The Issue Whether Respondent's employment should be terminated, as recommended by the then-Interim Superintendent of Schools, and, if not, whether Respondent (who has been suspended without pay pending the outcome of this dismissal proceeding) should be reinstated with "back salary."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, including the stipulations of the parties, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida, including Plantation Middle School (Plantation). Jean Jones is now, and has been since the beginning of the 1998-99 school year, the principal of Plantation. The 1998- 99 school year was her first as a principal of any school. She had served as an assistant principal for seven years before becoming Plantation's principal. Thomas Fegers is now, and has been since 1993, an assistant principal at Plantation. Milton Roseburr is now, and has been since August of 1995, an assistant principal at Plantation. At all times material to the instant case, Carol Mendelson has been an assistant principal at Plantation. Respondent is a veteran educator. He has been teaching since 1964. Respondent has been employed by the School Board as a teacher since 1975. He holds a continuing contract of employment, which provides, in pertinent part, as follows: The Teacher agrees to teach the full period of service for which this contract is made, in no event be absent from duty without leave or to leave his position without first being released from this contract by the School Board, to observe and to enforce faithfully the laws, rules regulations, and policies lawfully prescribed by legally constituted school authorities insofar as such laws, rules, regulations, and policies are applicable to the position held by him. The Teacher agrees that the last salary payment in each academic year may be withheld upon proper notice to the Teacher as to the reasons for said withholding if all duties have not been performed as required by law and regulations of the School Board and the State Board of Education. The services to be performed hereunder shall begin on the beginning date shown above [August 23, 1978] and thereafter as determined by the School Board and are to be performed in the position and school as assigned from time to time by the said School Board. . . . 8. This continuing contract of employment shall remain in full force and effect from year to year, subject to all the provisions herein set forth, unless modified by mutual consent in writing by the Parties hereto, except the teacher may be suspended or removed for cause as provided by law. The Teacher agrees that he may not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Teacher be entitled to any compensation subsequent to the cancellation of this contract. This contract may also be terminated by the written resignation of the Teacher submitted not later than four (4) weeks before the close of the post-school conference period, to take effect at the end of the school year. Such resignation shall be submitted in substantially the form hereto attached described as Exhibit A, and by reference made a part hereof. . . . Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions hereof, unless prevented from so doing by reason of personal illness of the Teacher or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice and, if timely requested by the Teacher, hearing. The contract shall at all times be subject to any and all laws and all lawful rules and regulations, and policies of the State Board of Education and the School Board now existing or hereafter enacted. . . . 14. This contract may be changed or modified only by an amendment in writing executed in the same fashion as the original or by a collective bargaining agreement ratified by the School Board and bargaining agent. No person, officer or employee may modify the provisions of this agreement or make any other contract with the Teacher for and on behalf of the School Board without expressed ratification by the School Board. Provided, however, in accordance with paragraph two hereof both parties agree that this contract shall be modified by the adoption of a subsequent salary schedule as provided in paragraph two and that adoption of such amended salary schedule by the School Board shall constitute expressed ratification. At all times material to the instant case, Respondent was a classroom teacher at Plantation. For the three school years immediately preceding Ms. Jones' arrival at Plantation (the 1995-96, 1996-97, and 1997-98 school years), Respondent was supervised and evaluated by Mr. Roseburr. During this period of time, Respondent had an extremely difficult and challenging teaching assignment. He taught a "self-contained" class of sixth, seventh, and eight grade "drop out prevention" students. "Drop out prevention" students generally struggle academically, lack motivation and focus, have short attention spans, are easily distracted, come to class ill-prepared, do not complete all of their classwork, and are unruly and disruptive in class. Respondent and these "problem" students remained together in the same classroom the majority of the school day, with Respondent providing the students with instruction in all of their academic subjects. Because conventional teaching and behavior management methods did not always work with these students, Respondent needed to be creative and innovative to effectively discharge his classroom duties. Mr. Roseburr was in Respondent's classroom on a daily basis during the three-year period he supervised Respondent. Impressed with Respondent's performance and his "unique knack of knowing what to say and how to say it to students that are difficult," Mr. Roseburr gave Respondent satisfactory evaluations each of the three school years Respondent was under his supervision. The first quarter of the 1998-99 school year, Respondent had the same teaching assignment he had had the previous three school years, notwithstanding his expressed desire to have his assignment changed. In or around September of 1998, Respondent spoke with Ms. Jones about the possibility of having a parent volunteer (Sybil Moton) assist him in the classroom. Shortly after his discussion with Ms. Jones, Respondent sent her the following letter, dated September 14, 1998: I have been assigned to teach 6th, 7th & 8th grade self-contained D.O.P. for several years. I have been doing this at a great disadvantage. There are many Teachers, Team Leader and Department Heads, at this school who would not accept this assignment or be successful with it. I have accepted this assignment and I'm ready to do the best job I can under the circumstances. I have to plan for three grade levels, while other teachers only plan for one. I have to prepare for five subjects, while other teachers only prepare for one. I have five subject area meetings to attend, while other teachers only have one. I have not read any research that support[s] the notion that a teacher, who has as many duties and responsibilities as have been placed upon me, will be more successful or as successful as a teacher, who teaches one subject area or one grade level. Does the research indicate that children placed in this kind of class situation, will be more successful than in the traditional class situation? Is it possible that the children might be at a disadvantage? Each of the previous times when I requested an assistant, I was denied. It was all about money. Now when I ask a parent to help "FOR FREE," I'm told, "I don't think I'll be able to approve Ms. Moton as a parent volunteer." All I'm saying is that, now that I have been loaded down with all of the above, where is the help that goes with it? As of now, I feel that I have been placed in a situation that is headed for failure, and that's not me. I want to be successful at whatever I do, that's why I keep asking for help. These children need so much help, and I want to help them very badly. My difficulty comes from the situation I've been placed in, more so tha[n] the children I work with. After receiving the letter, Ms. Jones circled the last sentence of the fourth paragraph of the letter, and, on the upper right hand corner of the letter, wrote the following concerning the representation made by Respondent in this sentence: This is blatantly untrue. If you quote people, make sure you quote them correctly. See me please. She then returned the letter (with her handwritten notations on it) to Respondent. Respondent thereafter, as directed, met with Ms. Jones, who cautioned him that he could not "just . . . go out and recruit parents to work in [his] classroom and not have them approved by the School Board." Mr. Roseburr, although he remained an assistant principal at Plantation, did not supervise Respondent during the 1998-99 school year. Respondent's new supervisor was another assistant principal at the school, Carol Mendelson. On October 7, 1998, Ms. Mendelson conducted a classroom observation of Respondent. Following the observation, she sent Respondent the following memorandum, dated October 12, 1998: OBSERVATIONS During my observation of your class, you were introducing personal narratives to your students. You explained the concept of the first draft and the idea that students would choose their own topic for this assignment. Students were walking around the classroom, talking, drawing, had heads down on the desk without consequences from you. A review of your planbook indicates that plans for the day do not coincide with the lesson being taught by you. SUGGESTIONS Please consider the following recommendations to better assist the students: Setting clear, precise, classroom management rules that are reviewed daily with students will help enforce the rules. Consequences must be fair and consistent. Students were walking around the classroom, talking, drawing, had heads down without consequences from you. It is imperative that you establish and implement specific behavioral and procedural expectations, rules, and consequences in order to stop inappropriate behavior before it becomes more serious. Develop plans which match the curriculum you are addressing on each given day. Please make sure that your grade/planbook is in compliance with School Board policy and includes grades, entry dates, transfer dates, absences, interim grades, ESOL strategies, Standards of Service, and all mandated, pertinent information. Please meet me on Monday, October 22 during your planning period with your grade/planbook up- to-date with the abovementioned information. At the end of the first quarter of the 1998-99 school year, in approximately the first week of November of 1998, Respondent was given a new teaching assignment at Plantation, as well as a new classroom (an uncarpeted portable, smaller than his old classroom). He was assigned to a team consisting of four teachers (including himself) responsible for teaching approximately 120 students divided into four separate groups (Groups A through D), one of which (Group D) contained the students who had been in the "self-contained" class of "drop out prevention" students that Respondent had taught during the first quarter of the school year. Although only one of the four groups had students who were in the school's "drop out prevention" program, many of the students in the other three groups were as difficult for the teachers on the team to deal with as were the "drop out prevention" students. Respondent was the team's math and advanced communication skills teacher. The leader of Respondent's team was Ronald Jackson, the team's social studies teacher. Like Respondent, Mr. Jackson joined the team in November of the school year. In addition to Respondent and Mr. Jackson, there was also a language arts teacher, as well as a science teacher, on the team. On November 19, 1998, shortly after he had undertaken his new assignment, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum describing what she had observed during the observation: This letter is being written to inform you that on this date, I came to your classroom on two different occasions and found the following: Students not on task (talking, 1/ no materials) Students out of their seats and/or being permitted to sit wherever they wished with no management from you and no consequences for non-compliance. 2/ Your plan book was not updated by November 13 as requested. You have been asked to rectify this situation by Friday, November 20. Your plan book reflected no attendance or grades for students. 3/ Your lesson plans are not written appropriately, do not reflect the Sunshine State Standards, and do not reflect acceptable practice for lesson plans as discussed with all teachers during the pre- planning days. Your back is turned to students during your lesson 4/ and you are not aware or monitoring what is happening in your classroom while you are instructing. There is very little instructional organization and no classroom participation from the students. There is no indication that you are doing the daily FCAT warm-ups required for all math students in the school. There is no FCAT folder required for each student to use on a daily basis. Ms. Jones again observed Respondent in the classroom on Tuesday, December 1, 1998, during first period. Respondent had been off from work the previous five days (Thursday, November 27, 1998, Thanksgiving Day, through Monday, November 30, 1998). Upon his arrival at school that morning, before entering his classroom, he was called into an unscheduled student services meeting. Because of the length of the meeting, he arrived at his classroom a "couple [of] minutes" after the first period bell had rung. When he opened the classroom door, he noticed that "the fire extinguisher had been sprayed all over the room." With the students' assistance, he cleaned up as best he could and then started his lesson. When Ms. Jones entered the room, Respondent was in the back of the room taking attendance. The students were "out of control." They had no books and there was no assignment on the blackboard. Following the observation, Ms. Jones sent Respondent the following memorandum, dated December 1, 1998, describing what she had observed during the observation: On this date I visited you classroom and observed the following: It was 9:00 a.m. and the students were totally out of control. There was no assignment on the board, students had no books. You were in the back of the room finishing your attendance, oblivious to what was going on around you. There were absolutely no reprimands from you for their behavior. In fact, it was I who had to quiet the class down. The class was so loud and unruly, that you did not even hear Ms. Milligan call you over the loudspeaker. I also had to inform you that someone was calling you over the public address system. Although your plan book appears to be updated, you were not following the plans as outlined. In fact, no FCAT warm up was on the board, no books were in use and absolutely nothing in terms of teaching and learning was occurring. This was one half hour after class had started. After I quieted the class down, you proceeded to give out paperwork to students apparently to review it. You handed out papers one by one to students who began to be unruly again. At 10:00 a.m. I visited your classroom again, because I wanted to speak with Mr. Roseburr who was outside your door. However, when I went inside the classroom, there was still no work on the board for students, although books were on the desks. Students were talking and looking around and not on task because there was no task to be on. When I questioned what the students were doing, you explained that you had papers to return and that you[] were going to review their work. Once again, you passed out papers one by one, taking away from instructional time and giving students opportunity to misbehave. 5/ It is apparent to me that there is a lack of classroom management in terms of student behavior, and a greater lack of lesson management since there are no clear expectations for students and no method for simple housekeeping chores as attendance and returning papers. You are oblivious to their behavior 6/ and provide no consequences. Most obvious, is the lack of meaningful work for students. There was none provided. Given those circumstances, students will find an easy opportunity to misbehave. Should these conditions, including delivering lessons as outlined in your plan book, not improve immediately, you will be placed in documentation for unsatisfactory performance. On December 7, 1998, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated December 16, 1998, in which he described and commented on what he had observed during the observation: On Monday, December 7, 1998 I observed you teaching your class from 9:15-9:45 A. M. Based upon my observation the following are suggestions/comments for your consideration. I found the classroom to be orderly; however, your students were talking loudly as you attempted to teach by talking louder. The class continued talking out loud with no consequence or redirection by you. While the entire class was being disruptive you gave one check to a student for talking, even though the entire class was talking. Never once did you get the class under control and, for some unknown reasons, you continued talking with no one listening. Please be advised that this is unacceptable. It does not make sense to try to shout louder than your class. You must first bring the class under control by confronting the misbehavior. This did not occur. Your attendance was neatly done, listing tardies and absences. Grades were virtually non-existent, and the few that were there did not have names to identify who they belong to. Grades must be clearly recorded next to the appropriate student's name. 7/ Lesson plans from 11/9/98-11/30/98 were incomplete. There were no warm up activities. Additionally, you identified the 504 student's strategies as they were to "do 1/2 of the assignment." The strategies need to be based on the student's needs as they related[] to the written 504 plan. 8/ ESOL strategies written were, "Students may sign out a book if requested." This is unacceptable. Please let me know if I can be of further assistance. On December 17, 1998, Respondent received a memorandum from Ms. Jones notifying him that his "performance [was] unsatisfactory and that [he was being] placed in the Documentation process of the IPAS System effective December 17, 1998." In the memorandum, Ms. Jones explained that she was "moving [Respondent] from Development to Documentation" because of her "concern" regarding his performance in the areas of "lesson presentation," "classroom management," and "behavior management." The memorandum further advised Respondent that "the 1997 Florida Legislature [had] amended Florida Statu[t]e 231.29 [to] state[] that the School District shall place a teacher on performance probation for 90 calendar days from the receipt of this notice of unsatisfactory performance." Respondent signed the memorandum and dated it (December 17, 1998), acknowledging his receipt of the document. "IPAS" is the acronym for the School Board's "Instructional Personnel Assessment System." Under "IPAS," "lesson presentation," "classroom management," and "behavior management" are three of the ten "performance areas" in which instructional personnel are evaluated. The other seven are "instructional planning," "lesson management," "student performance evaluation," "communication," "records management," "subject matter knowledge," and "professional competencies." 9/ Ratings of either "S" (satisfactory), "N" (needs improvement), or "U" (unsatisfactory) are given in each "performance area." With input from Respondent and Gary Itzkowitz, a Broward Teachers Union field staff representative, Ms. Jones, Mr. Fegers, and Dr. Cathy Kirk, the School Board's coordinator of teacher evaluation, developed Performance Development Plans for Respondent in the "performance areas" of "lesson presentation," "behavior management," and "classroom management." Each plan was dated January 7, 1999, and indicated that Mr. Fegers would be the "assessor" and that the "follow- up/review date" was March 5, 1999. The "lesson presentation" Performance Development Plan read as follows: Identified Deficiencies Fails to create interest through the use of materials and techniques appropriate to the varying abilities and backgrounds of students (6B-5.004). Fails to use different types of questions to obtain desired learner responses. Fails to ask questions which are clear and requires students to reflect before responding. Fails to circulate about the room as students engage in seatwork and assist students as needed. Strategies for Improvement, Corrections, and Assistance Ms. Greifinger [the chairperson of Plantation's math department] will meet and discuss various motivational teaching techniques such as (a) Use of visual aids, manipulatives, and critical thinking activities, etc. by January 14, 1999. Ms. Cranshaw will assist with scripting questions related to the content during lesson planning 2-3 weeks in a row by January 29, 1999. Mr. Jones will observe Ms. Greifinger focusing on questioning techniques and follow-up by discussing implementation in classroom during his planning time by January 22, 1999. Mr. Jones will read the FPMS Domain document (domain 3) on circulating and assisting and discuss with Mr. Fegers. Follow-up assistance will be provided by Mr. Fegers and/or Mrs. Jones via observation and follow-up conferencing. Expected Outcomes and Timeline Teacher Will: Create interest through use of material and techniques appropriate to the varying abilities and backgrounds of students (6B- 5.004) by April 13, 1999. Use different types of questions to obtain desired learner responses by April 13, 1999. Ask questions which are clear and require students to reflect before responding by April 13, 1999. Circulate about the room as students engage in seatwork and assist students as needed by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "behavior management" Performance Development Plan read as follows: Identified Deficiencies Fails to maintain consistency in the application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction (6B-5.007). -Fails to demonstrate an awareness of what all students are doing. Strategies for Improvement, Corrections, and Assistance Mr. Jones will observe Ms. Greifinger's class to witness her technique in behavior management. Discussion to follow by January 21, 1999. Mr. Jones will observe Mr. Lyons' class to witness his techniques in behavior management by January 28, 1999. Discussion with Mr. Fegers and Mr. Lyons to follow. Mr. Jones will observe Mr. Watkins' class to witness his techniques in behavior management by January 28, 1999. Mr. Jones will receive assistance from Ms. Mendelson, Mr. Fegers, Mr. Roseburr and selected teacher(s) to develop a behavior management plan including rules, rewards and including consequences by January 14, 1999. Mr. Jones will develop a phone log system which will indicate conversations, conferences with parents, specific student infractions, and disposition of all of the above with the assistance of Ms. Mendelson by January 21, 1999. Mr. Fegers will observe classroom to help identify inappropriate behaviors and follow-up with discussion to include appropriate ways to desist inappropriate behavior by January 28, 1999. Expected Outcomes and Timeline Maintain consistency in the application of policy and practice. Establish routines and procedures for the use of materials and the physical movement of students by April 13, 1999. Formulate appropriate standards for student behavior by April 13, 1999. Identify inappropriate behavior and employ appropriate techniques for correction (6B-5.007) by April 13, 1999. Demonstrate an awareness of what all students are doing by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "classroom management" Performance Development Plan read as follows: Identified Deficiencies Fails to create and maintain an organized and pleasant working environment in the classroom. Fails to encourage students to participate and contribute to class activities. Fails to establish an environment conducive to positive peer interaction. Fails to identify individual social, emotional and/or physical needs that might affect school success. Strategies for Improvement, Corrections, and Assistance Mr. Watkins will assist in the setting-up and organizing of the classroom to include aesthetically appealing academic and social environment by January 14, 1999. Ms. Greifinger will discuss different student activities that will foster participation and interaction 2-3 times by February 11, 1999. Should a 504 student be assigned to your team, Ms. Hogan will review 504 plans and discuss ways to modify curriculum and implement in classroom (Date to be determined). Expected Outcomes and Timeline Create and maintain an organized and pleasant working environment in the classroom by April 13, 1999. Encourage students to participate and contribute to class activities by April 13, 1999. Establish an environment conducive to positive peer interaction by April 13, 1999. Identify individual social, emotional and/or physical needs that might affect school success by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "[s]trategies" set forth in the Performance Development Plans were reasonably designed to enable Respondent to improve his performance in the areas of "lesson presentation," "classroom management," and "behavior management." These "[s]trategies" were implemented. Those at the school asked to assist Respondent provided him the requested assistance (with Respondent's cooperation). 10/ On January 27, 1999, Respondent was observed in the classroom by Mr. Fegers. On February 1, 1999, Mr. Fegers and Ms. Jones met with Respondent to discuss Mr. Feger's January 27, 1999, observation. In addition, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during the observation: This is a follow up to our conference on Monday, February 1, 1999. On Monday, February 1, 1999, we met to discuss my observation of your teaching that occurred on Thursday, January 27, 1999 from 1:38-2:13 P.M. Ms. Jeanie Jones, our Principal, was also present at the follow up conference. Based on my observation we discussed the following suggestions/comments for your consideration: All students were seated when I arrived. Your rules were not posted. 11/ You were working on F-CAT testing exercises. At 1:55 A.M. I observed eight students not doing any work. I stated my concerns that the students should not be given 30 minutes to do an assignment without you following up to see if they are on task. I recommend that additional assignments be given so that students do not sit and do nothing. The class is becoming increasingly noisy with no redirection from you. This is unacceptable. Finally, you stated to the class, "Alright people listen up!" Nothing followed that comment so the class continued talking. The talking continued because of down time, with students having nothing to do. You then started passing out papers one- by-one to students randomly which took a great deal of time. By this time most of the class was off task. This is unacceptable. Varied instructional activities as well as pacing of assignments would eliminate the majority of the misbehavior. This did not occur. We agreed that I would come back this week for another observation. Mr. Fegers next observed Respondent in the classroom on February 5, 1999. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during his February 5, 1999, observation: On Friday, February 5, 1999, I observed you teaching your class from 8:50-9:20 A.M. Based on my observation are the following suggestions/comments for your consideration. I found the classroom to be orderly with all students seated at t[]he beginning of my observation. You reviewed the rules and expectations with your class. Your rules were also posted. One student was seated with a washcloth on top of his head. He was not asked to remove it. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. I observed you passing out six writing assignments to students for talking. I observed you circulating and assisting students on division, simplifying fractions and multiplication. I observed you redirecting inappropriate behavior back to the assignment. Some students were requesting pencils at 9:15. Please make sure all students have something to write with at the beginning of the class. This should also be part of your discipline plan, that students come to class with paper and pencil prepared to work. Please let me know if I can be of further assistance. Respondent provided Mr. Fegers with the following written response to Mr. Feger's memorandum concerning the February 5, 1999, observation: #1. Thanks for the positive observation. #2. Yes this is true. I will follow your suggestion. #3. Thanks for the positive observation. #4. Thanks for the positive observation. #5. I have tried your suggestion, it doesn't work. They don't care and they don't want to work. That's why they don't come prepared. On February 17, 1999, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum, dated February 17, 1999, regarding her "observation [of] February 17, 1999." It read as follows: On this date I observed your C group in a math class. You were teaching least common denominators for fractions and had several examples on the board. Students came into the room noisily and it took about 7 minutes to get them quieted down and settled for work. You reminded them of the behavior rules. Some students were unprepared for work and had no notebook paper or pencils. Although there were stated consequences for students who misbehaved, there were no consequences for unprepared students. At the beginning of the lesson, you had a student hand out SAT review packets to each student and told them it was due on Friday and that the packet would be their homework for the next two days. You said that anybody could help them with the answers. I am questioning why you would give such a large body of work to these students and then ask them to complete it on their own. These students would benefit far better from you working out each problem with them, and/or allowing them to work in cooperative groups on a small number of problems at a time. This assignment is a concern to me, because I feel that it is a frustrating assignment to these students. Additionally, and most importantly, this is review for the SAT and they need your direct instruction and supervision. They will give up on this assignment because it is too much for them to "bite off" at one time. Students need to be taught to their instructional level, not their frustration level. Again, I feel that teacher directed instruction and cooperative learning activities would be more successful with these students, especially for the SAT review which is critical. I did not feel the answers to the examples should have already been up on the board; however, you did go over each problem thoroughly and had the students figure out how you arrived at the answer. You stopped disruptive behavior and gave two writing assignments out to disruptive students. You helped them learn how to use their calculators properly. You got students to raise their hands for answers and had students contributing to the lesson. You told the students you were going to give them examples of similar math problems to work out themselves, but the four problems you gave them were not exactly the same as the examples i.e., you did not provide a problem with mixed numbers. I see that you are making an effort to work with your students and that you are preparing lessons for them. Your classroom discipline appears to be improving, but still needs some work as students are still coming unprepared for classwork. Please continue to pay attention to the needs of your students, particularly when it comes to assignments that you request they do on their own. On March 3, 1999, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated March 5, 1999, in which he described and commented on what he had observed during the observation: On Wednesday, March 3, 1999, I observed you teaching your class from 1:35-2:05 P.M. Based on my observation the following are suggestions/comments for your consideration: The students were extremely noisy. You were seated on a stool in the front corner of the room. 12/ You were not redirecting student misbehavior. No attempt to stop the misbehavior occurred. I did not observe you reviewing the rules and expectations that students were to follow. I strongly recommend that you follow the discipline plan as [you] indicated you would. You had three math problems on the overhead for students to do. One of which was the following, "5 is what % of 20?" The students were confused with not only this problem but also the other two. You went over the problem, but not step by step so that the students could follow along. They were confused. It would have been much more beneficial if the exercise or problems were broken down into simpler forms so that your class could understand. You did not take into consideration the appropriate levels or activities of classwork that meet the students' needs. Also the directions should have been clear, brief, and explicit for student understanding. This did not occur. 13/ Two students were reading a magazine, 14/ five were sleeping (literally), right under your nose, one was working with your attendance sheet while class was supposedly going on. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. Additionally, I question why a student was working with a confidential document. 15/ I observed an atmosphere of animosity within the class, as evidenced by your voice inflection and you telling several students to shut up. You also asked me to speak to a student who you claimed had a beeper. I removed the student after the observation was finished and escorted him to the office. The student did not have a beeper. You accused the wrong student. You had claimed that the beeper went off in class, which it may have, but it was not the fault of the young man you requested I remove. Based on the observation done to date your performance in the areas identified in your Performance Development Plan are unsatisfactory. Ms. Jones, on March 5, 1999, filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." That same day, she and Mr. Fegers met with Respondent and Mr. Itzkowitz to discuss this "mid-point evaluation," which Ms. Jones showed to Respondent during the meeting. Respondent was advised that he ”needed to utilize appropriate instructional techniques to engage his students, encourage his students to participate and contribute to class activities, demonstrate an awareness of what his students are doing and stop all inappropriate behavior before it spreads or becomes more serious." In addition, he was reminded that "the 90th day [of his probationary period] was April 13 per Florida Statutes 231.29 and the documentation process of the IPAS system." Pursuant to a request made by Mr. Itzkowitz, on Respondent's behalf, at the "mid point evaluation" meeting, the following additional "strategy" was added, effective March 5, 1999, to the "Strategies for Improvement, Corrections, and Assistance" portion of the "lesson presentation" Performance Development Plan: Mr. Fegers, Ms. Greifinger and Mr. Jones will meet to plan a lesson, modeled by Ms. Greifinger and implemented by Jones & observed by Fegers by 3/17/99. On or about March 17, 1999, in accordance with the "model[ing]" requirement added to the "lesson presentation" Performance Development Plan, Ms. Greifinger, in Respondent's presence, taught a lesson to Respondent's students. Mr. Fegers was present for approximately five to ten minutes of the lesson. During the lesson the students behaved, by and large, as they did when Respondent was teaching them. There were students off task and walking around the classroom to whom Ms. Greifinger "had to speak." Respondent noticed that there was one student who had his head on the desk and was listening to a Sony Walkman. Ms. Greifinger said nothing to this student. Mr. Fegers was supposed to observe Respondent teach the lesson that Ms. Greifinger had "modeled." He had initially planned to conduct such an observation the week before spring break, but upon reconsideration (without consulting with Respondent or Mr. Itzkowitz) he determined that, in fairness to Respondent, such an observation should be conducted after spring break. The last school day before spring break was March 26, 1999. Respondent worked that day. It was the last day he reported to work. Sometime after the beginning of spring break, Respondent determined that, because of job-related stress and anxiety (resulting, in part, from his belief that he was being treated unfairly by school administrators), he was not able to perform his assigned duties at Plantation. Accordingly, he did not return to work on April 5, 1999, after the end of spring break, and he remained out of work thereafter. In accordance with School Board policy, each week that he was out (prior to the initiation of disciplinary action against him), he provided advance notice that he would be absent by telephoning "sub- central" and advising of his anticipated absence and the resultant need for the School Board to hire a substitute teacher to teach his classes. On occasion, Respondent also telephoned Ms. Jones' secretary (at the secretary's home) to let the secretary know that he would be absent. Respondent, however, did not initiate any direct contact with Ms. Jones. On or about April 12, 1999, Ms. Jones sent to Respondent, by certified mail, a letter, which read as follows: Please be informed that your 90th day according to Florida Statute 231.29 and as indicated on your Performance Development Plan is April 13. Due to your absenteeism, we were unable to meet for a final evaluation. We will meet in my office on Monday, April 19 at 12:15 P.M. Please call this office as soon as possible to inform us if you will be attending this meeting. Respondent neither telephoned Ms. Jones, nor attended a meeting with her on April 19, 1999. On that date (April 19, 1999), Ms. Jones filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." In Ms. Jones' view, although at certain times during the probationary period Respondent had shown some improvement in his performance, "[t]here was nothing [in the way of improvement] on a consistent basis." At no time, however, did Ms. Jones believe that Respondent's performance was so deficient as to warrant his immediate removal from the classroom. Although Mr. Roseburr was not charged with the responsibility of supervising Respondent, he did have occasion to go to Respondent's classroom and see Respondent interact with his students. During these visits, it appeared to Mr. Roseburr that Respondent was discharging his teaching duties in the same satisfactory manner he had during the three previous school years. Respondent was "always in control and working with the students." Mr. Jackson, the leader of Respondent's team, also had a favorable view of Respondent's performance during the 1998-99 school year. According to Mr. Jackson, Respondent "always showed professionalism, spoke to the students in a positive light, . . . [and] would go out of his way to try to get them interested to do their work," employing "[v]ery creative" tactics to accomplish his objective. Another teacher at the school who had the opportunity to see Respondent perform in the classroom during the 1998-99 school year was Claire Peterson. Ms. Peterson provided special instruction to low performing students in the school's "pull out" program. She had occasion to visit Respondent's classroom about every other day to "pull out" students in the program. During these visits, she noted that Respondent's students "seemed to be on task" and "doing what he asked of them," for the most part, and that "education was taking place." 16/ She thought that Respondent was doing a "great job." On or about April 19, 1999, Ms. Jones began her efforts to make telephone contact with Respondent. Her efforts were unsuccessful. She left messages on Respondent's answering machine asking that he inform her when he intended to return to work. Respondent did not return Ms. Jones' telephone calls. By memorandum dated April 22, 1999, Ms. Jones recommended to Dr. Dorothy Or, the then-Interim Superintendent of Schools, that Respondent's employment be terminated. The memorandum read as follows: Pursuant to Florida Statute 231.29, I am writing to inform you that Eugene Jones, teacher, has completed his 90 calendar day performance probation and has failed to correct his performance deficiencies. I do not believe that Mr. Jones can correct said deficiencies and his employment should be immediately terminated. I have complied with all applicable provisions of Florida Statutes 231.29 and have appropriate documentation (see attached). Please inform me of your final decision in this matter. By letter dated April 30, 1999, Ms. Orr advised Respondent that she was recommending that the School Board formally suspend him, without pay, from his teaching position for "unsatisfactory job performance." On or about May 3, 1999, Mr. Itzkowitz, on behalf of Respondent, sent Ms. Jones the following letter: I have recently spoken with Eugene Jones. As you are aware, Mr. Jones has been ill and is currently under a doctor's care. He has informed me that you have tried to contact him by mail but that he is not in receipt of said correspondences. As a result, on behalf of Mr. Jones I request copies of any letters sent to him by your office in the past ninety days. Upon receipt, I shall forward them to Mr. Jones. Additionally, I request that a meeting be scheduled for the purpose of discussing Mr. Jones' annual assessment for the current school year. Both Mr. Jones and I would like to meet with you. I look forward to hearing from you on each of these matters. The meeting that Mr. Itzkowitz had requested in his May 3, 1999, letter was held in "the middle of May." At the meeting, Ms. Jones did not ask any questions regarding Respondent's absence from school. After seeing a physician about the stress and anxiety he was experiencing, Respondent applied for social security and long-term disability benefits. In applying for long-term disability benefits, Respondent submitted a completed Long Term Disability Claim Employee's Statement form, dated May 14, 1999, to the School Board's carrier, UNUM. The following are questions that were on the form concerning his "disability" and "the condition causing [his] disability" and the entries Respondent made in response to these questions: Why are you unable to work?-- c[h]ronic anxiety state/job stress. Does your current condition prevent you from caring for yourself?-- No. Before you stopped working, did your condition require you to change your job or the way you did your job?-- Yes. I could not perform my job d[ue] to my condition. Is your condition related to your occupation?-- Yes. Last day you worked before the disability-- 3-26-99 Did you work a full day?-- Yes. Date you were first unable to work?-- 4-5- 99. Have you returned to work?-- No. If you have not returned to work, do you expect to-- Yes, if I'm allowed, full time, (date) unknown. As part of the application process, Respondent also had his treating physician, Edwin Hamilton, M.D., complete and submit to UNUM a Long Term Disability Claim Physician's Statement. On the form, dated June 3, 1999, Dr. Hamilton stated, among other things, the following: Respondent's primary diagnosis was "chronic anxiety state"; Respondent's symptoms were "inability to sleep, stress, [and] nervousness"; Respondent's symptoms had first appeared "prior to 4/99"; Respondent had first been unable to work "prior to 4/99"; Respondent's first visit to his office had been April 1, 1999, and his last visit had been April 20, 1999; Respondent's condition was work related 17/ ; Respondent had been referred to a medical social worker and advised to see a psychiatrist 18/ ; Respondent should not and could not "work in the present school classroom environment"; Respondent's prognosis was "guarded at this point"; Respondent had not "achieved maximum medical improvement"; he "expect[ed] fundamental changes in [Respondent's] medical condition" in "more than 6 months"; Respondent "should remain out of the school classroom environment for the time being"; and Respondent "may be able to improve on medical/psychiatric consults." By letter to Ms. Orr, dated May 17, 1999, Mr. Itzkowitz "request[ed] a formal 120 hearing on [Respondent's] behalf." On May 18, 1999, the School Board took action to suspend Respondent, without pay, pending the outcome of the "formal 120 hearing" Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board enter a final order immediately reinstating Respondent and paying him his "back salary." DONE AND ENTERED this 13th day of April, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2001.
Findings Of Fact At all times material, Respondent, Claudia Walker, was employed as a continuing contract teacher by Petitioner Broward County School Board. The Respondent taught from January 1979 through November 1, 1984 at Bright Horizons School. In November 1984, she transferred to South Florida State Exceptional Student Center and thereafter taught elementary school age children with behavioral problems. Among those assigned to her Self-contained classroom were some homicidal and suicidal students with low impulse control. During the time Respondent has worked for the Broward County School Board, her teaching evaluations have been good, to outstanding, to exceptional. She has never previously been cited or disciplined. Doris Seitner was employed by Petitioner as a teaching assistant from approximately September 3, 1985 to December 3, 1985 and was assigned to Respondent's class. On Thursday, November 7, 1985, Respondent and Seitner took the class of about 25 students on a field trip to the Metro Zoo. Prior to their departure on the bus, Ms. Seitner noticed Respondent entering the staff restroom. When Respondent emerged, a student immediately entered the restroom. Upon the student exiting the restroom, Ms. Seitner also entered the restroom where she found a small pink glasses case. Believing the case belonged to the student, the aide opened the purse and saw a plastic baggie containing a white powder, a small vial, a razor blade, and several cut up straws. Upon leaving the restroom, Ms. Seitner encountered the Respondent, who identified the case as hers and took it. At this point, the state of events was that Doris Seitner had seen a substance she thought was cocaine. Doris Seitner is not an expert on drug identification. She admits never previously having seen cocaine up close. Although she had seen some drug abuse classes at the school, she had no courses in cocaine and had never smelled or tasted it. She did not open the plastic baggie or examine its contents on November 7, 1985. However, believing that the case contained cocaine and drug related paraphernalia, Ms. Seitner confided what she had found, together with her suspicions to a number of people and sought their advice on how to proceed. Shawn Joseph, another teacher's aide, suggested Ms. Seitner inform the school officials of what she had found. Later in the evening, Ms. Seitner contacted Pam Tepsic, a teacher on task assignment, who suggested she advise the principal immediately. The acting principal, Kathryn Mangan, upon learning of the discovery, contacted Howard Stearns, Petitioner's Director of Internal Affairs, who referred her to William Bohan. At all times material, William Bohan was employed by Petitioner as an investigator for Internal Affairs and has been a certified law enforcement officer. On November 12, 1985, Mangan told Bohan about Ms. Seitner's belief that she had seen cocaine in Respondent's glasses case. Bohan instructed Mangan to take no action but to call him in case the glasses case was seen again. Bohan interviewed Ms. Seitner and instructed her to watch out for the case. On the morning of Monday, November 25, 1985, while Respondent was in her classroom, Ms. Seitner came in and asked if she could fetch lunch for Respondent. Respondent retrieved her purse from the back room of the self- contained classroom, a location called "the teacher planning area", wherein she normally isolates her purse from the students, and gave Ms. Seitner money to pay for her lunch. Doris Seitner sat at the desk, and looking down into the Respondent's unzipped purse, spotted the pink glasses case. Seitner notified Tepsic, who notified John Smith, acting principal, who notified Bohan, who came to the school. Bohan and Tepsic walked to Respondent's classroom. When they arrived there, Tepsic approached Respondent in the classroom; Bohan stationed himself at the door. Tepsic told Respondent that a man wanted to see her in the principal's office. Tepsic avoided responding to Respondent's repeated requests to know what was going on or answered Respondent that she did not know what was going on. Respondent walked with Tepsic to the door. Bohan asked Respondent if the purse by her classroom desk was hers. The Respondent answered, "yes" whereupon Bohan walked over, picked up the purse, and, retaining the purse, began walking with Respondent and Pam Tepsic to John Smith's office. On the way to Smith's office, Respondent told Bohan she could carry her own purse but Bohan responded that he could carry it. She repeated her questions to Pam Tepsic, asking what was going on and received the same evasions. In making the immediately preceding finding of fact, the testimony of Pam Tepsic, Investigator Bohan, and Respondent have been considered and weighed. While Investigator Bohan testified that Respondent said and did nothing to claim her purse after he seized it and Pam Tepsic initially related that Respondent said nothing about her purse at any time in the classroom or while walking over to the principal's office, Pam Tepsic's testimony as a whole reveals that she was particularly nervous during all these incidents and that at a point in time closer to the actual events, she had believed some such conversation took place between Bohan and Respondent, but that on the date of formal hearing she simply could not recall any conversation between Bohan and the Respondent, including Bohan's asking Respondent if the purse were hers and Respondent's reply, "yes", statements Bohan and Respondent each testified had been made. The Respondent's account of her request to carry her own purse is highly credible. It is simply not credible that any adult woman would not request return of such an intimate item as her purse, containing all her personal effects, including valuables and money, from a man whom she had never seen before in the absence of any explanation of what was going on. Bohan, Tepsic, and Respondent entered John Smith's office. Bohan placed Respondent's purse on Smith's desk in front of himself. Bohan told Respondent he had been informed she was in possession of an illegal drug and asked if she would consent to Bohan's searching her purse. Pam Tepsic's recollection of what happened next was that either Respondent said she would consent to the search or that someone else said Respondent had consented or said something like, "Well, then you consent," to Respondent. Respondent denies ever being asked to consent to a search of her purse. John Smith understood Bohan to ask permission to search the purse and understood that Respondent said "yes" to Bohan's request. Bohan relates an affirmative answer from Respondent. Before he started searching her purse, but after the question concerning consent/permission, Bohan asked Respondent did she have anything in her purse that might be a problem that she might want to tell him about before he searched her purse. Tepsic, Bohan, Smith, and Respondent are in agreement that Respondent replied, "yes" that she did want to tell Bohan what was in the purse. The explanation given at that time was that early that morning she had taken cocaine and other items from her estranged husband who had a drug problem. Bohan removed from Respondent's purse the pink glasses case; some other unrelated items; four small plastic bags containing a white powdery residue; four straws cut 2-1/4 inches to 2-3/4 inches long; one GEM single edge razor blade; one small, 3/4 inch empty vial; one piece of aluminum foil 2-1/2 inches by 3-1/4 inches; eight straws in Wendy's wrappers; one wooden toothpick; and one nickel. When Respondent persisted in her explanation that the drugs and paraphernalia were her husband's property and that she had taken them to protect him but in response to further questioning by Bohan, Respondent was unable to flesh out an explanation she had begun concerning the husband's drug counselling and treatment and her participation therein, Bohan told Respondent that her options were either jail in Fort Lauderdale via the Broward County Sheriff's Department or discussing the matter at Petitioner's Internal Affairs Office. Although Bohan asserted that he made no "threats," Bohan, Tepsic, Smith, and Respondent concur that these were the only alternatives Bohan provided Respondent during their confrontation in Smith's office. A subsequent laboratory analysis conducted on the items seized November 25, 1985 revealed the presence of cocaine only in the small plastic bag containing the white powder. The property in the purse was taken into the Internal Affairs Office for inventory. These items, including the cocaine, were described by Ms. Seitner as "similar" to the items she saw in the pink case on November 7, 1985. Respondent customarily keeps a razor blade in her purse to use for arts and crafts projects in her class. Other teachers at the center also use razor blades to perform art projects. The Respondent customarily keeps drinking straws in her purse to give to her three small children to drink with while they are riding in her car. Article XVIII, Section K, of the current collective bargaining agreement between the Broward Teachers Union and Petitioner provides: "No investigation of an em- ployee, beyond preliminary inquiry, by the Internal Affairs Department may be undertaken without written notice to the employee, such notice to include a statement of the cause giving rise to the investigation." No written notice was given to Respondent by Petitioner. A sign posted on the grounds of the school at the front gate notifies anyone entering that they are subject to being searched while on the grounds. (TR 149-150) Respondent accompanied Bohan to Internal Affairs where Bohan and Stearns interrogated her. Respondent again told them the drugs inventoried belonged to her husband. She further revealed to Stearns, apparently in hopes of receiving counselling instead of dismissal, that she had been clean of cocaine during the nine months of her recent pregnancy and clean recently until the immediately preceding Saturday night. (TR-205) After Internal Affairs finished questioning Respondent, Bohan took her to the Employee Assistance Program and then later to the Broward Alcohol and Rehabilitation Center. Respondent claims she was denied use of a phone to contact anyone until she reached the Employee Assistance Program, but she concedes there were public phones available at the school and she did not insist on using any. At hearing, Respondent testified that she had never used cocaine and would not have used it in November, 1985 because she was breastfeeding her new daughter. She also testified that the contraband items were taken from her husband the morning of November 25, however, rather than corroborating this story, the testimony of Wilton Johnson, her estranged husband, is contrary to Respondent's account of the incident in so many details as to adversely affect Respondent's credibility that the incident occurred. Respondent was suspended with pay November 26-28, 1985, the remainder of the school week. On Monday, December 2, 1985, she was permitted to resume her classroom duties until she was notified of suspension with pay, December 6, 1985. On December 19, 1985, Petitioner suspended Respondent without pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order dismissing Counts I and II, finding Respondent guilty as charged in Counts III and IV, and dismissing her from employment. DONE and ORDERED this 5th day of September, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1986.
