Findings Of Fact Based upon my observation of the witnesses-and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times material hereto, the Respondent held teaching certificate number 516212, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the area of substitute teacher. During first period on October 30, 1984, Mr. Mark Fisher, a teacher at Nautilus Junior High School in the Dade County School District, called Dr. Frederick, assistant principal in charge of curriculum, to advise that he was ill and needed to leave school. Mr. Fisher's teaching assignment consisted of five regular classes of industrial arts and one class of crafts with special education students. The special education class was held during the sixth period, from 3:00-4:00 p.m. Ten students were assigned to the sixth period class. The category of special education students in the class included learning disabled, educationally mentally handicapped and emotionally handicapped children. The Respondent was called to substitute for Mr. Fisher at the end of the first period on October 30, 1984. The Respondent reported to the Nautilus Junior High School at approximately 11:00 a.m. and was assigned to Mr. Fisher's class, Room 141. The Respondent had previously substituted at Nautilus Junior High School on October 9, 1984. On that day, Dr. Frederick reviewed the guidelines for emergency substitute teachers with the Respondent. The Respondent signed the guidelines certifying that he had read and understood the school's procedures. The Respondent received a written assignment when he reported to Nautilus Junior High School on October 30, 1984. The assignment specifically noted that the sixth period class was a special education class. Prior to leaving the classroom, Mr. Fisher wrote the lesson plans for his various classes on the black board. After the 5th period class was over and immediately prior to the commencement of the 6th period, anywhere from one to four students who were not regularly assigned to Mr. Fisher's class entered room 141. When the bell rang for the commencement of the 6th period class the Respondent called roll. There were ten students assigned to the class. Eight students responded to the roll call and the Respondent marked two students absent. After roll was called, the Respondent allowed the students to work on their projects. The students went to a closet, retrieved their projects and began working on them. The students were situated at work benches in the class actively working on projects which involved sanding, gluing, nailing and similar processes. The students were not allowed to use any of the electrical equipment or power tools. The students' activity involved a certain amount of movement within the classroom such·as standing up, comparing projects and going to the supply closets for more paste and other materials. At some point during the class period D.W., a female student, went into a closet located in the rear of the classroom. While D.W. was in the closet two male students, at separate times, went into the closet with her. While in the closet, D.W. had oral sex with at least one of the boys. While D. W. and the boys were in the closet, several other students went over to the closet and looked in. One of the students in the class got a stool and stepped up and looked through a hole at the top of the closet door. Two other students also stood on the stool and looked into the closet. (Although D.F. testified that he was on the stool for five to ten minutes, his testimony as to the amount of time that he was standing on the stool was not persuasive. Likewise, his testimony was neither clear nor persuasive enough to determine whether the two other students went back and stood on the stool at the same time or whether they went back separately.) The testimony concerning the amount of time that D. W. and the other students were in the closet was not persuasive and it is impossible to determine the amount of time that D. W. and the other students spent in the closet. Several days following the incident, D.W. informed Ms. Spearman, a special education teacher, about what had happened during the 6th period class on October 30, 1984. Official recognition was taken of the fact that two boys and one girl entered guilty pleas to charges arising from the incident of October 30, 1984. Room 141 is specially designed to be utilized as an industrial arts or "shop" class. Room 141 is larger than typical classrooms at Nautilus Junior High School. According to the diagram introduced as Petitioner's Exhibit 2 and included herein as Appendix B, the entrance is located in the upper northwest corner of the classroom. The teacher's desk is located in the extreme northwest portion of the classroom next to the main entrance. The classroom is approximately 69 feet long (east to west) and 43 feet wide (north to south). There are several cupboards or closets located along the front of the west side of the classroom and a walk-in closet located in the upper northeast corner. The doors of the walk-in closet face to the south. The rear closet is approximately 15 feet deep, 8 feet high and 8 feet wide. The rear closet has double doors and at the top of the right door there is a small cutaway portion in a rectangular shape. Wood supplies are kept in the rear closets and other , types of supplies are kept in the forward closets. The classroom contains two work tables, nine work benches and one bench saw. The teacher's desk faces the work tables and work benches. The Respondent was unable to see the front part of the rear closet from where he was sitting at the teacher's desk. The Respondent first obtained his teaching certificate for substitute teaching from the Department of Education for the State of Florida in December of 1981. The Respondent substituted at over fifty different schools in Dade County and was teaching on the average of four to five days a week prior to the incident on October 30, 1984. The Respondent was employed on numerous occasions as a substitute teacher at Biscayne Elementary School in Dade County, Florida, during the years 1982, 1983, and 1984. According to Ms. Glick, the principal of that school, the Respondent's work was very satisfactory and to her knowledge, there were no incidents in any of his classes involving student misconduct nor were there any complaints about his teaching ability. The Respondent was called to teach frequently at Biscayne Elementary School because his work was satisfactory and he was "pleasant to the children and related well to the rest of the staff." The Respondent served as a substitute teacher at Comstock Elementary School in Dade County several times during the period of 1983-1984. Mr. Levin, the principal at that school, observed the Respondent on several occasions while working at Comstock and each time the Respondent was observed, the students in his classes were involved in a learning process, there were no disciplinary problems and the students seemed to like him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE and ORDERED this 16th day of December, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1986. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 David Rappaport, Esquire 265 Northeast 26th Terrace Miami, Florida 33137 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 4. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 8. Rejected as subordinate. Partially adopted in Findings of Fact 5 and 6. Matters not contained therein are rejected as recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 141. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as not supported by competent substantial evidence and/or a recitation of testimony. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as not supported by competent substantial evidence and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or a recitation of testimony. Rejected as subordinate. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 19. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as subordinate. Adopted in Finding of Fact 3. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary.
Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
The Issue May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
Findings Of Fact Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes. Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows: 231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction. On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN). Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president. On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question: Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations? Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing." On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent part: It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law. The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible. Implementation and compliance are to be at the local level. (Emphasis supplied) Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools. Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher. In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems. According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services. The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers. In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter, Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request. On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels. On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent. TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus. On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows: We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . . Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal hearing . . . . Respondent did not deny TEA's request for formal hearing. Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes. In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1 Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District. Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.) Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll. Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO. At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO. There are no professional (certificated or licensed) teachers on TEA's Board of Directors. It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either. TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development. Mr. Daniels has a background in insurance and union organization and litigation. Ms. Heard's qualifications were never clearly revealed. It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed. Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained. It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher. Also, the cost and objectives of Worwetz's courses were not explained. However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services. Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard. TEA currently has no employees, agents, or contractors who can offer continuing teacher education. TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks. TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service. TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute. Respondent School District, as represented by Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes. Respondent School District, as represented by Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions. Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows: In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation. See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990). In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993). In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996). In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998). In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999). On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena. . . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998). [Bracketed material added for grammar and clarity.] The PERC Order gave Mr. Daniels 10 days in which to respond. TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5 DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of January, 2001.
The Issue Whether Respondent's teaching certificate should be revoked pursuant to Chapter 231, Florida Statutes, as set forth in petition, dated November 8, 1979. She is charged with obtaining a Florida substitute teaching certificate by fraudulent means and of grossly immoral conduct. Respondent Judy D. Linder appeared at the hearing unaccompanied by legal counsel or other representative. Her rights in an administrative proceeding were explained to her by the Hearing Officer and she acknowledged that she understood such rights. She elected to represent herself at the hearing. At the commencement of the hearing, the parties advised the Hearing Officer that the Respondent admitted the barges against her and did not desire to contest the allegations contained in the petition. The Respondent agreed to this arrangement pursuant to an understanding with Petitioner that it would recommend disciplinary action consisting of suspension of her teaching certificate for a period of one year to the State Board of Education. Respondent was advised by the Hearing Officer as to her rights to contest the allegations, but Respondent stated that she did not desire to do so. Accordingly, the matter was tried as an uncontested proceeding, pursuant to Rule 28-5.25(5), Florida Administrative Code. Petitioner presented documentary evidence in support of its allegations and the sole witness at the hearing was the Respondent who testified as to matters in mitigation and extenuation. (Petitioner's Exhibit 1).
Findings Of Fact On January 7, 1975, Respondent pleaded guilty to petit larceny in violation of Section 811.021(1)(d), Florida Statutes, in the Duval County Court, and was convicted of the offense and sentenced to pay a fine of $50.00, plus court costs. The offense involved taking unpurchased merchandise consisting of infant wear and two pairs of hose from a department store with intent to convert the same to personal use. (Petitioner's Exhibit 2) On June 5, 1975, Respondent was found guilty in the County Court of Duval County of violating driver license restrictions in violation of Section 322.16, Florida Statutes. She was sentenced to pay a fine in the amount of $15.00, plus court costs. (Petitioner's Exhibit 3) On March 1, 1977, Respondent pleaded guilty to the offense of petit larceny in violation of Section 812.021(1)(d), Florida Statutes, in the County Court of Duval County, and was sentenced to be imprisoned in the county jail for a term of 30 days, plus payment of court costs. The offense involved taking unpurchased merchandise consisting of one bottle of lotion from a discount store with intent to convert the merchandise to personal use. (Petitioner's Exhibit 4) On August 9, 1978, the State Department of Education received an application for a substitute teacher's certificate from Respondent. Section V of the application read as follows: "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? Yes No . If yes, give details below." The word "No" was checked on the application. Section VI of the application included a signed notarized statement that the applicant understood that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. It further stated "I further certify that all information pertaining to this application is true and correct." (Petitioner's Exhibit 5) On September 21, 1978, Respondent was issued Florida Substitute Teaching Certificate No. 441949, Substitute, Sank 3, valid through June 30, 1988. (Petitioner's Exhibit 6) Respondent testified that she had falsified her application for certification because she was "afraid." She further testified that she is now married and has a family and that she has rehabilitated herself. She desires to retain her certificate and work toward obtaining a full-time teacher's certificate in the future. She is presently employed as a teacher's aide at an elementary school in Boynton Beach, Florida. (Testimony of Respondent)
Recommendation That Respondent's substitute teaching certificate be suspended for a period of one year pursuant to Section 231.28, Florida Statutes. DONE and ENTERED this 6th day of May, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Craig R. Wilson, 315 Third Street West Palm Beach, Florida Hugh Ingram, Administrator Professional Practices Council Room 3, 319 West Madison Street Tallahassee, Florida 32301 Ms. Judy D. Linder 719 Executive Center Drive Apartment 205-E West Palm Beach, Florida 33401
The Issue Whether the Respondent should be terminated from her employment with Petitioner as a result of her teaching performance.
Findings Of Fact Respondent, Margaret Irvin (Irvin) has been employed as a classroom teacher with the Palm Beach County School District (School District) since the 1965-66 school year, with a break in service between 1967 through 1978 and again from 1979 through 1982. Irvin received a continuing contract for the 1985-1986 school year and has remained on continuing contract with the School District through the 1994-1995 school year. Irvin is employed pursuant to a Professional Service Contract from which she may be discharged only in accordance with the terms of Sections 231.36, 231.28 and 231.29, Florida Statutes. From 1982 through June 1993, Irvin taught pre-kindergarten at Belle Glade Elementary School (Belle Glade) and received satisfactory evaluations. The use of certified classroom teachers in the School District's pre- kindergarten program was discontinued at the end of the 1992-1993 school year. Irvin is certified by the State of Florida to teach all early childhood grade levels, which would include pre-kindergarten through sixth grade. For the 1993-1994 school year Irvin was assigned to teach a first grade class of fifteen students at Belle Glade. During the 1993-1994 school year, Lynn McGee (McGee) was the principal at Belle Glade. As part of her duties, McGee was responsible for evaluating Irvin's work performance. A Classroom Teacher's Assessment Evaluation Form is used in evaluating a teacher's performance in the classroom. This form is used for mid-year evaluations and for annual evaluations. Specific areas are marked on the form as being either satisfactory or unsatisfactory. If a teacher receives unsatisfactory in fewer than five areas, the teacher is given an overall rating of satisfactory. If a teacher receives unsatisfactory in more than four areas, the teacher is deemed to have an overall unsatisfactory rating. In December 1993, McGee presented Irvin with a mid-year evaluation of her performance as a classroom teacher. The overall evaluation was unsatisfactory and identified the following areas in which Irvin needed to improve her teaching performance: Management of Student Conduct. Instructional Organization and Development. Presentation of Subject Matter. Establishes an Appropriate Classroom Climate. Demonstrates Ability to Plan Effectively. Develops and Maintains an Accurate Record Keeping System. In the area of Management of Student Conduct, the teacher is evaluated on whether she keeps the students under control at all times. This area also covers teacher "withitness", which means the ability to know what the students are doing at all times. During her observations for the mid-year evaluation, McGee saw students talking and walking around and not being on task. Irvin had a chart on the wall for a behavior plan but she was not implementing the plan in the classroom. Irvin demonstrated a lack of "withitness." The area of Instructional Organization and Development covers lesson delivery, whether a teacher uses a variety of techniques, whether she teaches a complete lesson, and the actual presentation of the lesson itself. During McGee's observations, Irvin relied heavily on the use of dittos and did not use a variety of teaching techniques. Although all first grade teachers were using the same dittos, Irvin could have refrained from using one ditto sheet after another and varied the activities. Irvin did not follow the steps which are used to teach a lesson: orientation to the students, beginning review, teaching the concept, and an ending review or closure. Irvin asked questions which called for a unison response, which is usually not appropriate. A unison response does not allow the teacher to determine if all the students are giving the correct response to the question. Irvin did not ask a lot of "higher order questions", which are questions requiring the student to analyze and apply the information given. The area of Presentation of Subject Matter is specifically directed to the question of whether the teacher teaches concepts. A concept is taught by giving a definition and providing examples and nonexamples. McGee did not observe Irvin teaching any concepts. The area of Establishes An Appropriate Classroom Climate looks at the environment of the classroom, including the physical environment and whether the classroom is warm, caring and conducive to learning. When McGee observed the classroom, it did not have an environment which was conducive to learning. The room was not "print rich", which means that the classroom did not have a lot of written materials on the wall, labels on objects, and pictures on the walls. McGee's opinion was that the classroom did not present a warm and caring environment. The area of Demonstrates Ability to Plan Effectively is directed to the teacher's ability to put a plan together and whether the teacher is executing the plan when observed. Irvin did not have written lesson plans. The area of Develops and Maintains an Accurate Record Keeping System deals with properly recording the students' grades. During the first nine weeks of school, Irvin failed to maintain a grade book. In an effort to assist Irvin to improve, McGee sent Irvin to a workshop, provided demonstration lessons, and told Irvin to observe some of the other first grade classrooms. Additionally, Irvin was provided with sample lesson plans and was told to attend the weekly meetings of the first grade teachers where they did their lesson plans. Irvin sometimes did not go to the meetings or was late. Irvin was also provided with a sample grade book. Irvin disgreed with the content of the December 1994 evaluation. In March 1994, Irvin received from McGee an annual evaluation of her performance as a classroom teacher rating her overall performance as unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Establishes Appropriate Classroom Climate Demonstrates Ability to Plan Effectively In the area of Management of Student Conduct, Irvin still had students who were not on task. There was down time in the class because of student misbehavior and failure to follow instructions, resulting in very little teaching time. In the area of Instructional Organization and Development, Irvin continued to rely heavily on dittos and did not vary her teaching techniques. The activities were disjointed rather than flowing and interrelated. Irvin did not teach a complete lesson which included the necessary elements for a lesson. In the area of Presentation of Subject Matter, Irvin again failed to teach concepts. In the area of Establishes an Appropriate Classroom Climate, McGee observed that Irvin did not smile or express enthusiasm. Her classroom did not provide a happy environment which was conducive to learning. Irvin was still not preparing lesson plans. McGee observed that for the week of February 7-11, 1994, there was almost no planning. By the time of the annual evaluation, Irvin had begun to keep a grade book. She was evaluated satisfactory in the area of Develops and Maintains an Accurate Record Keeping System. Irvin disagreed with the content of the March 1994 Evaluation. After the 1993-1994 annual evaluation, McGee notified the superintendent of schools that Irvin's annual evaluation was unsatisfactory. The superintendent sent a letter to Irvin advising her that she would have the following school year to remediate her teaching deficiencies. On May 4, 1994, Dr. Christina Diaz, a board certified neurologist, diagnosed Irvin as having Attention Deficit Disorder (ADD). Irving advised McGee a few days later that she had been diagnosed with ADD. On June 9, 1994, Irvin was placed on a Professional Development Plan (PDP) by the administration of Belle Glade to aid Irvin in remediating each area of concern contained in the March 1994 evaluation. The PDP also contained materials regarding deficiencies in the area of Develops and Maintains Accurate Record Keeping System, which was not included on the March 1994 evaluation as an area of concern. The PDP provided that a team of educators, including someone employed outside the School District, observe Irvin's performance and provide her with feedback and improvement strategies. The PDP also provided for Irvin to attend workshops, to review teacher effectiveness manuals, and to observe the performance of other teachers. Irvin was assigned as a kindergarten teacher in the 1994-1995 school year. The principal at Belle Glade for the 1994-1995 school year was Glenda Garrett (Garrett). Like McGee, Garrett's duties included evaluating Irvin. In September, 1994, Irvin attended an assistance review meeting, where she received the list of observers and the approximate dates that they would be observing her classroom performance. Through out the implementation of the PDP, Irvin was kept advised of the times when she would be observed. On September 29, 1994, Melvis Pender (Pender), an Area IV Instructional Support Team member in math and science, observed Irvin. The students were noisy. Irvin asked questions that called for unison responses, which made it difficult for the teacher to detect students who were giving incorrect responses. The discipline plan that Irvin was using was not effective and emphasized the bad behavior. Mr. Pender made recommendations on ways to improve in the areas that needed improving and provided them to Irvin. On September 30, 1994, Juanita Malone, assistant principal at Belle Glade, observed Irvin. The students were very noisy and Irvin kept turning the lights on and off to get their attention. Irvin was teaching the children about patterns during the observation. She started using links of four different colors to illustrate the lesson, but when she saw that a four color pattern was too difficult for the children to understand she switched to a simpler two color pattern. The students had not used the links before and many of the students spent time during the lesson playing with the links. Ms. Malone shared her observation with Irvin. On October 21, 1994, Irvin was observed by Jeanne Burdsall ("Burdsall"), the Manager of Professional Standards for the Palm Beach County School System. During the observation, Irvin did not teach a lesson. She did not have any lesson plans. Irvin did not smile or show any enthusiasm during the observation. She did not teach any concepts. Irvin lost valuable teaching time while she was looking for a misplaced "birthday box." She gave birthday cake to the children just prior to lunch. Again she lost teaching time while she had each child individually take his placemat to the sink, resulting in the children becoming disruptive while they were waiting for all the children to clean up. Burdsall put her observations and suggestions for remediation in writing and gave it to Irvin. On October 26, 1994, Irvin met with Burdsall, Garrett, and Clarence Gunn, her union representative to review the progress of the PDP. During the meeting, Irvin advised everyone that she had ADD and was taking medication for the condition. Burdsall said that she would provide Irvin with a copy of the American's with Disability Act (ADA) policy and request for information. Burdsall stated that she would see if someone from the School District could locate a local neurologist who could treat Irvin. At the October 26 meeting, Irvin stated that she plans by putting ideas and themes down as she goes along. Sometimes she writes them down before the activity and sometimes it is afterward. Garrett gave Irvin a set of model lesson plans. Irvin was instructed to prepare two days of lesson plans which could be used by a substitute teacher if necessary. It was agreed that Irvin would be allowed to shadow another kindergarten teacher. In the fall of 1994, Irvin attended workshops on intergrated curriculum, language arts and math manipulatives. On October 27, 1994, Mary Gray (Gray), a professor of Education Leadership at Florida Atlantic University, observed Irvin. Gray noted that the students were too noisy and could not hear directions that were being given by the teacher. Irvin did not have any lesson plans. Irvin asked the children multiple questions which resulted in confusion. Irvin told the class about a student's father who had been shot. Other children began to talk about unhappy incidents in their lives such as a brother who had gotten stuck in the eye with a knife. Gray felt that such discussion was inappropriate for kindergarten students. Gray shared her observation comments and suggestions on ways to improve with Irvin. On November 17, 1994, another meeting was held to review the progress of the PDP. Irvin was given the ADA policy with the medical request for information and was told to take it to the neurologist of her choice as soon as possible. Irvin had failed to turn in the two days of lesson plans as requested in the October meeting. She was again instructed to prepare the plans. Irvin was going to be released for two days to shadow a kindergarten teacher, who would demonstrate the whole language approach to teaching. Irvin asked for the materials that were handed out in a October 28 workshop and Ms. Burdsall agreed to provide her with those materials. On November 18, 1994, Gale Fulford (Fulford), who was the Area IV support team member for language arts, observed Irvin's classroom performance. Irvin did not have any lesson plans. Fulford did not see a lot of teacher created materials in the classroom, and the classroom lacked a print rich environment. Irvin's questions to the students did not include enough "high order" questions. The class was too noisy. On December 2, 1994, Dorothy Kelsey (Kelsey), a specialist in Pre- K/early intervention observed Irvin. Ms. Kelsey noted inappropriate activities being offered to the students such as dittos, rote memorization in the math lesson with no hands on activity, and reading and showing a small book in a group setting so that some of the children were unable to see the book. The classroom lacked well organized learning centers and did not have a print rich environment. On December 9, 1994, Garrett observed Irvin teach a concept. Irvin continued to ask for unison responses and posed multiple questions. Based on the codes on the evaluation form used by Garrett, Irvin's teaching performance was not satisfactory during the observation. On December 9, 1994, Irvin received a midyear evaluation of her performance as a classroom teacher identifying the following areas which needed to be improved and rating her overall performance as unsatisfactory: Management of Student Control Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs Irvin was still unable to manage the students' conduct. She failed to make lesson plans, resulting in her not being prepared to teach lessons. She was not following the kindergarten checklist, which is a list of objectives that the students should be able to meet at the end of the school year. Based on testing, it was determined that a large number of the students in Irvin's class were not working on the level that they should have been. It appeared to Garrett that some of the students in Irvin's class were "falling through the crack" and would not meet the objectives on the kindergarten checklist. Irvin had made improvement in the area of classroom climate. However, for this evaluation Irvin was rated unsatisfactory in the area of Demonstrates Ability to Evaluate Instructional Needs because she was not able to incorporate the kindergarten checklist in her lesson planning. The area of Demonstrates Ability to Evaluate Instructional Needs deals with the ability to tailor the instruction to meet the needs of the students. Thus, Irvin ended up with five areas of concern for her mid-year evaluation. Garrett recommended that Irvin remain on the PDP. Irvin disagreed with the December 1994 evaluation. Irvin was placed on her second PDP in January, 1995 for the purpose of providing her assistance in correcting the deficiencies listed on mid-year evaluation. The dates listed for the timeline for the PDP were from January through March, 1995. Irvin was observed during the time frames set forth in the second PDP. The School District received a letter dated January 12, 1995, from Dr. Diaz, informing the School District that Irvin had ADD and was successfully taking medication. The doctor stated: This disability will continue and is chronic. Disabilities will be noted in terms of ability to concentrate, organize and respond to change. Working in a quiet environment undistracted is helpful. Functioning in the school district with an aide is helpful as well as understanding the disorder in terms of response to changes in curriculum or responsibilities. On January 20, 1995, Pender observed Irvin. The students were divided into three groups. One of the groups was working at a table with manipulatives, was very noisy and was not directly supervised. Irvin asked her daughter who was helping her that day to sit with the noisy group. The group continued to be noisy and distracting to the other students. It was chaotic when the groups switched from one station to another. There was no connection of skills or concepts among the three stations during the class period. Irvin was reading the students Mother Goose Rhymes, which was appropriate for that grade level, but the noise level was so high that very little learning was going on. In comparing his first observation with his second observation, Pender opined that Irvin's ability to manage the classroom had not improved but was worse. On February 1, 1995, an assistance review meeting was held. The letter from Dr. Diaz had been given to Louis Haddad, the School District's Coordinator of Employee Relations and Services. Irvin was told that Mr. Haddad needed to have a list of the specific accommodations that were being requested. Irvin indicated that she was going to another doctor to get the list. Irvin had rearranged her room and modified her lesson plans. She had been working with Fulford. Irvin was scheduled to attend three workshops: Management of Student Conduct, Presentation of Subject Matter/Planning, and an inservice session on whole language. Irvin advised the members of the meeting that she was pleased with the assistance and the progress being made. On February 10, 1995, Gray observed Irvin in the classroom. Irvin spent ten minutes taking up money for various activities and collecting valentines. There was a show and tell with all the students. Irvin went to the calendar and indicated that the day was Friday. Nine students were taken to a table to work with the aide. The remaining nineteen students were talking and rolling on the floor. Instead of supervising the noisy children, Irvin helped the aide set up the work station for the nine students. The class became so noisy at one point that when Irvin was asked by the aide how many cards each child was to have, Irvin replied, "Sorry, I can't hear you." Irvin put eleven children at a table by themselves to draw a picture about weather, while Irvin began to teach the eight remaining children. During the 30 minute observation period, no teaching occurred for the first 26 minutes. During the observation, from 7 to 19 students were off task at various times. On February 14, 1995, Garrett observed Irvin's classroom. She went to the classroom early in the morning but the class was having a valentine party. She returned around 10:00 a.m. and observed Irvin and the students singing songs. Irvin did use her behavior management plan during the observation. The determination of whether a particular teacher should be recommended for termination based on incompetency is the responsibility of the principal of the school at which the teacher works. At the end of the day on February 14, 1995, Garrett met with Irvin and advised Irvin that she was going to recommend that Irvin not be reappointed. By letter dated February 14, 1995, Garrett advised the superintendent of schools that Irvin had not corrected her performance deficiencies and recommended that Irvin not be reappointed for the 1996 school year. The letter was sent according to a School District requirement that principals send notice regarding teacher termination to the superintendent sometime during February. During the 1994-1995 school year, the School District established February 14 as the date by which the School District needed to receive notice regarding teachers possibly not being reappointed for the next school year. The other observers on the PDP team agreed with Garrett's assessment that Irvin was not competent. On February 20, 1995, Irvin made an office visit to see Dr. Helen Baker (Baker), a licensed mental health counselor. Diaz had referred Irvin to Baker for counseling. Irvin requested assistance from Baker in coming up with specific accommodations relating to her ADD which she could request from the School District. On March 1, 1995, Burdsall observed Irvin. Burdsall noted that the classroom environment had improved. Irvin had some lesson plans but was not following the format that Gray had given her. Irvin did not completely follow her lesson plan during the observation period. Irvin was still not using all the elements that are necessary in teaching a lesson and was not teaching concepts by giving definitions, examples and nonexamples. Burdsall suggested that Irvin interact more with the students by asking comprehensive questions, both high and low order. On March 2, 1995, Irvin received an annual evaluation rating her classroom performance unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs In developing the evaluation, Garrett factored in her formal and informal observations of Irvin as well as the observations of the members of the Professional Development Plan's assistance team. Irvin disagreed with the content of the March 2, 1995, evaluation. By letter dated March 10, 1995, the superintendent of schools notified Irvin that she had failed to correct the deficiencies noted by the principal and that her current classroom performance was unsatisfactory. Irvin was informed that her employment would end on June 16, 1995, and that she would not be reappointed for the 1996 school year. On March 19, 1995, Garrett received a letter from Helen Baker of Cape Counseling Services of Southwest Florida. After having seen Irvin two times Baker suggested the following accommodations for Irvin: Allow for changes to occur at a slower pace and when change is indicated be precise as to what is needed in the new situation. Have a clear workable curriculum. Have only one or two persons involved in giving guidance to Irvin and preferably a person with experience with the dynamics of ADD. Do not send conflicting messages in assisting Irvin. Place carpets or other materials to soften the sound in the classroom. Do not allow public announcements through electronic devices to interrupt during class. Leave Irvin messages in her mailbox for her to focus on when she has time to orient to them. Present written material on student behavior to Irvin one item at a time in a different manner. Allow Irvin timeout from her classroom so that she can extract herself from the over stimulation of the classroom. Provide Irvin with a full time aide who is aware of ADD behavior. The School District had made accommodations to Irvin prior to the letter from Dr. Baker. Irvin was allotted more aide time than any other kindergarten teacher. Usually different teacher assistants came to the teachers at different times of the week. Irvin requested that she keep the same teacher assistant. Garrett accommodated Irvin by allowing her to have the same assistant for the rest of the day and for the rest of the week. Belle Glade had a kindergarten extension room where kindergarten teachers are allowed to take their students twice a week, allowing the children to work with hands-on skills and activities. Two different groups would come into the extension room two different times of the day. Irvin felt that was too much movement for her and requested that she be allowed to go to the extension room only once with the same students at the same time. Garrett made the accommodation for Irvin. Irvin indicated that the format of the lesson plans for the extension schedule was difficult to follow and suggested that she be allowed to color code her lesson plans. Garrett allowed the accommodation. Irvin was provided the Florida Performance Measurement System otherwise known as the blue book. The purpose of the book is to provide assistance for effective teaching. Additionally, in September, 1994, Garrett provided Irvin with mini packets which broke the material down to a smaller scale so that Irvin would not have to try to digest the blue book at one time. A month later, Garrett supplied Irvin with additional reference materials. Irvin was provided training in formats other than written material. She attended workshops and observed other kindergarten teachers. In the area of lesson planning, Irvin met with the kindergarten chairperson one-on-one for assistance with the lesson plans. Garret also met with Irvin and the kindergarten chairperson to provide assistance to Irvin on the lesson planning. Irvin was provided with copies of lesson plans that Garrett deemed to be sufficient. Irvin had been provided with the kindergarten checklist. Based on the checklist Irvin should have been able to determine what things that the kindergarten students should be taught during the school year. Thus, Irvin was provided with a clear workable curriculum. There were seven kindergarten teachers at Belle Glade during the 1994- 1995 school year. The kindergarten supplies for the 1994-1995 had been ordered based on number of kindergarten teachers the previous year, six. Thus, the supplies which were ordered for six teachers had to be divided among seven teachers. Irvin did not receive a math kit which Pender had suggested using until almost the end of the 1994-1995 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Margaret Irvin's employment with the Palm Beach School District. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2073 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraphs 5-16: Accepted in substance. Paragraph 17: Accepted. Paragraphs 18-23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. 9 Paragraphs 29-30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraph 32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Paragraphs 1-18: Accepted. Paragraphs 19-29: Accepted in substance. Paragraphs 30-36: Accepted. Paragraphs 37-39: Accepted in substance. Paragraph 40: The first two sentences are accepted. The last sentence is rejected to the extent that it implies that the timeline was not followed. Irvin was observed during the times set forth in the PDP with the exception of the evaluation by Kelsey which took place on March 9. Paragraph 41: Accepted in substance. Paragraph 42: The first two sentences are accepted in substance. The last sentence is accepted to the extent that the workshop dealt with planning but rejected to the extent that it implies that if Irvin had had the workshop earlier it would have helped her. When Burdsall observed Irvin on March 1, 1995, Irvin was not using the lesson planning format that Gray had recommended. Paragraph 43: Accepted in substance. Paragraph 44: Rejected as irrelevant. Paragraph 45: The first sentence is accepted. The second sentence is subordinate to the facts found because Irvin was given the kindergarten checklist and she knew that she was to incorporate those objectives in her lessons. Paragraph 46: Rejected as subordinate to the facts found. Irvin had not remediated her deficiencies by March 10. Paragraph 47: The first sentence is rejected as irrelevant. Irvin had taught kindergarten in summer school. (TR 622) The last sentence is rejected as not supported by the record as it deals with the use of the term "colored." The gist of Garrett's testimony was that she considered not only her observations in recommending termination but all the information from the observers and the assistance that had been provided to Irvin. Paragraphs 48-49: Accepted in substance. Paragraphs 50-51: Accepted in substance to the extent that Irvin had made some improvement during the 1994-1995 school year but rejected to the extent that it implies that she had remediated her deficiencies. Paragraph 52: Accepted in substance that the material was appropriate but rejected to the extent that it implies that Pender thought Irvin's performance was satisfactory. Paragraphs 53: Accepted in substance that singing songs is an appropriate activity for kindergarten children, but not necessarily that the activities that the students were engaged in constituted the teaching of a lesson. The last sentence is accepted. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: The first sentence is accepted. The second sentence is rejected as not supported by the record. Irvin presented a concept but whether she was teaching it could not be determined because of the unison responses and the failure of the students to line up appropriately in making the parade pattern. The third sentence is accepted in substance as to presenting a concept but rejected to the extent that it could be determined that the students actually learned a concept. The last sentence is accepted. Paragraph 56: The first sentence is accepted in substance. The first half of the second sentence is accepted to the extent that Irvin went from having no lesson plans to having some lesson plans that were acceptable some of the time. The last sentence is rejected as not supported by the record. According to Burdsall's last observation, Irvin was not following the format set up by Gray. Paragraph 57: Accepted. Paragraph 58: Accepted in substance. Paragraph 59: The first sentence is accepted to the extent that Irvin received the same amount of supplies as did the other kindergarten teachers and that she was impacted to the same extent as the other teachers but rejected to the extent that it implies the shortage of supplies caused Irvin to be incompetent. The remainder is accepted in substance. Paragraph 60: Accepted in substance. Paragraph 61: The first two sentences are rejected as not supported by the greater weight of the evidence. The last sentence is rejected to the extent that although the advice appeared to be conflicting, it was not because the problem was that Irvin could not control her classroom behavior with the techniques that had been suggested. It was not that the techniques were all inappropriate but that Irvin just could not seem to implement them. Paragraph 62: Rejected as not supported by the record. The observers were focusing on having Irvin make lesson plans, follow the lesson plans, and teach concepts. Irvin had been doing none of these things. Paragraph 63: Rejected as subordinate to the facts found. Apparently it was normal to have a housekeeping center in the classroom and Irvin had asked Fulford if it was okay to remove it. Kelsey did not see a housekeeping center which is normally a part of the classroom and commented on it. Irvin could have very easily explained to Kelsey that she had permission to remove the housekeeping center but Irvin chose not to tell Kelsey. Paragraph 64: Accepted that classroom climate was dropped but rejected that that was the only area in which Burdsall gave specific things to do. Paragraphs 65-67: Accepted to the extent that Irvin, like the other kindergarten teachers, was given a draft language arts curriculum which would be used in the upcoming year. Rejected to the extent that it implies Irvin was not given a clear idea of what the curriculum should be for the kindergarten because she was given the kindergarten checklist which spelled out what the children should learn in kindergarten. Paragraph 68: Accepted in substance but not incorporated in the findings of fact. However, this does not mean that Burdsall was against praising good behavior as well. Paragraph 69: The first two and the last sentences are accepted in substance but not incorporated. The third sentence is accepted in substance but not incorporated. However, it should be noted that Kelsey also concluded that a formal behavior management system would not be necessary if there was proper planning and organizing. Paragraphs 70-71: Accepted in substance but not incorporated. Paragraph 72: Accepted in substance to the extent that the management system that Irvin was using did not accentuate the positive behavior because there were only two categories, a happy face and a sad face. By adding a neutral category, Irvin could reward the student by moving his name to the happy category from the neutral category. Paragraph 73: Accepted in substance. Paragraph 74: The first sentence is accepted to the extent that in Malone's testimony she was emphasizing that Irvin had a management behavior system posted on the wall but she was not using it and was turning the lights on and off, which was not working, as a method of controlling the behavior of the children. The second sentence is accepted in substance but not incorporated. Paragraphs 75-76: Accepted in substance but not incorporated. The context of the statements is that Irvin was not in control of her classroom which resulted in the students being very noisy and off-task. Paragraph 77: Accepted in substance. Paragraph 78: Rejected as unnecessary. Paragraph 79: Accepted in substance. Paragraph 80: The first sentence is accepted in substance. The remainder is rejected as not supported by the evidence. The assistance provided to Irvin included accommodations which were requested by Irvin prior to the notification of her termination. Paragraph 81: Accepted in substance. Paragraph 82: The first and second sentences are accepted in substance. The third sentence is rejected as subordinate to the facts found because even with the accommodations that Irvin had requested and those listed by Diaz, Irvin was not able to satisfactorily perform her job. The fourth sentence is rejected as subordinate to the facts found. Paragraphs 83-84: Accepted in substance. Paragraph 85: Rejected as unnecessary. Paragraph 86: Accepted in substance that Irvin had ADD and that her behavior was symptomatic of ADD. Paragraph 87: The first sentence is accepted to the extent that Diaz believed it but rejected to the extent that the evidence demonstrated that with accommodations such as an aide Irvin still could not perform satisfactorily. The second and third sentences are rejected as subordinate to the facts found. Paragraphs 88-89: Accepted in substance. Paragraphs 90-91: Rejected that there was not a clear workable curriculum in place. Although SADI, was being phased out and whole language was being phased in, there did exist a kindergarten checklist which essentially provided what skills had to be taught during the kindergarten year. Paragraph 92: Accepted. Paragraph 93: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the School District did not accommodate Irvin in this area. Paragraph 94: Accepted. Paragraphs 95-96: Rejected to the extent that the information was in conflict. It was apparent that to a great extent Irvin was unable to use the behavior management system effectively whether she was emphasizing the negative or the positive. Paragraph 97: Rejected as subordinate to the facts found. The point to be learned from the observations was that Irvin did not have control of her classroom or her aide. Irvin should not have had to go to help the aide but the control of the classroom was the ultimate responsibility of Irvin so the misconduct had to be stopped at some point whether it was by Irvin or by the aide. Paragraphs 98-116: Rejected as subordinate to the facts found that accommodations were made for Irvin. Paragraph 117: Accepted. Paragraph 118: Rejected as subordinate to the facts found. COPIES FURNISHED: Darren K. Edwards, Esquire Palm Beach County School Board 3318 Forest Hill, Boulevard West Palm Beach, Florida 33406-5813 Thomas L. Johnson, Esquire 202 West Cardy Street Tampa, Florida 33606 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Bernard Shulman, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
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.
The Issue Whether Respondent violated Subsections 231.28(1)(c), (f), and (i), Florida Statutes (1999), and Rule 6B-1.006(3)(a), (b), (e), and (f), Rule 6B-1.006(4)(a) and (b), Rule 6B-1.006 (5)(a), (c), (d), (e), (f), (o), and Rule 6B-1.001(1), (2), and (3), Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact Mr. Jenkins holds a Florida Educator Certificate. At all times pertinent to this proceeding, he was employed as a physical education teacher at Pasedena Lakes Elementary School (Pasedena Lakes) in the Broward County School District, where he had been teaching for 15 years. Mr. Jenkins was a Master Steward for the teachers' union. He was also a member of the School Advisory Council (SAC) and was chair of the Safety and Discipline Committee, which is a part of SAC. Jill Wilson has been the principal at Pasedena Lakes for six years and has a total of 29 years of educational experience. The assistant principal at Pasedena Lakes is Charlene Hogan, who has been at Pasedena Lakes for five years and has a total of 28 years of experience in the field of education. On October 29, 1998, at approximately 5:00 p.m., Mr. Jenkins came to Ms. Wilson's office and yelled at her, accusing her of discrediting him and making things worse at the school. During this incident, Donna Blank, a former employee of Pasedena Lakes, was leaving the building and, through a window, observed Mr. Jenkins pounding on Ms. Wilson's desk and saying, "You're not my boss." Ms. Blank went to her car, but returned to the building because she felt that she could not leave Ms. Wilson alone in that situation. When Ms. Blank went to Ms. Wilson's office, Ms. Wilson was visibly shaken. Ms. Wilson felt intimidated by Mr. Jenkins and, as a result of the incident, issued a memorandum to Mr. Jenkins dated October 30, 1998. The memorandum outlined the events that had taken place in Ms. Wilson's office on October 29, 1998, advised Mr. Jenkins that his actions were inappropriate, and required him to schedule future meetings with her secretary so that she could have another staff member present when they met. Pasedena Lakes has about 900 elementary students. Parking was a problem at the school, as well as traffic congestion when parents dropped off students in the mornings. Parents would park in the teachers' parking spaces, and there would be disruptions in the flow of traffic when the parents would take time to dole out lunch money, dress the children, say farewells, and otherwise take up additional time as they were dropping off the students. Mr. Jenkins volunteered to help direct traffic in the mornings in order to reduce the congestion in the parking lots. His mode of directing traffic was more aggressive than the methods that had been used previously by the other teachers. Mr. Jenkins used a bull horn to shout at the parents to move the traffic along and to tell them to kiss their kids at home and not at school. At first his efforts were commendable, but he began to become frustrated with the job. Mr. Jenkins would yell at the parents and the students, upsetting both the parents and the students. On one occasion while on traffic duty, Mr. Jenkins, using his bullhorn, called another teacher "Deadwood," belittling her in front of students, parents, and other staff members. Sometime during the fall of 1999, Patricia Lewis was bringing her two children to the school. Ms. Lewis needed to talk to one of her children's teachers, so she dropped her children off and told them to wait for her while she parked the car. While she was parking the car, Mr. Jenkins yelled at her children, "You little monkeys, hurry up and get back to class." Ms. Lewis, a Haitian-American, was upset at his remarks and confronted him. She told Mr. Jenkins, "My kids have a name. You do not call them that." Mr. Jenkins replied, "If you don't like it, go get a lawyer, and my lawyer will win." Visibly upset, Ms. Lewis went to the school administration's office and asked to speak to the principal. She talked with Ms. Wilson and explained what had happened in the parking area. Ms. Wilson assured her that she would take care of the matter and talk to Mr. Jenkins. Ms. Lewis left the office and went to find her child's teacher to talk with her as originally planned. She ran into Mr. Jenkins in the hallway. Mr. Jenkins said, "Oh, you're the one who went to the principal." Ms. Lewis told him that she did not want to talk with him and turned away. Mr. Jenkins began to yell at her, and she went back to the office in tears. When she got to the principal's office, Ms. Lewis was loud and upset. Again Ms. Wilson calmed her down. In the fall of 1999, the Safety and Discipline Committee had concerns over the traffic problems at Pasedena Lakes and over unauthorized visitors on campus. A meeting of SAC was scheduled for November 9, 1999, to discuss these issues. The Safety and Discipline Committee met and drafted a letter which was to be sent to the parents asking them to come to the meeting and outlining the concerns which would be discussed. Ms. Hogan was on the Safety and Discipline Committee, and she edited the draft letter with input from other committee members so that the letter would fit on one sheet of paper. Mr. Jenkins was not happy with the edited version, but he did not tell Hogan of his displeasure at the time the letter was rewritten. Mr. Jenkins helped distribute the letter to the parents in the parking lot. Alice Lacy, a teacher at Pasedena Lakes, was the chair of SAC, and Hogan was co-chair. On November 1, 1999, Mr. Jenkins told Ms. Lacy that he wanted to have a meeting prior to the SAC meeting scheduled for November 9, 1999, in order to get the teachers to form a coalition and come to the November 9 meeting to support him. As chair of SAC, Lacy told Mr. Jenkins that it would be better to send a memorandum to the teachers rather than schedule a separate meeting. Later on the same day, Mr. Jenkins told Ms. Lacy that he was demanding that the teachers come to the November 9 SAC meeting. He became angry with Ms. Lacy and told her that it was a personal issue and that the teachers owed it to him. He stormed away from Ms. Lacy. Ms. Lacy became concerned about the November 9 SAC meeting and felt that Mr. Jenkins should clarify his intentions prior to the meeting. She sent Mr. Jenkins a memorandum, requesting that he provide her with an agenda by November 5. Mr. Jenkins did not supply an agenda. Ms. Lacy heard him yelling at teachers outside her classroom on November 5, but did not know what he was discussing with the teachers. Ms. Lacy became concerned and sent a memorandum dated November 5, 1999, to Ms. Wilson and Ms. Hogan, urging that the November 9 SAC meeting be postponed until the issues involving Mr. Jenkins could be resolved. The administration met with Mr. Jenkins, and Ms. Lacy was assured that Mr. Jenkins understood that the SAC meeting would be under Ms. Lacy's direction, the agenda would be followed, and the meeting would take place in the media center. When Ms. Lacy went to the media center on the evening of November 9, 1999, she found that the media center was locked and that Mr. Jenkins was setting up the meeting in the cafeteria, where he could have teachers sit on stage with him to lend him support. Lacy confronted Mr. Jenkins and told him that the meeting would take place in the media center as planned. Mr. Jenkins shook his finger at Ms. Lacy and told her that she was making a big mistake. When Ms. Lacy was calling the meeting to order, Mr. Jenkins called out of turn and said, "I motion to move this meeting to the cafeteria." Ms. Lacy called Mr. Jenkins out of order. There was a large turn-out for the SAC meeting, and it was agreed that each speaker would be limited to two minutes. When Mr. Jenkins began to make his presentation for the Safety and Discipline Committee, Ms. Lacy felt that he was unprepared and was improvising. Several times Mr. Jenkins spoke and went over his two-minute limit. When he did, Ms. Lacy would cut him off and go on to the next speaker. After this happened three times, Susie Ruder, a teacher at Pasedena Lakes, sent a note to Ms. Lacy, telling Ms. Lacy that she felt Ms. Lacy was being rude to Mr. Jenkins. After Ms. Lacy received the note, she gave Mr. Jenkins more time to speak. The day after the meeting, Mr. Jenkins ran into Ms. Hogan and Cathy Greenspan, a reading resource specialist at Pasedena Lakes, on the school campus. Mr. Jenkins shook Ms. Hogan's hand and commented that the SAC meeting had been a good meeting. Approximately ten minutes later, Mr. Jenkins went to Ms. Wilson's office. He was wearing shorts, a shirt, and a fanny pack. His purpose for the visit was to discuss sending flyers to parents advising them of the decision of SAC to require parents to obtain a visitor's pass to come on the school campus. Ms. Wilson told him that the passes had been ordered but had not arrived and that she did not want the flyers to be sent until the passes had arrived. Mr. Jenkins shifted the conversation and told Ms. Wilson that she was responsible for the rumor mill around school and accused her of changing a letter that had been written by the Safety and Discipline Committee in October to advise the parents of the November 9 SAC meeting. Mr. Jenkins said the letter that went home to the parents was not the letter the Safety and Discipline Committee had agreed upon. Ms. Wilson did not know about the changes to the letter and called Ms. Hogan to come into the office to discuss the letter. Ms. Hogan brought in the disc on which the letter had been saved, and they viewed it on the computer. Mr. Jenkins again shifted the conversation to the November 9 meeting and held Ms. Wilson responsible for the rudeness he felt Ms. Lacy displayed at the SAC meeting. Mr. Jenkins then shifted the discussion again and wanted the South Area Office to look into what Ms. Wilson's role was on SAC. Mr. Jenkins started to yell and point his finger in Ms. Wilson's face. His face got red, and his voice became louder. He told Ms. Wilson that she would be in charge of damage control. Ms. Hogan told him not to point his finger at Ms. Wilson. Mr. Jenkins turned to Ms. Hogan and said, "I've got an attorney, I've got the union, and I've got a gun." Both Ms. Wilson and Ms. Hogan asked Mr. Jenkins what he said. He replied that he did not know what he said and that he had been interrupted. Either Ms. Wilson or Ms. Hogan told him that he had said, "I've got a gun." Mr. Jenkins became flustered and walked out of the office. Both Ms. Wilson and Ms. Hogan were shocked by Mr. Jenkins' outburst. Neither woman could tell whether Mr. Jenkins actually had a gun in his fanny pack. A conference room was located next to Ms. Wilson's office. Cathy Greenspan, Donna Blank, and Barbara Perkins were in the conference room when Mr. Jenkins was meeting with Ms. Wilson and Ms. Hogan. Both Ms. Blank and Ms. Perkins heard Mr. Jenkins say the word, "gun." Ms. Greenspan heard Mr. Jenkins say, "I've got a gun." After Mr. Jenkins left the administration office, Ms. Hogan called the Special Investigative Unit (SIU), which is the school police, and requested assistance. Investigator Evelyn McCabe came to the school. Ms. Hogan was afraid of what Mr. Jenkins might do and locked herself in her office until Inspector McCabe arrived. Mr. Jenkins returned to the administration office with Sydna Satterfield, a teacher at Pasedena Lakes and a friend of Mr. Jenkins. Mr. Jenkins, Ms. Satterfield, Investigator McCabe, Ms. Wilson, and Ms. Hogan went into to Ms. Wilson's office. A few minutes later Susie Ruder, another teacher and friend of Mr. Jenkins, joined them. Mr. Jenkins denied saying that he had a gun and then stated that he did not know what he said. He threw his keys on Ms. Wilson's desk and asked to be transferred to an "F" school. He walked out of the office but returned and said that he wanted an investigation. Ms. Wilson told him to think about whether he wanted an investigation or wanted to work out things. She advised him that she was willing to work with him on their problems. Mr. Jenkins said he did not know what he said, but apologized for whatever he had said. Mr. Jenkins and Ms. Wilson hugged, and they agreed to try to work together. That evening and the next morning, Ms. Wilson received calls from staff members who feared for their safety and the safety of their children as a result of the incident with Mr. Jenkins. Ms. Wilson began to think about what had happened and the complaints from staff. She also saw an article in the newspaper concerning a colleague who had not contacted authorities concerning an incident that had happened at his school and had tried to resolve the situation by himself. She felt she had to get assistance. Ms. Wilson called Bruce Wagar, who is in charge of professional standards. He advised her to file a complaint with SIU, which resulted in an investigation. As part of the investigation, Mr. Jenkins underwent a psychological evaluation in April 2000 by Dr. Joel Kimmel. The evaluation report stated: Personality tests and behavioral observations indicate that Mr. Jenkins is a frustrated individual who believes he is being prevented from doing his job. His responses to the personality tests indicate that he tends to define his identity based upon his position and derives a lot of satisfaction from his job. He enjoys working with students and motivating them to achieve their potential. He likes the status and recognition he receives from his position and may have a lonely life outside his job. He also appears to be somewhat incompetent, or inefficient. When frustrated, he can escalate and demand his way. However, there are no signs of any violent behaviors in any of his responses suggesting that he probably will not act out when frustrated. He does believe in the benefit of talking things out. However, he does want to do things his way and may not respect others if they disagree with him. He also does appear to have some boundary issues in terms of not understanding where his authority ends and being able to accept the authority of others. His greatest fear is that of failure and losing his job which could represent a failure for him. His provisional diagnosis would be Adjustment Disorder with Mixed Emotional Features (DSM IV 309.28). It is highly recommended that Mr. Jenkins participate in sensitivity training and interpersonal relationship programs in order to develop his capacity to tolerate others' viewpoints as well as decrease his frustration. A stress reduction program would also be helpful in improving his ability to control his frustration and developing more patience. Meetings between he [sic], his principal, and a counselor may be of assistance in improving their relationship. Mr. Jenkins has demonstrated inappropriate behavior on different occasions involving his students. He showed his paycheck to a first grade class and asked them if that was not a lot of money. Another time, he read an article from a newspaper to a kindergarten swim safety class about a student who had drowned and told the class that they could drown. Mr. Jenkins left his physical education class outdoors unattended when their regular classroom teacher failed to pick them up on time. On November 17, 1999, Ms. Wilson inadvertently referred to Mr. Jenkins during a morning announcement as Thomas Wilson rather than Thomas Jenkins. Mr. Jenkins and his wife composed a letter to show how one word could be misconstrued. The letter, which Mr. Jenkins referred to as a private joke, stated that Mr. Jenkins thinks that Ms. Wilson fantasizes about him being her husband, that she wants his body, that Ms. Wilson was a "horny lady," and that she might lose control and have sex with him. Mr. Jenkins' wife shared the letter, which Mr. Jenkins called a "nothing" letter, with other employees of Pasedena Lakes. Both teachers and parents testified that they were fearful of Mr. Jenkins based on his past conduct and that he had created a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Thomas Jenkins violated Subsections 231.28(1)(c), (f), and (i), Florida Statutes (1999), and Rule 6B-1.001(1), (2), and (3), Rule 6B-1.006(3)(a), and (e), Rule 6B-1.006(4)(a), and Rules 6B-1.006(5)(d),(e) and (o), Florida Administrative Code; finding that Thomas Jenkins did not violate Rule 6B-1.006(3)(b) and (f), Rule 6B-1.006(4)(b), and Rule 6B- 1.006(5) (a), (c), and (f), Florida Administrative Code; suspending Thomas Jenkins' teaching certificate for 60 days followed by a probation period of three years; requiring that Thomas Jenkins take courses in professional responsibility, improving interpersonal communication skills, and sensitivity training; requiring Thomas Jenkins to have periodic psychological evaluations prior to and after returning to work; and requiring Thomas Jenkins to have a fitness-for-duty examination. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 March, 2001. COPIES FURNISHED: Randy A. Fleischer, Esquire 4801 University Drive, Suite 3070 Davie, Florida 33328 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Frank L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint, as amended, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Background Respondent, Maria Illescas-Dupree, held Florida educator's certificate number 631483, covering the areas of health education and physical education, which was valid for a period extending from 1994 through June 30, 1999, at which time it expired and was not renewed. From 1988 to 1992, Respondent was employed by the School Board of Dade County, Florida (School Board) as a physical education instructor and assigned to Citrus Grove Elementary School. Among those who knew of her, Respondent was regarded as an extremely competent and professional educator, who was dedicated to her students, who maintained an exceptional rapport with faculty and staff, and who evidenced good moral character. (Respondent's Exhibit 1) In 1992, Respondent took maternal leave from her employment with the School Board for the birth of her first child, Maggie (now 7 years of age). That leave was subsequently extended by the arrival of Respondent's second child, Caitlin (now 6 years of age) and thereafter by the arrival of Respondent's third child, Lauren (now 4 years of age). Given the size of her family, as well as the expiration of her maternal leave, 1/ Respondent resigned her employment with the School Board (presumably in 1995) with the expectation that she would continue in the role of homemaker and that her husband would continue to support the family. However, Respondent's expectations were short-lived, and by early September 1995, with his abusive behavior escalating (with threats of physical violence), Respondent was compelled to have her husband removed from their home. With her husband absent from the home, Respondent was left without a source of income, with de minimus funds to support the family, 2/ and without any permanent means of transportation. However, Respondent's neighbor, Ileana DePhillips, immediately offered her assistance. Over the ensuing days Mrs. DePhillips provided groceries for Respondent and her children, drove Respondent to the office of the Department of Health and Rehabilitative Services (H.R.S.) to apply for food stamps and to W.I.C. "to get. . . milk and cereal, and basic things for the children since they were under five-years-old." Mrs. DePhillips also accompanied Respondent to court so she could obtain a restraining order against her husband. While apparently successful in obtaining a restraining order, and notwithstanding his abusive character, Respondent nevertheless allowed her husband to return to the family home before the end of September 1995. 3/ At the time, Respondent was hopeful for a reconciliation; however, by January 1996 she was convinced otherwise, left the family home, and filed for divorce. Today, Respondent is divorced, resides in Lakeland, Florida, with her three daughters, and hopes to resume her teaching career. The claim of misconduct Petitioner's claim of misconduct is premised on the banking activities of Respondent and Mrs. DePhillips in October 1995 (shortly after Respondent's husband returned to the marital home). It is Petitioner's contention that "Respondent deposited stolen checks into her own checking account worth $5,525.00 . . . [and that she] and her accomplice [Ileana DePhillips] had agreed to split the money." Respondent denies any wrongdoing and avers she was not aware the checks were stolen when they were deposited or when she wrote checks against the account, and that she immediately ceased writing checks when she learned from the bank that the checks (Mrs. DePhillips had asked her to deposit) were returned unpaid and her own checks were being dishonored. According to Respondent, she only allowed Mrs. DePhillips to deposit the subject checks into her account as an accommodation, and is of the opinion that Mrs. DePhillips deceived her. The transactions at issue The first questionable transaction occurred on or about October 11, 1995, when Mrs. DePhillips asked Respondent to deposit her paycheck (from Angel Norberto Diaz, Petitioner's Exhibit 2) in Respondent's bank account so she might clear and access the funds. Apparently, Respondent, who felt a sense of obligation for Mrs. DePhillips' recent acts of kindness, harbored no reason to distrust her and had previously accommodated such requests from Mrs. DePhillips (who did not have a bank account). Again, Respondent agreed and deposited the check to her account on October 11, 1995. Unknown to Respondent, as well as Mrs. DePhillips' employer, Mrs. DePhillips had made the check for $500.00, as opposed to the $175.00 that was due her. At or about the same time she was in the process of defrauding her employer, Mrs. DePhillips stole a book of checks from her sister-in-law, Raquel Saavedra. 4/ Subsequently, Mrs. DePhillips would write five checks to the order of "cash," and prevail on Respondent to deposit the checks to her account (as she had previously done with Mr. Diaz' checks). When Respondent accommodated Mrs. DePhillips by depositing the checks, and subsequently wrote checks against the deposits, she did so unwittingly, without knowledge of Mrs. DePhillips' unlawful conduct. 5/ The checks Mrs. DePhillips stole and forged on Mrs. Saavedra's account, and prevailed on Respondent to allow her to deposit to her (Respondent's) bank account, totaled $5,025.00, were dated between October 12, 1995, and October 22, 1995, and were deposited between October 13, 195, and October 23, 1995. The transactions were as follows: Check number 300, dated October 12, 1995, was drawn in the amount of $425.00 and deposited on October 13, 1995. Check number 248, dated October 20, 1995, was drawn in the amount of $500.00, and deposited on October 20, 1995 (as part of a larger deposit of $1,050.00). Check number 226, drawn in the amount of $2,025.00, and check number 232, drawn in the amount of $875.00, were both dated October 20, 1995, and were deposited on October 23, 1995 (as part of a larger deposit of $2,975.00). Check number 234, dated October 22, 1995, was drawn in the amount of $1,200.00, and deposited on October 23, 1995. Against these deposits, as well as the deposit of the Diaz check, Respondent wrote (with Mrs. DePhillips' permission or at her request) numerous checks during the month of October 1995 before she received notice from her bank that the checks were being returned unpaid and her own checks dishonored. The checks she wrote totaled $5,312.73, with $2,021.25 being written for Respondent's or her family's benefit, $1,257.77 being written for Mrs. DePillips' or her family's benefit, and the balance representing mixed purchases that benefited both families (i.e., a joint shopping trip to the grocery store). 6/ Facially, given the size of her family (two adults and three children), as well as the nature of the purchases or character of the store visited, the purchases appear to represent routine living expenses, as opposed to extravagances. Given the proof, it must be resolved that Petitioner has failed to demonstrate clearly and convincingly, that, as alleged in the Administrative Complaint, "Respondent deposited stolen checks into her own checking account worth $5,525.00 . . . [and that she] and her accomplice [Ileana DePhillips] had agreed to split the money" or otherwise engaged in any unlawful or improper conduct with regard to her banking activities. 7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 11th day of February, 2000.
