The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issues here are as presented through an administrative complaint brought by the Petitioner against Respondent. In particular, it is alleged that Respondent falsified applications related to her certification as a teacher in the State of Florida and her employment as a teacher in the Duval County, Florida School System. In particular it is alleged that Respondent falsely answered questions pertaining to her arrest or conviction for a misdemeanor offense in Jacksonville, Florida. For these acts, Respondent is alleged to have violated Section 231.28(1), Florida Statutes, in that she has obtained her teaching certificate by fraudulent means and been guilty of personal conduct which seriously reduces her effectiveness as an employee of the school system. Moreover, it is alleged that further fraud was committed related to Rule 6B- 1.06(5)(a)(g) and (h) Florida Administrative Code, pertaining to fraudulent statements or disclosures.
Findings Of Fact On April 28, 1981, Shirley Lambert made application to be certified as a teacher in the fields of health education and physical education. This certification request was made with a State of Florida, Department of Education Teacher Certification section. A copy of the application may be found as Petitioner's Exhibit No. 2, admitted into evidence. As part of the application, question V asks, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Lambert responded in the negative. Lambert also signed the application form below that portion of the application related to notarization which states "I understand that Florida Statutes provide revocation of a teacher's certificate if evidence and proof is established that the certificate is obtained by fraudulent means. (Section 231.28 FS). I certify that all information pertaining to this application is true and correct." As a result of this application, Respondent was issued a teacher's certificate from the State of Florida, Department of Education in the field of physical education. The date of the issuance was June 25, 1982, for a period ending June 30, 1983. A copy of this certificate is found as petitioner's Exhibit No. 1, admitted into evidence. In fact, as was known to the Respondent at the time of making the application for certificate, she had been arrested and charged with petit theft for an offense that occurred on April 11, 1978, the taking of clothing less than $100 in value. The basis of the charge was Section 812.014(2)(c), Florida Statutes. Respondent pled guilty to this offense and was given a ten day jail sentence which was suspended and probation imposed for a period of six months. The particulars of this disposition may be found in Petitioner's composite Exhibit No. 3, which contained records of court related to the offense. On August 10, 1982, Respondent made application for employment with the Duval County School Board, Jacksonville, Florida. A copy of that application may be found as Petitioner's Exhibit No. 4. This application had a similar question related to prior criminal offenses. The application stated, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Again, the question was answered in the negative although Respondent was aware of the aforementioned criminal violation at the time she answered this questionnaire. The application was signed by Respondent and at the place of signature, Lambert was exposed to the language at the signature line which states "I certify that all information on this application is true and accurate and recognize that it is subject to verification and that my employment and/or continuance thereof is contingent upon its accuracy." Not being mindful of her prior criminal involvement the Duval County School System hired Respondent as a substitute teacher on September 13, 1982. Her criminal record was later disclosed to the administrators within that system and her employment was terminated effective October 12, 1982. Had the administration known of the prior criminal involvement, they would not have hired Lambert in view of the fact that they could be more selective and not choose a person with a prior criminal involvement, given the high number of applicants for jobs within their system. Dalton Epting, Director of Certified personnel of Duval County Public Schools, felt that a prior conviction of a misdemeanor offense of petit larceny would be in violation of standards required of teachers in Duval County. Likewise, the offense of petit larceny would be sufficient grounds to deny certification when requested of the State of Florida, Department of Education. Respondent testified that in the course of the final hearing and indicated in discussing both applications which are at issue that she read those applications too fast and made a mistake in answering the questions related to her prior criminal involvement. She felt in effect that she had not read the applications carefully. Moreover, in giving her explanation at final hearing, even though she recognized her prior criminal involvement in the way of arrest and the plea of guilty to petit theft, she stated that she did not feel the questions in the applications related to misdemeanors. She was of the opinion that the questions pertained to more serious crimes. Given the plain language of the questions in the application for certification with the State of Florida and the application for a position with the Duval County School Board and the precautionary statements related to accuracy and possible penalties for inaccuracy, Respondent's explanations are not plausible. Respondent's comments do not constitute a reasonable excuse for having falsified her applications for certification and employment.
Findings Of Fact At all times pertinent to the allegations treated herein, Respondent, William Wyche, held a Florida Teaching Certificate number 106113, issued on October 29, 1980, covering the area of industrial arts. Respondent applied for a Florida teaching certificate by submitting the required application form and documentation on or about October 20, 1980. At the time of submission, Respondent replied "no" to the question in Section V of the form which asks: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation. . .?" This answer was false in that: On September 20, 1979, respondent was found guilty of driving while his license was suspended, and fined $50.00; On March 20, 1980, Respondent was found guilty of obtaining property by worthless check and fined $25.00; On March 20, 1980, Respondent was found guilty of driving with a suspended license and fined $100.00; On April 2, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00; and, On April 25, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00. On that same date, in a separate case involving an identical charge, adjudication was withheld but Respondent was placed on probation for sixty days. Respondent explains the check charges on the basis that at the time they took place, all within a few weeks of each other, his bank account had been garnished and because of that garnishment, though he had ample funds in his account to honor these checks, the bank did not honor them. There were quite a few checks dishonored for this reason-so many, in fact, that he lost track of some of them and though he redeemed most, he failed to redeem these. As to the convictions for driving with a suspended license, he thought these were minor traffic offenses that did not have to be listed. Respondent was employed as an industrial arts (IA) teacher at Kirby Smith Junior High School (KSJHS) in Jacksonville, Florida during the 1981-82 school year, teaching in the metal shop. During this period, he was evaluated on a regular basis, based on observations and evaluations by other school officials carried on at various times throughout the school year. During these evaluations, such things as classroom conditions, the instructor's presentations, the preparation of lesson plans, and the use of lesson plans as guidelines for in-class instruction were considered. Lonnie W. Davenport was assistant principal for curriculum at KSJHS during this period and had to insure that teaching was taking place properly in both form and substance. To do this, he contacted his teachers daily and also relied on observations such as described above, and reports submitted to him. These reports were regarding such things as student class size, grade reports by teachers, black/white student count in the homerooms, and teachers' lesson plans which were required from each teacher weekly. While he has no formal IA training, he has a lot of experience in the area. Mr. Davenport first took serious note of the Respondent in mid- December, 1981 when he noted that Respondent had not submitted complete lesson plans. There were holes in those submitted relating to time and quality. In addition, the principal had asked him to look into reported irregularities in Respondent's classroom. His examination of Respondent's lesson plans showed that they were inadequate because they: did not conform to the form required; did not cover the subject matter sufficiently; did not follow a time sequence properly; and, were not sufficiently specific. They should have broken down the instruction into segments for skill development on a step-by-step, day-by-day basis. In short, Respondent's plans did not adequately tell what he was intending to do in his classroom. As to Respondent's teaching, Davenport's observation showed that Respondent: had no plans to show what was expected of his students; maintained the shop in a depressing state. (Here, however, it was admitted that this school was old and the shop dingy, and Respondent could not control all of that. However, Respondent's teaching aids, such as posters, which were old, faded, and torn, added to the dinginess.) allowed shop metal to lay around the shop without being placed in stock storage, creating a safety hazard; failed to safeguard and neglected one student's artwork project, and other students' projects were left out and not placed in storage for the next class period; stored a large stack of sheet metal under a work bench with cutting corners end edges protruding (also a safety hazard) allowed equipment which should have been stored to remain out; failed to have safety lines placed on the floor around individual pieces of equipment; failed to insure that soldering forges were properly shielded or securely fastened down; and, failed to post safety rules prominently in the classroom. Respondent contends that he submitted purchase orders requesting corrections be made of these deficiencies. However, with the exception of several orders for paint, some of which may have been used for the safety lines and to brighten up the area, the remainder of the purchase orders he introduced into evidence (Respondent's Composite Exhibit E), were for metal stock and other pieces of new or replacement equipment. There was no evidence of work orders for correction of any of the cited defects. Mr. Davenport's observations as to Respondent's teaching ability were that: He sat at his desk in the classroom while his students were working in the shop behind his back. As a result, students with problems had to come out of the shop to him for help rather than him being available in the shop to help; students were not required to wear safety goggles while operating power equipment nor did Respondent use them while operating the equipment; The student projects assigned or approved by Respondent were too simple and provided no challenge; The quality of the finished product turned out by Respondent's students was poor; Grading of student projects was accomplished on the basis of negotiation with the student and not on accomplishment or work quality; Once the student had completed the basic project, Respondent had no follow-up projects for them to do to use up the remainder of the school year. He, allowing them to occupy themselves with "busy work," showed to Davenport a lack of commitment to planning; Respondent was observed and overheard by Davenport to chastise a student by threatening to destroy the student's project, resulting in failure. This observation, which Respondent admitted to Davenport, is contrary to a school policy which prevents discipline from affecting an academic grade; and, In one particular class observed, Respondent came to class late. He had allowed a student to take roll, a function required of the teacher, and evidence available to Davenport, led him to believe this was a repeated- occurrence; Respondent's absence allowed students to engage in horseplay and rowdy behavior and, even when Respondent came into class, he chastised the wrong student. As to the type of instruction Respondent was observed to give, when a student would bring a project to him and ask a question, he would answer. For the most part, however, he stayed at his desk while the students worked unsupervised in the shop. He showed no initiative and did not even require students to draw plans or prepare material lists before starting work on a project. On one occasion, a student was injured in the shop. Respondent merely washed the injury, wrapped it, and sent the student back to work. Davenport, who observed this incident, told Respondent on the spot that the student should go to the office for first aid and that Respondent should file an accident report on the incident. The report was not filed by Respondent and the student went to the office at the direction of Davenport, not Respondent. This showed a complete lack of concern, according to Davenport. Davenport counseled the Respondent on the above deficiencies but observed no immediate response. He went back to Respondent's class 5-7 times subsequently for follow-up visits of from 20 minutes to an hour in duration and found little change for the better. He repeatedly offered Respondent assistance in any area to correct the shortcomings and got no response until in March, 1982, when Respondent found out he was going to get an unsatisfactory rating. He had been notified in writing, on January 8 end again on February 5, 1982, by his principal Mr. Shanklin, in addition to others, including an evaluation on January 13, 1982 by Mr. Lowell T. Hudson, supervisor of industrial arts for the school board, that his performance was deficient. These warnings could have left little doubt as to the fact his performance was below standard. Finally, on March 15, 1982, Mr. Shanklin rendered an evaluation on Respondent which showed an overall rating of unsatisfactory. Of the six areas rated in classroom management, two were satisfactory and four were unsatisfactory. Of the twenty- one areas rated in teaching effectiveness, one was satisfactory, nine were rated as needing improvement, and eleven were rated unsatisfactory. Seven of the nine areas of professional/personal characteristics were rated satisfactory, one needed improvement, and one was unsatisfactory. Even after this unsatisfactory report, the school administrative staff still tried to help Respondent. They offered him direct help themselves and, in addition, the services of county in service resource personnel to help with planning. Respondent was receptive to this verbally, but never took any steps to use them. As a result, there was no improvement in Respondent's performance but merely a maintenance of the status quo. There were some minor improvements in the condition of the shop but these were merely cosmetic and did not, in any way, relate to the quality of instruction. In Davenport's opinion, Respondent does not meet the minimum standards of competency for teachers nor can he be trained to meet these standards. He is convinced, and it is so found that Respondent's race played no part in the evaluation process. The principal at KSJHS during this period, Mr. Jack H. Shanklin, agreed with and amplified on Davenport's analysis of Respondent. His first difficulty with Respondent came in October, 1981 when the Dean of Girls wrote him a memorandum stating that Respondent had struck a student with a dowel rod. This was not the first instance of Respondent's striking students. Since Respondent was not designated as one to administer corporal punishment, she had previously warned him to send all disciplinary problems to the office. When Shanklin discussed this with Respondent, he said he did it to control the class. Shanklin did not personally evaluate Respondent until early January, 1982, after Davenport's evaluation. Prior to going to the class, he reviewed Respondent's lesson plans and found them to be sketchy. In his opinion, a substitute teacher could not have taught from them and they were "totally unacceptable." When he went into the classroom, he found the Respondent lecturing end he could not understand what Respondent was trying to get across. Respondent mumbled, was hard to understand, and used few, if any, visual aids. It was obvious to him that the students were bored, confused, and were getting nothing from the presentation. In addition, he observed the shop and found it to be dingy, dirty, and a safety hazard. Mr. Shanklin discussed these deficiencies with Respondent a few days later when he gave him the letter regarding the observation. He went into these deficiencies, and recommendations to correct them, quite thoroughly. He made suggestions as to resource people available to help and pointed out specific references to the teachers' manual. In each case, Respondent always indicated he understood and would try to comply. However, in the succeeding month leading up to the February letter, there were no signs of improvement at all nor was there any indication he had utilized the resource people. Follow-up visits to the classroom showed no change and no indication Respondent was getting anything across to the students. After the February letter was given to Respondent by Mr. Shanklin personally, they had a conference in which Shanklin discussed Respondent's deficiencies and he was told what he had to change to get a favorable evaluation. The most critical areas for improvement identified were: lesson plans safety conditions, and classroom appearance, as well as Respondent's personal untidy and nonprofessional appearance. After this discussion, Shanklin made several visits to Respondent's classroom prior to the March evaluation and did note some improvements in classroom appearance and safety, but not in lesson planning or teaching. Even after the March evaluation, up to the end of the school term, he noted no improvement. On March 29, 1982, he gave Respondent a third letter outlining areas for improvement. Respondent finished out the 1981-82 school year but because of the unsatisfactory evaluation he received, requested a transfer to a different school for the 1982-83 school year. In Shanklin's opinion, Respondent did not meet minimum standards of competency nor could he achieve them because of a lack of effort to improve. Shanklin feels Respondent does not care about the education of children and would make only superficial efforts to be trained. Race is not a factor in this evaluation. At least 50 percent of Shanklin's staff is black. He has 85 teachers on his staff and in the last three years, he has rated 13 teachers unsatisfactory. Of these, 8 or 9 were black. Therefore, of the 255 teacher evaluations he has rendered in three years, 8 or 9 unsatisfactory's were given to black teachers. Dalton D. Epting, Director of Certified Personnel for the school board, talked with Respondent about his evaluation on several occasions when Respondent was at Wolfson High School. If a teacher is on tenure status and received an unsatisfactory evaluation, he may request a transfer to a different school for a second year during which efforts are made through counseling, training, and other assistance, to help him become satisfactory. When Respondent, due to his unsatisfactory evaluation at KSJHS requested a transfer, he was assigned for the second year, to Wolfson High where, for reasons cited below, he was rated unsatisfactory for the second year in a row. Respondent was sent to Wolfson for his second year because there was no vacancy for IA teachers in the system. Even though Wolfson was also full, rather than send Respondent back to KSJHS, they sent him to Wolfson, with all its teachers, so he could have the benefit of other good teachers. Race was not a factor in this decision. It is not automatic that a teacher who receives a second consecutive unsatisfactory rating is discharged. The system looks to see if the teacher was given every assistance to improve; to ensure that everything reasonable was done by way of counseling, resource help, training, and the like, to help him. If it was and the teacher did not improve, he is discharged. Here, school officials looked at all evaluations for both years, considered the discussions held with Respondent, and the input from cadre and resource personnel, and decided that Respondent was incompetent. The decision was made, therefore, to discharge the Respondent and this action was taken. During the 1982-83 school year, after his first unsatisfactory evaluation, Respondent worked for David E. White, principal at Wolfson High School. Immediately White sat down with Respondent, along with the IA supervisor to let him know what was expected of him and what help was available to him. He observed Respondent in the classroom on several occasions and, based on these and other factors in accordance with school board rules, in an effort to let the teacher know how he or she is doing, rendered an unsatisfactory rating on Respondent on October 30, 1982. Among the examples of Respondent's incompetence which led up to this evaluation were progress reports, discipline referrals, notes, and tests prepared by Respondent, some of which went home to parents, that contained obvious spelling, grammatical, and syntax errors. At first, White became aware of concern by students and their parents about Respondent's performance. When these complaints first began, White called in the IA supervisor for the school district, Mr. Hudson, to evaluate Respondent. He began evaluating Respondent himself when the complaints continued. These complaints were to the effect, basically, that the students could not understand Respondent. (It is noted here that Respondent suffers from a slight speech impediment). He would merely read from the textbook with no teacher-student interaction. There was little lab work - mostly lecture or reading. This was not appropriate in the Graphic Arts area which consists of such skills as printing, photography, silk-screening, and the like. Consistent with the notes, reports, end referral slips prepared by Respondent, White noted a lack of grammatical correctness in his oral presentations as well. In addition, White observed that the Respondent's students were not being motivated by him and spent little time on their classroom tasks, and he also observed that Respondent's presentation was lacking in technological detail. For example, on one occasion, Respondent was discussing a box camera and failed to detail the advantages and disadvantages of this type of camera, the type of films available for it, and the merits of each. When the class period was over, White discussed the above with Respondent, suggesting how the lecture could be improved. The following day White came back to class to see how Respondent carried the discussion forward and it was as if White had not said anything. Respondent continued to omit from his lecture the substantive technological information White, as principal, felt should be taught. White concluded that Respondent was not at all familiar with the subject matter he was teaching. 1/ Respondent was also considered to be deficient in his administrative skills. He lost (or had stolen) his grade book as well as his computer worksheets twice during one 9 week period. This created seven extra hours work for the curriculum office, with 3 additional hours by Respondent, to reconstruct, his grades. The fact that Respondent had to help in this project meant someone had to cover his classes for him. It also created a lot of inquiry by parents who, on learning of the lost grade book, questioned the validity of grades given their children. In addition, Respondent's attendance registers were not turned in on time notwithstanding frequent reminders in advance of due dates. At the end of the first semester, White had a conference with Respondent about the above. Respondent began being absent due to sickness in January, 1983 and went on sick leave on 9 February, 1983 which extended through the remainder of the school year. It is important to note that Respondent's absence at this time was valid and there is no inference or insinuation to the contrary. While he was absent, on March 8, 1983, Respondent was given a notice of intent to render an unsatisfactory evaluation report which was, in fact, issued on April 15, 1983. Here it must be noted that there could have been no improvement in performance between the notice and the evaluation as Respondent was not present for duty but was on sick leave. In any event, White contends that as a result of Respondent's teaching, the school's IA program has been seriously damaged, but that has not been shown. While Respondent's classes did net prepare his students for the second year curriculum in those areas, there is no evidence that the school's program has been seriously damaged. Nonetheless, it was shown be that, as white contends, Respondent did not meet minimum county standards and could not be improved to meet them. Consequently, on August 15, 1983, the superintendent of the Duval County public schools, by certified letter, notified Respondent that because of the two years of unsatisfactory evaluations, indicating professional incompetence, he was recommending the School Board discharge Respondent from employment. Thereafter, on January 16, 1984, the Duval County School Board, by Final Order, sustained the charge of professional incompetence, and discharged Respondent as a teacher. Race was definitely not an issue in White's evaluation. In his school, at which the student body comes from the upper level socioeconomic group, and which has rated first in Area Scholastic Aptitude Test scores for the past five ears, White has no black administrators or department chairmen on his staff. One black former department chairman was promoted to vice-principal at another school. His choices for personnel are based on qualifications, not race. At the present time, 12 percent of the teachers on staff are black and over the six years White has been principal at Wolfson High, only 3 black teachers have transferred out. While at both KSJHS and Wolfson High, Respondent was encouraged to consult with Everett T. Hudson, IA supervisor for the school board, and was, in fact, evaluated by him in both settings. He evaluated Respondent first on January 14, 1982, at the request of the Principal at KSJHS end observed Respondent during his 8-9 a.m. first period class. His conclusions were: classroom and shop cleanliness were poor; it appeared that activities were winding down shop organization was poor (no clean-up schedule was posted and metal stock was laying everywhere; the students' projects were not meaningful or of a quality nature; respondent spent too much time lecturing and did not allow for sufficient shop time, and, respondent's lesson plans were not available. When seen, it was obvious Respondent had not used the curriculum guide to draft the few plans he had. When Respondent transferred to Wolfson High, the Principal there also asked Hudson to come out and evaluate Respondent on a more frequent basis. Consequently, because of this request and because of the fact that due to Respondent's previous unsatisfactory rating he was on probation, Hudson evaluated Respondent ten times, at least once in each month, between September 8, 1982 and January 5, 1983. As a result of these evaluations, it appeared to Hudson that Respondent did not know how to: plan a project; lay out equipment; identify woods and where they came from; use certain equipment. It further appeared to Hudson that Respondent's lectures were poor in that he mumbled and he didn't seem to know what he was talking about. Further, his lesson plans were poor, and he failed to keep up with an appropriate time schedule for class. As a result, Hudson ended up, himself, helping the students rather than evaluating. When these observations were made, Mr. Hudson would go over them with Respondent and give Respondent a copy. Notwithstanding he pointed out these deficiencies repeatedly, there appeared to be no improvement at all. The school system here has a remedial program for teachers to use to improve their performance. There are resource teachers to provide assistance and there are also "in service" programs for teachers. Mr. Hudson suggested Respondent take some, one of which he was teaching right at Respondent's school. As he recalls, Respondent came twice out of 15 sessions. As a result of the above, Hudson does not believe that Respondent meets minimum competency standards and could not meet them. In his opinion, Respondent: suffers from a lack of organizational ability; has lackadaisical attitude toward improving the program; would not spend the necessary time to upgrade his skills, and has a weak knowledge of the subject matter. Here again, race was not an issue in these evaluations. Hudson supervises 95 IA teachers in the Duval County school system and is the only administrator. Of these teachers, approximately 25 are black. Over 13 years, he has been called in to evaluate, like this, 5 or 6 teachers, only one of whom was black, and of this number, only 2 have been discharged. Respondent has a Bachelor of Science decree in Education and a Masters degree in Industrial Education, both from Florida A & M University. In addition, he has attended a leadership development course at Michigan State University, military classes in the same while in the army at Ft. Dix, New Jersey, and numerous workshops in Florida at his own expense. It was his hope, when he started working in Duval County, to develop some feel for the IA field in that school system As a result of his experience there, he is of the opinion that the entire IA program is underfunded. Students have to pay for the wood and metal materials they use to build a prefect. He urges that without materials and equipment, a teacher cannot teach, a point concerned by Mr. Davenport, and that was the reason he submitted the purchase orders he did at KSJHS. In that regard, it would appear that about the time Respondent was teaching at KSJHS in 1981, a report by an Inspector (Jenkins) from the school district offices, reflected that materials and equipment in Respondent's class area did not meet minimum state requirements. In addition, there was some problem regarding the excessive size of the class. This problem was immediately corrected end certification in this area was restored. He also contends that a teacher's teaching style may differ from that of his principal's and still be correct. With regard to the April 15, 1953 unsatisfactory evaluation, Respondent contends, in an attempt to contest his rating, that since he was out sick much of the month of January, 1983, and all of the time from February 9, 1983 to the end of the school year, a rating dated in mid April would cover as large a period of time when he was not there as when he was. The Teacher Tenure Act under which this system operates provides for a second full year of evaluation before discharge. Since he was sick for half the second year, he contends, his discharge was not valid. He wants to fulfill his probationary period to prove he is a worthy teacher.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Respondent, William Wyche's teacher certificate issued by the State of Florida be revoked for a period of three years, with provision for reinstatement as provided for by statute. DONE and RECOMMENDED this 16th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk with the Division of Administrative Hearings this 16th day of August, 1984.
The Issue At issue is whether the Respondent committed the offenses set forth in the Administrative Complaint dated July 30, 2002, and if so, whether his employment should be terminated.
Findings Of Fact Mocombe has been employed by the School Board as a social studies teacher since 1997, when he graduated from Florida Atlantic University. He began his career substitute teaching at Sunrise Middle School (Sunrise), and later moved into a full-time position at Lauderhill Middle School (Lauderhill). In the years following graduation, while working as a teacher, Mocombe continued his studies at Florida Atlantic University and attained a master's degree and a Ph.D. He also received three formal reprimands, and a reputation as a person who could engage in adolescent behavior toward peers and insubordinate behavior to his principal without suffering any meaningful consequence. Mocombe calls himself a brilliant teacher, whose teaching philosophy is informed by his belief that "Revolution comes first. I'm a Marxist." Also a high priority for Mocombe is hedonism. Mocombe is known at Lauderhill as a "player," a term defined by one witness as "[S]omeone who has a lot of women and a lot of women [who] know about each other," a characterization which Mocombe embraces. Although married, Mocombe had a sexual relationship with a teaching colleague at Lauderhill by the name of Belinda Hope (Hope). He also was attracted to a first year teacher by the name of Kim Barnes (Barnes). Specifically, said he wanted to "get into her pants," during the 2000-2001 school year. Mocombe has no sense of boundaries in the workplace. He freely offers his opinions on religion, politics, and sex, some intended to be humorous, some not. Mocombe is aware of his need to be the center of attention and to shock people. He testified, "Even in school, I used to go walking around and said I was God just to get a reaction out of people." Most adults tread carefully, or not at all, around such deeply personal subjects. The training and ethics of the teaching profession emphasize respect for the dignity and worth of each individual, irrespective of his political and religious beliefs, or lack thereof. Teachers are educated to understand that sophomoric jokes about sex are not to be inflicted upon unwilling listeners. These lessons are reemphasized annually in sexual harassment training provided to all teachers employed by the School Board. Mocombe did not benefit from this training. He was known at Lauderhill for a constant stream of crude references to sex. He made no secret of his view that a woman's role is to have babies and serve men sexually. In addition, Mocombe would mock organized religion in the presence of colleagues who take their faith seriously. He often spoke of starting his own church, in which he would be known as Prophet Paul and the prerequisite for all women seeking to join the church would be to have his baby. Such comments, as well as his propensity to refer to women as "bitches" and "whores," were deeply offensive to some, but they kept silent. Lauderhill was an ideal environment for Mocombe. The atmosphere at the school is sexually charged to an extent inappropriate to the serious business of teaching children who are at a fragile stage of their own sexual development. Adolescent sexual banter consumes a great deal of time in and out of Lauderhill's teachers' lounge. At least in Mocombe's class, cursing and horseplay in the presence of the teacher-- even with the teacher--is acceptable. Unrebutted testimony placed an assistant principal in the main office discussing "sex, among other things," with Mocombe and other members of Lauderhill's staff in the main office at a time when at least one person not employed there could hear their discussion. Phillip Patton (Patton) was Mocombe's principal, first at Sunrise and later at Lauderhill. Patton's patience with Mocombe's behavior was seemingly boundless. In the lax atmosphere at Lauderhill, some of Mocombe's colleagues regarded his frequent references to sex, as well as to religion, politics, and the appearance of female colleagues, as harmless banter. Others, such as Marrisa Cooper (Cooper) who testified on Mocombe's behalf, felt that it was not the school's responsibility to deal with harassment; rather, the person at whom the harassment was directed should have the "balls" to deal with it. Cooper explained that it was understood at Lauderhill that Mocombe [believed] "that women are there to have children, which everyone always disagrees with statements because he always makes these general statements about women, and a lot of people take them as being belittling or degrading women. I don't take it personal because you are not talking to me, I know what I am made of and the way I am, so I never take them personally. But again, everybody maybe don't have the balls that I have." Others at Lauderhill were offended by Mocombe's conduct, but kept their silence, believing that Patton would not impose meaningful discipline on him. In fact, Patton's patience with Mocombe ran out only when Barnes and another teacher, Tracey Bryant (Bryant) put their complaints in writing, at which time Patton was required by School Board policies and procedures to forward the complaints for follow- up by trained investigators. The charges at issue here arise out of Mocombe's interaction with three individuals, student Hudson Mortimer (Mortimer), and the above-mentioned teachers Bryant and Barnes. Each situation is discussed separately in paragraphs 16 through 77, below. Hudson Mortimer: At the time of the incident alleged in the Administrative Complaint, Mortimer was a sixth grader at Lauderhill and a student of Mocombe's. Mortimer shares Mocombe's high opinion of himself as a teacher. Although Mortimer testified at the behest of the School Board, he volunteered, "I don't think he should get his license suspended." On October 11, 2001, Mocombe and Mortimer were "playing with each other." More particularly, Mortimer was "cracking" on his teacher, calling him "ugly and stuff." Mortimer's and Mocombe's accounts of the incident are consistent, and create a picture of two kids on the same level, playing together when they should be working. The incident began with Mortimer and Mocombe trading good natured insults, which included adolescent name-calling, using phrases such as "ugly-ass," while tossing whatever object was at hand at one another. Eventually Mocombe tossed a marking pen at Mortimer which hit the student over one eye, causing minor injury. The School Board contends that this incident constitutes the imposition of inappropriate discipline of sufficient severity to warrant termination. Pursuant to School Board rules and policies requiring that events which may give rise to litigation be documented, Patton, through a staff member, sent an accident report form to Mocombe for him to fill out. Mocombe refused, saying, "I'm not filling out anything, it was an accident. Patton wants to, he can fill it out himself." Patton took no disciplinary action against Mocombe for his refusal to comply with this routine and entirely appropriate request that he follow a reasonable School Board policy. This was not the first time, nor would it be the last, that Mocombe was given to understand that there would be no meaningful consequence to him for ignoring rules which he did not wish to follow. Tracey Bryant: Bryant is a 13-year teacher. Her complaint against Mocombe arises out of an incident which she characterizes as sexual harassment, and which occurred in the teachers' lounge at Lauderhill on April 5, 2001. At the time of the incident, Bryant was one of about a half dozen teachers present in the lounge. While conversing with a colleague, she was interrupted by Mocombe who asked, "Ms. Bryant are you pregnant?" Stunned, she coldly told him, "No." Referring to Bryant and to another teacher then present, Mocombe commented to the effect that their "butts were getting to be alike---hanging." Bryant quickly left the room. Here, as with the incident involving Mortimer, Mocombe and the alleged victim tell similar stories. Both agree that Mocombe was intending to be jocular in his interaction with them. But while Mocombe's alleged student victim supports the manner in which Mocombe interacts with him in general, and in particular is not offended by the allegedly inappropriate conduct set forth in the Administrative Complaint, Bryant felt "humiliated and disrespected" by Mocombe's comments about her size. In addition, Bryant was aware of Mocombe's history of making what she viewed as inappropriate comments about and to females. She had heard him make numerous comments she regarded as inappropriate in the workplace to Hope, a good friend of hers with whom Mocombe would eventually have an acrimonious break-up. When the offensive comment about Bryant's size was directed to her personally, she complained, in writing, to Patton. The conflict between Bryant and Mocombe continued at the hearing. At one point, Mocombe snickered during legal argument being made by the School Board attorney while Bryant was on the witness stand. Mocombe was provoked by a comment made to him by the School Board's attorney (who in turn was admonished to direct his comments to the tribunal, and not to parties or witnesses) and said of the School Board's charges against him, "I find it baffling and humorous, yes." Bryant immediately jumped in to say, "That's how he is, yes. No remorse or nothing." Bryant's reading of Mocombe's attitude is accurate. During his testimony, Mocombe supplied details of the incident which were not presented in the School Board's case, and which reflect a lack of understanding of why his conduct was so offensive. After having months to reflect on why Bryant brought these charges, Mocombe remains unembarrassed by his faux pas of assuming--and saying aloud to a roomful of colleagues--that Bryant's weight gain was due to pregnancy. He volunteered during his testimony that rather than drop the subject after Bryant made her displeasure clear, Mocombe persisted, discussing his exchange with Bryant about Bryant's weight with another colleague, Vicki Drane. While not denying the substance of Bryant's account of the incident in the teachers' lounge, Mocombe argues that Bryant is out to get him because of his break-up with Hope. However, neither Mocombe nor any of his witnesses offered any type of corroboration in support of his assertion that Bryant and others conspired to avenge his spurned lover by getting him fired. After carefully observing Bryant's demeanor under oath, and considering the entire record, the undersigned finds no evidence to suggest that Bryant's testimony was untruthful, or that her complaint was motivated by anything other than her own distress at Mocombe's callous behavior in calling attention to her weight gain, behavior which hurt and embarrassed her in front of her colleagues. Kim Barnes: Barnes met Mocombe in the office at Lauderhill, where she was being interviewed for what would become her first teaching job. As previously noted, the School Board provides annual training to its employees regarding sexual harassment and other types of conduct inappropriate in the workplace. But Barnes' first contact with Lauderhill employees in their main office, where the administrative staff, including the principal, have their offices, suggested an atmosphere inconsistent with what is to be expected in a well managed place of learning. Mocombe acknowledges that he wanted to "impress" Barnes in order to "get into her pants." This is his account of his first meeting with Barnes in the school office: The first -- the very first interaction I had with Ms. Barnes were the beginning of the last school year. We were in teacher planning. She came in for an interview and we were all in the student office discussing sex among other things. Q. Who was we? A. Ms. Cooper, Ms. Mayo, who was the office manager, the assistant principal at that time, Mr. King, myself, and Ms. Barnes. And I made the reference about I want six children. My actual reference was my goal is to have as many little Mocombes running around so I can start my own revolution, take over the world, my own Marxist revolution and indoctrinate them. And she made the reference that she wanted to have five children. I thought hey, we could work out if that's the case. (Transcript page 276, lines 2-19). In hindsight, it was a mistake for Barnes to tell Mocombe the number of children she might like to have. The above-mentioned defense witness, Cooper, was an office worker at Lauderhill and was present and participated in the discussion of "sex among other things." Cooper, knowing of Mocombe's obsession with sex, deemed that Barnes, having joined the discussion to the extent of remarking that she would like to have five children, had granted consent for Mocombe to make sexual advances. Barnes' account of the conversation is slightly different. She recalls telling Mocombe she might like to have five children in response to a direct question by him. Perhaps she voluntarily "made the reference," as Mocombe recalls. This is the type of minor discrepancy to be expected from witnesses asked to recall the details of an event which took place months ago. What is important is that Mocombe did not then and does not now see why the comments which he freely admits making are utterly inappropriate to the time and place where he made them. Although Cooper considers herself a friend of Mocombe, in giving testimony on his behalf, she volunteered that on the day of the Barnes' job interview, Cooper commented to Barnes that Mocombe was "no good." Counsel for Respondent did not suggest what issue this testimony goes to, but the testimony offered on Mocombe's behalf, taken together, suggests a belief by Mocombe and his friends that Barnes was on notice that as a "player," Mocombe was unable to relate to professional women in a professional way, and that he was not expected to do so by his colleagues or supervisors. Barnes was hired and began work at Lauderhill in the fall of the 2000-2001 school year. In the beginning, Mocombe confined his comments to Barnes to acknowledging her presence, usually in terms of her looks, such as, "Hi, sexy." Over time, the comments became more graphic. Mocombe would remark on the size of Barnes' breasts, her "phat (pretty hot and tender) ass" and would state his desire to have sex with her in stunningly offensive terms. In November 2000, Barnes expressed her distress about Mocombe's conduct to Reginald Edwards (Edwards), a substitute teacher who also works as a Baptist pastor. Edwards reported Barnes' concerns to principal Patton. Patton did nothing to follow up. Barnes also expressed her distress to her assigned teaching mentor, Arnetta Davis (Davis). Davis advised her that Mocombe was well known for this type of conduct, and recommended that she try to "nip it in the bud." Barnes is not an aggressive personality, but she tried to make Mocombe understand that she did not appreciate his comments. Mocombe was not deterred. Her efforts to nip Mocombe's conduct in the bud having failed, Barnes conferred again with Davis. Davis confirmed what Barnes had come to suspect: Mocombe conducted himself in this manner because he had been doing so for as long as he had been teaching, with no more than a wrist slap ever imposed. Barnes came to hold a reasonable belief that, in Davis' words, "apparently everyone knew about it, [Mocombe's inappropriate behavior] it was just how he was, and everyone just basically looked a blind eye about it." Davis could not provide Barnes with any assurance that if she complained to Patton, Mocombe would experience any meaningful consequence. Worse, Davis confirmed Barnes' fear that she, Barnes, might be deemed a troublemaker and be "blackballed" if she complained. Barnes was in no position to be blackballed. At the time she began her employment at Lauderhill, she had not yet received her permanent teacher's certificate. Moreover, she needed a summer teaching job and believed she was not likely to get one by being a "troublemaker." Based upon Davis' advice, and her own observation that Mocombe's constant sex talk was part of the landscape at Lauderhill, Barnes reasonably feared that Mocombe would continue to be protected by Patton, and that her own career might be seriously impaired if she sought to avail herself of School Board policies and procedures designed to provide employees recourse from sexual and other types of harassment. Davis' advice to Barnes was reasonable. Davis had witnessed Mocombe conduct himself in an unprofessional and disruptive manner at faculty meetings with no apparent consequences. Interestingly, at least by the time of the hearing, Mocombe's perception of his relationship with Patton differs from the perception shared by most of Lauderhill's professional staff. Mocombe came to feel that Patton would go out of his way to write [Mocombe] up for anything which Patton believed to be a challenge to his authority. But the totality of the evidence suggests that at all times material to this case, the belief widely held by Lauderhill staff that Patton's patience with Mocombe was practically unlimited, is closer to the truth. By March of 2001, Mocombe's conduct toward Barnes had escalated. One day, Barnes came in to the teachers' lounge to check mail. About a half dozen teachers were present. Mocombe freely--indeed proudly--described this incident: he said, for all to hear, "I can't stand up because my dick is hard, or I'm hard." Davis was coming to believe that she could no longer ethically ignore Mocombe's conduct toward Barnes. Around the time Bryant made her written complaint to Patton, Davis went to Patton on Barnes' behalf. Patton in turn went to Barnes and told her that she had to put her complaints about Mocombe into writing if anything was to be done. Barnes did so. By way of defense, Mocombe suggests that Barnes was the aggressor, pursuing him to consummate a physical relationship. Mocombe says he chose not to have sex with Barnes. This excerpt from Mocombe's testimony fairly summarizes his theory of the case: The same reason she was inquiring of Mr. Edwards about me, and she found out about my dealings with women. I turned her down, all right. If that's what you want to ask, we didn't have sex because I didn't want to have sex. Q. She wanted sex but you didn't? A. I didn't say that. I just said we didn't have sex. I chose not to have sex. I didn't say -- Q. Did you ask her? A. We came close a couple of times in the classroom. Q. To have sex with her? A. That's what you want. Yeah, we did. We came close a couple of times in the classroom. Every day for 20 to 25 days in the classroom with this woman, and you think -- maybe you [sic] blind. Yeah, I'm a good looking man. You must be out of your mind. (Transcript page 310, lines 6-24). Mocombe also claimed, with reference to Barnes, "This girl hugged me every morning in the lounge" and that on at least five occasions she voluntarily engaged with him in activities which, if done by teenagers, would be called "making out." Mocombe never attempted to reconcile this testimony with his admission that he wanted to "get into [Barnes'] pants." Moreover, there are numerous ways in which the colorful incidents recounted by Mocombe, if they occurred, could be corroborated. For example, Mocombe claims he said to Barnes in the presence of two teachers, one of whom testified at the hearing, that he confronted Barnes after learning she had filed a complaint. As he described the scene, "I was like, hell, no. I didn't do anything to this heifer. I was like just Friday you were kissing me." Leaving aside the use of Mocombe's highly derogatory term "heifer," had Mocombe said such a thing in the heat of this particular moment, it surely would have made an impression upon Barnes and the other witnesses. Yet none of them was questioned about it. Rather, Mocombe expects the trier of fact to accept his version because, as he put it, "Come on now. Hey, I'm a good looking man. Not only that, I'm intelligent too I don't know what [sic]. So she is ridiculous. But you know what, she got that off. They set me up. It's good. I like that." Upon receipt of the written complaints from Bryant and Barnes, Patton, in accordance with School Board procedure, informed Mocombe of the charges and instructed him not to contact either complainant. According to Patton, Mocombe's response to the accusations was nonchalant. In fact, Mocombe was enraged. He ignored Patton's no-contact directive and approached both Barnes and Bryant in an effort to convince them to drop their complaints. This is how Mocombe described the scenes when he made his unauthorized approaches to Barnes and Bryant: "You know what the fuck, I'm sorry whatever [sic], just cancel this shit. . . . And then I went over to Tracey Bryant, and I was like what, you were having a bad day. I was asking you are you pregnant. She was like, yeah, she was having a bad day. Ms. Russell asked me to apologize. I like apologized. And that was it. That was it. And Ms. Bryant said she was going to drop it, and then that was it. " Elsewhere in his testimony, Mocombe described the post-complaint encounter with Barnes in more detail: ". I walked to her classroom . . . I was like what the fuck is your problem. Are you a psycho. What's the [sic] fuck. You know what, I actually said you are a fucking nut bag. What the hell is this. She was like---she sat on the desk. She got on the desk and was like I'm afraid of you Mocombe. I was like what the fuck is wrong with you. I am like are you a psycho. I am like are you psychotic." Because Mocombe is not charged with insubordination or any other infraction based upon his disregard of the instruction that he not communicate with Barnes and Bryant, ordinarily testimony about these communications would be irrelevant and inadmissible. But, Mocombe did not object to testimony about these communications from School Board witnesses, and was eager to talk about these encounters himself. Mocombe appears to view his accounts of these incidents as exculpatory. To the contrary, if Barnes had ever pursued a sexual relationship with Mocombe, one would expect that his tirade about her complaint would have taken a very different form. Mocombe's testimony on cross-examination provides additional insight into Mocombe's sense of entitlement to disregard basic standards of civility and respect towards colleagues, and to view any attractive co-worker as a potential sex partner. This passage, which summarizes Mocombe's view of the charges against him, is instructive on that point, and also contains an additional admission that he was seeking to have sex with Barnes: Can you get to the real issue here? I don't believe Mortimer is the actual issue here. The actual issue is regarding Kim Barnes and Tracey Bryant. Simply add that on to show some kind of -- that I'm an ineffective teacher. I'm a brilliant teacher. Even Patton will admit to that fact, and nothing here has anything to do with my ability to teach. Because I'll be frank, I'm a brilliant teacher, I'm 27 years old. Continue. Q. Thank you. Let's then go on to the major issue. The heifer as you described Ms. Barnes, you were just seeking to have sex with her; is that right? A. For the most part, yes. (Transcript page 295, lines 11-24). On this and several other occasions during his testimony, Mocombe stated, "I'm 27," in contexts which suggested that in his view, his youth exempts him from standards of conduct which apply to older people. The law makes no such distinction. The common thread which runs through the testimony of witnesses for both sides is that Mocombe believes his youth, good looks and personality exempt him from the constraints of middle class morality, to the extent that it demands that teachers exhibit basic respect for all persons, whether or not, in the teacher's opinion, such respect is deserved. Mocombe is a young man of obvious intelligence and charisma, and Patton did him a disservice in turning a blind eye to his refusal to conform his conduct to the requirements of the standards of his profession. Even at the hearing, Mocombe was unable to control his desire to articulate, in crude terms, his contempt for those he disrespects. This exchange from Mocombe's cross-examination is illustrative: Q. All right. And you also touched her body parts; is that correct? A. Sure. Don't you touch your wife? (Transcript page 298, lines 6-8). Asked at the hearing if he acted inappropriately toward Barnes, Mocombe replied, "According to her I did. No, I honestly don't think so, no. I thought it was in jest. . . . I thought it was just we were something. I didn't just fall off the turnip truck for Christ's sake. I have a Ph.D. in philosophy. Anyway. No, I don't feel I acted inappropriately to Ms. Barnes." Mocombe has had months to think about it, but he continues to adhere to the belief that he is entitled to give free rein to his hedonistic impulses, and to express them in the crudest possible terms. Based upon the undersigned's careful observation of the parties and witnesses under oath, and throughout the hearing, and after careful consideration of the record as a whole, the suggestion by Mocombe and his witnesses that Barnes pursued Mocombe and was a willing participant in make-out sessions with him is expressly rejected. Neither has Mocombe proven a conspiracy by the friends of his former lover to destroy Mocombe's career. Even if School Board witnesses are motivated in whole or part by affection for Hope, and there was no competent evidence to support this view, the question of whether Mocombe may be lawfully terminated must be determined with reference to his conduct, and not the joy, or lack thereof, which witnesses may feel at the outcome. Prior disciplinary history: There is a theme which runs through the incidents which give rise to Mocombe's current difficulties. The common denominator is immaturity. Mocombe does not have an adult understanding of how his behavior offends contemporary standards of appropriate workplace behavior, and the corrosive impact of his coarse language and preoccupation with sex upon the professional environment which the public has a right to expect in its schools. In his short teaching career, he has received three reprimands, all relating to incidents in which he was unable to follow well known rules of acceptable workplace communication. Mocombe received his first reprimand while still a substitute teacher at Sunrise, where Patton was principal. He was reprimanded for using inappropriate language in the presence of students. The reprimand, dated January 5, 1999, included a directive requiring him to enroll in a teacher training class. On April 11, 2000, Mocombe was reprimanded for unprofessional and profane comments made toward his former lover, Hope. Mocombe's tirade occurred in Patton's presence. Mocombe screamed at Hope such comments as, "Fuck you, you bitch--yeah I fucked you, you ain't nothing but a damn whore; you're nothing but a good fuck; I am gonna put my foot up your ass." The letter of reprimand regarding this incident cited Rule 6B-1.006 which requires that educators refrain from engaging in "harassment or discriminatory conduct which unreasonably interferes with an individual's performance or professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. " The letter specifically warned that further misconduct of any nature could result in termination of employment. On January 10, 2001, Mocombe received a letter of reprimand for sending a chain letter to all of his teaching colleagues at Lauderhill in violation of well-established school board policy prohibiting the use of the in-house email system for communications unrelated to work. Mocombe's testimony revealed a complete lack of understanding that he has done anything wrong. Instead, he believes he is being "railroaded" in these proceedings. Based upon his prior disciplinary history, and the manner in which his defense was conducted, the conclusion is inescapable that if reinstated, Mocombe would continue to exhibit, during working hours, his passion for "revolution, education, and hedonism" in whatever manner he pleases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order discharging Mocombe from further employment in the Broward County Public Schools. DONE AND ENTERED this 14th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings 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 this 14th day of March, 2003. COPIES FURNISHED: Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316-1924 Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue The issue in this case concerns whether Respondent is entitled to a new professional service contract as a teacher, or whether the Petitioner may appropriately terminate the Respondent's employment by not entering into a new professional service contract with Respondent.
Findings Of Fact Since the 1988-89 school year, Respondent, Gloria Steel, has been employed as a classroom teacher with the Palm Beach County School District. At all times material to this proceeding, she held a professional services contract. From the beginning of her employment with the Palm Beach County School District, through the 1992-93 school year, Respondent appears to have had a rather uneventful and lackluster professional career. Although all of her evaluations during those years rated her as satisfactory, her supervisors were of the opinion that, in general, she was a weak teacher who needed to improve many aspects of her teaching skills. During the school years from 1988-89 through 1992-93, there does not appear to have been any action by the School District to place Respondent on a teacher assistance plan. When the 1993-94 school year began, a new principal, Ms. Sue Slone, was appointed at Crystal Lakes Elementary School, where Respondent was then teaching. That year, too, appears to have been rather uneventful for the Respondent. She continued to teach second grade, as she had done for several years. For that year Principal Slone gave Respondent a satisfactory annual evaluation. The annual evaluation did not list any areas of concern. During the 1994-95 school year, Respondent was reassigned to teach a third grade class. Respondent experienced some difficulties making the transition from teaching second grade to teaching third grade. At the end of that school year, Respondent received an annual evaluation from Principal Slone that rated her as satisfactory, but, for the first time in Respondent's career with the School District, listed more than one area of concern. As originally issued, Respondent's annual evaluation for 1994-95 listed the following four areas of concern: Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal Demonstrates Knowledge of Subject Matter Also included on Respondent's 1994-95 annual evaluation form were the following comments: Mrs. Steel has had a difficult time transitioning from second to third grade. A professional development plan will be developed for the 1995-96 school year. She has already begun seeking assistance from other staff members. Respondent disagreed with the content of her 1994-95 annual evaluation. Respondent and Ms. Helene Samango, a Classroom Teacher Association ("CTA") representative, met with Principal Slone to dispute the annual evaluation. During that meeting, Principal Slone agreed, without a formal grievance, that there was insufficient documentation to support the area of concern related to "Communication: Verbal and Nonverbal." Accordingly, Principal Stone revised the evaluation by removing that area of concern from the evaluation. The first observation of Respondent during the 1995-96 school year was on October 11, 1995. On that day, Assistant Principal Heiser observed Respondent's teaching for approximately twenty-five minutes. He was very concerned about what he observed. His concerns included such matters as Respondent's failure to teach anything for twenty-five minutes. Respondent also failed to stop misconduct on several occasions and lost instruction momentum on several occasions. During most of the observation, six or seven students in a class of twenty- five were not engaged. In general, the classroom was chaotic. Following the observation on October 11, 1995, Assistant Principal Heiser discussed the observation with Respondent and advised her of his major concerns. He also discussed the matter with Principal Slone. On October 18, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss their concerns about her teaching deficiencies. They offered Respondent the assistance of a Peer Assistance and Review ("PAR") teacher, a teacher with extensive experience who comes into the classroom and words directly with the teacher who is having difficulty in the classroom.1 As a result of that offer, Respondent was in the PAR program for approximately one year. On October 19, 1995, Respondent was also provided with a School Site Assistance Plan. The plan was designed to address the specific teaching deficiencies that Principal Slone and Assistant Principal Heiser were concerned about. Assistant Principal Heiser conducted an informal observation of Respondent's class for twenty-four minutes on December 1, 1995. Again, he observed deficiencies in Respondent's teaching that concerned him. Following the informal observation, he discussed his observations with Respondent and suggested ways she could improve her teaching. On December 4, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss her teaching. Assistant Principal Heiser discussed his most recent observation of Respondent and described the teaching deficiencies he had observed. At the meeting they also discussed Respondent's progress on the School Site Assistance Plan. Respondent had accomplished some, but not all, of the activities on the plan. Both Mr. Heiser and Ms. Slone emphasized to Respondent that she needed to work over the holidays on her professional reading and she needed to complete all of the activities on the assistance plan. Respondent's mid-year evaluation was prepared on December 7, 1995. Principal Slone identified eight (8) areas of concern, with the documentation for those concerns being provided by the observations of Principal Slone, Assistant Principal Heiser, and Mr. Spence.2 Concerns were in the following areas: (1) management of student conduct, (2) instructional organization and development, (3) presentation of subject matter, (4) communication: verbal and nonverbal, (5) knowledge of subject matter, (6) ability to plan effectively, (7) self control, and (8) adherence to and enforcement of school policies. Principal Slone included the following comments on Respondent's mid-year evaluation form: Mrs. Steel was given a school site assistance plan in October. At our conference 12/4/95, it was evident that she had not done the required activities to assist her in correcting the areas of concern. Many of the same problems that were observed last year continue to date. I believe she needs to address these areas immediately. She particularly needs to do the professional reading requested. My major concern is the misinformation that is given to students during direct teaching. The deficiencies noted on the December 7, 1995, mid- year evaluation were a fair and accurate itemization of deficiencies in Respondent's performance during the period covered by the evaluation. During the period covered by the evaluation, Respondent's teaching performance was repeatedly and consistently unsatisfactory. Due to the continuing deficiencies in Respondent's performance, the School Site Assistance Plan was continued for the next semester. Respondent's participation in the PAR program also continued. During the second semester, Respondent was observed by Principal Slone on January 31, 1996, and by Assistant Principal Heiser on March 28, 1996.3 While there were some improvements in some of Respondent's teaching skills, none of the improvement was significant or consistent. There was improvement in the areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies," which involve matters other than classroom teaching skills. On March 29, 1996, Principal Slone prepared Respondent's annual evaluation for the 1995-96 school year. The evaluation rated Respondent's performance as unsatisfactory. The evaluation identified six areas of concern, all of which had previously been identified as areas of concern on the mid-year evaluation. (The areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies" were not listed as areas of concern on the annual evaluation on March 29, 1996.) The annual evaluation included the following comments: It is evident that Mrs. Steel has been working to improve her performance, however, at this time, consistency is lacking. In spite of the assistance provided by a PAR teacher as part of a school site Professional Development Plan, Mrs. Steel continues to have difficulty in the areas of concern. It is my expectation that Mrs. Steel continue to strive for acceptable levels of performance. As a result of Respondent's continued teaching deficiencies during the second semester, on February 6, 1996, Principal Slone had written to the Superintendent to request that Respondent be notified that she would be given a year within which to correct the identified deficiencies. In pertinent part, the letter read as follows: On December 7, 1995, I completed a mid- year evaluation of Gloria Steel's performance as a classroom teacher (copy attached). I noted deficiencies in the following areas: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: verbal and Nonverbal Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Self Control Adheres to and Enforces School Policies I have discussed my concerns with Ms. Steel and provided her with assistance in correcting these deficiencies. However, these deficiencies still exist. Therefore, I am requesting that you provide notice to Ms. Steel as required by Section 231.36, Florida Statutes, that she will be given the subsequent school year within which to correct these deficiencies. Following receipt of the Principal Slone's letter of February 6, 1996, the Superintendent of Schools, by letter dated March 27, 1996, advised Respondent that she would be given the next school year within which to correct the deficiencies identified by her principal. In pertinent part, the Superintendent's letter read as follows: Please be advised that I have been notified by your principal, Sue Slone, that your current performance as a classroom teacher is unsatisfactory. You have previously been advised of deficiencies by your principal. Pursuant to Section 231.36, Florida Statutes, this letter is to notify you that you will be given the next school year to correct the deficiencies noted by your principal. You will be placed on a Professional Development Plan as detailed in the Classroom Teacher Assessment System (CTAS). If the deficiencies are not corrected during the prescribed time period, a change in your employment status may be recommended. If you have any questions concerning the procedures involved in this situation, please contact, Dr. Walter H. Pierce, Assistant Superintendent/Division of Personnel Services. Shortly thereafter, School District personnel began providing district level assistance to Respondent. During the summer months, June through August, Respondent was required to read and complete various professional materials and to attend summer inservice. By letter dated April 17, 1996, Respondent wrote to Dr. Walter H. Pierce and requested a transfer for the 1996-97 school year. The letter did not state any reason for the requested transfer. By letter dated July 9, 1996, Dr. Pierce advised Respondent that her request for transfer had been considered pursuant to Section 231.36(3)(e)1, Florida Statutes, and that the request for transfer was denied. The union representative Ms. Helene Samango made at least two further requests to Dr. Pierce that he grant the requested transfer. Ms. Samango asserted that there was a personality conflict between Principal Slone and Respondent which would make it unlikely or impossible for Respondent to receive a fair evaluation from Principal Slone. On each occasion that Ms. Samango raised the issue of Respondent's request for a transfer to another school, Dr. Pierce denied the request for a transfer. Dr. Pierce was not convinced that there was any personality conflict between Principal Sloan and Respondent that would prevent Respondent from receiving fair evaluations. Dr. Pierce believed that the 231 Professional Development Plan was fair and objective, and that it could be appropriately implemented without transferring Respondent to another school. Also, as a matter of policy, Dr. Pierce preferred not to transfer teachers who were having performance difficulties. Principal Slone's evaluations of Respondent's performance as a teacher were based solely on Principal Slone's professional evaluation of what she saw and what was reported to her by other administrators who observed Respondent's teaching performance. Principal Slone's evaluations of Respondent were not motivated by any inappropriate personal considerations. Most of the observations of Respondent's teaching performance were done by observers who used the FPMS summative observation instrument. That instrument is an accepted and appropriate instrument of observing and evaluating teacher performance in the classroom. Specifically, it was an appropriate instrument for use in the observations of Respondent's performance in the classroom.4 Dr. Barbara Jeanne Burdsall is employed by the School Board as the Manager of Professional Standards. Dr. Burdsall is responsible for developing, monitoring, and providing remediation for the evaluation systems for teachers. Dr. Burdsall's department receives copies of all mid-year and annual evaluations. They are reviewed by Dr. Burdsall to determine whether a teacher needs assistance and, if so, whether a School Site plan or a District plan should be initiated. School Site plans are initiated for teachers with fewer than five concerns. District plans are initiated for teachers with five or more concerns. Dr. Burdsall was responsible for implementation of Respondent's 231 Professional Development Plan. As was her right, Respondent requested a meeting for an informal review of the documentation of unsatisfactory performance. Dr. Burdsall conducted that meeting on June 4, 1996. The purpose of the meeting was to review the deficiencies and the documentation of the deficiencies for adequacy. Helen Samango, the CTA Representative, was present at the meeting. No questions were raised about the sufficiency of the documentation. The Palm Beach School Board has the following plans and procedures to assist teachers who have performance deficiencies: the School Site Plan, which deals with just the school site principal and the teacher, the Peer Assistance and Review Program, which trains master teachers to assist teachers who are having difficulties in the classroom, and the 231.36 Professional Development Plan, which follows the statutory provisions of Section 231.36, Florida Statutes. The Department of Education approved the School Board's 231 Professional Development Plan. Dr. Burdsall is of the professional opinion that the School Board of Palm Beach County Teacher Evaluation System complies with all of the requirements of Sections 231.29, and 231.36, Florida Statutes.5 Dr. Burdsall established a team to implement the Respondent's 231 Professional Development Plan. The team included Dr. Burdsall, a curriculum person, an outside university professor, other district experts, and the school site administrators. The team members could use the FPMS summative observation format or they could prepare narrative reports of their observations. Each observation by a team member was required to last at least twenty minutes. Each observer was also required to follow the requirements of the collective bargaining contract. The team included experts in various aspects of teaching, teacher observation, teacher evaluation, and teacher training. All of the team members provided, or attempted to provide, assistance to the Respondent during the 1996-97 school year. Dr. Burdsall provided Respondent with a summer remediation program and strategies, a list of all of the seminars available in Respondent's areas of concern, and a copy of the portion of the 231 Professional Development Plan, which would be implemented in the fall. Among other things, that portion of the plan identified the observers who would be working with Respondent. The portion of Respondent's 231 Professional Development Plan for August through December of 1996 consisted of workshops, seminars, professional observations with feedback and strategies for improvement, school site administrator assistance, and a mutually agreed-to colleague to work with Respondent in the classroom. After the summer months' activities, Dr. Burdsall held a September 3, 1996, meeting with Respondent, Principal Slone, Assistant Principal Heiser, and CTA Representative Helene Samango. Respondent expressed enthusiasm about the new school year. She had completed her work over the summer, was continuing with her PAR teacher, and wanted to attend some full- day workshops. Respondent was notified as to when the observers would be visiting her classroom. Respondent was advised that if she wanted to observe instruction within the school or elsewhere in the district, Ms. Samango would contact Ms. Burdsall, and the District office would provide the funds. Respondent asked to work with Ms. Carla Lehrma and Ms. Gwen Simpson, both of whom were third-grade teachers at Crystal Lakes Elementary School. Throughout Respondent's 231 Professional Development Plan she had access to as much peer assistance and modeling as she felt she needed. The peer assistance was in addition to the year of assistance by the PAR teacher. Respondent's mid-year evaluation was completed on December 6, 1996, and was based on six (6) observations. On that evaluation, Respondent was rated as unsatisfactory with six identified areas of concern. Respondent was continued on the 231 Professional Development Plan. A meeting was held with Respondent regarding the plan on December 17, 1996. During both semesters of the 1996-97 school year, Respondent was observed by Principal Slone and by other professional observers. The other professional observers who observed Respondent's classroom teaching were Ms. Sandra Gero, Assistant Principal Larry Heiser, Ms. Kathleen Gustafson, Dr. Jeanne Burdsall, Ms. Barbara Clark, and Dr. Mary Gray. All of the observers documented the same areas of concern that Principal Slone observed. There was a lack of subject matter being presented; a lack of instructional organization and development; and a lack of classroom management. The students were not on task and the choice of instruction was not appropriate. Respondent was not demonstrating knowledge of the subject matter or an ability to plan effectively. By way of example, Dr. Mary B. Gray observed Respondent on October 8, 1996, and on February 12, 1997. Dr. Gray is an Assistant Professor in the Department of Educational Leadership at Florida Atlantic University, and has been in that position for eighteen years. In that position, Dr. Gray teaches personnel development and leadership courses. She also teaches supervision of instruction. These are all preparatory courses for school administrators. During her observation on October 8, 1996, Dr. Gray was in the classroom for the full fifty-five minute period. There were twenty-nine students present, and during Dr. Gray's scan of the classroom, about a third of the students were not doing anything they were supposed to be doing. During the period Respondent did not state what the objective was for the lesson. She lost momentum and told the students to put their heads down because she said she was not happy with them. A clock was used that was not related to the lesson. There was no objective stated. The children were confused about what was going on. Some of respondent's efforts at classroom control were ineffective. There was no meaningful content taught during the period. On February 12, 1997, Dr. Gray observed Respondent's teaching for thirty-two minutes. There were twenty-seven students present. Dr. Gray observed a mathematics class. Respondent started eight minutes late. Again the pacing was slow. Dr. Gray observed the same pattern of teacher behavior that she had observed before. Multiple questions were a problem in both observations. Respondent accepted some incorrect answers from students without providing the correct answers. There continued to be a serious problem with the off-task behavior. Respondent's teaching was not improving to any significant degree. Based on her two observations of Respondent, Dr. Gray was of the professional opinion that Respondent was not a competent teacher. Ms. Sandra Gero observed Respondent on September 25, 1996, and on January 13, 1997. Ms. Gero is an Area 2 Instructional Support Team Member. In her position she supports the schools in any way necessary in matters concerning instruction and personnel issues. Ms. Gero is involved in observations of teachers on 231 Professional Development Plans. On September 25, 1996, Ms. Gero observed Respondent's classroom for 55 minutes. Ms. Gero observed a language arts lesson, because this is her area of expertise. The children were doing a handwriting assignment, printing upper and lower case letters. This activity was developmentally inappropriate for third grade. Ms. Gero did not see anything of instructional significance to the activity. As the students moved into a reading activity Ms. Gero observed that negative behavior was being reinforced. Ms. Gero observed Respondent's use of ineffective instructional strategies. At 9:30 a.m. five students were off-task. By 9:45 a.m. there were eight students off-task. Ms. Gero observed serious problems with student management and the lack of a classroom management plan. There was no direct teaching. At the conclusion of the observation, Ms. Gero made some suggestions to Respondent that would, hopefully, help her improve her teaching. Ms. Gero's second observation lasted an hour and a half. Ms. Gero observed disjointed chaos in the classroom. The children's disruptive behavior was controlling the entire classroom. By 8:20 a.m. there had been no meaningful instruction. From about 8:30 a.m. until about 9:00 a.m. Respondent was at her desk looking through papers. During this second observation there was a worse classroom situation than during the first observation. There was no direct teaching during the ninety minutes of her observation. The six deficiency areas were still present. In Ms. Gero's independent professional opinion, Respondent is not a competent teacher. Assistant Principal Heiser observed Respondent's class on October 2, 1996. Instructional organization was becoming a major issue. There was still no presentation of subject matter and the deficiencies previously identified were still observed to be present. Dr. Burdsall observed the Respondent's classroom teaching on December 2, 1996. The observation reflected that there was no teaching of subject matter, and there was a lack of management of student conduct. Dr. Burdsall's observation directly reflected the deficiencies previously documented by Principal Slone. There was no meaningful teaching going on during the observation. Dr. Burdsall observed Respondent's classroom teaching again on February 20, 1997. Again there was no meaningful instruction taking place. It was very chaotic. Dr. Burdsall was able to form an independent opinion as to Respondent's competency. That opinion was that Respondent is incompetent to teach. Ms. Barbara Clark observed Respondent on November 8, 1996, and on February 26, 1997. Ms. Clark is a program planner for the School Board of Palm Beach County, Florida. She has been with the School District for almost twenty (20) years. Her responsibilities include creating or facilitating the writing of curriculum, preparing materials for teachers, and providing inservice to teachers. Both of Ms. Clark's observations of Respondent lasted for approximately an hour and a half. Ms. Clark met with Respondent after the observations and provided feedback to her regarding the observations. Ms. Clark invited Respondent to call her if she could be of any further assistance. Ms. Clark's independent professional opinion, based on her observations and past professional training and experience, was that Respondent is not an effective teacher. Ms. Clark observed some improvement in Respondent's teaching at the second observation, but the improvement was not sufficient to be effective. During the course of the implementation of Respondent's 231 Plan, Dr. Burdsall, the Principal, the Assistant Principal, the Union Representative, and the Respondent met periodically to discuss the observations, the progress of the Respondent's work, any areas that needed clarification, and to see if there was any further assistance that could be offered. Respondent was also provided with a math aide, Herbert Cohen. Dr. Burdsall, the Principal, the Assistant Principal, and the Union Representative, met with Respondent on November 26, 1996. At the meeting they discussed the continuing need to tie activities to objectives and to the theme. Respondent had attended several seminars and workshops. They also reviewed the observations completed by Ms. Clark and Ms. Gustafson, addressed the issues of centers and cooperative learning in Respondent's classroom, discussed the mistakes that were being made by Respondent with respect to spelling, and gave Respondent some strategies to help her focus her teaching. Assistant Principal Heiser did not see any improvement in Respondent's teaching; the same problems continued to exist. Dr. Burdsall met with the Principal, the Union Representative, and the Respondent on February 28, 1997, to again assess the status of Respondent's progress on the plan and to determine what additional assistance was needed. The original concerns were still present. On March 12, 1997, Assistant Principal Heiser and Principal Slone completed an Annual Evaluation for Respondent. In completing the annual evaluation, Principal Slone relied on her own observations and on all of the other observations by the members of the professional development team. Respondent continued to have six areas of deficiency, in spite of extensive remediation and assistance. Respondent continued to have a consistent pattern of problems in the six specific areas identified. Because the deficiencies had continued, Principal Slone communicated to the Superintendent that Ms. Slone was not recommending Respondent for reappointment for the 1997-1998 school year. Based on the Principal's evaluation of Respondent and the recommendations the Principal made to the Superintendent, Respondent was notified by the Superintendent that she would not be re-appointed, and that she had the right to request a hearing before the Division of Administrative Hearings
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Palm Beach County, Florida, enter its final order denying renewal of Gloria Steel's professional service contract. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 30th day of July, 1999.
