Findings Of Fact An Administrative Complaint was served on the Respondent in April, 1983. Herb A. Sang, Superintendent of Duval County County Schools, was responsible for those charges. In the complaint, it is alleged that Respondent is guilty of professional incompetency in fulfilling his duties as a teacher in the Duval County School System in the years 1979-80 and 1980-81. Respondent is a tenured teacher in the Duval County School System and had held that tenure at all times relevant to this inquiry. Respondent opposed these allegations, leading to the formal Subsection 120.57(1), Florida Statutes hearing. Respondent, who has been employed in the school system since 1954, was transferred to Duncan U. Fletcher Senior High School in 1971. Lee remained at Fletcher High through the school year 1979-80. In that year, Lee taught 10th grade English. His performance in the classroom was observed by Dr. Andrew Knight, principal at Fletcher High School, and by other professionals in the school. These observations commenced in September 1979 and continued throughout the school year. By January 30, 1980, Dr. Knight had gained a sufficient impression of the performance of the Respondent to write and inform him of areas of deficiency. A copy of that letter of evaluation may be found as Petitioner's Exhibit No. 7, admitted into evidence. In addition to setting forth deficiencies, the letter suggests techniques that might be employed to correct the deficiencies. Relevant areas of concern involved classroom management, teaching effectiveness and classroom performance. Those observations as set out in the letter of evaluation and critique of the Respondent's performance are an accurate depiction of the performance. All these items set forth relate to teacher competency and this depiction of Respondent, coupled with similar observations which were testified to during the course of the hearing, demonstrate a lack of competency on the part of the Respondent in performing his teaching duties. The deficiencies set forth in the letter of evaluation were explained to the Respondent in person. Following the interim evaluation of January, 1980, the annual formal evaluation was made on March 12, 1980. A copy of that evaluation may be found as Petitioner's Exhibit No. 9, admitted into evidence. As depicted in this document, Respondent was still perceived in March, 1980, as giving a poor performance as a teacher. This characterization of his performance, as found in the evaluation of March 12, 1980, is accurate and those observations, together with the observations of his performance as testified to in the hearing, point to the fact that the Respondent continued to be less than competent in his teaching. Throughout that school year, classroom management was the most obvious deficiency. In particular, students were sleeping and talking to each other and not paying attention, a problem not satisfactorily addressed by Lee. As a result, the learning experience was diminished. Moreover, this circumstance was made worse by the fact that Lee's perception of how to plan for instruction and his efforts at carrying out these plans were not structured in a fashion to hold the attention of his classes and promote the goals announced in the Duval County School course Curriculum for Tenth Grade Language Arts. See Petitioner's Exhibit No. 33. Based upon his unsatisfactory evaluation for the school year 1979-80, and in keeping with the Duval County Teacher Tenure Act, Respondent was transferred to Edward White High School in the school year 1980-81. The principal at that school was John E. Thombleson. Thombleson was aware of the unsatisfactory rating that Lee had received and undertook, during the course of Respondent's stay at White High School, to observe and assist Lee in trying to improve Lee's teaching. That improvement was not forthcoming. Lee continued to have problems related to classroom management and teacher effectiveness and he was not responsive to beneficial ideas of improvement offered by Thombleson related to in-service assistance. Ideas for improvement which were posed to the Respondent include those set forth in Petitioner's Exhibit No. 11, admitted into evidence which is a memorandum concerning a conference held with Respondent by Principal Thombleson. Other exhibits admitted pertaining to observations by Thombleson and other administrators at White are found to be accurate depictions of the atmosphere in Lee's classroom related to management and teaching effectiveness. Through October, 1980, visits to Respondent's classes revealed a lack of attention on the part of students, a lack of preparedness by the Respondent, a failure to proceed in a sequence which would be commensurate with the curriculum goals set for the classes, tardiness on the part of the Respondent and students, failure to provide lesson plans to the administration observer, failure to conform to the scheduled lesson plan for the day, and failure to provide continuity between the lesson of the day and the following day's assignment. These were problems that had been observed during Lee's 1979- 80 year at Fletcher. Consequently, the required interim evaluation of October 30, 1980, was not favorable to Lee. A copy of that formal evaluation may be found as Petitioner's Exhibit No. 18, admitted into evidence and the observations set forth therein are found to be accurate. Lee was also provided with a memorandum on that date, a copy of which is Petitioner's Exhibit No. 19, admitted into evidence. This document suggested ways to improve classroom management, teaching effectiveness and classroom performance. Both the evaluation and memorandum of improvement were discussed with the Respondent and the matters of that conference are set forth in the memorandum of October 30, 1980, a copy of which is found as Petitioner's Exhibit No. 20, admitted into evidence. On November 6, 1980, Respondent's grade book was evaluated and found to be deficient, a finding which is accepted. The grade book was not properly documented, among other shortcomings. Respondent, by correspondence of November 18, 1980, a copy of which is admitted as Petitioner's Exhibit No. 24, requested Principal Thombleson to give concrete examples of expectations of the Respondent in fulfilling his teaching responsibilities. This correspondence was replied to by memorandum of December 5, 1980, a copy of which is admitted as Petitioner's Exhibit No. 25, and contains a continuing explanation of ideas of improvement which had been previously suggested by Principal Thombleson. Lee's performance did not improve after this exchange and the final evaluation at White of March 12, 1981, was not positive. A copy of that evaluation may be found as Petitioner's Exhibit No. 27, admitted into evidence and the evaluation's conclusions are accepted. Overall, in the year 1980-81, Respondent did not perform as a competent teacher while at Edward White. Respondent did not conclude the teaching year at Edward White in 1980- In the face of an attitude which Thombleson considered to be insubordinate and the Respondent's expressed desire to be transferred, Lee was reassigned to William Raines Senior High School in April, 1981. For the remainder of that academic year he served as a substitute teacher. It was not established in the course of the hearing what quality of performance Lee gave as a substitute teacher when assigned to Raines High School and it is therefore assumed that that performance was satisfactory. In the school year 1981-82, Respondent was assigned to Raines High School and acted primarily as a substitute teacher. He remained in the high school for that school year premised upon a settlement negotiation between the Respondent and the Duval County School Board pertaining to an Equal Employment Opportunity Commission complaint which he had filed pursuant to Title VII of the Civil Rights Act of 1964. For the school year 1981-82, the Duval County school administration decided that they would not afford a performance evaluation to the Respondent and none was given. There being no evidence to the contrary, it is assumed that Respondent fulfilled his role as substitute teacher adequately. In the school year 1982-83, Respondent was reassigned to Raines school and worked primarily in the media center program in a nonteaching capacity. Lee did a limited amount of substitute teaching in that year. Jimmie A. Johnson, Principal of Raines school found his work as a substitute teacher to be acceptable as set forth in the memorandum of March 23, 1983, a copy of which is admitted as Respondent's Exhibit B. No contrary position being offered on the question of the quality of performance in the limited role of substitute teacher during that school year, Respondent is found to have performed the role of substitute teacher in a satisfactory manner. Lee's performance as a substitute teacher in the years 1981-82 and 1982-83 while accepted as satisfactory does not overcome the established fact that in the school years 1979-80 and 1980-81, when performing the role of full- time tenured teacher in Duval County, he was not a competent teacher. This performance in the substitute role, while similar, is not sufficiently so to provide a quality of rehabilitation which would set aside the present perception that Respondent is not competent to fulfill the role as full-time classroom teacher in Duval County. This finding is supported by the observations of Dr. Jeffrey Weathers, a professional educator who specializes in teacher evaluations related to their classroom performance as to subject matter and general methodologies. Although some of the tasks which Weathers observed in the Respondent's classroom both at Fletcher and White did not pertain to active instruction, to the extent that other tasks observed called upon Respondent to teach, he was not doing so in an effective manner. As Dr. Weathers described, the vital link between activity and learning could not be found in Lee's classes. Weather's observations, together with those of other professionals at Fletcher and White, coupled with the Respondent's less than cooperative attitude, results in the finding that Respondent has not removed the stigma of his incompetence as a full-time classroom teacher through his teaching in the substitute role at Raines. Finally, while the quality of performance by those students at Fletcher and White who were taught by Lee and participated in the MLST minimum skills tests were similar to students of other teachers in the aggregate, this fact is not enough to set aside the impression of the Respondent's competence. As Dr. Curtis Randolph, who was assistant principal at Fletcher in 1979-80, correctly stated upon reflecting on Respondent's performance, Lee is not competent to teach in Duval County Schools.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue At issue herein is whether or not the Respondent's teaching certificate should be revoked for conduct which will be set forth hereinafter in detail which is allegedly violative of Sections 231.09 and 231.28, Florida Statutes, and Rules 6A-4.37 and 6B-1, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the argeements of counsel, the stipulation of the parties entered on June 7, 1979, and the entire record compiled herein, the following facts are found. The Florida Professional Practices Council (sometimes referred to as "Petitioner") received a report from the Superintendent of Pinellas County Schools on October 24, 1977, indicating that the district had reason to believe that there might be probable cause for revocation of the teaching certificate of John A. Lettelleir, Respondent. Pursuant to this report, and under the authority contained in Section 231.28, Florida Statutes, Petitioner's staff conducted a professional inquiry into the matter and on January 9, 1978, made its report to the Executive Committee of the Professional Practices Council. The Executive Committee recommended that the Commissioner of Education find that probable cause exists to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teacher's certificate. The Commissioner of Education found probable cause and directed the filing of a Petition on January 9, 1978, pursuant to the authority vested under Section 6A-4.37, Rules of the State Board of Education, and Section 231.28, Florida Statutes. In conclusionary allegations, the Petition cites that the Respondent engaged in acts which are "immoral, seriously reduced his effectiveness as a School Board employee and was not a proper example or model for students and not in the best interests of the health and safety of students" contra to Section 231.09; 231.28, Florida Statutes, and Rule 6A-4.37 and 6B-1, Rules of the State Board of Education. Respondent currently holds a Post-graduate, Rank II, Florida Teacher's Certificate No. 347804, covering elementary education, early childhood and junior college, which is valid through June 30, 1985. Respondent was employed in the Public Schools of Pinellas County as a teacher at Maximo Elementary School during the 1976-77 school year. Respondent resigned from his teaching position in the Pinellas County School System in October, 1977. Respondent chaperoned a three day Easter trip for male and female school children from Maximo Elementary School in April of 1976. The trip required three nights away from home for these children. On two of these nights, Respondent shared a sleeping bag with one of his male students. On both nights, Respondent improperly touched the student. During the fall of 1976, three male school children from Maximo Elementary School spent the night at Respondent`s home. The boys slept in Respondent's bedroom. Respondent slept in a double bed with one of the three students and improperly touched the student. Sandra McMichael and Louanne Crawford, teachers in the Pinellas County School System, appeared and testified respecting their relationship with the Respondent. Ms. McMichael and Ms. Crawford both related their professional involvement with Respondent and it suffices to say, in summary fashion, that they considered the Respondent a person of unquestionable character. (TR 20-57 of Joint Exhibit 2.) During the hearing, Respondent testified respecting the agony which the subject incident has brought to his family. Among other things, he stated that he only stipulated to the facts contained in Joint Exhibit 1 based on counsel's advice and their considered joint opinion that without regard to the outcome of his proof or innocence by a contested hearing in this matter, that ultimately he would have gained nothing based on the wide publicity which attaches to such hearings involving public figures. Therefore, Respondent, while maintaining his innocence of the material accusations against him, reluctantly entered into the stipulation which admits improper touching of a male student, in order to satisfy the apparent interpretation of Rule 6A-4.37, Rules of the State Board of Education during a prior hearing in this matter on August 15, 1979. Such an interpretation requires an admission of wrongdoing as a predicate to surrender of a teacher's certificate for less than permanent revocation. Based on the foregoing and the parties' joint stipulation for less than permanent revocation, i.e., five years, the undersigned is of the considered opinion that sufficient basis exists to support a favorable recommendation to the Board of Education for a five (5) year revocation with the running of the revocation period commencing in October, 1977, the date of Respondent's resignation from the Pinellas County School System. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent's teacher's certificate, No. 347804, be revoked for a period of five (5) years with entry of the revocation period commencing on October, 1977, the date of Respondent's resignation from the Pinellas County School System. ENTERED this 2nd day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, the Respondent, James P. Walsworth, caused to be prepared and submitted, documentation, including but not limited to, State Board of Education forms ESE- 269 and ESE-135, which subsequently, qualified Horizon Elementary School for additional FTE funding for students classified as "gifted" in the fourth and fifth grades, when, during the 1975-76 school year, as Principal of Horizon Elementary School, the Respondent, James P. Walsworth, failed to provide and/or implement an appropriate program for those gifted students, in accordance with the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the first substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he caused two children, to wit: Warren Moody and Johnny Knight to be placed in the Educable Mentally Handicapped (EMH) program at Horizon Elementary School, and these two children were not certified for such a program, thus violating s230.23(4)(m) Subsections 1 - 7, F.S., Rules of the State Board of Education of Florida, policies of the School Board of Broward County, Florida, and the "1975 District Procedures for Providing Special Education for Exceptional Students.", all as alleged in the second substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty, as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth, served as Principal of Horizon Elementary School, Respondent, James P. Walsworth, caused to be prepared and submitted documentation concerning the Special Learning Disability (SLD) students wherein, of the 79 students classified by the Respondent, James P. Walsworth, as (SLD), only 49 were certified; thereby violating the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m) Subsections 1 - 7, F.S., all as alleged in the third substantive paragraph of the complaint letter. Whether or not the Respondent, James P. Walsworth, is guilty of misconduct in office, and/or incompetency, and/or willful neglect of duty as set forth in s231.36(6), F.S., in that during the 1975-76 school year, while the Respondent, James P. Walsworth served as Principal of Horizon Elementary School, he prepared and submitted documentation concerning one child classified as emotionally disturbed, without proper certification; and after having designated child for additional FTE funding, the Respondent, James P. Walsworth then failed to provide and/or implement an appropriate program for said child in violation of the "1975 District Procedures for Providing Special Education for Exceptional Students" and s230.23(4)(m), subsections 1 - 7, F.S., all as alleged in the fourth substantive paragraph of the complaint letter.
Findings Of Fact The Respondent, James P. Walsworth, became Principal of Horizon Elementary School at the time of its opening in the fall of 1973, and has remained the Principal of that school, except for the period of his suspension between August 19, 1976 and November 18, 1976. Horizon Elementary School is a part of the school system of Broward County, Florida and the Respondent, James P. Walsworth, is an employee of the School Board of Broward County, Florida. During the pendency of the Respondent's employment at Horizon Elementary School, there was in effect certain District Procedures of the School Board of Broward County, Florida, pertaining to the education of exceptional children. The first of these were procedures for 1973-74 and appears as Petitioner's Exhibit #12, admitted into evidence. The second document represents procedures for the school year 1974-75 and appears as Petitioner's Exhibit #13, admitted into evidence. The last document is for the year 1975-76 and is found in Petitioner's Exhibit #14, admitted into evidence. All the aforementioned procedures in Petitioner's Exhibits #12 - #14, were enacted by the School Board of Broward County, Florida. In the school year 1975-76, the Respondent, James P. Walsworth, requested and received funding for seven students in the fourth grade and six students in the fifth grade, he claimed to be "gifted" students for funding purposes. This request for funding was placed in the October, 1975, funding count and the February, 1976, funding count. It is the October 1975, count that establishes the right to funding. Petitioner's Exhibits #19 and #20, admitted into evidence show the funding request for those gifted students. Petitioner's Exhibit #28, admitted into evidence, shows the total amount of FTE monies received in the gifted program at Horizon Elementary School. (The initials FTE stand for Full Time Equivalence). In the year 1975-76 the six fourth grade students which had been placed in the gifted program were taught by Terence Byrnes. Mr. Byrnes had a total class of 27 students comprised of third and fourth grade students. The gifted students were placed with seven other students for purposes of reading instruction. Terence Byrnes is not certain of any particular instruction about the gifted program given by Walsworth at the commencement of the school year. He only understood that he was being designated as the gifted teacher for the fourth grade students who had been designated gifted and had FTE funding claimed in their behalf. Mr. Byrnes did not buy any special materials for those six gifted students, per se, but selected materials which he felt the average fourth grader could not do because, "they would not know how." The materials selected were taken from the media center and the curriculum for the gifted was constituted of math, science, social studies and reading. The six gifted students in his class were not segregated from the other members of the class at any time during the instruction period in a physical sense. Those students, together with the other members of their group who were identified as students of solid average to above average were given open ended assignments, by that, all students did not have to complete all parts. Mr. Byrnes indicated that the emphasis on the program for the gifted and others was independent study where the student would have to think. He further stated that these gifted students and other members of their group were under his supervision. Some of the items of study were the use of globes, maps, film strips and human anatomy. The anatomy subject included the examination of a skeleton model, placing x-rays of the human body over light fixtures as a supplement to the study of the skeleton model and examination of the bones of animals to show the action of the sockets of those bones. The students then used tracing paper to outline the bodies of their fellow students and to place the skeleton and organs of the human body in the outline tracing. Mr. Walsworth commented that this skeleton model had been bought for sixth and seventh grade students. Approximately one hour per day was spent on the gifted program. Warren Smith was the teacher of the fifth grade students who had been labeled as "gifted" and had funds requested for their program. There were seven of these students who were placed with fifteen or sixteen other students in the top reading group. The other students were indicated to be academically talented. The gifted students were not physically separated from the other students. The type of assignments for the gifted and academically talented were open ended assignments and materials provided were materials provided for the gifted and academically talented. Mr. Smith remembers the instructions from Mr. Walsworth at the beginning of the school year 1975-76 as being, "to provide enrichment materials for the gifted," but Mr. Walsworth did not indicate what that program would consist of. The fifth grade "gifted" students read certain stories and wrote sequels to those stories. Some of the members produced a play and others wrote scripts and productions for television. The persons involved in the reading and writing assignments were "gifted" students; however, it was not clear what the involvement of the academically talented students were in this program. In addition, there was a clay and rock model in the curriculum area of a social studies unit on Western Movement and this program was an appropriate program for "gifted" students. Again it is not clear whether the "gifted" students alone worked on the Western Movement project, as opposed to the" gifted" and academically talented. During the school year 1975-76, Virginia Barker, the art teacher at Horizon Elementary School taught certain fourth and fifth grade students to weave on special looms, to do needlepoint on special canvas and string art, which she felt to be above the level of children in these grades. This work was done as independent study before and after school. Mrs. Barker indicated that these students had been identified to her as being gifted students, but her testimony was unclear on the question of whether those persons involved in this independent study would include children who were talented, but not necessarily identified and funded as "gifted" students. During the school year 1975-76 the students Warren Moody and Johnny Knight were placed and attended a program for Educable Mentally Handicapped (EMH) at Horizon Elementary School. Information on the child, Warren Moody, may be found in Petitioner's Exhibit #17 and Respondent's Exhibit #3, both admitted into evidence. Information on the child, Johnny Knight, may be found in Petitioner's Exhibit #16 and Respondent's Exhibit #5, both admitted into evidence. On October 1, 1973, the student, Warren Moody was given certain testing and a psychological report was rendered by Dr. Halcyon H. Carroll. The results of this testing and the conclusions of that examiner may be found in Petitioner's Exhibit #17 admitted into evidence. Dr. Carroll found that Moody did not qualify for a program for the Educable Mentally Handicapped (EMH). This conclusion and the remainder of the facts in that report are accepted as being the determination reached by Dr. Carroll. Subsequent to Dr. Carroll's report, a decision was made to place Warren Moody in the (EMH) program at Horizon Elementary. This decision was based upon a committee or staffing conference held between the teachers and school psychologist, Dr. Robert Ginsberg, conducted in the fall of 1973. Dr. Robert Ginsberg was the psychologist assigned to the Horizon Elementary School. Dr. Ginsberg made his decision notwithstanding the determination of Dr. Carroll. Dr. Ginsberg's decision was made in view of the comments of the teacher that the student was not performing at a reasonable level and in view of his own observations of the student; however, Dr. Ginsberg did not conduct any further testing on the student beyond the testing rendered by Dr. Carroll. The committee report and other matters pertaining to the October, 1973, staffing at Horizon Elementary School, at which time Warren Moody was placed, are unavailable. The record is not clear on the question of whether or not Dr. Ginsberg rendered a written psychological report in addition to the committee findings on the student Warren Moody, who was staffed in the fall of 1973. After Warren Moody was placed in the EMH program in the fall of 1973, he continued in the program through the end of the school year 1975-76. At all times his participation was in the Horizon Elementary School. In the spring of 1976, Queen M. Sampson, a school psychologist for the Broward County School System tested Moody and rendered a psychological report. Again this report is a part of Petitioner's Exhibit #17, admitted into evidence. In the report, Queen Sampson indicated that Warren Moody did not qualify for (EMH) in terms of testing and recommended return of the student to the regular classroom. On June 1, 1976, the student assessment and review committee met at Horizon Elementary School and concluded that the student should be returned to regular class. This report was entered at the end of the 1975-76 school year, and is part of Petitioner's Exhibit #17. In the school year 1972-73, the student, Johnny Knight, had been attending Royal Palm Elementary School. While attending that school certain tests were made of the student's ability to determine appropriate academic placement. Subsequent to the tests a report was rendered under the signature of Dr. Robert Ginsberg and co-signed by Dr. James R. Fisher, the Director of Psychological Services, in Broward County, Florida. The conclusion of Dr. Ginsberg was that the student did not qualify for (EMH) placement at that time, but did require much retraining and remedial help in all perceptual areas. A copy of this written report may be found in Petitioner's Exhibit #16 and the report is accepted as being an accurate depiction of Dr. Ginsberg's findings. The student was transferred to Horizon Elementary in the fall of 1973, for the school year 1973-74. After discussion with the teachers at the fall staffing for placement of students, determining that the student was not working well in the normal class setting, observing the student and reviewing the report of April, 1973, Dr. Ginsberg concluded that the student should be placed in (EMH). No written psychological report was rendered and no further tests were conducted by Dr. Ginsberg in the fall staffing committee conference. The student Johnny Knight remained in the program from the school year 1973-74 through the school year 1975-76, at which time, on June 8, 1976, per the re-evaluation committee's recommendation, he was removed from the (EMH) program. The placement of the students, Warren Moody and Johnny Knight, was for a period of three years from the fall of 1973 and was not in violation of any statutes, rules or procedures. The term, three years, means three school years. Acting on a complaint filed by John Georgacopoulos, school guidance counselor for Horizon Elementary School in the years 1974-75 and 1975-76, the Superintendent of Schools of the School Board of Broward County, Florida, ordered an audit of the Horizon Elementary records. One of the aspects of the audit was to examine certain folders on the specific Learning Disability students who were enrolled in the year 1975-76. These folders were folders that were found in the main office of the school. The audit report which is Petitioner's Exhibit #1, admitted into evidence, in part, states that 79 folders were examined in the course of the audit. In addition there was testimony by one of the auditors, that a computer print-out contained the names of those students that were found in the Specific Learning Disability program (SLD). Apparently the auditor was referring to that computer print-out which is Petitioner's Exhibit #8, admitted into evidence. That exhibit shows a color code for certain categories and (SLD) is shown in yellow. The number of (SLD) students in the year 1975-76 was determined by the auditors on the basis of the examination of the file folders in the main office and the computer print-out and this gave them the number 79. When the charge was made, it alleged 74 students were in the (SLD) program in the 1975-76 school year, but was subsequently amended during the course of the hearing to reflect the number 79, which appeared in the audit report. In fact, FTE funding in the (SLD) program of Horizon Elementary was claimed for 71 students in the October 27 - 31, 1975, count and for 74 students in the February 23 - 27, 1976, count as reflected in Petitioner's Exhibit #19, admitted into evidence. Therefore, funding would have been received for 71 students in October, 1975, in the (SLD) program. Moreover, testimony established that it was this October count which set up the process for the actual receipt of funds for such program. Of the 79 students claimed to be enrolled in the 1975-76 school year, in the category (SLD), 47 of those students whose files were examined were felt to be properly certified. Certification to the audit members meant that a school psychologist had indicated the propriety of placing that student in the (SLD) program in years prior to 1975-76, and after 1975-76 that a form known as B-1 had to be signed by the Director of Exceptional Student Education or his designee to have certification. This word certified comes from the audit summary table found in the audit, Petitioner's Exhibit #1. The original charge claimed 47 students of the (SLD) program were certified. This number was amended to read 49 as certified, such amendment being made in the course of the hearing. In addition to the audit report, there was prepared a tally sheet. This tally sheet was the product of the three auditors and pertained to the (SLD) students. The tally sheet is Petitioner's Exhibit #15, admitted into evidence. It shows 79 names, which are the names of the file folders examined in the audit. It has certain columns pertaining to items being sought, one of which columns is the aforementioned certification. Looking at this exhibit it is determined that there are 30 names of students, whom the auditors did not locate data for on the column labeled certification. Those 30 names are found in a separate part of Petitioner's Exhibit #15, In determining what data existed, the auditors had asked the Respondent to produce his files, they had looked at files in the main office and in the Specific Learning Disability room, and at the Diagnostic Center for the Exceptional Education Program in Broward County. Their examination of the Diagnostic Center files was only on a random basis. They had also spoken to the (SLD) teachers at Horizon Elementary in a general way, but not as to the specific names of students that they could not find data for. The auditors did not look in the cumulative folders, which were found with the homeroom teachers of the 30 (SLD) students. No document was offered which shows which if any of the 79 students named on the tally sheet were part of the 71 students for whom FTE funding in the (SLD) program was claimed for in the October 27 - 31, 1975, request, nor was such documentation shown for which if any of the 79 students on the tally sheet were claimed as part of the 74 students who were involved in the FTE funding count of February 23 - 27, 1976. Therefore, it is not known specifically which of the students were having funding claimed for them in October, 1975 and February, 1976. There was a great deal of testimony in the case concerning the referral process, testing, psychological evaluation, and staffing of those students in the (SLD) program at Horizon Elementary School. This discussion involved allegations and counter allegations about the conduct of the prescribed process, as to the compliance with procedures and the quality of that compliance, and the disposition of the evidence showing qualification of the (SLD) students for such a program, once placement had been made and funding requested. Essentially, the Petitioner was trying to establish, through its witnesses, that procedures were not followed in placing (SLD) students for the years 1973-74 through 1975-76 either in fact or in the quality of compliance. The Respondent, through its witnesses, countered that compliance had been achieved and that the placement of those students in the (SLD) program was correct. Within this testimony, there are claims on both sides that files either did not exist or certain data in those files had been removed. Some evidence which was offered to establish that testing was done on those 30 students whose names appear on Petitioner's Exhibit #15, will be found in Respondent's Exhibit #18 - #22, admitted into evidence. These Respondent's exhibits show materials taken from the files of the named students and compilation of tests scores kept by the (SLD) teachers, Bonnie Kirkham and Pat Sanders. These items were not seen by the audit team. Some information was in the possession of the (SLD) teachers based on notes of test scores that were take-offs of the original test booklets and documents, with the exception of one file which was mistakenly kept in the (SLD) teachers room, and the balance of the data was taken from the cumulative folders of the students, that had been kept in the homeroom teachers' rooms, which were not examined by the auditors. Other data may be found in Petitioner's Exhibits 36 - 38 which are psychological reports written by Dr. James R. Fisher, a school psychologist with the Broward County School System. These reports pertain to certain of the 30 students whom he recommended to be returned to regular class, and some of which were left in the (SLD) program from January, 1976 through the end of the school year to avoid adjustment problems. Although the psychological reports are dated September, 1975, these reports were not sent to Horizon Elementary School until January, 1976. In addition the attorney for the Petitioner after reviewing the evidence, concedes that the children, Jeanine O'Hara, Wayne Martin, Suzanne Cain, Karen Treese, Alderto Guzman, Laura Natzke and Kieth Franklin were tested and found eligible for placement in (SLD). After entertaining considerable testimony on the procedures and the whereabouts of certain data within the files of the 30 (SLD) students under discussion, and after reviewing the evidence offered to show the existence of data about the students, the undersigned is unable to conclude what the actual facts are, and for that reason it has not been shown that the procedures for placement and claiming funding were followed or not. However, there is strong evidence to show that the procedures were followed for placing the thirty (SLD) students, as shown by Respondent's Exhibits #18 - #22. On October 27, 1975, the student Anthony Buffone was tested by a school psychologist in the Broward County School System. This psychologist was Bob Lieberman, and Mr. Lieberman rendered a written psychological report, which indicated that Anthony Buffone should be placed in a program for Emotionally Disturbed children. A copy of this report may be found in Petitioner's Exhibit #18, admitted into evidence. This child was staffed and proper placement effected, in accordance with the existing law and procedures. The activity of placement transpired in the fall of 1975. The child was attending Horizon Elementary School in the school year 1975-76. The program provided for Anthony Buffone in that school year was to have him attend regular class part of the day and to spend approximately two hours a day with John Georgacopoulos, the school guidance counselor. Georgacopoulos was to help Anthony Buffone with academics, to assist in behavioral modification and to improve the student's self concept. This program was provided as needed, and this need turned out to be approximately two hours a day. In addition, the Respondent worked with the student in terms of counseling. The student spent some time in the (SLD) program but because of the disruptive nature of his conduct, was removed from that program. His attendance in (SLD) was from the beginning of January, 1976 through the spring, 1976. He was removed from the (SLD) program at the request of the (SLD) teacher. Mr. Georgacopoulos the instructor, had a BA Degree in psychology from the University of Oklahoma and a Master's Degree in Institutional Guidance and Counseling from Oklahoma City University. In addition Mr. Georgacopoulos had been approved by the Broward County School Board to do psychometric testing. Prior to coming to the Broward County School System in 1969, he had done work at the Wagon Wheel School in Oklahoma, in the field of guidance and counseling. He was not a certified psychologist, certified with the State of Florida. The Respondent recognized that the student Anthony Buffone, would have been better placed at the Castle Hill School which had a more comprehensive program for the Emotionally Disturbed, but the mother of the child did not wish this placement since it would work a hardship in transporting the child to the school, and would place the child in a location that was inconvenient to the parent.
Recommendation It is recommended that the Respondent, James P. Walsworth, be relieved of further responsibility in answering to these charges and that back pay and other benefits that he may be entitled to, be forthcoming. DONE and ENTERED this 4th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John B. Di Chiara, Esquire Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33302 Emerson Allsworth, Esquire 1177 S.E. Third Avenue Ft. Lauderdale, Florida 33316 Mr. James E. Maurer Superintendent of Schools The School Board of Broward County Administration Offices 1320 S.W. Fourth Street Ft. Lauderdale, Florida 33312
Findings Of Fact The Respondent holds Florida teaching certificate 595057, covering the area of Speech and Language Impaired, which is valid through June 30, 1993. At all times pertinent to the allegations in this case, the Respondent was employed as a Speech Therapist at Castle Hill Elementary School (hereinafter "Castle Hill") in the Broward County School District. At all times pertinent hereto, Dr. Valoria Latson was the principal of Castle Hill, Ronald Wright was the Director of Professional Standards for the Broward County School Board, Mark Seigle was the Associate Superintendent of the Broward County School Board, and Virgil Morgan was the Superintendent of the Broward County School Board. In the Spring of 1990, the Respondent began to exhibit unusual and bizarre behavior both in and out of school. Such behavior included: Claiming that students in her class and children around her neighborhood were watching her; Claiming that students and teachers were talking about her personal life; Claiming that her classroom, apartment, phone and car contained covert listening devices; Claiming that unknown persons were breaking into her car and home on a frequent basis; Calling police on numerous occasions requesting them to investigate and/or fingerprint her apartment and car because they were tampered with; Claiming that she was being followed by friends, staff members, church members and the State of Florida; Claiming that her lesson plans had been stolen and copied; Claiming that her lesson plans were being photographed by a camera in the light bulbs or air conditioner in her classroom; Claiming that staff members were listening in on her class through the school intercom. The accusations and claims made by the Respondent were the product of delusional thought processing and paranoia. Dr. Latson became concerned about Respondent's bizarre behavior, which she described as exhibiting overt signs of paranoia. In July of 1990 Dr. Latson referred Respondent to the Employee Assistance Program ("EAP"). This referral did not benefit the Respondent. With the onset of the 1990-91 school year, Dr. Latson remained concerned about Respondent's continued bizarre behavior. On September 10, 1990, Dr. Latson advised Mr. Wright of her concerns about Respondent and about the referral to the EAP. On September 21, 1990, Dr. Latson advised Mr. Wright that she had not observed any significant changes or improvements in the Respondent. Mr. Wright recommended that Dr. Latson have her Assistant, Ms. Weissberg, observe the Respondent at least 2 to 5 minutes a day, 3 to 4 days a week, to be certain that nothing was going on in that classroom that should not be. On or about October 26, 1990, Dr. Valoria Latson had a conference with the Respondent and the Assistant Principal, Ms. Weissberg, at which time the Respondent indicated that she was "tired of this shit" and would be giving them her letter of resignation. The Respondent failed to bring in her letter of resignation. The Respondent had also informed Ms. Laura Rogers, Program Specialist with the Exceptional Student Education Department for the central area, that she was going to resign. After further observation of Respondent's behavior, it was determined that a formal psychological or psychiatric evaluation of the Respondent would be appropriate. On November 5, 1990, Dr. Latson met with Mr. Seigle and Ms. Lucy Thomas, a friend of the Respondent, regarding the Respondent's unusual behavior. Dr. Latson was concerned about the Respondent's ability to function as a classroom teacher and her ability to work with children and adults in a school setting. Dr. Latson requested that Mr. Seigle make arrangements for a psychological or psychiatric evaluation of the Respondent. She also requested that Respondent be taken out of the classroom until her emotional and mental stability was assessed. Dr. Latson believed that a psychological evaluation of the Respondent was necessary because of her bizarre behavior and her unusual accusations. Dr. Latson believed that the Respondent's effectiveness in the classroom had been reduced, and that it was in the best interests of the students for Respondent to be evaluated. Dr. Benjamin Barnea, a physician trained in Neurology and Psychiatry, conducted an initial evaluation of the Respondent on November 8, 1990. Dr. Barnea summarized his findings in a letter to Mr. Seigle on November 12, 1990. Dr. Barnea's impression of Respondent's condition was that of schizophreniform disorder. His recommendation provided, in pertinent part, as follows: The patient presently shows overt delusional thought processing that prevents her from functioning and interacting with her peers and students. I would not recommend that she be returned to her regular employment until she seeks treatment and is stabilized. Since she has never had a formal workup for her disturbed thought processing, I would recommend that she receive an MRI of the brain and an EEG for completeness sake to rule out possible underlying pathology that might be amenable to treatment. In addition, the patient will need to be started on anti- psychotic medications and I have broached this subject with her but she shows no insight into her illness and does not show willingness to participate in treatment. The prognosis is unfortunately guarded, if her workup is totally negative then the long- term picture is one of probable continued mental illness. In this initial evaluation of the Respondent, the Respondent indicated to Dr. Barnea that she believed her phone conversations at school were being monitored, that her lesson plans were being photographed from the light bulb in her room, that someone at the school knows whose behind this and is doing it, that she is being followed wherever she goes by the Methodist Church that she belongs to, and that her students who are in the age range of five (5) to six (6) years old are aware of who she is dating and sleeping with because, as the Respondent explained, her boyfriend has a pet snake and the students were making hissing sounds in class. During a follow-up evaluation on December 3, 1990, with Dr. Barnea, Respondent again showed evidence of a "fixed delusional system involving people getting into her apartment and moving things around in collusion with her church and her school". Dr. Barnea noted that this was continual evidence of an underlying delusional thought processing that was ongoing with the Respondent, and not merely a transit thing that happened on one particular day. During a follow-up evaluation on December 13, 1990, Dr. Barnea again attempted to convince the Respondent to consider treatment with anti-psychotic medication. Dr. Barnea noted that Respondent refused his advice and was of the opinion that she had no insight that she has a mental problem. Respondent underwent the physical tests recommended by Dr. Barnea. These results of these tests revealed no physical abnormalities. Following his evaluation of Respondent on January 30, 1991, Dr. Barnea noted that Respondent remained delusional with no insight into her illness and that she continued to refuse treatment in the form of anti-psychotic medication for the underlying thought disorder. Dr. Barnea again saw the Respondent briefly on February 4, 1991. It was still his opinion that Respondent was unable to function as a classroom teacher or in an educational setting as long as the underlying delusional thought processing was present. With the exception of anti-psychotic medication, there is no other treatment for a delusional thought disorder. There was no evidence in this proceeding that Respondent's condition had improved since her last evaluation with Dr. Barnea. There was no evidence that she has sought or received treatment or that she was on any type of medication that would benefit her. Without proper treatment, Respondent's delusional thought processing makes her behavior unpredictable. Her behavior could range from being totally docile to physically violent. Although there was no evidence that she had become physically violent, Dr. Barnea was of the opinion that persons suffering from Respondent's mental condition have the potential to become violent because of the underlying delusional thought processing. Respondent should not be placed in a position of responsibility and is incapable of teaching. On or about April 23, 1991, the Respondent was suspended without pay by the Broward County School Board and dismissal proceedings were initiated. Pursuant to the petition for formal proceedings, filed by the Broward County Superintendent of Schools, Virgil Morgan, the Respondent requested a formal hearing before the Division of Administrative Hearings (DOAH) and the case was assigned DOAH Case No. 91-2839. The formal hearing conducted in that case was heard before William Dorsey on September 4, 1991. On November 7, 1991, a Recommended Order was issued by the Hearing Officer in DOAH Case No. 91-2839 that concluded, in pertinent part, that Respondent's ". . . thought disorder places any children who would be assigned to her class at unreasonable risk of harm which could result from unpredictable reactions by Ms. Wynne to those students. She is currently not competent to perform her duties as a teacher." The Recommended Order recommended that Respondent's contract with the Broward County School Board be terminated due to her mental incompetency. On January 17, 1992, the Broward County School Board entered a Final Order which adopted the Recommended Order in its entirety, including the Findings of Fact, Conclusions of Law, and Recommendation, and the school board thereby terminated the Respondent from her employment effective April 23, 1991. Based on the School Board's position that the Respondent was mentally incompetent and unfit to hold a teaching certificate, Mr. Wright reported the allegations against the Respondent to Professional Practices Services ("PPS) of the Department of Education. The Respondent is incompetent to perform her duties as an employee of the public school system based upon her mental incompetency. Consequently, her effectiveness as an employee of the school board has been lost.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order which finds Respondent guilty of violating Sections 231.28(l)(b) and 231.28(l)(f), Florida Statutes, and which bars the Respondent from reapplying for a new teaching certificate for a period of three (3) years. It is FURTHER RECOMMENDED that prior to recertifying Respondent as a teacher in the State of Florida, the Education Practices Commission require Respondent to submit documentation from appropriate mental health professionals that establishes that Respondent does not represent a threat to the safety or well-being of students under her supervision or care, that she is receiving any recommended treatment, and that she is competent to perform her educational and administrative duties in an acceptable and satisfactory manner. DONE AND ENTERED this 17th day of December, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 17th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3376 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraph 1 are unnecessary as findings of fact, but are incorporated in the Preliminary Statement section of the Recommended Order. The proposed findings of fact in paragraphs 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 34, 35, 41, 43, 44, 45, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, and 74 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 42, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 71, and 75 are subordinate to the findings made. The post-hearing submittal filed by Respondent contained no proposed findings of fact. COPIES FURNISHED: Jill M. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Danita Wynne, pro se 9277 Dunwoody Lane Indianapolis, Indiana 46229 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Karen Holcomb.
Findings Of Fact Respondent Karen Holcomb is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.1/ Ms. Holcomb's complete employee file was not presented at the hearing. Performance evaluation documents that were entered into evidence show that she was an employee of the School Board for at least the following periods and in the following capacities: eighth grade math teacher at Eustis Middle School for the 2002-2003 and 2004-2005 school years; guidance counselor at Mount Dora Middle School for the 2005-2006 school year; math teacher at South Lake High School for the 2007-2008 school year; and art teacher at Eustis High for the 2009-2010 and 2010-2011 school years. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains six sections and 12 subsections. The subsections are further divided into sub-subsections.2/ The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I results in probationary status for the teachers, triggering the NEAT procedure and further evaluations. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance Form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. The record evidence indicates that Ms. Holcomb received a grade of 12 on her Appraisal I for the 2002-2003 school year, dated February 10, 2003, as a math teacher at Eustis Middle School and on her Appraisal I for the 2005-2006 school year, dated March 1, 2006, as a guidance counselor at Mt. Dora Middle School. On March 21, 2006, Ms. Holcomb received an Appraisal II for her failure to timely update a student's accommodation plan under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. On April 25, 2006, Ms. Holcomb received two Appraisal IIs. One cited Ms. Holcomb for a failure to report to work, stating that she did not inform administration or school site personnel that she would not be at work on April 7, 19, 20, and 21, 2006. The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement in notifying her worksite of her absences. In response, Ms. Holcomb submitted an affidavit from her husband stating that on the dates in question, Ms. Holcomb was either sick with a severe headache or in the hospital for cardiac problems. Ms. Holcomb's husband took responsibility for any failure to contact the proper school authorities regarding Ms. Holcomb's absences from work on those dates. The other April 25, 2006, Appraisal II stated that Ms. Holcomb was "not able to perform her job requirements due to excessive absences. The total number of days out as of April 21, 2006 is 31.5 days." The "recommended procedure for correction" was that Ms. Holcomb should "come to work on time and when required by work calendar designated by School Board and school site policy." The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement. In response, Ms. Holcomb filed a memorandum explaining that her absences were due to legitimate illness and injury, including a 15-day hospitalization for broken ribs and collarbone, two days missed due to severe headaches, and four days missed due to hospitalization with heart attack symptoms. Ms. Holcomb suggested that the Appraisal II was part of an effort by school administrators "to undermine my current Professional Services Contract with Lake County Public Schools and destroy my reputation, due to an unknown agenda." As noted above, Ms. Holcomb began work as an art teacher at Eustis High during the 2009-2010 school year. On October 27, 2009, she received an Appraisal II from then- assistant principal Kristine Durias due to her classroom management. Ms. Durias explained the unacceptable aspects of Ms. Holcomb's classroom management as follows: I noted on several occasions that students in your classroom were not abiding by District, school and classroom procedures and were without correction from you as their teacher. On my last visit to your classroom on 10/22/09, 3 students had iPods out, 5 students were wandering around the classroom not engaged in the project and 1 student had their head down, all without regard from the teacher. Ms. Durias also provided Ms. Holcomb with a Prescription/Assistance Form setting forth the areas of performance that required improvement and providing resources to assist Ms. Holcomb in bringing her performance level up to the School Board's standards. These resources included page references to the IPPAS Handbook section on "Classroom Management," in-service classes on "Effective Classroom Management Strategies" and "Classroom Management for Secondary Teachers." The Prescription/Assistance Form also stated that Ms. Durias would contact the instructional coach to assist Ms. Holcomb and would ask another staff member to mentor Ms. Holcomb on school policies and procedures. The Prescription/Assistance Form provided that Ms. Holcomb's performance should show improvement "immediately," but also stated that her performance would be checked within three weeks. On November 17, 2009, from 12:40 p.m. until 1:20 p.m., Ms. Durias observed Ms. Holcomb and scored her on the Appraisal I form. Ms. Durias gave Ms. Holcomb a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Durias found Ms. Holcomb's performance deficient in two sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." She was graded as unsatisfactory in four of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" "Recognizes response/amplifies/gives corrective feedback;" and "Directs lesson." At a post-appraisal conference on December 2, 2009, Ms. Durias gave Ms. Holcomb a Prescription/Assistance Form. This form essentially directed Ms. Holcomb to continue with the recommendations set forth in the Prescription/Assistance Form issued on October 27, 2009. Because the November 17, 2009, evaluation resulted in a score that was below the minimum IPPAS requirement of 12, Ms. Durias designated it as an "Observation" rather than a formal Appraisal I that would immediately affect Ms. Holcomb's employment status.3/ In the Prescription/Assistance form, Ms. Durias informed Ms. Holcomb that another IPPAS appraisal would be conducted within three weeks. The appraisal was not conducted within the stated three weeks because Ms. Holcomb was out on sick leave from January 21, 2010, through April 20, 2010. On April 23, 2010, two days after Ms. Holcomb returned to work from her lengthy absence, an Appraisal I of her performance was conducted by assistant principal Marta Ramirez, who joined the staff at Eustis High School in March 2010. Ms. Ramirez testified that it is not at all unusual to evaluate a teacher who has been out of work for a long period of time. Teachers are frequently out on maternity leave or due to illness. Ms. Ramirez stated that the School Board expects every teacher to perform at the level required to pass an IPPAS appraisal whenever she comes to teach, whether it is the first day of school or the first day back from an extended leave. Ms. Ramirez observed Ms. Holcomb from 12:44 p.m. until 1:44 p.m. and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 8 on the appraisal, rating her unsatisfactory in four of the 12 subsections. The section "Teaching Procedures" contains four subsections, one of which is "Displays skills in making assignments." Ms. Ramirez found Ms. Holcomb's performance deficient in that subsection due to an unsatisfactory score in the sub-subsection titled "Gives clear and explicit directions." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in three of the four sub-subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in both subsections: "Demonstrates knowledge and understanding of the subject matter" and "Communicates and presents subject matter in a manner that enables students to learn." As to the first subsection, Ms. Holcomb was graded as unsatisfactory in one of two sub-subsections, "Sequence is logical." As to the second subsection, she was graded as unsatisfactory in three of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" and "Directs lesson." At the hearing, Ms. Ramirez testified as to her observations of Ms. Holcomb's teaching methods. Ms. Ramirez stated that there is a standard procedure for ensuring a prompt start to the class. Before the students come into the classroom, the teacher writes a "bell ringer" on the blackboard, i.e., an activity that the students are expected to work on while the teacher takes attendance. Ms. Holcomb had no bell ringer activity prepared for her students, who sat down at their tables with nothing to do. The students talked among themselves, a distraction that lengthened the process of taking attendance to six minutes. Ms. Ramirez found Ms. Holcomb's performance deficient in the areas of starting class promptly and being on task. Ms. Ramirez stated that another standard classroom procedure is the teacher's stating the objective of the day's lesson. Ms. Holcomb stated no objective either orally or in writing. Because there was no stated objective, the lesson did not proceed in a meaningful, orderly fashion. Ms. Holcomb seemed to jump from one thing to another. Some students were confused, looking to Ms. Holcomb and trying to figure out what they were supposed to do. Ms. Ramirez noted that the lack of a set procedure or guidance from the teacher naturally leads the students to lose focus and begin talking among themselves. Ms. Holcomb's students began chatting, which led Ms. Holcomb to attempt disciplinary measures. She began by saying "cut." Ms. Ramirez was not sure what "cut" meant, but surmised that it was Ms. Holcomb's instruction to the students to stop talking. The instruction had no effect on the students. Ms. Ramirez testified that there was still some confusion 20 minutes into the class period. The students still did not understand the assignment. They were blurting out questions such as, "What are we doing?" and "Is this for a grade?" They were asking each other what they were supposed to be doing. At some length, they understood the assignment and began work, though an undercurrent of confusion remained. Ms. Ramirez attributed this undercurrent to Ms. Holcomb's failure to state an objective or purpose to the assignment. Ms. Ramirez was also critical of Ms. Holcomb's interactions with the students. Ms. Ramirez stated that accepted practice is for the teacher to state a single question, wait for a moment, call on a student, and affirm the correct answer. If the answer is incorrect, the teacher provides feedback that steers the class toward the correct answer. Ms. Ramirez testified that Ms. Holcomb allowed the students to shout out answers in a chaotic manner. Ms. Ramirez stated that the class period lasted for 90 minutes, but that she left after an hour because the class "didn't seem to be headed any direction, just headed downhill." The students were not on task and were not learning anything. As a result of the substandard Appraisal I score, Ms. Ramirez completed a Prescription/Assistance Form that she gave to Ms. Holcomb at a post-observation conference on April 29, 2010. Eight areas for improvement were listed, corresponding to the eight sub-subsections for which Ms. Holcomb received unsatisfactory scores on the April 23 Appraisal I. Eight pages of the IPPAS Handbook were attached as reference resources to assist Ms. Holcomb to improve her performance. The Prescription/Assistance Form also provided that an instructional coach would assist Ms. Holcomb in applying best teaching practices and that she could obtain in-service instruction in classroom management. The form also "encouraged" Ms. Holcomb to take staff development workshops provided by Lake County. Also on April 29, 2010, Eustis High principal Al Larry issued a memorandum to Ms. Holcomb advising her of performance deficiencies in the areas of "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter," as reflected in the April 23 Appraisal I. Mr. Larry noted that as to the latter two areas, Ms. Holcomb had shown deficiencies in the observation of November 17, 2009, and that those deficiencies had not been corrected. Mr. Larry's memorandum closed as follows: "Based on the performance deficiencies, I am placing you on performance probation for 90-calendar days beginning on Monday, August 23, 2010. The 90-calendar days will end on Monday, November 22, 2010." By letter dated May 7, 2010, Superintendent of Schools Susan Moxley warned Ms. Holcomb of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Ms. Ramirez testified that she contacted Claude Pennacchia, a former principal who acts as instructional coach for eight schools. Mr. Pinnachia agreed to contact Ms. Holcomb and set up a meeting. Because she called Mr. Pennacchia near the end of the school year, Ms. Ramirez contacted him again at the start of the new school year in August to remind him of the need to provide training to Ms. Holcomb. Mr. Pennacchia told her that he had tried to arrange a meeting with Ms. Holcomb, but they could not agree on a time. Ms. Ramirez testified that to the best of her knowledge Ms. Holcomb never made herself available to meet with Mr. Pennacchia. Ms. Ramirez was not aware that Ms. Holcomb ever did anything that was recommended by the April 29, 2010, Prescription/Assistance Form. Ms. Ramirez testified that Ms. Holcomb was in school for the first two weeks of the 2010-2011 school year, then became ill and was out until sometime in November 2010. The follow-up observation was conducted by Ms. Ramirez on December 1, 2010, after the running of the 90-day probation period. Ms. Ramirez observed Ms. Holcomb from 10:23 a.m. until 11:00 a.m.4/ and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 7 on the appraisal, rating her unsatisfactory in five of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in two of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in one subsection, "Communicates and presents subject matter in a manner that enables students to learn." Within that subsection, Ms. Holcomb was graded as unsatisfactory in two of seven sub- subsections: "Uses questioning techniques" and "Recognizes response/ amplifies/ gives corrective feedback." Under the section "Assessment Techniques," Ms. Holcomb was rated unsatisfactory in the sole subsection, "Uses assessment strategies to assist in the continuous development of the student." Within that subsection, Ms. Holcomb was graded as unsatisfactory in one of four sub-subsections, "Checks student progress based on the performance standards required of students in Florida public schools, analyses data, including annual learning gains at the classroom and school levels, and makes appropriate adjustments." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in one of three subsections, "Engages in continuous professional improvement for self and school." This subsection contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." At the hearing, Ms. Ramirez explained that the sections of the Appraisal I document being scrutinized during the observation are "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter." The sections titled "Planning," "Assessment Techniques," and "Personal Characteristics and Professional Responsibilities" are covered in the post-observation conference with the teacher, at which time the teacher shares her portfolio or other evidence of compliance with IPPAS standards with the evaluator. Ms. Ramirez testified that on this occasion Ms. Holcomb had an assignment on the board as the students entered, but that the students still appeared confused. They did not seem to know what they were supposed to be doing. The students continued to talk among themselves even when Ms. Holcomb began a review. Ms. Ramirez noted that Ms. Holcomb was still using "cut" to end the students' conversations, and that it was still being ignored. Ms. Holcomb had posted rules of conduct in her classroom that included raising one's hand and being called on by the teacher before asking a question. Ms. Ramirez testified that this rule was ignored by the students and Ms. Holcomb. The students would blurt out questions, and Ms. Holcomb would answer them. Ms. Ramirez found it highly problematic that Ms. Holcomb was not even attempting to enforce her own rule. Ms. Ramirez noted that students walked into class several minutes after the bell and Ms. Holcomb took no notice. Students walked into the class with food and started eating. Other students simply stood up and walked out of class. Ms. Holcomb did not address any of these misbehaviors. Ms. Ramirez testified that before leaving the classroom, a student is supposed to ask permission, get a pass, and sign out. Ms. Holcomb seemed unaware that students were walking in and out of the classroom while she taught the lesson. Ms. Holcomb's failure to observe the hall pass protocol created a dangerous situation because there was no accountability for these children. They were without adult supervision outside the classroom and could go anywhere or do anything. During cross-examination, Ms. Ramirez was questioned regarding the size and configuration of Ms. Holcomb's classroom in connection with the fact that Ms. Holcomb was using a wheelchair during this period. Counsel was attempting to demonstrate that at least some of the discipline problems were not Ms. Holcomb's fault because the layout of her classroom ensured that she was unable to see all of her students from her position in the wheelchair. Ms. Ramirez acknowledged that Ms. Holcomb's art class was large, between 35 and 40 students, and that Ms. Holcomb had to navigate the room in a wheelchair. However, Ms. Ramirez also testified that being in a wheelchair did not absolve Ms. Holcomb of her responsibility for the safety of the children in her classroom. More than one person in the Eustis High administration had urged Ms. Holcomb to rearrange the tables in her classroom to give herself a clear view of all the students. Ms. Holcomb had been advised to look at the classroom of the art teacher next door for ideas on how to arrange the tables. For some reason, Ms. Holcomb declined to change the configuration of the tables in a way that would curtail the students' ability to essentially hide from her. Ms. Ramirez conducted a post-observation conference with Ms. Holcomb on December 6, 2010. Prior to the conference, Ms. Ramirez spoke to Mr. Larry about the results of the Appraisal I. She told Mr. Larry that Ms. Holcomb had requested that her union representative be present at the conference and that "it doesn't look good" for Ms. Holcomb because she received unsatisfactory scores in two of the same subsections she had failed on the April 23, 2010, Appraisal I. In light of this information, Mr. Larry decided that he would attend the conference as well. On December 7, 2010, Ms. Holcomb submitted written comments that provided as follows, in relevant part: To begin, this is the culmination of Mr. Larry's hostile attitude toward my... appointment to Eustis High School.... Mr. Larry has not spoken one kind word to me since the appointment in August of 2009. Since my appointment to Eustis High School, I have had to work in a hostile environment where Mr. Larry has been using the Florida Statute 1012.34 assessment procedures as a weapon to fire me. Using an assessment procedure where nothing less than perfect is failing, Mr. Larry used his assistant principals to do his bidding where acceptable or unacceptable grades are completely subjective. In other words, the assessment is biased where any teacher that the principal does not like has no chance of passing and there is no supervisory protection or due process afforded to the teacher. . . (Emphasis in original.) Ms. Holcomb also alleged that Mr. Larry "violated the intent of the ninety days rule" for performance probation when he did not extend the time for improvement of her deficiencies in light of her eight-week stay in the hospital. Ms. Holcomb also alleged that Mr. Larry refused her request to move to an open guidance counselor position that would not require her to show classroom management skills. There was no record evidence that Mr. Larry held any grudge against Ms. Holcomb.5/ Ms. Ramirez denied receiving any instruction or direction from Mr. Larry as to her evaluations of Ms. Holcomb's performance as a teacher. There was no record evidence that Ms. Holcomb applied for a guidance counselor position during the period in question. By letter dated December 7, 2010, Mr. Larry informed Superintendent Moxley that Ms. Holcomb had failed to correct her performance deficiencies, that Mr. Larry did not believe Ms. Holcomb capable of correcting those deficiencies, and recommending that Ms. Holcomb's employment be terminated. In a letter to Ms. Holcomb dated December 10, 2010, Superintendent Moxley wrote as follows: Pursuant to Florida Statute 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Please be advised that I will recommend to the Board that your employment be terminated as of January 10, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb filed a grievance pursuant to School Board Policy 6.35. In light of that grievance, Superintendent Moxley rescinded Ms. Holcomb's termination until such time as Ms. Holcomb could receive a second Appraisal I observation by an administrator from outside Eustis High. June Dalton, the principal of Tavares High School, was selected by chief of curriculum Nancy Velez to conduct the observation. Ms. Dalton began teaching in Lake County in 1978 as a physical education teacher. After teaching for 13 years, Ms. Dalton became an administrator. She has served 14 years as a principal, including eight years at the high school level. Ms. Dalton has been trained in use of the IPPAS Handbook and sat on a committee charged with updating the IPPAS program. She has trained administrators on the IPPAS system. At the time she accepted the assignment from Ms. Velez, Ms. Dalton had never met Ms. Holcomb. Ms Dalton met Ms. Holcomb for the first time at the pre-observation conference on January 11, 2011. They discussed the appraisal form, including every aspect of the observation and the areas on which Ms. Dalton would focus. Ms. Dalton assured Ms. Holcomb that she was there to help her meet the minimum standards in her appraisal. Ms. Dalton testified that Ms. Holcomb had some concerns about the layout of her classroom and asked for her ideas. Ms. Holcomb told Ms. Dalton that she had trouble maintaining order with some of the students in her classroom. Ms. Dalton testified that Ms. Holcomb's classroom was long and narrow, with tables arranged in such a way that at times some students were facing away from the teacher. Ms. Dalton suggested setting the tables end to end along the length of the room, so that Ms. Holcomb could lecture in front and be seen by all of the students. Ms. Dalton stated that when she came to the room for the observation, the tables had not been moved.6/ Ms. Dalton asked to see Ms. Holcomb's individual personal development plan ("IPDP"), a document that all teachers are required to complete that identifies individual goals and objectives designed to promote their personal growth. The teacher is required to state objectives that are feasible and primarily under her control, are measureable and/or observable, and are agreed to and signed by the teacher and her supervisor. Ms. Dalton stated that it is her practice at Tavares High School to review her teachers' IPDPs before their observations. Ms. Holcomb told Ms. Dalton that she had turned in her IPDP to Ms. Ramirez, but that she could not find her copy of the signed document. Ms. Holcomb printed a copy of the IPDP to show to Ms. Dalton. After reviewing the IPDP, Ms. Dalton concluded that it was not a workable plan as written because there was no way that Ms. Holcomb could document the student progress that she intended to bring about. Ms. Dalton gave Ms. Holcomb some suggestions for making her IPDP into an acceptable document. Ms. Holcomb agreed that she would rewrite the IPDP and have it ready for Ms. Dalton at the time of the observation. However, on the day of the observation, Ms. Holcomb told Ms. Dalton that she had not had time to work on it. Through his questioning of Ms. Ramirez, counsel for Ms. Holcomb insinuated that that Ms. Holcomb had turned in an IPDP to Ms. Ramirez in October 2010, but that Ms. Ramirez had lost the IPDP by the time she performed her Appraisal I on December 1, 2010. Ms. Ramirez testified that the first time she ever saw an IPDP from Ms. Holcomb was at the December 6 post- observation conference. The document was handwritten and was missing significant information. Ms. Holcomb had been notified that that the IPDP was part of her Appraisal I and that she needed to bring it to her post-observation conference. Ms. Ramirez gave her an unsatisfactory mark for the incomplete IPDP. The testimony of Ms. Dalton and Ms. Ramirez is credited as to the IPDP. It is apparent that Ms. Holcomb created a typed IPDP at some point between December 6, 2010, and January 11, 2011, but that she never gave it to her supervisor at Eustis High for review and approval. Ms. Holcomb tried to make Ms. Dalton believe that the IPDP she printed at the pre- observation conference on January 11 was an approved, finished product when in fact it was, at best, a draft IPDP. After they finished with the pre-observation conference, Ms. Dalton and Ms. Holcomb discussed dates for the observation. Ms. Holcomb did not want the observation to take place until after semester exams. Ms. Dalton agreed that little would be gained from having her observe Ms. Holcomb as she proctored an exam. They agreed on a date, but Ms. Holcomb was out sick on the scheduled date. After a few reschedulings, the observation took place on February 17, 2011. Ms. Dalton's observation lasted from the time the bell rang at 12:44 p.m. until class was dismissed at 2:14 p.m. Ms. Dalton was in the classroom several minutes before the opening bell. On the Appraisal I form, Ms. Dalton gave Ms. Holcomb a score of 6, rating her unsatisfactory in six of the 12 subsections. The section "Planning" contains a single subsection titled "Plans, implements, and evaluates instruction," for which Ms. Holcomb was given an unsatisfactory score. Within that subsection, Ms. Holcomb was given an unsatisfactory score on one of the four sub-subsections, titled "Develops short and long term personal and professional goals related to instruction as evidenced by an Individual Professional Development Plan." The section "Teaching Procedures" contains four subsections, in two of which Ms. Dalton graded Ms. Holcomb's performance as unsatisfactory. Under the subsection titled "Uses instructional materials effectively," Ms. Holcomb was graded unsatisfactory in the sub-subsection titled "Uses technology in the teaching and learning process." Under the subsection titled "Recognizes and provides for individual differences," Ms. Holcomb was given an unsatisfactory score in the sub-subsection titled "Attends to student needs." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which students are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Dalton found Ms. Holcomb's performance deficient in three of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in two of the three subsections. The first subsection, "Engages in continuous professional improvement for self and school," contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." The second subsection was titled "Complies with Board rules, policies, contract provisions, and published school-site rules and policies consistent with Board rules and contract provisions" and contained no sub-subsections. Ms. Dalton testified that Ms. Holcomb did not have a bell ringer activity to keep the students engaged while she took attendance. Ms. Holcomb frequently had to stop taking attendance to admonish talkative students. Ms. Dalton stated that Ms. Holcomb was still taking attendance at 12:53, nine minutes after the opening bell. She started entering the attendance into her computer at 12:58, and was not finished with marking attendance until 1:01, seventeen minutes into the class period. Ms. Dalton found it apparent from the start that there was no class routine. The students had to be told what to do at every step of the way. At the end of attendance, Ms. Holcomb explained a journal assignment she had written on the board, but most of the students talked all the way through her explanation and some did not perform the assignment at all. There were no consequences for their misbehavior. Ms. Holcomb held up samples of a project the class had begun in a previous session and was continuing to work on. The students in the middle of the room had a good view of the samples, but the students at the far end of the room had a hard time seeing. Ms. Dalton noted that some students were working on the project and some were not. Some were talking. Students at two different tables were texting or playing with their cell phones. Ms. Dalton stated that Ms. Holcomb frequently stopped to announce that she was waiting for the class to be quiet. She also used a technique called "harsh desist," singling out a student to threaten with removal from class. One such student replied, "Good, get me out of here." Ms. Holcomb called out to Table Five that she was taking away five points for talking, though not everyone at the table was talking. Ms. Dalton heard one of the students at the table say, "Well, it doesn't matter, she doesn't know our names anyway." Ms. Dalton took this statement as a sign that Ms. Holcomb's method of correcting misbehavior was not effective. Ms. Dalton noticed that Ms. Holcomb did not have current class rosters. The rosters and seating charts in her folder were from the previous semester. Ms. Holcomb did not know the names of the students at Table Five and therefore was unable to deduct points from them. Ms. Holcomb told another table that she was awarding it bonus points, but Ms. Dalton wondered how Ms. Holcomb could do that when she did not know the students' names. Ms. Dalton noted that Ms. Holcomb's voice was loud to the point of yelling. Ms. Dalton believed that if Ms. Holcomb would use a quieter voice, then the students who were not being intentionally disruptive might quiet down. Ms. Dalton testified that in her experience students will stop talking if they cannot hear what the teacher is saying. If they can hear the teacher over their own quiet conversation, then they will go on talking. Ms. Dalton stated that Ms. Holcomb had some technology in the classroom but for some reason declined to use it. Ms. Holcomb had a document camera that could have been used to show a document to the entire class. All of the components to the camera appeared to be present, but Ms. Holcomb failed to use it. Ms. Dalton observed three students at one table who did nothing for 35 minutes but draw on their arms, talk, and play with their phones. Finally, Ms. Holcomb addressed two of the students. However, they continued to draw on their arms and not work even when Ms. Holcomb sat next to one of them. Ms. Holcomb gave these students no further corrective feedback. Ms. Holcomb attempted to gain control of the class by threatening detention for the next Tuesday. She stated that if a student receiving a detention became argumentative or disrespectful, she would escalate the discipline to a referral. Ms. Dalton saw Ms. Holcomb's threats as empty because the promised detentions were five days in the future. Ms. Dalton also noted that Ms. Holcomb had not yet contacted the parents of any of the disruptive students. Ms. Dalton testified that Ms. Holcomb did some things well. She worked with some students individually. She gave them feedback. Overall, Ms. Dalton saw a class in which some students were trying to do their work, and in which many other students were talkative, did not seem to care about their work, and did not fear any consequences. Ms. Holcomb's method of dealing with the discipline problem was to make empty threats. Ms. Dalton acknowledged that the score of six was "a bad score." The observation gave her concerns about Ms. Holcomb's ability to teach in a classroom. Ms. Dalton stated, "It was a difficult class to watch." The students who wanted to learn were not getting what they needed because the teacher was spending so much time ineffectively trying to get minor misbehaviors under control. Ms. Dalton testified that the post-observation conference, held on February 18, 2011, was uneventful. She asked Ms. Holcomb whether she had called the parents of the students who were disrupting her class. Ms. Holcomb stated that she intended to commence calling them that evening. From Ms. Holcomb's reply, Ms. Dalton concluded that Ms. Holcomb was not taking charge or involving the parents in getting the misbehaviors under control. On February 22, 2011, Ms. Holcomb submitted her written comments on the evaluation. She again decried the subjectivity of the evaluation criteria and the fact that a perfect score is required for a satisfactory appraisal. She alleged that Eustis High and the School Board were "using the Florida Statute 1012.34 as a tool to fire me because I am a handicapped teacher in a wheelchair." Ms. Holcomb stated that she had turned in her IPDP more than once but that her administrator never signed it. She stated that the document camera did not work properly. She argued that the school had a faulty system for removing disruptive students and that her phone calls to parents had not improved the students' behavior. Ms. Holcomb argued that she could not properly manage the classroom when there were students in the room who did not want to be there but whom Mr. Larry would not permanently remove from her class. Ms. Dalton testified that during the post-observation conference, Ms. Holcomb said nothing about the document camera not working. Ms. Dalton saw only one student who expressed a desire to be out of Ms. Holcomb's classroom. She reiterated her opinion that the disciplinary problem in Ms. Holcomb's classroom was minor but that Ms. Holcomb escalated the problem through her mishandling of the disruptive students. Ms. Dalton saw nothing in Ms. Holcomb's comments that changed her mind about the scores she gave Ms. Holcomb on the Appraisal I. In a letter to Ms. Holcomb dated March 14, 2011, Superintendent Moxley wrote as follows: Pursuant to Florida Statutes 1012.33 and 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Due to the global nature of the identified performance deficiencies, you have demonstrated incompetence and the lack of the qualifications needed to be an effective teacher. Please be advised that I will recommend to the Board that your employment be terminated as of March 28, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb timely requested a due process hearing by letter dated March 18, 2011. On the same date, Superintendent Moxley notified Ms. Holcomb in writing that she would recommend that Ms. Holcomb be placed on unpaid suspension at the March 28, 2011, School Board meeting and that the suspension last until the conclusion of the due process proceeding. The first duty of school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. The evidence established that the process followed by School Board personnel in evaluating Ms. Holcomb's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA.7/ The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. At the outset of the final hearing, the School Board announced that it intended to proceed exclusively pursuant to the "just cause" provision of section 1012.33. Therefore, there is no need for extensive findings as to whether the School Board met all of the substantive criteria for teacher dismissal set forth in section 1012.34(3).8/ The issue is whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1). On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Holcomb for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011.
Findings Of Fact At all times material hereto, Respondent was employed by the School Board of Dade County as a classroom teacher. During the 1980-1981 school year, Respondent was assigned to Southwood Junior High School as a science teacher. During that school year, Dr. E. L. Burck was the principal at Southwood. In August, 1980, Respondent applied for a part-time position teaching photography during the evenings at Robert Morgan Vocational Technical Institute. When Dr. John D. White, the vice principal at Robert Morgan, hired Respondent, he explained to Respondent that it would be necessary for Respondent to qualify for a teaching certificate in the area of photography. Respondent told White that he believed he was certifiable based upon his work experience and indicated to White that he would pursue the necessary steps to obtain his certification. At the time that White hired Respondent to teach part-time during the fall 1950 semester, White knew that Respondent was employed full-time at Southwood. During the fall 1980 semester, the administrators at Robert Morgan determined they wished a full-time program at Robert Morgan and decided that if enough students would be generated, they would need a full-time photography teacher in January, 1981. The possibility of a full-time position was discussed with Respondent. Respondent decided that if he could obtain a full-time position at Robert Morgan in January, he would pursue obtaining certification; however, if he could not obtain a full-time position, he would not pursue obtaining certification since it was difficult to teach full-time at Southwood in addition to part-time at Robert Morgan. During December, 1980, while enrollment was underway at Robert Morgan and it appeared probable that a full-time photography position would become available, Respondent spoke with Dr. Burck at Southwood regarding the possibility of transferring to Robert Morgan on a full-time basis beginning January 5, 1981, the first day of classes following the Christmas, 1980, vacation. Burck explained to Respondent the procedures relating to such a transfer of assignment and further explained that he needed to have definite information as soon as a final decision had been made so that he could initiate procedures for obtaining a teacher to replace Respondent. Just prior to Christmas vacation, Dr. White (as the potential "receiving principal") and Dr. Burck (as the potential "sending principal") discussed the possibility of the full-time photography class and the possibility of Respondent's transfer to Robert Morgan to teach that class. White explained that he did not yet know if the full-time class would materialize but that he would give Burck two weeks' notice in order that Burck could find a replacement teacher. Burck conveyed to Respondent the content of this conversation and advised Respondent that until such time as the class materialized and Respondent was replaced at Southwood, Respondent was still a staff member at Southwood and Burck expected to see him on January 5, 1981. Respondent did not report for work at Southwood on Monday, January 5, 1981, and failed to advise anyone at Southwood that he did not intend to return to teach his classes. Burck and another employee of Southwood attempted to locate Respondent. On January 6, 1981, White ascertained that there was sufficient enrollment for the full-time photography teacher's position at Robert Morgan. He instructed an employee at Robert Morgan to process the necessary paperwork to hire Respondent full-time. It was discovered that Respondent did not have, nor had he applied for, his vocational certificate covering the field of photography. Since White had told Respondent in August, 1980, to obtain certification and Respondent had apparently done nothing to do so, White gave to Respondent a deadline of Friday, January 9, 1981, to obtain verification of his ability to secure the proper teaching certificate. Also on January 6, 1981, White and Burck discussed Respondent's employment. White advised Burck that Respondent was teaching part-time at Robert Morgan and that there appeared to be a problem with Respondent's certification. Burck then talked with Respondent, and Respondent told Burck that he was teaching at Robert Morgan as a full-time instructor and that the certification problem would be resolved shortly. Burck told Respondent he needed an immediate resolution because Respondent's students at Southwood were without a regular teacher. Burck reminded Respondent that Respondent's assignment was at Southwood and that no transfer had been officially requested or granted. Burck contacted Dr. Thomas Peeler, South Area Director, and requested Dr. Peeler's assistance in resolving Respondent's status. On January 7, 1981, Dr. Peeler contacted White at Robert Morgan and advised White that Respondent was not reporting to work at Southwood. White had assumed that Respondent was reporting to his assigned school. Peeler instructed White to advise Respondent that he was to report to work at Southwood the following day. On January 7, White told Respondent to report to Southwood the following day. On January 8, White again advised Respondent that he was to report to work at Southwood. On January 9, White released Respondent from his part-time teaching assignment at Robert Morgan since Respondent had not achieved either obtaining the required certification or obtaining verification that he was in fact certifiable. Also on January 9, Burck contacted Respondent and advised Respondent that he had not been transferred and was still assigned to Southwood. On Monday, January 12, 1981, Dr. Peeler, the South Area Director, ordered Respondent to report to his teaching position at Southwood on Tuesday, January 13. Later that same day, Dr. Burck ordered Respondent to return to work on the 13th. Respondent told Dr. Burck that he would not return to work. On January 13, Dr. Peeler wrote Respondent, ordering him again to immediately report to his teaching assignment at Southwood. Peeler advised Respondent that his failure to report could result in suspension. In view of Respondent's continued refusal to obey orders, and in view of Respondent's advice to Burck the evening of January 12 that he would not report to Southwood to fulfill his teaching duties, a replacement teacher was located to fill Respondent's position as a science teacher at Southwood. Between January 5, 1981, and January 30, 1981, Respondent did not report to his assigned teaching position despite repeated orders from his superiors, Respondent knew that his place of employment had not been changed, and Respondent was absent from his teaching duties without leave. On January 30, 1981, a conference was held among Mr. Eldridge Williams, the Executive Director of the Office of Personnel for the Dade County Public Schools, Dr. Thomas Peeler, the South Area Director, and Respondent to discuss Respondent's repeated failure to report to work and Respondent's employment status. At that meeting, Respondent offered to return to work at Southwood on February 2, 1981; however, his position had been filled. Insofar as payroll status, Respondent was classified as absent without leave. No alternate position was available for placement of Respondent through the remainder of the 1980-1981 school year. On March 9, 1981, Patrick Gray, the Assistant Superintendent in the Office of Personnel, wrote Respondent regarding the south area supervisor's recommendation that Respondent be suspended or dismissed from employment. Gray's letter ordered Respondent to immediately return to Southwood or to resign or to retire in order that his employment status could be resolved. At the time he wrote that letter, Gray was not aware that Respondent's position at Southwood had been filled. In response to his letter of March 9, Gray received a letter from Respondent dated March 16, 1981, requesting another conference. A second conference between Respondent and Eldridge Williams was scheduled for April 2, but Respondent refused to meet with only Williams. Accordingly, a conference was scheduled for April 17, 1981, with Patrick Gray, Eldridge Williams, Dr. Peeler and Respondent. As a result of that conference, Respondent submitted a leave request dated April 22, 1981, requesting leave for the period of April 27, 1981, through the end of the school year in June, 1981. This request for leave was approved by Gray on August 7, 1981, retroactive for the period requested. A formal letter of reprimand dated October 13, 1981, was issued to Respondent as a result of his insubordination in refusing to report as ordered to Southwood Junior High School. During the 1981-1982 school year, Respondent was assigned to Redland Junior High School as a science teacher. Utilizing proper procedures, Respondent was absent on September 16, September 28, October 6, October 22, October 23, October 26, October 27, October 28, October 29, October 30, November 2, November 3, November 4 and November 5, 1981. On September 28 and October 6, Respondent utilized personal leave. On the other 12 days, he utilized sick leave. On November 5, 1981, Respondent advised Judy Cobb, Assistant Principal at Redland Junior High School, that he was looking for another job. Cobb advised Norman Lindeblad, Principal of Redland Junior High School, of this conversation with Respondent. On Friday, November 6, 1981, Respondent advised Lindeblad that he would not be returning to his teaching assignment at Redland Junior High School. Respondent told Lindeblad to fill Respondent's teaching position, and Lindeblad advised Respondent that he could not do so without receiving such directive in writing. Lindeblad advised Respondent that he expected Respondent to report to his teaching position on Tuesday, November 10, 1981, absent some other resolution of the problem such as approved personal leave or resignation. Late in the evening on November 9, 1981, Respondent telephoned Lindeblad at home and advised Lindeblad that he would not report on Tuesday, November 10, 1981, to teach his classes. On Tuesday, November 10, 1981, Respondent once again advised Lindeblad that he would not return to his teaching position at Redland. Respondent scheduled an appointment with Lindeblad on November 11 to finally resolve his status, and Lindeblad advised Respondent that unless verification of illness was provided, Lindeblad would commence recording Respondent's leave as leave without pay beginning on Friday, November 6, 1981. On November 11, 1981, Respondent appeared at Redland Junior High School and gave to Lindeblad a memorandum authorizing Lindeblad to replace Respondent in his science teaching position as of Wednesday, November 11, 1981. On November 16, 1981, the personnel office received an application for leave without pay from Respondent, which application was dated November 11, 1981, and which application requested leave effective November 11, 1981, due to Respondent's ill health. The portion of the application for leave requiring the signature and recommendation of the principal was not completed. Although the application required a statement from a physician justifying the request if the request were based upon ill health, Respondent provided only a short letter signed by a therapist possessing a degree in education stating that Respondent felt stress and frustration. No information regarding any physical symptoms, diagnosis or prognosis was volunteered. Since proper procedures require the principal's recommendation for extended leave, Lindeblad was asked to provide his recommendation to the personnel office. On November 18, 1981, Lindeblad sent a memorandum to the Office of Personnel stating that he did not recommend approval of leave for Respondent since no statement from a physician had been provided to verify Respondent's alleged ill health and because Lindeblad felt that the Respondent had begun unauthorized leave before he even requested leave. On November 19, 1981, Patrick Gray advised Respondent that Respondent's request for leave was not approved. Respondent was further advised that since he refused to carry out his teaching assignments for the second year in a row and since Respondent was simply attempting to obtain a teaching position in an area for which he was not certified and could not be certified, then Respondent's options were limited to either resignation or suffering suspension and dismissal proceedings. Respondent did not resign, and dismissal proceedings were initiated. Respondent was absent in accordance with proper procedures for the 14 days ending on November 5, 1981, as set forth in Paragraph numbered 24. Commencing on November 6, 1981, Respondent was absent without leave. Although Respondent eventually obtained verification of his work experience for the addition of photography to his teaching certificate, as of October 1, 1981, Respondent was still not certifiable for the reason that he still needed three full years of teaching experience and 14 semester hours of credit in vocational education courses. By the time of the final hearing in this cause, Respondent had still not obtained a teaching certificate enabling him to teach photography.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of gross insubordination, incompetency, willful neglect of duty and absence without leave; dismissing Respondent from employment by the School Board of Dade County; and denying Respondent's claim for back pay. DONE and RECOMMENDED this 21st day of January, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 21st day of January, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Robert F. McKee, Esquire 341 Plant Avenue Tampa, Florida 33606 Leonard Britton Superintendent of Schools Dade County Public Schools Lindsay Hopkins Building 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue in this case is whether the Respondent, Sharon Lambeth, should be reprimanded and reassigned from her position as Countryside High School principal to a position as a supervisor with the school system's Title I office, at the same rate of pay.
Findings Of Fact The Respondent, Sharon Lambeth, has been involved in the field of education for over 20 years. She moved to Volusia County in 1985 to begin her career in Florida. She began as assistant director of personnel but went through target selection and became an elementary school assistant principal, an elementary school principal, and then the principal of Volusia County's largest high school. She married and moved to Pinellas County in 1993 and was hired as an assistant principal at Gibbs High School for the 1993-94 school year. She was promoted to principal of Countryside High School for the 1994-95 school year. During her tenure in Pinellas County, Lambeth was a very effective principal and generally very well-liked (although, like almost all principals, she had her detractors as well as her supporters.) Lambeth's performance evaluations during her tenure in Pinellas County through May 8, 1998, have been excellent. Lambeth's employment as principal of Countryside High School has been under successive annual contracts with the Pinellas County Schools. The contract for the 1997/98 school year provided, in pertinent part: . . . The Board may, upon recommendation of the Superintendent, transfer and assign the Employee to a similar position in any other location of the district, provided that the duties shall be similar to the duties originally assigned, and the salary shall be heretofore set forth. * * * 5. The Board may suspend or remove the Employee for just cause. The Employee shall not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Employee be entitled to any compensation subsequent to the cancellation of this contract. * * * 11. Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions, hereof, or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice. On April 28, 1998, Lambeth again was appointed to a position for the 1998/99 school year, "subject to assignment and transfer." Lambeth accepted the appointment on May 8, 1998. There exist Pinellas Administrators Association Personnel Practices and Grievance Procedures. These documents were developed jointly by the Superintendent of Schools and the Executive Board of the Pinellas Administrators Association; they were approved by the School Board on July 14, 1976. The Personnel Practices provide in pertinent part: COMPLAINTS A. Complaints, oral or written, involving administrators or supervisors shall be investigated through line offices. A copy of such a complaint shall be immediately forwarded to the employee concerned so that he may respond. The employee shall be entitled to know the name of the person or group making the complaint. * * * TERMINATION Termination for Cause. Administrative and supervisory personnel may be terminated for cause on the same grounds as delineated in F.S. 231.36(6) at the discretion of the School Board. Termination shall include discharge, suspension without pay, demotion in salary or status, or any other action involving fault on the part of such administrator or supervisor. * * * C. Any administrator or supervisor terminated for cause subjected to a personnel action as defined above shall have the right to register his complaint through the Pinellas administrators' grievance procedures. However, the significance of these documents is not clear; nor is it clear that they are still are applicable at this time. They apparently are not duly promulgated School Board policy, and the School Board does not refer to them in the conduct of its employment relationships. They also are not part of Lambeth's employment contract. Even if generally applicable, it also was not clear whether they would apply to administrators who are not members of the Pinellas Administrators Association, and there was no evidence that Lambeth is a member. In August 1997, someone approached Countryside assistant principal, Kathleen Novak, to explain the circumstances of a 1997 graduate. The student was a few points short of the minimum grade required in certain core high school courses by either his college's admission requirements, the National Collegiate Athletic Association's (NCAA's) athletic scholarship requirements, or both. Novak went to her principal, Lambeth, to discuss the matter. Another assistant principal, Paula Flott, also participated in the discussion. The outcome of the discussion was that Lambeth asked Novak and Flott to try to contact "their" teachers (i.e., the teachers "assigned" to them for purposes of supervision and division of duties) to find out if there were any grades that could be raised enough through re-testing to meet the minimum requirements the student needed to meet. Before contacting the teachers, Novak first had occasion to confer with yet another assistant principal, Henry Moore. Moore helped Novak review the student's report cards and identified two grades he thought could be raised enough to give the student the minimum grade required. One was a "mid-point" grade in a history class the student took during his junior year (1995-96). Under School Board Policy 6Gx52-8.24(2)(g): "At the mid-point of each grade level, i.e., 3.5, 2.5, 1.5, .5, it will be the option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Moore also identified a psychology grade from the student's senior year (1996-97) which was borderline. It is not clear from the evidence whether Moore thought it was necessary to contact the history teacher, David Ferguson, about the mid-point grade. Moore understood Countyside's unwritten policy to be that, if a student improved his or her grade during the grading period, a mid-point grade would be increased to the next higher whole number or letter grade unless the teacher went to the principal to justify deviating from the policy. There was some evidence to suggest that Moore thought Lambeth, as principal, could raise the mid-point grade without re-testing; but the evidence was not clear that Moore communicated this to Novak or Lambeth at the time. In any event, Moore testified to his assumption that Novak would next contact the teachers concerning re-evaluation of the two grades. The next day, Novak reported to Lambeth the results of her conversation with Moore. Lambeth decided that the student should re-take the final examinations in both classes. She testified that she instructed Novak to contact the teachers about the re-evaluations and re-testing. Novak denied receiving explicit instructions to contact the teachers at this point. It is found that Novak would not have disregarded a direct instruction to contact the teachers. It is more probable that Lambeth simply instructed Novak to proceed to take care of it and assumed that Novak would contact the teachers. Novak also saw Flott that day. Flott told Novak that Flott had not contacted any of "her" teachers yet. Novak told Flott not to worry about it, that Novak had "taken care of it." Flott assumed Novak meant Novak had contacted the teachers. Actually, Novak meant that, since the two grades Novak and Moore already had been identified were enough, there was no need for Flott to contact any of "her" teachers. At this time during the summer, the teachers were on vacation, and Novak researched files of past exams maintained by the school administration to document grades and reproduced the final exams for the grades she and Moore had identified. Novak then made arrangements for the student to retake the exams and notified Lambeth that the student had improved his grades enough to meet the student's college requirements. When Novak reported to Lambeth, the deadline for the student's college requirements was imminent. Lambeth assumed but did not ask whether Novak had contacted the teachers whose grades were involved. Lambeth did not ask to see any documentation of the teachers' assent to a grade change or any documentation of the retesting. Lambeth just told Novak to change the grades in the official records and notify the college and/or the NCAA. Novak responded that she did not know how to do this. Lambeth told her to get assistance from clerical personnel who knew how to change grades; Lambeth herself took care of notifying the college and/or the NCAA. To notify the college and/or the NCAA, Lambeth modified a form used by Countryside's athletic department to document that a student-athlete's grade had been properly re-evaluated so as to regain eligibility to participate in interscholastic athletics. The form utilized had a place for the signature of the teacher whose grade was being re-evaluated. In modifying the form for purposes of notifying the college and/or the NCAA, Lambeth deleted the provision for the teacher's signature. Lambeth signed the form as principal on August 15, 1997, and sent the notification to the college and/or the NCAA. Lambeth denied that she deleted the teacher signature provision in the form because she knew the teachers were unaware of the grade re-evaluations. Although the teachers were at school on August 15, 1997, preparing for the start of the 1997-98 school year, Lambeth said she dispensed with the teacher signature provision in order to expedite the notification. A few days after the start of the 1997-98 school year, the girl friend of the student whose grades were changed told Ferguson that the student had retaken Ferguson's final exam. Ferguson was busy and told the girl that they would discuss it later, which they did about a month later. For another month or more, Ferguson did nothing about it. Towards the end of October or early November 1997, Ferguson approached Lambeth to let her know what had happened and that students were talking about it. To his surprise, Lambeth told him she knew all about it, having been directly involved herself in the grade re-evaluation. Lambeth did not act as if she saw anything wrong with what was done; she even seemed proud of her participation. Ferguson, who did not think it was right for one of his assigned grades to be re-evaluated without his knowledge, was taken off-guard by Lambeth's response and decided not to say anything else about it at the time. In about December 1997, Ferguson found the time to spend several hours looking into the circumstances of the grade re-evaluations. He discovered that the grades were changed in the student's official transcript, but that the changes were not otherwise documented. The lack of documentation also seemed wrong to Ferguson. During the spring semester of the 1997-98 school year, Ferguson approached Jim Watters, the psychology teacher whose assigned grade was changed. By this time, Watters was at a different school, and Ferguson thought it would be logical for Watters to be the one to complain about the grade changes since Ferguson not only still was at Countryside but also had to deal with Lambeth in his capacity as Pinellas Classroom Teachers Association (PCTA) union representative. Watters told Ferguson that he did not want to complain because he was near retirement and did not want controversy at that point in his career. Subsequently, Ferguson sought the advice of the PCTA as to whether he would be opening himself to discipline if he did not report the incident to the school district administration. It was concluded that the incident should be reported. On April 23, 1998, Rik McNeill of the PCTA contacted Dr. Martha O'Howell, an administrator in the school district's Office of Professional Standards, to report the grade change incident; the next day, Jade Moore of the PCTA sent O'Howell a letter reporting the incident. On or about April 30, 1998, O'Howell's office began an investigation of the reported incident. On May 11, 1998, O'Howell interviewed Lambeth, Novak, and others at Countryside and took written statements from them. When O'Howell told Lambeth that teachers had complained, Lambeth wondered aloud why, since they had participated. Novak's statement, on the other hand, was that the teachers were not notified or involved because they were not at school at the time. On May 14, 1998, O'Howell re-interviewed Lambeth and Novak. In her re-interview of Lambeth, the principal maintained her understanding that Novak had discussed re-testing with the teachers whose grades were involved. During her re-interview of Novak, O'Howell asked Novak for the second time to produce the re-tests she administered, but Novak reiterated that she could not find the re-tests or any documentation that re-testing had in fact taken place. She got the impression that O'Howell questioned the truth of her assertion that re-tests actually had been administered and became defensive. Novak got the impression that it was very important for her to be able to produce the re- tests. On May 21, 1998, Novak submitted a supplement to her earlier written statement. In the supplement, Novak expressed confusion about Ferguson's complaint in light of her recollection that Ferguson had told her "emphatically last year that it wasn't his responsibility to give early exams or make up exams if they might extend beyond contract hours" and said: "That's administration's problem, not mine." Afraid of what might happen to her if she could not produce the re-tests (that it could end her career and jeopardize her retirement benefits), Novak panicked. She tried to again re- produce the examination questions, and she forged answers. She presented the forgeries to O'Howell on June 2, 1998. O'Howell quickly saw through Novak's inept forgeries for what they were, and Novak was in even more trouble than she thought she was in before the forgeries. On or about June 9, 1998, Lambeth asked for a meeting with the investigator and Area Supervisor Bill Williamson. Their assessment of the situation was that it was "serious"; they suggested that Lambeth consider what parents would think. But Lambeth also knew about Novak's forgeries and assumed that Novak had become the focus of the investigation, not her. Indeed, at a meeting on June 18, 1998, O'Howell informed Novak that her job was in jeopardy; O'Howell said she was prepared to recommend that the Superintendent terminate her employment. At that point, Novak retained an attorney, who asked to meet with the School Superintendent, J. Howard Hinesley, and the School Board's attorney, Wesley Bridges. The meeting took place on June 24, 1998. At the meeting on June 24, 1998, Novak and her attorney tried to explain to Hinesley and Bridges why Novak forged the re- tests. They also told Hinesley and Bridges that Novak thought Lambeth was trying to blame Novak for the incident but that Lambeth never told Novak to contact the teachers whose grades were involved. Hinesley took this and other information given by Novak at the meeting into consideration in evaluating the situation. Based on the discussion at this meeting, Hinesley decided to reprimand and demote Novak to an instructional position with no reduction in pay, instead of terminating her employment. On or about June 29, 1998, Area Supervisor Williamson told Lambeth that it was time to have a meeting to resolve the matter. Williamson again emphasized that it was "serious," this time communicating to Lambeth that she was also in jeopardy. The meeting was set for July 2, 1998. At this point, Lambeth hired an attorney. The meeting was attended by Lambeth, Hinesley, their attorneys, Williamson, and O'Howell. Lambeth was informed that she was being removed as principal at Countryside for her role in the grade change incident and would be transferred to another position. She was told that a letter to that effect had been mailed to her. She was required to hand over her office keys and was told to make arrangement to clean-out her office at 5 p.m. She was told that she would not be allowed to return to campus without campus police being present. Campus police escorted her to her car. On or about July 8, 1998, Lambeth received Hinesley's letter dated July 2, 1998. Besides reciting facts found through the investigation, the letter accused Lambeth of failing "to ensure that the teachers of the two courses involved had knowledge of or approved the final examination re-takes and the subsequent grade changes" and "to ensure that the re-takes were properly administered and graded and that the results were documented." The letter reprimanded Lambeth for "violation of School Board Policy 6Gx52-8.23, as well as the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida." (School Board Policy 6Gx52-8.23 sets the district's High School Credit and Student Performance Standards; section (6) of the rule provides that a student's mastery of performance standards "shall be determined by the teacher with the principal's approval.") The letter also stated that Lambeth's conduct "reflects a lack of sound professional judgment and seriously diminishes your effectiveness as a school leader." As a result, the letter stated, Lambeth was being removed her from her position as Countryside High School principal, was being placed on administrative leave, and would be reassigned to another position. By letter dated July 8, 1998, Hinesley notified Lambeth that she was being reassigned as a supervisor with the school system's Title I office. Lambeth's contract was not changed, and her pay was not reduced. Her new position is classified as Level 4 in the School Board's personnel system, while high school principal is a Level 8 position. There are some similarities between the two positions, but there also are differences. Both positions require a master's degree, certification in administration and supervision, and five years of related professional experience; a program supervisor for Title I also requires an additional minimum of three years of teaching experience. Both positions involve working with teachers; but while a principal supervises 95 teachers (plus non-teacher personnel and 1500 to 2000 students) at a school site, a Title I program supervisor works with but does not supervise principals, assistant principals, and teachers at 18 different elementary schools. Both jobs involve budget planning, but the nature of the budgets are different; a Title I program supervisor reviews budgets for federal funds. There is no provision for re-evaluating a student's grades after graduation. There is a policy to allow a student who has passed all 24 courses required to graduate, but did not earn the minimum grade point average (GPA) required to receive a diploma, to "walk" at graduation , receive a "certificate of completion," and return to school in the summer and/or an additional year of high school to re-take classes to hopefully raise his or her GPA enough to receive a high school diploma. But there is no evidence that the student involved in this case did not receive a diploma when he graduated at the end of the 1996-97 school year. He was no longer a student and should not have been able to change his grades at that point. In circumstances when it would be permissible to re- evaluate a student's grades, it should only be done in consultation with the teacher who assigned the grade. Subject to the requirement that grading policies are followed, student grading is the province of the teacher's exercise of professional judgment, subject only to the principal's approval. The integrity of the grading system depends the teacher's exercise of professional judgment. Likewise, the "education contract" among the administration, teachers, students, and parents presumes and requires integrity in the grading process. School Board Policy 6Gx52-8.28(4)(g) is clear that, in the case of "mid-point" grades, it is the "option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Clearly, this policy gives the principal the ability to review the teacher's grade and argue forcefully that a different grade should be assigned. Some teachers would succumb to the principal's choice, either because of the force of the principal's arguments or because of fear of the possible consequences of disagreeing with their principal. The policy may even enable a principal to overrule the teacher. But it is a violation of policy for a principal to change a grade without following the mid-point grade policy. Because of the importance of integrity in the grading system, it is incumbent on the principal to take reasonable steps to ensure that teachers are involved in any grade re-evaluation. Clearly, a principal must delegate responsibilities to assistant principals when necessary and appropriate, and a principal should be entitled to rely on an assistant principal to follow the principal's instructions (whether expressed ad hoc or in policy). For that reason, Lambeth normally would have been entitled to expect an assistant principal to involve the teacher in any grade re-evaluation. But re-evaluation of a student who had graduated was not normal, and Lambeth should have made it clear to Novak that Novak was not to proceed with re-testing and grade re- evaluation without the teachers' participation. It is not clear from the evidence that Lambeth made reasonable efforts make this clear to Novak. By the same token, because the situation was not normal, Lambeth should have made some effort to ensure that Novak properly documented the re-take of the examinations and the grade change instead of relying entirely on Novak. There is no question but that Lambeth's effectiveness as a school leader diminished as a result of this grade change incident. As Lambeth pointed out at final hearing, most principals have their supporters and detractors, and predictably there were some teachers and parents who testified that the grade change incident did not reduce Lambeth's effectiveness as far as they were concerned. But most of these witnesses did not know all of the facts and circumstances of the case and spoke from their limited perspectives. Meanwhile, there were many witnesses who testified that Lambeth's effectiveness was seriously diminished in their view, and they were not all detractors of Lambeth; they included Hinesley, other Pinellas County school administrators, retired Pinellas County School Superintendent Scott Rose, administrators from other school districts, teachers at other schools, and parents. Some of these also did not know all of the facts and circumstances of the case and spoke from their limited perspectives; but some knew all or most of the facts and circumstances and spoke from broader perspectives. Some witnesses expressed the idea that the reduction in effectiveness would not be insurmountable or permanent if Lambeth would admit her error, ask for forgiveness, and promise not to do it again. Unfortunately, Lambeth did not admit error until her testimony at the end of her case-in-chief. While she complained that she was not given the opportunity to do so before the meeting on July 2, 1998, she missed innumerable opportunities since; indeed, much of her case seemed aimed at proving that she had done nothing wrong. The authenticity of her eleventh-hour repentance is suspect. At the same time, while Lambeth's effectiveness certainly was diminished by the incident (and her refusal to admit her error, ask for forgiveness, and promise not to do it again), it is not clear just how seriously her effectiveness has been diminished. There were mitigating factors. First, Lambeth has an excellent record as an effective administrator. Second, while her efforts were misguided, her motive was to help a student gain educational benefits. The student was African- American and, while the Petitioner criticized Lambeth for testifying in deposition that the student's minority status was a factor in her efforts to help, the School Board in fact has a policy of emphasizing the delivery of educational benefits to minority students. Also, after what she has been through, it seems unlikely that Lambeth would be foolish enough to repeat this or any similar grade change blunder in the future. A reprimand and reassignment to Title I program supervisor certainly is a setback for Lambeth's career as a school principal. But, contrary to Lambeth's concern and contention in this case, it is found that such an action does not necessarily mean the end of Lambeth's career as a school principal in this or any other school district. Certainly, if Lambeth's offense is as minor as she contends it was, she may well be able to convince a school superintendent other than Hinesley to assign her as a school principal. It certainly seemed that retired School Superintendent Rose would have been open to the idea; there is no reason to be certain that others may not also consider Lambeth for a principal position. If Hinesley's position as Pinellas School Superintendent is as tenuous as Lambeth's evidence attempted to suggest (i.e., that he may be just one School Board vote from being the former Pinellas School Superintendent), the chances are that it may not be long before Lambeth could apply to a subsequent Pinellas School Superintendent for such a position. It even seems possible (although perhaps not likely) that Hinesley himself might reconsider and reassign Lambeth as a principal at some point in the future. Lambeth also contended that other School Board employees have been treated more leniently for worse offenses. But the evidence did not prove selective enforcement against Lambeth. The other situations either were too dissimilar to compare, or Lambeth's treatment was not clearly excessively harsh by comparison. Lambeth first points to the treatment of Novak. While it is true that Novak forged the re-tests, she was Lambeth's subordinate and subject to Lambeth's direction, and her treatment (reassignment to a completely nonsupervisory position) was somewhat harsher than Lambeth's. Lambeth also points to Ferguson, who Lambeth contends went unpunished after alleged violation of School Board Policy 6Gx52-6.22 by posting a copy of a portion of the School Board's investigative report on Lambeth and Novak on the bulletin board in the teacher's lounge. But Policy 6Gx52-6.22 provides: Employees shall not use the classroom, nor any other part of school facilities, as a platform for making disparaging remarks against students, parents, teachers and/or administrators. Conduct contrary to this policy may constitute grounds for disciplinary action. In addition, it is not clear that posting information about an investigation that was of genuine concern to the teachers is the same thing as using the bulletin board "as a platform for making disparaging remarks." Nonetheless, Lambeth's replacement as Countryside's principal considered the posting to be bad for morale and asked Ferguson to remove it. Initially, Ferguson refused to remove it; eventually, he removed it at the request of and as a favor to Jade Moore of the PCTA. (The evidence was that Hinesley was not aware of the posting.) Lambeth's other evidence on this point consisted of letters of reprimand to a principal and an assistant principal for not following proper procedures and immediately notifying the proper authorities of allegations of sexual abuse. It is not clear that these offenses are so similar to Lambeth's as to have required the School Board in fairness to also remove and reassign them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing the Amended Petition for a Name Clearing, Due Process and Florida Statute 120.57 Hearing and approving the reassignment of the Respondent, Sharon Lambeth, to Title I program supervisor under the same contract and at the same pay. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Oscar Blasingame, Esquire Orange Park Center 696 First Avenue, North, Suite 400 St. Petersburg, Florida 33701 Louis Kwall, Esquire Kwall, Showers & Coleman, P.A. 133 North Ft. Harrison Avenue Clearwater, Florida 33755 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street, Southwest Largo, Florida 33770-2942
The Issue The issues is whether Ms. Wynne's employment as a speech therapist with the School Board of Broward County should be terminated for lack of the necessary emotional stability to carry out her duties.
Findings Of Fact Ms. Wynne is a speech therapist, and has been employed by the School Board of Broward County as a speech and language therapist. She works with elementary age children on articulation, fluency, voice and hearing disorders. At times she works with students individually, at other times in groups of 4 to 5. She obtained a professional services contract with the School Board on October 24, 1990, during the 1990-91 school year. It provides that she may not be dismissed during the term of the contract except for just cause, as provided in Section 231.36(1)(a), Florida Statutes, and that she is entitled to annual renewal of that contract under the provisions of Section 231.36(3)(e), Florida Statutes. Ms. Wynne was first employed by the School Board in August of 1987, after her graduation from Indiana University. She has been the speech and language therapist at Castle Hill Elementary during the entire period of her employment by the School Board of Broward County. Ms. Wynne's performance has been evaluated each year. Her evaluations have been satisfactory based on observation of her classroom teaching, through the evaluation conducted on May 8, 1990 for the 1989-90 school year. Ms. Wynne began to exhibit unusual and bizarre behavior beginning at approximately the end of the 1989-90 school year, which continued into the first portion of the 1990-91 school year. Ms. Wynne had friendly relations with a number of people, including Lucy R. Thomas, the principal of Walker Elementary Magnet School who had interviewed Ms. Wynne for her teaching position in Broward County after her graduation from Indiana University, and who had helped her in obtaining her job and housing. They attended the same church. At about August of 1990, Ms. Thomas noticed that Ms. Wynne's behavior began to change: she lost weight, seemed withdrawn, and in several conversations indicated to Ms. Thomas that a musician at the church was "bugging her." Ms. Wynne asked Ms. Thomas to speak with the musician and tell him to leave her alone. She also indicated a belief that the minister and another church member had been driving by her home to spy on her. Ms. Wynne had also had a close relationship with another teacher, Sonia Bernard, who is employed at the Sandpiper Elementary School. They had roomed together at Indiana University. Shortly after Ms. Wynne obtained employment with the School Board of Broward County Ms. Bernard also moved to Florida. Ms. Wynne was at Ms. Bernard's wedding and is godparent to Ms. Bernard's son. About a year ago Ms. Bernard noticed a marked change in Ms. Wynne's behavior. Ms. Wynne accused Ms. Bernard's husband of tapping her telephone and also maintained that the musician at church had tapped her phone and was following her. She aggressively questioned Ms. Bernard's six year old son in a manner that frightened him, asking him "why are you in my business." Ms. Bernard found Ms. Wynne's behavior to be paranoid. Ms. Wynne also began to exhibit unusual behaviors at school. At first the behaviors were merely quirky. She told the principal of the school, Dr. Valoria Latson, that she thought the parents of the children she taught did not believe Ms. Wynne was doing a good job based on the children's behavior in class. Ms. Wynne also asked Dr. Latson to explain Ms. Wynne's job responsibilities to other staff members at the school during a staff meeting, when there was no reason for this to be done. In late March of 1990 there were teacher manuals missing from her room and Ms. Wynne expressed the idea that someone had stolen them, but they turned up in her room a week or so later and had not been stolen. About this time she began to express concern that children in the school and children from the neighborhood near the school were watching her. She expressed to Dr. Latson the belief that school staff members were listening in on her classroom through the intercom, when this was not the case. By July of 1990 she said she believed her classroom had been bugged. About this time she also expressed to other people at the school that she believed her home phone had been tapped, and that people around school were "discussing her business" out of her presence. She believed that her home telephone conversations were being repeated by teachers in the teacher planning room, although Ms. Wynne was never specific as to any teacher who repeated anything, or about the content of any conversations which were repeated. She went so far as to have the phone company check her line for bugs or taps. Eventually Ms. Wynne expressed to Ms. Erma Harrison, a clerk at the school, the belief that her car had been bugged and that people were following her. She would at times appear at the home of Ms. Harrison and demand to know "what was going on" in a manner which was so bizarre as to frighten Ms. Harrison's children. Ms. Harrison eventually had her telephone number changed to avoid harrassment by Ms. Wynne. By about October of 1990, Ms. Wynne expressed the belief that the young children in her class, ages 5 and 6, had bugged her classroom, and knew things about her personal life. She believed that the children knew who her boyfriend was, because the children were making hissing sounds in class. Her boyfriend did own a pet snake, and she believed that the children were making the hissing sounds as a way of communicating to her that they knew who her boyfriend was; there was no way for them to know anything about Ms. Wynne's personal life. She also expressed the belief that the children were taking pictures of her lesson plans with a camera placed in the light bulbs of her classroom. Matters came to a head in late October of 1990. On October 26, 1990, Ms. Wynne had a conference with the principal of the Castle Hill Elementary School, Dr. Latson, and the Assistant Principal, Ms. Weissberg, during which she announced that she would be immediately resigning from her position with the School Board of Broward County and would bring them a typed letter of resignation that day. She did not submit such a letter. The following Monday, Ms. Wynne was absent from school. She telephoned on Tuesday, October 30th to say that "she had it and was leaving," although no letter of resignation had been submitted. On Friday, November 2nd, Ms. Wynne telephoned the school early in the morning to say that she would be late. Later, at approximately 11:30 a.m., an investigator for the School Board's Special Investigative Unit, Ellis Dardeen, telephoned the principal to report a conversation which he had had that morning with Ms. Wynne at his office. Ms. Wynne had come to the Special Investigative Unit to ask that an investigation be initiated as to why other teachers and students at Castle Hill Elementary School were talking about Ms. Wynne. When Mr. Dardeen asked what was being said, Ms. Wynne responded that students were talking about her parents, about her mother's home and about the basement in the home. When Mr. Dardeen asked what they were saying about the basement, Ms. Wynne merely shrugged and asked how students would know that her mother's home had a basement. When asked what the teachers at Castle Hill Elementary were saying about her, Ms. Wynne did not respond, but said that her neighbors and people at the grocery store were talking about her. Mr. Dardeen regarded this matter as so bizarre that he telephoned Dr. Latson to let her know about his meeting with Ms. Wynne. He also memorialized his conversation in a memorandum to the Director of the Office of Professional Standards, Mr. Ron Wright. Ms. Wynne arrived at Castle Hill Elementary School at about 12:45 p.m. on November 2nd and asked for the rest of the day off. She told Dr. Latson that she had been evicted from her apartment and had been driving around "thinking." Dr. Latson asked Ms. Wynne about the status of her letter of resignation. Ms. Wynne declined to sign the standard resignation form used by the School Board. At this point, Dr. Latson was sufficiently concerned about Ms. Wynne to request the Associate Superintendent, Mark Siegle, to arrange for a psychological or psychiatric evaluation of Ms. Wynne, and asked that she not be assigned to the classroom until the evaluation was concluded. The Office of Professional Standards prepared a memorandum which was delivered to Ms. Wynne placing her on administrative leave, with pay, as of Tuesday, November 6, 1990, pending the results of a psychiatric or psychological evaluation which would be performed by the School Board. Associate Superintendent Siegle arranged with Dr. N. Benjamin Barnea, a board-certified psychiatrist who works with School Board employees, to see Ms. Wynne. He did so on November 8, 1990, and his report of that meeting was prepared for Associate Superintendent Siegle on November 12, 1990. Dr. Barnea also saw Ms. Wynne on December 3rd and December 17, 1990. Dr. Barnea found Ms. Wynne to be suffering from a thought disorder which resulted in delusions. In order to determine whether her behavior had an anatomical basis he had a CAT scan of the brain and an EEG performed, but neither showed any anatomical problems. Dr. Barnea recommended a course of treatment for Ms. Wynne's behavior through the use of drugs which can be helpful in correcting delusional thought processing, although they are not always effective. There is no other course of treatment available for these sort of thought disorders. Dr. Barnea believes that Ms. Wynne may have had an underlying problem for some time but was able to function until some precipitating event occurred which manifested the thought disorder. Part of the difficulty in treating a thought disorder is that the patient has no insight into the fact that there is a problem, but rather has a fixed belief that they have no psychological problem. Dr. Barnea's testimony was convincing that while suffering from delusional thought processing, Ms. Wynne cannot be in a position of responsibility over students as a teacher. Any event or statement by children could be misinterpreted and could result in acting out, which could be dangerous to the students. Those suffering from delusional thought processing exhibit a spectrum of behaviors, from docility to violence. It is not possible to predict the type of behavior which the person suffering from this problem will exhibit. She has already frightened children of Ms. Bernard and Ms. Harrison, see, Findings 6 and 8. Without drug treatment there is no reason to believe that there will be a remission of the psychological problem. The medications Dr. Barnea would try include neuroleptics such as Trilafon. Ms. Wynn refused to take the medication which Dr. Barnea offered to prescribe. Ms. Wynne testified that after seeing Dr. Barnea she had consulted another psychiatrist, Dr. Patnelli, who had given her a prescription for Trilafon which she had been taking for approximately ten days before the hearing. She also testified that she had only informed her attorney of this treatment the day before the hearing. She expressed no faith in the utility of taking the drug, but was willing to do so in order to help keep her job. No prescription scrip or actual medication was exhibited at the hearing. It is impossible to know whether Ms. Wynne would take the medication faithfully, or whether it would have any affect upon her condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the employment of Danita Wynne as a teacher by the School Board of Broward County under the Professional Service Contract which she obtained on October 24, 1990, be terminated pursuant to the provisions of Section 231.36(1)(a), Florida Statutes, due to her mental incompetency. DONE and ENTERED this 7th day of November, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 7th day of November, 1991. Copies furnished: Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Thomas W. Young, III, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Virgil L. Morgan, Superintendent School Board of Broward County 1320 Southwest 4 Street Fort Lauderdale, Florida 33312 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
