Principal to discuss your progress. A review of your past evaluations indicates several attempts at corrective activities through the use of District Peer Mentors and Resource Teachers. After the completion of the 90-day plan, adequate progress was not obtained and is grounds to sever the Professional Services Contract. The School Board uses an “Instructional Personnel Performance Appraisal System” (IPPAS) as a guide when evaluating a teacher’s performance. According to the IPPAS manual, classroom teachers are evaluated on a rubric which consists of five dimensions. The first dimension focuses on “instructional design and lesson planning.” The second dimension focuses on the “learning environment” created and fostered by the teacher. The third dimension focuses on “instructional delivery and facilitation.” The fourth dimension focuses on “assessment,” and the fifth dimension focuses on a teacher’s “professional responsibility and ethical conduct.” IPPAS is approved annually by the Florida Department of Education (FLDOE), and the School Board meets regularly with The Brevard Federation of Teachers, Local 2098, to address any issues concerning the evaluation process. Teachers and evaluators receive yearly training, which covers the various components of the evaluation process. Pursuant to IPPAS, and related statutory provisions, classroom teachers are evaluated annually. The overall score given to a teacher on the annual evaluation is determined by how a teacher scores in the areas of “Professional Practices Based on Florida’s Educator Accomplished Practices (Professional Practices),” and “Individual Accountability for Student Academic Performance Based on Identified Assessments (Student Performance).” The Professional Practices category accounts for 67 percent, and Student Performance accounts for the remaining 33 percent of a teacher’s annual evaluation score. For purposes of quantifying a teacher’s annual evaluation, IPPAS identifies the Professional Practices category as “Part 1 of the Summative Evaluation,” and the Student Performance category as “Part 2 of the Summative Evaluation.” Part 1 of the Summative Evaluation is completed in the spring of each school year and consists of the supervising principal’s annual evaluation of the teacher, the teacher’s self-assessment, and the collaboration and mutual accountability score. The evaluative components of Part 1 of the Summative Evaluation are comprised of the previously referenced “five dimensions.” Part 2 of the Summative Evaluation is determined based on student academic performance data (VAM score) as calculated by the FLDOE. VAM scores are released by FLDOE in the fall, and these scores reflect student performance for the preceding school year. Consequently, a teacher will not receive an overall annual evaluation score for the immediate preceding school year until the fall semester during which VAM scores are available. As a practical matter, this explains, in part, why the recommendation for termination letter sent to Respondent by Superintendent Mullins was issued on March 26, 2019.2 2015-2016 SCHOOL YEAR Respondent, on or about April 25, 2016, received Part 1 of her Summative Evaluation for the 2015-2016 school year. Respondent received a score of 27.71 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the category of “Needs Improvement.” On or about November 2, 2016, Respondent received Part 2 of her Summative Evaluation for the 2015-2016 school year. Respondent received a VAM score of 56.71 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2016-2017 SCHOOL YEAR Respondent, on or about April 5, 2017, received Part 1 of her Summative Evaluation for the 2016-2017 school year. Respondent received a score of 20.42 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about November 13, 2017, Respondent received Part 2 of her Summative Evaluation for the 2016-2017 school year. Respondent received a VAM score of 50.42 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2 VAM scores for the 2017-2018 school year were released on or about October 19, 2018. As discussed elsewhere herein, Respondent was placed on 90 days probation following the release of her VAM score. The timing of the release of the VAM score, coupled with the 90-day probationary period and related matters, account for the March 2019 date of Superintendent Mullin’s letter to Respondent. 2017-2018 SCHOOL YEAR Respondent, on or about May 3, 2018, received Part 1 of her Summative Evaluation for the 2017-2018 school year. Respondent received a score of 34.58 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about October 19, 2018, Respondent received Part 2 of her Summative Evaluation for the 2017-18 school year. Respondent received a VAM score of 64.58 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” A PLAN FOR ADDRESSING PROFESSIONAL DEFICIENCIES The School Board, in order to address Respondent’s professional deficiencies as identified during the relevant evaluation periods, provided support to Respondent through the utilization of Professional Development Assistance Plans (PDAPs). PDAPs are designed to provide a teacher with opportunities for professional development, which includes access to online resources, training activities and courses, and opportunities to work with School Board resource and peer mentor teachers. The School Board, acting through Respondent’s supervising administrators, agreed in the PDAPs to support Respondent’s professional growth and development as follows: By providing access to the “District Peer Mentor Teacher for collaboration on dimension 3.” By conducting “informal observations documented in ProGOE with feedback for improvement.” By providing “resources on utilizing formative assessment to check for understanding.” By providing “resources regarding implementing differentiated instruction.” By providing “resources on the utilization of Webb’s Depth of Knowledge.” By providing “exemplary sample lesson plans as a model … to follow.” By providing “pacing guide if needed.” By meeting every two weeks to review weekly lesson plans. By providing Respondent with “an exemplary teacher to observe, as well as a substitute [teacher] for class coverage during observation.” By providing a list of Professional Development courses on classroom management, as well as a substitute teacher to cover Respondent’s class while she attends the course. By providing “assistance and specific feedback from school based coaches.” By completing “informal observations on a bi- monthly basis, and provid[ing] feedback.” The evidence establishes that the School Board honored its commitment to Respondent as outlined in the respective PDAPs. 90 DAYS OF PROBATION, AND RECOMMENDATION FOR TERMINATION By correspondence dated October 29, 2018, the School Board advised Respondent of the following: In accordance with section 1012.34(4), F.S., this shall serve as the District’s notification of unsatisfactory performance. Please be advised that your Professional Service Contract for the 2018-19 academic year is on a probationary status for ninety (90) days. Your contract is being placed on probation due to your receiving an overall “Needs Improvement” rating on your last three (3) consecutive annual performance evaluations. See also section 1012.22, F.S. During the next ninety (90) days, you will be evaluated periodically. You will be apprised of any progress achieved in writing. You will work with the administration of your school to assist you in obtaining opportunities to help correct any noted deficiencies. After February 25, 2019, the ninetieth (90th) day, administration has fourteen (14) days to assess your progress. If no improvement is shown, administration will notify the Superintendent if you do not rate an overall Effective on the Summative Part 1 of your evaluation. Sincerely, Burt Clark, Principal Hoover Middle School Respondent, during her 90-day probationary period, continued to receive professional development services from the School Board, which included working with a peer mentor teacher, participating in CHAMPs training, receiving assistance from a math content specialist, and observing an exemplary math teacher. Burt Clark was the principal at the school where Respondent worked when she was placed on probation. As the principal, Mr. Clark served as Respondent’s supervisor and was responsible for evaluating her performance. During Respondent’s probationary period, Mr. Clark regularly met with Respondent and her union representative to discuss Respondent’s progress and offer assistance. In addition to meeting with Respondent, Mr. Clark also conducted one interim evaluation, four informal observation, and two formal observations of Respondent’s performance. Mr. Clark also conducted a number of “walk-throughs,” which provided additional insight into the status of Respondent’s professional development. While it is true that Mr. Clark’s observations of Respondent mainly occurred in the classroom where Respondent was the teacher of record, as opposed to Respondent’s work as a “push-in” teacher, Mr. Clark credibly testified that he had sufficient data to assess Respondent’s performance. Mr. Clark, at the end of the probationary period, determined that Respondent’s professional deficiencies remained, and on March 6, 2019, he made the following recommendation to Superintendent Mullins: Ms. Lisa Lemieux had an overall unsatisfactory performance appraisal. We have worked with her to try to improve her instructional strategies; but, it has not been successful in changing the behavior to better serve the students assigned to her. As defined in [section] 1012.34(4), [Florida Statutes], February 25, 2019, was the 90th day since the notification of her 90-day probation for this contract year and after demonstrating no improvement on the Summative Part 1, I have assessed that the performance deficiencies have not been corrected. I would recommend the termination of her employment with Brevard Public Schools. Burt Clark, Principal Hoover Middle School After receiving Mr. Clark’s recommendation to terminate Respondent’s employment, Superintendent Mullins reviewed Respondent’s last three years of evaluations, considered the extensive support and training provided to Respondent by the School Board, and concluded that termination of Respondent’s employment was warranted and justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Brevard County enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 16th day of March, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2020. COPIES FURNISHED: Amy D. Envall, General Counsel Brevard County Public Schools 2700 Judge Fran Jamieson Way Viera, Florida 32940 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Howard Michael Waldman Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Dr. Mark Mullins, Superintendent School Board of Brevard County 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Matthew Mears, General Counsel Department of Education Turlington Building 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this cause is whether the Petitioner Duval County School Board should dismiss the Respondent for professional incompetence pursuant to the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941) as amended.
Findings Of Fact The Petitioner is the Duval County School Board. The Respondent, Bobby Palmore, has been an employee of the Petitioner since the 1992-93 school year. The Respondent is a tenured teacher assigned as a guidance counselor. During the 1997-98 school year, the Respondent was a guidance counselor at North Shore Elementary School. The Principal at the school in 1997-98 was Larry Davis. Concerns regarding the Respondent’s work performance at North Shore were raised early in the school year regarding his participation with Intervention Teams. An Intervention Team is formed to assist a guidance counselor with a particular student. The team meets when requested by the guidance counselor. Notwithstanding that the Intervention Team convened at the Respondent’s request, he missed the meeting scheduled for September 29, 1997. His erratic attendance at other Intervention Team meetings was of concern to the Assistant Principal, Martha Johnson, and the Principal. Ms. Johnson spoke with the Respondent about this, and Mr. Davis wrote the Respondent about his attendance at these meetings. Respondent’s attendance did not improve. The Respondent’s erratic attendance at Intervention Team Meetings was unsatisfactory performance of his duties and showed a lack of understanding of the subject matter. The Respondent repeatedly interrupted classroom teachers with unannounced and unscheduled calls and visits to their classrooms. This disrupted their classes, and they complained to administrators about Respondent’s conduct. These interruptions were frequently to obtain information regarding students who were being staffed for one reason or another, an activity coordinated by the guidance counselor. The Respondent was officially counseled about these interruptions by Ms. Johnson, but continued to interrupt classes and cause disruptions. This was unsatisfactory job performance and showed the Respondent’s failure to follow directions, plan his activities effectively, and manage his time well. These are considerations in Competency 2 of the Evaluation criteria. The Respondent was asked by Ms. Johnson to make a sign to direct parents and others to a December 12, 1997, Child Study Team (CST) meeting. He did not do so. This also showed the Respondent’s inability to follow direction. On January 13, 1998, the Respondent told Deborah Nurse, an employee of the school, in a rude and loud voice, that she was not to use the copying machine that was outside his office. Mr. Davis counseled the Respondent in writing regarding his behavior on January 16, 1998. On January 14, 1998, at a CST meeting, Ms. Slaughter asked the Respondent for a cumulative folder on a student. The Respondent had been asked to the meeting because of his lack of cooperation regarding the folder. The Respondent accused Ms. Slaughter of not respecting him in the meeting, and insisted that she ask him again for the folder. The Respondent’s actions were embarrassing to the professionals present at the meeting and showed a lack of professionalism on the part of the Respondent. He was counseled in writing by Ms. Johnson about his conduct. On January 15, 1998, a meeting was held to discuss a student between Ms. Johnson, Mrs. Shabazz, and the Respondent. Mrs. Shabazz indicated that a pertinent document was missing from the student’s folder that could effect his educational program and result in a loss of funding for the school. It was Respondent’s responsibility to maintain the student’s records in the guidance office. Ms. Johnson counseled the Respondent about his responsibilities in maintaining records and their importance to the school. She offered to assist the Respondent in reviewing the cumulative folders prior to their processing. The Respondent was responsible for preparation of materials for and participation in CST meetings on students. The Respondent placed students on the CST agenda without completing the data in their folder. This failure interfered with the proper and timely placement of students, and evidenced an unsatisfactory performance of a basic part of the Respondent’s job. As a result of the complaints about the Respondent’s work and conduct, a Success Plan was developed. This plan outlined areas in which the Respondent was not performing satisfactorily, identified objectives for improving his performance, and strategies to meet the objectives. A team was created to assist the Respondent including Mr. Davis, Ms. Johnson, the Respondent’s supervisor in guidance services, and the professional development facilitator. The Intervention Team had decided that team members should receive a response from the Respondent within three days. This time limit was incorporated in the Respondent’s Success Plan; however, the Respondent did not submit the CST packets within the time limits. In addition, the Respondent’s tone in speaking with the teachers was such that they complained to Ms. Johnson about the Respondent. Ms. Johnson counseled the Respondent about the lateness of his submittals and his interactions which the teachers. The Respondent did not improve his conduct that directly resulted in student’s needs not being met. The Respondent continued to be late to or to miss meetings and scheduled classroom visits. On February 4, 1998, he was late to a classroom visit. He cancelled a classroom visit he had scheduled. He did not follow the weekly calendar of guidance activities as required in his Success Plan. On February 4, 1998, Mr. Davis met with the Respondent to discuss the proper procedures for conducting a CST meeting as a means of assisting the Respondent. On February 6, 1998, Mr. Davis counseled the Respondent about his continued interruption of classes, and the Respondent forgot about a scheduled guidance session and did not attend, until reminded by Ms. Dennis. On February 6, 1998, Ms. Anderson met with the Respondent to discuss the guidance program and to offer assistance to him. She suggested that he use a weekly, hour-by- hour calendar to plan his time and activities. She also counseled with him about using a lesson plan for a small group session to provide a clearly defined objective for the session. Ms. Anderson directed the Respondent to follow-up with her in a week. The Respondent did not follow-up with Ms. Anderson or follow any of her advice. On February 9, 1998, Mr. Davis observed the Respondent conduct a meeting with staff regarding the Florida Writes Test. The Respondent’s conduct of the meeting was unsatisfactory. Issues were left unresolved and staff members were confused about the presentation. Some of the material presented was inconsistent with the information in the manual. Mr. Davis wrote the Respondent about these matters, and referred the Respondent to his Success Plan. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to make to two-scheduled classroom visitations. On February 10, 1998, the Respondent missed a scheduled classroom visitation. The Respondent was not following a weekly calendar of activities, and his performance was unsatisfactory and contrary to the Success Plan. On February 10, 1998, the Respondent attempted to counsel the wrong child about the death of the child’s mother, and was prevented from doing so by the teacher. This reflected poorly on the Respondent’s attention to his duties, and his professionalism. On February 10, 1998, the Respondent was provided a list of counselors at other schools who had agreed to let the Respondent attend classroom guidance or CST meetings at their schools. The Respondent was late and showed a lack of interest while attending a classroom guidance session at Lake Forrest. On February 11, 1998, Mr. Davis observed a CST meeting at North Shore. It was evident that the parents had not received the required seven days' notice of the meeting. The Respondent had not conducted the pre-conferences, and had not coordinated the scheduling with the teachers. The Respondent did not have the proper forms in the cumulative folders, and had not conducted any classroom observations in preparation for the CST meeting. In sum, the Respondent’s performance showed a complete lack of competence and knowledge of his duties as a guidance counselor. On February 11, 1998, the Respondent missed his scheduled classroom guidance visit. On February 12, 1998, the Respondent missed his scheduled classroom guidance visit because he was late in arriving. On February 12, 1998, The Respondent discovered a coding error on the Florida Writes Test. He reported the error to Mr. Davis and accused the teacher of coding the test incorrectly. Davis directed the Respondent to correct the mistake and notify the testing department regarding the possible problem. The Respondent did not correct the test as directed, but placed a note on the box and resealed it to be mailed. The Respondent’s actions violated the testing procedures, and he did not do as he had been directed. On February 17, 1998, Ms. Johnson counseled with the Respondent concerning his failure to respond to student and staff needs. She advised him he was not meeting his Success Plan goals, and students were not receiving services they needed. The Respondent refused to counsel with a developmentally disabled student who had been sent to guidance by his teacher. The proper paper work had been completed for the student to participate in the group counseling session; however, the Respondent refused to allow the student to participate, chasing the student around the room telling him to "get out." The student was confused and embarrassed. Ms. Johnson, who was observing the session, and took charge of the student by having him sit with her, resolved the situation. The Respondent's actions demonstrated a complete lack of understanding of the role of a guidance counselor, sensitivity for students, and ability to conduct a class or counseling session. On March 9, 1998, Mr. Davis completed the Respondent’s Annual Performance Evaluation. The evaluation consisted of eight competency areas. The Respondent received an unsatisfactory rating in three of the competency areas, which constituted an overall unsatisfactory evaluation. The facts as presented at hearing confirm the evaluation, and show that the Respondent was clearly incapable of performing his job duties. He lacked knowledge of his duties or how to perform them. He was insensitive to the students' needs and did not meet them. He did not follow the direction of his Principal and did not maintain a professional relationship with his coworkers and superiors. After receiving this evaluation, the Respondent continued in the same pattern of behaviors. He did not prepare and use a calendar of activities. He continued to provide materials late. He refused to assist a parent obtain the proper papers to enable the parent’s child to enroll in another school. He continued to disturb classes. He failed to notify staff of CST meetings at which they needed to attend. He took seven months to complete the paper work to have one child tested. In fact, there were several students who were awaiting CST processing at the end of the year. The Respondent was treated fairly and provided assistance by the school’s administration. Based upon his unsatisfactory evaluation in 1997-98, the Respondent was administratively transferred to J.E.B. Stuart Middle School the following year for an additional year of observation of in-service training. Carol Daniels is the Principal of Stuart Middle School. She met with the Respondent and advised him that he was starting with a clean slate at her school. School Board Policy required that Ms. Daniels confer privately with the Respondent and develop a Success Plan. She met with the Respondent on August 24, 1998. The Success Plan outlined goals and objectives to improve the Respondent’s performance as a guidance counselor. A support team was created to assist him. Soon after the school year began, Ms. Daniels counseled the Respondent about the proper method to request student records. She arranged for him to attend New Counselor Training on or about August 31, 1998. The Respondent was negative and adversarial about being requested to attend the training. He officially complained about the request, but upon review the Regional Superintendent determined that Ms. Daniels’ request was not arbitrary and was appropriate. The Respondent was counseled by Mr. Gilmore, the Vice Principal, on the need to process gifted students under the ESE program. He had failed to process several of these students, and he was given a deadline for processing these students. On September 8, 1998, the Respondent did not exit the building during a fire drill. Ms. Daniels counseled him in writing about the need for everyone to evacuate the building during drills. Mr. Gilmore counseled in writing the Respondent about the lack of lead-time in requesting information about students, and his abruptness and tone in making requests. On October 26, 1998, Linda Bailey requested an ESE/CST Agenda from the Respondent. The Respondent replied he was too busy to provide the information. On October 28, 1998, Ms. Bailey again asked for the information in writing. The Respondent did not provide the information. On October 26, 1998, Ms. Bailey also requested progress reports for the ESE students who would be reevaluated on November 9, 1998. These reports had been used at Stuart Middle School for many years as a best practice strategy. The Respondent advised that he had no intent of providing the progress reports and refused to do so. On October 26, 1998, the Respondent accused the District ESN Admissions Representative of taking ESE forms from his office. His tone and manner were threatening and confrontational. On October 27, 1998, Ms. Daniels notified the Respondent that he would have an evaluation and conference on October 30, 1998, pursuant to district guidelines. On October 28, 1998, Charlotte Robbins, ESE Interventionist, met with the Respondent to discuss three students. It was the Respondent’s responsibility to provide information to Ms. Robbins in a timely manner. The Respondent did not provide Ms. Robbins the necessary information prior to the meeting. The Respondent also invited parents to the meeting without advising Ms. Robbins. On November 2, 1998, Norma Peters, a speech therapist, advised Ms. Daniels that she had requested the Respondent to provide her a list of students to be evaluated two to three weeks before CST meetings. The Respondent told Ms. Peters he would not be able to provide the information as requested, although previous guidance counselors had provided Ms. Peters the names three to four weeks in advance of meetings. Although Ms. Daniels spoke with the Respondent about Ms. Peter’s concern, the Respondent did not provide the information as requested. On November 5, 1998, the two eighth grade counselors met with the Respondent to discuss the need for him to be a team member. They raised the fact that he did not answer the phone, assist parents, or help the guidance clerk when necessary. They also advised him to improve his communication with the ESE teachers, CST members, speech pathologist, and interventionist. A CST meeting was held on November 9, 1998, and only half the parents had been noticed and invited to come to the meeting. The Respondent had been responsible for contacting the parents in compliance with district policies. This failure prevented the CST team from addressing the needs of students. Not only did it potentially deny students services, it frustrated teachers, staff, and parents. On November 24, 1998, the Respondent interrupted class instruction by bringing a parent into the class who had missed an earlier appointment with the teacher. On November 25, 1998, Kathee Cook telephoned the Respondent regarding contacting children for the December 9, 1998, CST meeting. The Respondent refused to contact the parents of the students because ESE procedures required that Ms. Cook contact him seven days prior to the designated date. Ms. Cook reported this to Ms. Daniels, who discussed it with the Respondent, explaining that the requirement was for at least seven days notice. Ms. Daniels advised him that he was responsible for notifying parents for CST meetings, and his position potentially jeopardized notice to the parents as required by district policy. Ms. Daniels directed the Respondent to give the Vice Principal all of the parental notices by December 2, 1998. On December 2, 1998, the Respondent gave Mr. Gilmore ten notice letters; however, he did not provide notices to eleven other parents. The Respondent excused his failure by asserting his interpretation of the seven-day rule. On November 25, 1998, Ms. Daniels advised the Respondent that he had made little improvement in his performance. She discussed with him performance of his duties; and being courteous and respectful to faculty, staff, and parents. The Respondent did not accept the evaluation and was confrontational and adversarial with Ms. Daniels. He refused Ms. Daniels' offer of assistance. On or about January 5, 1999, the Respondent placed seven notice letters to parents in Mr. Gilmore’s box for the January 11, 1999, CST meeting. Not only were the letters late, if intended for the January 11th meeting, but they were addressed to the parents of children being staffed in the January 22, 1999, meeting. The Respondent failed to discontinue ESE services to a student contrary to the parent’s request on three separate occasions, to include at least one request in writing. The Respondent’s failure resulted in the matter being re-assigned to the chair of the guidance department to discontinue the services in accordance with the parent’s wishes. The Respondent left the campus without following the procedures for leaving early. These requirements had been explained during orientation and were in the teachers’ handbook. Ms. Daniels had to notify the Respondent in writing of his oversight. On January 25, 1999, Ms. Daniels notified the Respondent pursuant to the collective bargaining that his work performance was unsatisfactory. He was advised that his performance in Competencies 1, 2, 4, 8 and 9 needed improvement by March 15, 1999. On February 2, 1999, the Respondent was notified that this memorandum would be placed in his personnel file. The Respondent met with parents who were not enrolled in Stuart Middle School during the middle of the school day. Ms. Daniels advised him in writing on February 11, 1999, that this was inappropriate, and he should limit meeting to parents or students enrolled or engaged in enrolling at Stuart. On March 10, 1999, the Respondent made a presentation to an ESE class. His Success Plan required him to schedule presentations during Advisor/Advisee time period. The Respondent’s presentation was arbitrary and he did not seek assistance from his support team. On March 11, 1999, Ms. Daniels completed the Respondent’s annual evaluation. The evaluation addressed nine competency areas. Th Respondent received an unsatisfactory in five of the nine areas, which constituted an overall unsatisfactory evaluation. The Respondent’s performance in Competency 1 (ability to plan and deliver instruction), Competency 2 (demonstrates knowledge of subject matter), Competency 4 (shows sensitivity to student needs by maintaining a positive school climate), Competency 8 (demonstrates a commitment to professional growth), and Competency 9 (shows evidence of professional characteristics) was unsatisfactory. Not only was his performance unsatisfactory, he continued to be unwilling to accept support and assistance. He failed to comply with many areas of his Success Plan and failed to perform his duties. On March 17, 1999, the Respondent interrupted Mrs. Bascombe’s class. Ms. Daniels counseled the Respondent in writing about class interruptions, and how to handle situations by checking the master schedule and placing notices in teacher mailboxes. On March 23, 1999, Ms. Daniels relieved the Respondent of his responsibilities for ESE students because of his poor performance and its impact on the students' welfare. He had failed to timely notify parents. He had failed to communicate with parents, the staff, faculty and the district. His failures had adversely affected the operations of the ESE program. The Respondent was assigned to handle seventh grade non-exceptional education students. Ms. Daniels had to direct the Respondent in writing to relinquish the ESE forms to his successor. On April 20, 1999, after being relieved of his ESE duties, he met with the mother of an ESE student who was then receiving services from his successor. The Respondent was treated fairly at Stuart Middle School. All of the personnel were ready and willing to provide him assistance. He was negative, and refused to co-operate or perform his duties as directed. On May 19, 1999, the Respondent was notified by the Superintendent that he was charged with professional incompetence. He was advised that he would be discharged from the Duval County School System if the charge was sustained by the School Board. He was advised of his right to request a hearing within two days of receipt of the letter dated May 19, 1999. On June 15, 1999, Ms. Daniels provided John Heavner, Director of Professional Standards, written notice that the Respondent had not completed the requirements of his Success Plan. The Respondent requested a formal hearing by letter on July 10, 1999. Notwithstanding that this was late, he was afforded a hearing. On August 5, 1999, the Respondent was notified that he would be suspended without pay effective August 12, 1999. The Respondent was advised that the suspension would be considered at the September 7, 1999, regular meeting of the School Board. The Respondent is charged with incompetence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that: A final order be entered denying the Respondent’s disciplinary appeal and demands set forth in his pleadings, and dismissing the Respondent for incompetence. DONE AND ENTERED this 27th day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2000. COPIES FURNISHED: Lashanda R. Johnson, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Bobby G. Palmore 863 Poydras Lane, West Jacksonville, Florida 32218 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 321399-0400
The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2000.
Findings Of Fact Petitioner is now, and has been employed as a teacher in the Pinellas County school District since the 1980-81 school year. Since the 1983-84 school year, he has taught biology and earth science at Tarpon Springs High school under continuing contract. In November, 1984, Petitioner applied for Associate Master Teacher Endorsement in the state Master Teacher Program for the 1984-85 school year. His application was approved, and he participated in the Master Teacher Program for the 1984-85 school year, receiving the appropriate salary incentive award of $3000. In October, 1985 Petitioner applied for continued participation in the Master Teacher Program for the 1985-86 school year. His application was again approved, and he participated in the program for the 1985-86 school year, receiving the appropriate salary incentive award of $3000. The 1986-87 school year was the third and final year of the State Master Teacher Program. The application deadline for continued participation by teachers previously endorsed as Master Teachers was November 1, 1986. According to Virginia Sasser, Petitioner meets all substantive requirements and criteria for continued participation in the program for the 1986-87 school year. However, it is the position of the Respondents that Petitioner failed to timely file his application by November 1, 1986, and therefore he was not eligible to receive a Master Teacher salary incentive award for the 1986-87 school year. The first notice that Petitioner received that he had not been approved for participation in the program for the 1986-87 school year was in August, 1987 when other Master Teachers at Tarpon Springs High School received their salary incentive awards of $3000, and he did not. Petitioner contacted the Department of Education and spoke with Virginia Sasser who told him that the Department had no record of his 1986-87 application for continued participation. No specific advice was offered by Sasser about what he should do. Subsequently, Sasser learned that the Pinellas County School District also had no record of ever receiving Petitioner's application for 1986-87. The 1986-87 application procedure required individual teachers to complete Form MT-5, and submit it to their principal for his certification and signature. The Form requires the principal to certify that he has returned a completed copy of the application to the teacher after the principal affixed his signature. Thereafter, the Form was to be forwarded by the principal to the School District Office for transmittal to the Department of Education. In January, 1987, acknowledgments were sent to teachers whose applications had been received by the Department of Education. Based upon the testimony of Petitioner, Chalmers Coe, Petitioner's principal, John Katsaris, fellow Master Teacher, and Patricia Burdette, Coe's secretary, it is specifically found that Petitioner did properly complete and submit Form MT-5 to Coe in mid-October, 1986. However, the Form was thereafter lost either in Coe's office or in transit from Tarpon Springs High School to the School District Office in Clearwater via courier. Petitioner was not responsible for, and was not aware of this loss. Although he was on the School District's list of Master Teachers from whom an application for continued participation would be expected to be received, no one from the School District Office ever contacted Coe or the Petitioner to inquire why his Form MT-5 had not been received. Petitioner reasonably assumed that Coe had properly processed the application he gave him, and that the intradistrict mail courier would deliver it to the School District personnel officer. Patricia Burdette testified that on occasion items she placed in the courier mail, or which were placed in the mail for her, were lost and never received. The testimony of Chalmers Coe, principal of Tarpon Springs High school is found to be credible and persuasive in that he clearly confirmed the following statements contained in a letter he sent to Virginia Sasser in September, 1987, after Petitioner had been informed by Sasser that his application had not been received by the Department: This is to notify you that Peter Lelekis, a teacher on our staff, did submit a completed application for the Master Teacher Program for 1986-87. This application was submitted before the deadline of November 1, 1986. I, as well as my secretary, Patricia Burdette can verify that Mr. Lelekis did comply with the instructions from the Master Teacher Division of the Department of Education. I personally signed and forwarded forms to Superintendent. The testimony of John Katsaris supports the testimony of Petitioner and Coe in that Katsaris testified he saw Petitioner take his Form MT-5 to Coe's office in mid-October, 1986, and spoke with Petitioner about the application. According to Larry Hutcheson, who administered the Master Teacher Program for the Department of Education from approximately June, 1985 to July, 1986, the Department followed a "hold-harmless philosophy" in administering the program whereby if an applicant did his part to comply with all application procedures, as verified by his principal or superintendent, an applicant whose application was not timely filed would be held-harmless for this omission and the substantive merits of his application would be evaluated. This philosophy was applied "not infrequently" according to Hutcheson. Virginia Sasser, who has continuing responsibilities for the program, confirmed this "philosophy," and stated that if the principal or superintendent conceded their error, a teacher's application would be accepted and evaluated. She further acknowledged that if an application was lost in the mail, the teacher should similarly be held- harmless for the courier's error. In this case, an error was made either by the intra-district mail courier, or by Coe in not insuring that Petitioner and the District Personnel Office received a copy and the original Form MT-5, respectively, after he signed this form. In either event, the error that was made was not made by Petitioner, and he should therefore be held-harmless in accordance with the Department's applicable "philosophy" for administering this program. Coe and Petitioner both testified that he meets all substantive requirements and criteria for continued participation for the 1986-87 school year, a fact not disputed by Respondents. Petitioner has timely sought review of the Respondents' decision, as set forth by letter dated September 17, 1987, to deny his continued participation in the State Master Teacher Program for the 1986-87 school year solely for the following reason: According to our records, a 1986-7 application was never received by our office for you. In addition, the Pinellas school district office records further confirmed that your application was not processed through their office. I regret that we cannot accept Mr. Coe's statement as evidence of your filing an application for continued participation in the program.
Recommendation Based upon the foregoing, it is recommended that the Respondents enter a Final Order approving Petitioner for continued participation in the State Master Teacher Program for the 1986-87 school year, and providing him with the appropriate salary incentive award of $3000. DONE AND ENTERED this 3rd of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1988. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Findings of Fact 4, 7, 8. Adopted in Findings of Fact 4, 11. Adopted in Findings of Fact 5, 7. Rejected and Accepted, in part, in Finding of Fact 5. Adopted in Finding of Fact 5. Adopted in Finding of Fact 8. Adopted in Findings of Fact 4, 8, 11. Adopted in Findings of Fact 4, 11. Adopted in Findings of Fact 4, 7, 10, 11. Adopted in Findings of Fact 9, 10. Rulings of Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Rejected as unnecessary. Rejected as unnecessary, and as a conclusion of law. 5-6. Rejected as unnecessary. The only issue in this case is whether Petitioner is entitled to the third year salary incentive award. Thus, the general application and renewal process is irrelevant. 7. Adopted in Finding of Fact 3. 8-9. Rejected as irrelevant and unnecessary. 10. Rejected in Findings of Fact 4, 11. 11-13. Rejected as unnecessary, irrelevant and as a conclusion of law. Generalized discussion of the Master Teacher Program does not pertain to the issue in this case. Adopted in Findings of Fact 4, 6, 7. Rejected in Findings of Fact 7, 8. The primary testimony was offered by Coe and Was confirmed and supported by Katsaris, Petitioner and Burdette. 16-18. Rejected in Findings of Fact 7, 8, 10 and otherwise Adopted in part in Finding of Fact 10, but otherwise Rejected as irrelevant. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 5 but otherwise Rejected as irrelevant. Rejected in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 6. Rejected as irrelevant. 26-27. Adopted in Finding of Fact 5. Adopted in Findings of Fact 8, 12. Rejected as irrelevant. This is a de novo hearing to determine if Petitioner did submit his application. 30-31. Adopted in part in Findings of Fact 9, 10, but otherwise Rejected as irrelevant and not based on competent substantial evidence. 32. Rejected in Finding of Fact 12. Petitioner's request for hearing was timely. COPIES FURNISHED: Ronald G. Meyer, Esquire MEYER, BROOKS & COOPER, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Charles S. Ruberg, Esquire Department of Education Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel Department of Education Knott Building Tallahassee, Florida 32399
The Issue Whether the Respondent should be terminated from her employment with Petitioner as a result of her teaching performance.
Findings Of Fact Respondent, Margaret Irvin (Irvin) has been employed as a classroom teacher with the Palm Beach County School District (School District) since the 1965-66 school year, with a break in service between 1967 through 1978 and again from 1979 through 1982. Irvin received a continuing contract for the 1985-1986 school year and has remained on continuing contract with the School District through the 1994-1995 school year. Irvin is employed pursuant to a Professional Service Contract from which she may be discharged only in accordance with the terms of Sections 231.36, 231.28 and 231.29, Florida Statutes. From 1982 through June 1993, Irvin taught pre-kindergarten at Belle Glade Elementary School (Belle Glade) and received satisfactory evaluations. The use of certified classroom teachers in the School District's pre- kindergarten program was discontinued at the end of the 1992-1993 school year. Irvin is certified by the State of Florida to teach all early childhood grade levels, which would include pre-kindergarten through sixth grade. For the 1993-1994 school year Irvin was assigned to teach a first grade class of fifteen students at Belle Glade. During the 1993-1994 school year, Lynn McGee (McGee) was the principal at Belle Glade. As part of her duties, McGee was responsible for evaluating Irvin's work performance. A Classroom Teacher's Assessment Evaluation Form is used in evaluating a teacher's performance in the classroom. This form is used for mid-year evaluations and for annual evaluations. Specific areas are marked on the form as being either satisfactory or unsatisfactory. If a teacher receives unsatisfactory in fewer than five areas, the teacher is given an overall rating of satisfactory. If a teacher receives unsatisfactory in more than four areas, the teacher is deemed to have an overall unsatisfactory rating. In December 1993, McGee presented Irvin with a mid-year evaluation of her performance as a classroom teacher. The overall evaluation was unsatisfactory and identified the following areas in which Irvin needed to improve her teaching performance: Management of Student Conduct. Instructional Organization and Development. Presentation of Subject Matter. Establishes an Appropriate Classroom Climate. Demonstrates Ability to Plan Effectively. Develops and Maintains an Accurate Record Keeping System. In the area of Management of Student Conduct, the teacher is evaluated on whether she keeps the students under control at all times. This area also covers teacher "withitness", which means the ability to know what the students are doing at all times. During her observations for the mid-year evaluation, McGee saw students talking and walking around and not being on task. Irvin had a chart on the wall for a behavior plan but she was not implementing the plan in the classroom. Irvin demonstrated a lack of "withitness." The area of Instructional Organization and Development covers lesson delivery, whether a teacher uses a variety of techniques, whether she teaches a complete lesson, and the actual presentation of the lesson itself. During McGee's observations, Irvin relied heavily on the use of dittos and did not use a variety of teaching techniques. Although all first grade teachers were using the same dittos, Irvin could have refrained from using one ditto sheet after another and varied the activities. Irvin did not follow the steps which are used to teach a lesson: orientation to the students, beginning review, teaching the concept, and an ending review or closure. Irvin asked questions which called for a unison response, which is usually not appropriate. A unison response does not allow the teacher to determine if all the students are giving the correct response to the question. Irvin did not ask a lot of "higher order questions", which are questions requiring the student to analyze and apply the information given. The area of Presentation of Subject Matter is specifically directed to the question of whether the teacher teaches concepts. A concept is taught by giving a definition and providing examples and nonexamples. McGee did not observe Irvin teaching any concepts. The area of Establishes An Appropriate Classroom Climate looks at the environment of the classroom, including the physical environment and whether the classroom is warm, caring and conducive to learning. When McGee observed the classroom, it did not have an environment which was conducive to learning. The room was not "print rich", which means that the classroom did not have a lot of written materials on the wall, labels on objects, and pictures on the walls. McGee's opinion was that the classroom did not present a warm and caring environment. The area of Demonstrates Ability to Plan Effectively is directed to the teacher's ability to put a plan together and whether the teacher is executing the plan when observed. Irvin did not have written lesson plans. The area of Develops and Maintains an Accurate Record Keeping System deals with properly recording the students' grades. During the first nine weeks of school, Irvin failed to maintain a grade book. In an effort to assist Irvin to improve, McGee sent Irvin to a workshop, provided demonstration lessons, and told Irvin to observe some of the other first grade classrooms. Additionally, Irvin was provided with sample lesson plans and was told to attend the weekly meetings of the first grade teachers where they did their lesson plans. Irvin sometimes did not go to the meetings or was late. Irvin was also provided with a sample grade book. Irvin disgreed with the content of the December 1994 evaluation. In March 1994, Irvin received from McGee an annual evaluation of her performance as a classroom teacher rating her overall performance as unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Establishes Appropriate Classroom Climate Demonstrates Ability to Plan Effectively In the area of Management of Student Conduct, Irvin still had students who were not on task. There was down time in the class because of student misbehavior and failure to follow instructions, resulting in very little teaching time. In the area of Instructional Organization and Development, Irvin continued to rely heavily on dittos and did not vary her teaching techniques. The activities were disjointed rather than flowing and interrelated. Irvin did not teach a complete lesson which included the necessary elements for a lesson. In the area of Presentation of Subject Matter, Irvin again failed to teach concepts. In the area of Establishes an Appropriate Classroom Climate, McGee observed that Irvin did not smile or express enthusiasm. Her classroom did not provide a happy environment which was conducive to learning. Irvin was still not preparing lesson plans. McGee observed that for the week of February 7-11, 1994, there was almost no planning. By the time of the annual evaluation, Irvin had begun to keep a grade book. She was evaluated satisfactory in the area of Develops and Maintains an Accurate Record Keeping System. Irvin disagreed with the content of the March 1994 Evaluation. After the 1993-1994 annual evaluation, McGee notified the superintendent of schools that Irvin's annual evaluation was unsatisfactory. The superintendent sent a letter to Irvin advising her that she would have the following school year to remediate her teaching deficiencies. On May 4, 1994, Dr. Christina Diaz, a board certified neurologist, diagnosed Irvin as having Attention Deficit Disorder (ADD). Irving advised McGee a few days later that she had been diagnosed with ADD. On June 9, 1994, Irvin was placed on a Professional Development Plan (PDP) by the administration of Belle Glade to aid Irvin in remediating each area of concern contained in the March 1994 evaluation. The PDP also contained materials regarding deficiencies in the area of Develops and Maintains Accurate Record Keeping System, which was not included on the March 1994 evaluation as an area of concern. The PDP provided that a team of educators, including someone employed outside the School District, observe Irvin's performance and provide her with feedback and improvement strategies. The PDP also provided for Irvin to attend workshops, to review teacher effectiveness manuals, and to observe the performance of other teachers. Irvin was assigned as a kindergarten teacher in the 1994-1995 school year. The principal at Belle Glade for the 1994-1995 school year was Glenda Garrett (Garrett). Like McGee, Garrett's duties included evaluating Irvin. In September, 1994, Irvin attended an assistance review meeting, where she received the list of observers and the approximate dates that they would be observing her classroom performance. Through out the implementation of the PDP, Irvin was kept advised of the times when she would be observed. On September 29, 1994, Melvis Pender (Pender), an Area IV Instructional Support Team member in math and science, observed Irvin. The students were noisy. Irvin asked questions that called for unison responses, which made it difficult for the teacher to detect students who were giving incorrect responses. The discipline plan that Irvin was using was not effective and emphasized the bad behavior. Mr. Pender made recommendations on ways to improve in the areas that needed improving and provided them to Irvin. On September 30, 1994, Juanita Malone, assistant principal at Belle Glade, observed Irvin. The students were very noisy and Irvin kept turning the lights on and off to get their attention. Irvin was teaching the children about patterns during the observation. She started using links of four different colors to illustrate the lesson, but when she saw that a four color pattern was too difficult for the children to understand she switched to a simpler two color pattern. The students had not used the links before and many of the students spent time during the lesson playing with the links. Ms. Malone shared her observation with Irvin. On October 21, 1994, Irvin was observed by Jeanne Burdsall ("Burdsall"), the Manager of Professional Standards for the Palm Beach County School System. During the observation, Irvin did not teach a lesson. She did not have any lesson plans. Irvin did not smile or show any enthusiasm during the observation. She did not teach any concepts. Irvin lost valuable teaching time while she was looking for a misplaced "birthday box." She gave birthday cake to the children just prior to lunch. Again she lost teaching time while she had each child individually take his placemat to the sink, resulting in the children becoming disruptive while they were waiting for all the children to clean up. Burdsall put her observations and suggestions for remediation in writing and gave it to Irvin. On October 26, 1994, Irvin met with Burdsall, Garrett, and Clarence Gunn, her union representative to review the progress of the PDP. During the meeting, Irvin advised everyone that she had ADD and was taking medication for the condition. Burdsall said that she would provide Irvin with a copy of the American's with Disability Act (ADA) policy and request for information. Burdsall stated that she would see if someone from the School District could locate a local neurologist who could treat Irvin. At the October 26 meeting, Irvin stated that she plans by putting ideas and themes down as she goes along. Sometimes she writes them down before the activity and sometimes it is afterward. Garrett gave Irvin a set of model lesson plans. Irvin was instructed to prepare two days of lesson plans which could be used by a substitute teacher if necessary. It was agreed that Irvin would be allowed to shadow another kindergarten teacher. In the fall of 1994, Irvin attended workshops on intergrated curriculum, language arts and math manipulatives. On October 27, 1994, Mary Gray (Gray), a professor of Education Leadership at Florida Atlantic University, observed Irvin. Gray noted that the students were too noisy and could not hear directions that were being given by the teacher. Irvin did not have any lesson plans. Irvin asked the children multiple questions which resulted in confusion. Irvin told the class about a student's father who had been shot. Other children began to talk about unhappy incidents in their lives such as a brother who had gotten stuck in the eye with a knife. Gray felt that such discussion was inappropriate for kindergarten students. Gray shared her observation comments and suggestions on ways to improve with Irvin. On November 17, 1994, another meeting was held to review the progress of the PDP. Irvin was given the ADA policy with the medical request for information and was told to take it to the neurologist of her choice as soon as possible. Irvin had failed to turn in the two days of lesson plans as requested in the October meeting. She was again instructed to prepare the plans. Irvin was going to be released for two days to shadow a kindergarten teacher, who would demonstrate the whole language approach to teaching. Irvin asked for the materials that were handed out in a October 28 workshop and Ms. Burdsall agreed to provide her with those materials. On November 18, 1994, Gale Fulford (Fulford), who was the Area IV support team member for language arts, observed Irvin's classroom performance. Irvin did not have any lesson plans. Fulford did not see a lot of teacher created materials in the classroom, and the classroom lacked a print rich environment. Irvin's questions to the students did not include enough "high order" questions. The class was too noisy. On December 2, 1994, Dorothy Kelsey (Kelsey), a specialist in Pre- K/early intervention observed Irvin. Ms. Kelsey noted inappropriate activities being offered to the students such as dittos, rote memorization in the math lesson with no hands on activity, and reading and showing a small book in a group setting so that some of the children were unable to see the book. The classroom lacked well organized learning centers and did not have a print rich environment. On December 9, 1994, Garrett observed Irvin teach a concept. Irvin continued to ask for unison responses and posed multiple questions. Based on the codes on the evaluation form used by Garrett, Irvin's teaching performance was not satisfactory during the observation. On December 9, 1994, Irvin received a midyear evaluation of her performance as a classroom teacher identifying the following areas which needed to be improved and rating her overall performance as unsatisfactory: Management of Student Control Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs Irvin was still unable to manage the students' conduct. She failed to make lesson plans, resulting in her not being prepared to teach lessons. She was not following the kindergarten checklist, which is a list of objectives that the students should be able to meet at the end of the school year. Based on testing, it was determined that a large number of the students in Irvin's class were not working on the level that they should have been. It appeared to Garrett that some of the students in Irvin's class were "falling through the crack" and would not meet the objectives on the kindergarten checklist. Irvin had made improvement in the area of classroom climate. However, for this evaluation Irvin was rated unsatisfactory in the area of Demonstrates Ability to Evaluate Instructional Needs because she was not able to incorporate the kindergarten checklist in her lesson planning. The area of Demonstrates Ability to Evaluate Instructional Needs deals with the ability to tailor the instruction to meet the needs of the students. Thus, Irvin ended up with five areas of concern for her mid-year evaluation. Garrett recommended that Irvin remain on the PDP. Irvin disagreed with the December 1994 evaluation. Irvin was placed on her second PDP in January, 1995 for the purpose of providing her assistance in correcting the deficiencies listed on mid-year evaluation. The dates listed for the timeline for the PDP were from January through March, 1995. Irvin was observed during the time frames set forth in the second PDP. The School District received a letter dated January 12, 1995, from Dr. Diaz, informing the School District that Irvin had ADD and was successfully taking medication. The doctor stated: This disability will continue and is chronic. Disabilities will be noted in terms of ability to concentrate, organize and respond to change. Working in a quiet environment undistracted is helpful. Functioning in the school district with an aide is helpful as well as understanding the disorder in terms of response to changes in curriculum or responsibilities. On January 20, 1995, Pender observed Irvin. The students were divided into three groups. One of the groups was working at a table with manipulatives, was very noisy and was not directly supervised. Irvin asked her daughter who was helping her that day to sit with the noisy group. The group continued to be noisy and distracting to the other students. It was chaotic when the groups switched from one station to another. There was no connection of skills or concepts among the three stations during the class period. Irvin was reading the students Mother Goose Rhymes, which was appropriate for that grade level, but the noise level was so high that very little learning was going on. In comparing his first observation with his second observation, Pender opined that Irvin's ability to manage the classroom had not improved but was worse. On February 1, 1995, an assistance review meeting was held. The letter from Dr. Diaz had been given to Louis Haddad, the School District's Coordinator of Employee Relations and Services. Irvin was told that Mr. Haddad needed to have a list of the specific accommodations that were being requested. Irvin indicated that she was going to another doctor to get the list. Irvin had rearranged her room and modified her lesson plans. She had been working with Fulford. Irvin was scheduled to attend three workshops: Management of Student Conduct, Presentation of Subject Matter/Planning, and an inservice session on whole language. Irvin advised the members of the meeting that she was pleased with the assistance and the progress being made. On February 10, 1995, Gray observed Irvin in the classroom. Irvin spent ten minutes taking up money for various activities and collecting valentines. There was a show and tell with all the students. Irvin went to the calendar and indicated that the day was Friday. Nine students were taken to a table to work with the aide. The remaining nineteen students were talking and rolling on the floor. Instead of supervising the noisy children, Irvin helped the aide set up the work station for the nine students. The class became so noisy at one point that when Irvin was asked by the aide how many cards each child was to have, Irvin replied, "Sorry, I can't hear you." Irvin put eleven children at a table by themselves to draw a picture about weather, while Irvin began to teach the eight remaining children. During the 30 minute observation period, no teaching occurred for the first 26 minutes. During the observation, from 7 to 19 students were off task at various times. On February 14, 1995, Garrett observed Irvin's classroom. She went to the classroom early in the morning but the class was having a valentine party. She returned around 10:00 a.m. and observed Irvin and the students singing songs. Irvin did use her behavior management plan during the observation. The determination of whether a particular teacher should be recommended for termination based on incompetency is the responsibility of the principal of the school at which the teacher works. At the end of the day on February 14, 1995, Garrett met with Irvin and advised Irvin that she was going to recommend that Irvin not be reappointed. By letter dated February 14, 1995, Garrett advised the superintendent of schools that Irvin had not corrected her performance deficiencies and recommended that Irvin not be reappointed for the 1996 school year. The letter was sent according to a School District requirement that principals send notice regarding teacher termination to the superintendent sometime during February. During the 1994-1995 school year, the School District established February 14 as the date by which the School District needed to receive notice regarding teachers possibly not being reappointed for the next school year. The other observers on the PDP team agreed with Garrett's assessment that Irvin was not competent. On February 20, 1995, Irvin made an office visit to see Dr. Helen Baker (Baker), a licensed mental health counselor. Diaz had referred Irvin to Baker for counseling. Irvin requested assistance from Baker in coming up with specific accommodations relating to her ADD which she could request from the School District. On March 1, 1995, Burdsall observed Irvin. Burdsall noted that the classroom environment had improved. Irvin had some lesson plans but was not following the format that Gray had given her. Irvin did not completely follow her lesson plan during the observation period. Irvin was still not using all the elements that are necessary in teaching a lesson and was not teaching concepts by giving definitions, examples and nonexamples. Burdsall suggested that Irvin interact more with the students by asking comprehensive questions, both high and low order. On March 2, 1995, Irvin received an annual evaluation rating her classroom performance unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs In developing the evaluation, Garrett factored in her formal and informal observations of Irvin as well as the observations of the members of the Professional Development Plan's assistance team. Irvin disagreed with the content of the March 2, 1995, evaluation. By letter dated March 10, 1995, the superintendent of schools notified Irvin that she had failed to correct the deficiencies noted by the principal and that her current classroom performance was unsatisfactory. Irvin was informed that her employment would end on June 16, 1995, and that she would not be reappointed for the 1996 school year. On March 19, 1995, Garrett received a letter from Helen Baker of Cape Counseling Services of Southwest Florida. After having seen Irvin two times Baker suggested the following accommodations for Irvin: Allow for changes to occur at a slower pace and when change is indicated be precise as to what is needed in the new situation. Have a clear workable curriculum. Have only one or two persons involved in giving guidance to Irvin and preferably a person with experience with the dynamics of ADD. Do not send conflicting messages in assisting Irvin. Place carpets or other materials to soften the sound in the classroom. Do not allow public announcements through electronic devices to interrupt during class. Leave Irvin messages in her mailbox for her to focus on when she has time to orient to them. Present written material on student behavior to Irvin one item at a time in a different manner. Allow Irvin timeout from her classroom so that she can extract herself from the over stimulation of the classroom. Provide Irvin with a full time aide who is aware of ADD behavior. The School District had made accommodations to Irvin prior to the letter from Dr. Baker. Irvin was allotted more aide time than any other kindergarten teacher. Usually different teacher assistants came to the teachers at different times of the week. Irvin requested that she keep the same teacher assistant. Garrett accommodated Irvin by allowing her to have the same assistant for the rest of the day and for the rest of the week. Belle Glade had a kindergarten extension room where kindergarten teachers are allowed to take their students twice a week, allowing the children to work with hands-on skills and activities. Two different groups would come into the extension room two different times of the day. Irvin felt that was too much movement for her and requested that she be allowed to go to the extension room only once with the same students at the same time. Garrett made the accommodation for Irvin. Irvin indicated that the format of the lesson plans for the extension schedule was difficult to follow and suggested that she be allowed to color code her lesson plans. Garrett allowed the accommodation. Irvin was provided the Florida Performance Measurement System otherwise known as the blue book. The purpose of the book is to provide assistance for effective teaching. Additionally, in September, 1994, Garrett provided Irvin with mini packets which broke the material down to a smaller scale so that Irvin would not have to try to digest the blue book at one time. A month later, Garrett supplied Irvin with additional reference materials. Irvin was provided training in formats other than written material. She attended workshops and observed other kindergarten teachers. In the area of lesson planning, Irvin met with the kindergarten chairperson one-on-one for assistance with the lesson plans. Garret also met with Irvin and the kindergarten chairperson to provide assistance to Irvin on the lesson planning. Irvin was provided with copies of lesson plans that Garrett deemed to be sufficient. Irvin had been provided with the kindergarten checklist. Based on the checklist Irvin should have been able to determine what things that the kindergarten students should be taught during the school year. Thus, Irvin was provided with a clear workable curriculum. There were seven kindergarten teachers at Belle Glade during the 1994- 1995 school year. The kindergarten supplies for the 1994-1995 had been ordered based on number of kindergarten teachers the previous year, six. Thus, the supplies which were ordered for six teachers had to be divided among seven teachers. Irvin did not receive a math kit which Pender had suggested using until almost the end of the 1994-1995 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Margaret Irvin's employment with the Palm Beach School District. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2073 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraphs 5-16: Accepted in substance. Paragraph 17: Accepted. Paragraphs 18-23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. 9 Paragraphs 29-30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraph 32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Paragraphs 1-18: Accepted. Paragraphs 19-29: Accepted in substance. Paragraphs 30-36: Accepted. Paragraphs 37-39: Accepted in substance. Paragraph 40: The first two sentences are accepted. The last sentence is rejected to the extent that it implies that the timeline was not followed. Irvin was observed during the times set forth in the PDP with the exception of the evaluation by Kelsey which took place on March 9. Paragraph 41: Accepted in substance. Paragraph 42: The first two sentences are accepted in substance. The last sentence is accepted to the extent that the workshop dealt with planning but rejected to the extent that it implies that if Irvin had had the workshop earlier it would have helped her. When Burdsall observed Irvin on March 1, 1995, Irvin was not using the lesson planning format that Gray had recommended. Paragraph 43: Accepted in substance. Paragraph 44: Rejected as irrelevant. Paragraph 45: The first sentence is accepted. The second sentence is subordinate to the facts found because Irvin was given the kindergarten checklist and she knew that she was to incorporate those objectives in her lessons. Paragraph 46: Rejected as subordinate to the facts found. Irvin had not remediated her deficiencies by March 10. Paragraph 47: The first sentence is rejected as irrelevant. Irvin had taught kindergarten in summer school. (TR 622) The last sentence is rejected as not supported by the record as it deals with the use of the term "colored." The gist of Garrett's testimony was that she considered not only her observations in recommending termination but all the information from the observers and the assistance that had been provided to Irvin. Paragraphs 48-49: Accepted in substance. Paragraphs 50-51: Accepted in substance to the extent that Irvin had made some improvement during the 1994-1995 school year but rejected to the extent that it implies that she had remediated her deficiencies. Paragraph 52: Accepted in substance that the material was appropriate but rejected to the extent that it implies that Pender thought Irvin's performance was satisfactory. Paragraphs 53: Accepted in substance that singing songs is an appropriate activity for kindergarten children, but not necessarily that the activities that the students were engaged in constituted the teaching of a lesson. The last sentence is accepted. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: The first sentence is accepted. The second sentence is rejected as not supported by the record. Irvin presented a concept but whether she was teaching it could not be determined because of the unison responses and the failure of the students to line up appropriately in making the parade pattern. The third sentence is accepted in substance as to presenting a concept but rejected to the extent that it could be determined that the students actually learned a concept. The last sentence is accepted. Paragraph 56: The first sentence is accepted in substance. The first half of the second sentence is accepted to the extent that Irvin went from having no lesson plans to having some lesson plans that were acceptable some of the time. The last sentence is rejected as not supported by the record. According to Burdsall's last observation, Irvin was not following the format set up by Gray. Paragraph 57: Accepted. Paragraph 58: Accepted in substance. Paragraph 59: The first sentence is accepted to the extent that Irvin received the same amount of supplies as did the other kindergarten teachers and that she was impacted to the same extent as the other teachers but rejected to the extent that it implies the shortage of supplies caused Irvin to be incompetent. The remainder is accepted in substance. Paragraph 60: Accepted in substance. Paragraph 61: The first two sentences are rejected as not supported by the greater weight of the evidence. The last sentence is rejected to the extent that although the advice appeared to be conflicting, it was not because the problem was that Irvin could not control her classroom behavior with the techniques that had been suggested. It was not that the techniques were all inappropriate but that Irvin just could not seem to implement them. Paragraph 62: Rejected as not supported by the record. The observers were focusing on having Irvin make lesson plans, follow the lesson plans, and teach concepts. Irvin had been doing none of these things. Paragraph 63: Rejected as subordinate to the facts found. Apparently it was normal to have a housekeeping center in the classroom and Irvin had asked Fulford if it was okay to remove it. Kelsey did not see a housekeeping center which is normally a part of the classroom and commented on it. Irvin could have very easily explained to Kelsey that she had permission to remove the housekeeping center but Irvin chose not to tell Kelsey. Paragraph 64: Accepted that classroom climate was dropped but rejected that that was the only area in which Burdsall gave specific things to do. Paragraphs 65-67: Accepted to the extent that Irvin, like the other kindergarten teachers, was given a draft language arts curriculum which would be used in the upcoming year. Rejected to the extent that it implies Irvin was not given a clear idea of what the curriculum should be for the kindergarten because she was given the kindergarten checklist which spelled out what the children should learn in kindergarten. Paragraph 68: Accepted in substance but not incorporated in the findings of fact. However, this does not mean that Burdsall was against praising good behavior as well. Paragraph 69: The first two and the last sentences are accepted in substance but not incorporated. The third sentence is accepted in substance but not incorporated. However, it should be noted that Kelsey also concluded that a formal behavior management system would not be necessary if there was proper planning and organizing. Paragraphs 70-71: Accepted in substance but not incorporated. Paragraph 72: Accepted in substance to the extent that the management system that Irvin was using did not accentuate the positive behavior because there were only two categories, a happy face and a sad face. By adding a neutral category, Irvin could reward the student by moving his name to the happy category from the neutral category. Paragraph 73: Accepted in substance. Paragraph 74: The first sentence is accepted to the extent that in Malone's testimony she was emphasizing that Irvin had a management behavior system posted on the wall but she was not using it and was turning the lights on and off, which was not working, as a method of controlling the behavior of the children. The second sentence is accepted in substance but not incorporated. Paragraphs 75-76: Accepted in substance but not incorporated. The context of the statements is that Irvin was not in control of her classroom which resulted in the students being very noisy and off-task. Paragraph 77: Accepted in substance. Paragraph 78: Rejected as unnecessary. Paragraph 79: Accepted in substance. Paragraph 80: The first sentence is accepted in substance. The remainder is rejected as not supported by the evidence. The assistance provided to Irvin included accommodations which were requested by Irvin prior to the notification of her termination. Paragraph 81: Accepted in substance. Paragraph 82: The first and second sentences are accepted in substance. The third sentence is rejected as subordinate to the facts found because even with the accommodations that Irvin had requested and those listed by Diaz, Irvin was not able to satisfactorily perform her job. The fourth sentence is rejected as subordinate to the facts found. Paragraphs 83-84: Accepted in substance. Paragraph 85: Rejected as unnecessary. Paragraph 86: Accepted in substance that Irvin had ADD and that her behavior was symptomatic of ADD. Paragraph 87: The first sentence is accepted to the extent that Diaz believed it but rejected to the extent that the evidence demonstrated that with accommodations such as an aide Irvin still could not perform satisfactorily. The second and third sentences are rejected as subordinate to the facts found. Paragraphs 88-89: Accepted in substance. Paragraphs 90-91: Rejected that there was not a clear workable curriculum in place. Although SADI, was being phased out and whole language was being phased in, there did exist a kindergarten checklist which essentially provided what skills had to be taught during the kindergarten year. Paragraph 92: Accepted. Paragraph 93: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the School District did not accommodate Irvin in this area. Paragraph 94: Accepted. Paragraphs 95-96: Rejected to the extent that the information was in conflict. It was apparent that to a great extent Irvin was unable to use the behavior management system effectively whether she was emphasizing the negative or the positive. Paragraph 97: Rejected as subordinate to the facts found. The point to be learned from the observations was that Irvin did not have control of her classroom or her aide. Irvin should not have had to go to help the aide but the control of the classroom was the ultimate responsibility of Irvin so the misconduct had to be stopped at some point whether it was by Irvin or by the aide. Paragraphs 98-116: Rejected as subordinate to the facts found that accommodations were made for Irvin. Paragraph 117: Accepted. Paragraph 118: Rejected as subordinate to the facts found. COPIES FURNISHED: Darren K. Edwards, Esquire Palm Beach County School Board 3318 Forest Hill, Boulevard West Palm Beach, Florida 33406-5813 Thomas L. Johnson, Esquire 202 West Cardy Street Tampa, Florida 33606 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Bernard Shulman, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
