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 The issue is whether Petitioner is entitled to damages and back salary for the period of April 22, 2004, through May 31, 2006, pursuant to Subsection 1012.33(3)(g), Florida Statutes (2007), as well as interest and attorney's fees.
Findings Of Fact Petitioner, Charles V. Keene, has been employed by Respondent, the School Board of Escambia County, as a full-time Florida-certified public school teacher since April 22, 2004, under a series of annual contracts. Prior to his employment with Respondent, Petitioner was a full-time public school teacher in Alabama for 20 years and received satisfactory performance evaluations throughout the 20 years. At the time he was hired by Respondent, commencing April 22, 2004, Petitioner received credit for salary schedule placement for the one year he had previously taught in Florida, and for the two years he had taught in Georgia. He requested, but did not receive, credit for the 20 years of instructional service in the state of Alabama that he utilized to obtain his retirement in Alabama. Respondent operates under a collective bargaining agreement known as the "Master Contract." The Master Contract includes, among other things, a salary schedule that is the result of negotiations with the Escambia Educational Association ("EEA"), the collective bargaining agent that represents teachers. The negotiated salary schedule is then recommended by the Superintendent of Escambia County Schools pursuant to Subsection 1012.27(2), Florida Statutes, to Respondent for approval and adoption. The salary schedule adopted by Respondent governs the compensation payable to instructional personnel. The salary schedule includes "steps" with corresponding "salary." Placement on the salary schedule step depends, in part upon prior teaching experience. Generally, more prior teaching experience credited for placement on the schedule results in a higher level of compensation. At the time of Petitioner's hire on April 22, 2004, the Master Contract in place was the contract for the period of 1999-2002, extended by agreement of Respondent and the EEA until July 21, 2004. According to the Master Contract in effect on Petitioner's date of hire, limitations were placed on the amount of prior teaching experience that could be used for determining placement on the salary schedule. For example, credit for prior teaching, military, governmental, or employment service, not including Florida public school teaching experience, was limited to a maximum of fifteen years. The Master Contract also contained a specific provision for placement of retired educators. The contract provided as follows: II.5(C) Placement for Retired Educators Educators who retired from Escambia District Schools and who return to full time employment in Escambia District Schools shall be placed on Step 5 of Appendix A- Instructional Salary Schedule. Educators who retired from any other school district shall be placed on Step 0 of Appendix A-Instructional Salary Schedule. The effect of this provision was that Petitioner received no credit for the 20 years of Alabama teaching when placed on the salary schedule. Employees' rights for placement on the salary schedule are determined by the date of hire. With credit being given for prior teaching experience in Florida and Georgia, but without credit for 20 years of teaching experience in Alabama, Petitioner was placed on the salary schedule in accordance with the provisions of the Master Contract in effect at the time of his hire. Petitioner received annual instruction contracts under the authority of Section 231.36(2), Florida Statutes (later renumbered Section 1012.33(3), Florida Statutes). Petitioner's annual instructional contracts set forth the contract salary on an annual basis payable through twelve monthly installments. The contract specified the number of days to be worked and the daily rate of compensation. Respondent's standard form contract provides that "[t]his annual contract shall be deemed amended to comply with all laws, all lawful rules of the State Board of Education, all lawful rules and actions of the School Board and all terms of an applicable ratified collective-bargaining agreement." Respondent, as a matter of practice, provides newly hired teachers with information on how they are placed on the salary schedule. Additionally, Respondent's website has information available with a link to the Master Contract language which demonstrates how instructors are placed on the salary schedule. Human Resources staff members are instructed that the Master Plan governs placement of newly hired instructors on the salary schedule, and they advise the newly hired instructors of placement on the salary schedule. At the time of his hire, Petitioner was told he would not be credited on the salary schedule for his Alabama teaching experience which led to his retirement in that state after 20 years. Petitioner acknowledged that he received a copy of the Master Contract in August of 2004, when the school year started. Petitioner knew, at the time of hire, that his rate of pay was based on his placement on the salary schedule. Petitioner had agreed at that time to perform the services required by his contract based upon the compensation set forth in the contract. Petitioner inquired about receiving credit for his 20 years of teaching experience in Alabama at the time he was hired by Respondent. At that time, Petitioner was told by Judy Fung, an employee with Respondent's human resources office, that Petitioner would not be granted credit for his 20 years of teaching experience in Alabama. Petitioner provided Respondent, shortly after he was hired, all the necessary paperwork to document his 20 years of satisfactory service as a teacher in Alabama. Petitioner performed the agreed-upon instructional services and was paid the agreed-upon contractual amount. Petitioner's annual instructional contract specifies the salary paid through twelve monthly installments with a daily rate of compensation identified. The amount of compensation can be further broken down into an hourly rate based upon 7.5 hours per day, and provides for annual leave and sick leave. As is customary, if the employee takes leave and has no accrued leave balance, his pay will be reduced to compensate for the hours of leave without pay taken. Respondent maintains ledgers with all the compensation information for its employees, including Petitioner. The statutory provision governing credit for prior teaching experience at issue in this hearing is former Subsection 231.36(3)(g), renumbered through amended versions to Subsection 1012.33(3)(g), Florida Statutes. Although the statute has been amended several times since 2001, the language that applies to all instructional employees (which includes public school classroom teachers pursuant to Subsection 1012.01(2)(a), Florida Statutes) hired after June 30, 2001, remains the same: "[F]or purposes of pay, a school board must recognize and accept each year of full-time public school teaching service earned in the state of Florida or outside the state." The original version of the statute effective July 1, 2001, included language that this statutory provision "is not intended to interfere with the operation of a collective bargaining agreement except to the extent it requires the agreement to treat years of teaching experience outside the district the same as years of teaching experience within the district." § 231.35(3)(g), Fla. Stat. (2001). The statute was amended effective January 7, 2003, removing the reference to collective bargaining and clarifying that the statutory provision applied only to public school teachers. § 1012.33(3)(g), Fla. Stat. (2003). The Master Contract was amended effective July 22, 2004, to include language referencing Subsection 1012.33(3)(g), Florida Statutes. The changes to the Master Contract, however, applied only to those instructors hired after July 22, 2004. Petitioner, and certain other teachers hired after June 30, 2001, but before July 22, 2004, have requested their placement on the salary schedule be revised to include credit for previous years of teaching experience. Those requesting a revised placement on the salary schedule based upon uncredited experience include teachers who had previously retired utilizing that credit and some who had not retired. Respondent, uncertain as to the proper application of the statute, has addressed claims for placement on the salary schedule and/or past compensation on a case-by-case basis. In February 2006, Petitioner became aware that Respondent's position concerning his requested credit for 20 years of teaching experience in Alabama may have been incorrect. Petitioner made a request for retroactive credit and for back salary for his 20 years of teaching experience in Alabama in June 2006, and again provided Respondent with documentation of his Alabama satisfactory teaching experience. Petitioner's request for credit and back salary was refused. The only reason given to him at the time was that he failed to make his request within two years of his hire date. At the direction of its General Counsel and after approval by the School Board, Respondent's placement on the salary schedule was amended effective June 1, 2006, to allow credit for his 20 years of teaching experience in Alabama. Respondent's human resources department does not know why the retroactive credit and salary increase were allowed for Petitioner, nor why the date of June 1, 2006, was chosen, especially when the collective bargaining agreement, according to Respondent, does not allow such credit. Petitioner seeks from Respondent 20 years of service credit and back salary for his satisfactory Alabama teaching experience for the period of April 22, 2004, through May 31, 2006, in the amount of $39,209.50. Petitioner also seeks reimbursement of reasonable attorney's fees, costs, and interest, both pre- and post- judgment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board enter a final order denying Petitioner's claim for back salary in the amount of $39,209.50, as well as pre- and post-judgment interest on this amount, and attorney's fees and costs. DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 21st day of December, 2007. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Michael J. Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
Findings Of Fact The Petitioner was first employed by the Liberty County School Board as a classroom teacher for the school terms 1971-72, 1972-73 and 1973-74 as an English classroom teacher. For the school year 1974-75, the Petitioner was employed for a fourth year as a teacher by Respondent. In November of 1974, the Petitioner requested and was granted maternity leave through the end of the school year, i.e., June 6, 1975. It is undisputed that during the first three school years of the Petitioner's employment with Respondent, her employment was pursuant to an annual contract. However, what is in dispute, is Petitioner's claim that during her fourth year of employment with Respondent, such employment was pursuant to a continuing contract. According to Petitioner, the then principal at the school in which she was employed recommended that she be reappointed for her forth year of employment pursuant to a continuing contract as did the then superintendent of schools, Tom Fairchild. Thereafter, on May 4, 1974, the School Board met and voted favorably on the Superintendent' s recommendation. In this regard, the minutes of the May 4, 1974, meeting of the school Board do not disclose the contractual status approved by the Board, i.e., annual or continuing. 1/ During the summer of 1975, Petitioner advised her principal that she would not be returning for the 1975-76 school year. Accordingly, the principal employed another teacher to replace her. Shortly thereafter, Petitioner informed the principal that she had changed her mind and wanted to teach the 1975-76 school year. She was not, however, rehired, as the position had been filled. During the summer months of 1975, Petitioner had several conversations with her then principal, Jerry Johnson. Initially, during her conversations with Principal Johnson, Petitioner related to him that she thought that she would be returning to her position for the 1975-76 school year. During the latter part of July, Principal Johnson explained to Petitioner the necessity for her to make a final decision with respect to her returning to her position, since he needed to hire a replacement if she was not returning. At that point, Petitioner remarked that, "I think I need to take another year's leave." Mr. Johnson remarked, "Well, we hate that you are not coming back, but if you feel that's best for the baby, I'm supportive of you." Within a few days, Petitioner called Mr. Johnson back and advised, "just pretend I didn't talk to you the other day. I want my job back." At that point, Mr. Johnson remarked, "Vicki, I wish you had told me. I have just hired somebody else." To this, Petitioner remarked, "Well, what do you mean you just hired so00body else. I am on a continuing contract, you know." Mr. Johnson remarked, "Well, I know, but you've got me in an awkward position. This boy has got Board connections." Petitioner remarked, "Well, it couldn't have been more than a verbal agreement. He couldn't have signed anything yet because you don't sign a contract this early in the year." 2/ Mr. Johnson remarked, "Well, that's true but everybody is going to be awfully upset. I can't tell him he doesn't have a job now, and I've told him he has one." Later, Mr. Johnson asked Petitioner to submit a letter of resignation to which Petitioner never responded. Prior to the beginning of the school year in either late August or early September of the 1975-76 school year, Petitioner visited the principal's office in Bristol and explained to him that while she did not want to force the issue, via a lawsuit in a small community, she would appreciate it if she was given the first teaching position that cane open in the school system. (TR 23, 24 and 25.) The Petitioner testified that she was ready, willing and able to work during the 1975-76 school year. Petitioner received a call from Mr. Johnson during October of 1975 wherein he inquired if she was ready to return to work. Petitioner responded that she was ready and had been since the summer. Mr. Johnson indicated that he had a teaching position opening up; however, that position never materialized inasmuch as the teacher who was supposed to have resigned, Carolyn Larkins, needed an additional year of employment for retirement purposes. Petitioner was not assigned to a position at any time during the 1975-76 school year. Toward the end of the 1975-76 school year, Petitioner again informed her principal of her continuing request to be assigned. When no assignment was given her at the beginning of the 1975-76 school year, the Petitioner, out of economic necessity, accompanied her husband to Maine where he had obtained employment. Petitioner made it plain to her principal that she still sought employment with the Board and would return to Florida if and when an assignment was offered her. Finally, in November, 1976, approximately two months after the Petitioner left Florida, her principal assigned her to a teaching position and she returned and resumed teaching in the school system. Petitioner was given an annual contract for the 1976-77 school year and inquired why she was being asked to sign an annual contract. Her principal advised her that it was "customary" to do so. The Petitioner remained on the assignment the remainder of the 1976-77 school year. At the end of the 1976-77 school year, the present Superintendent of Schools, Laquita Shuler, recommended and the Respondent School Board approved, the Petitioner's continued employment. The Petitioner taught the entire 1977-78 school year. During the 1977-78 school year, Petitioner was again tendered an annual contract for execution which she refused to sign. Petitioner, before the School Board meeting in December, 1977, contended that she had a continuing contract and the Board took no action on her contention. At the end of the 1977-78 school year, Petitioner was not recommended for continued employment by the Superintendent. This was so, despite the favorable recommendation of her principal. Petitioner, at all times subsequent to the end of the 1977-78 school year, has been refused further employment by the Respondent. The Petitioner has made efforts to obtain employment during the interim; however, her interim earnings have been minimal. Since her separation from the Liberty County School Board, the Petitioner has been ready, willing and able to work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Respondent, School Board of Liberty County, make the Petitioner whole for wages including her loss of pay during the 1975-76 school year, her pay from the start of the 1976-77 school year through November 16, 1976, when she was reassigned to her teaching position, her pay from the start of the 1978- 79 school year through the date of her reinstatement, as well as the expenses incurred by the Petitioner as a direct and approximate result of the Respondent's actions. RECOMMENDED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
The Issue Whether Petitioner's application for certification should be denied for the reasons set forth in the Notice of Reasons.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is an applicant for a Florida Educator's Certificate. On April 17, 2004, at the Kendall campus of Miami-Dade Community College (College), Petitioner sat for the general knowledge portion of the certification examination (Test), which included an essay question. In advance of the Test, Petitioner was informed in writing of, among other things, the following: In its continuing effort to assure fairness and equity in examination administration conditions, the Florida Department of Education is putting into written form those activities that have been, and continue to be, regarded as cheating by, or on behalf of, an examinee. The specific items represent cheating activities encountered throughout the history of the Department's assessment programs, but do not preclude the Department from appropriate action in cases of cheating that do not fall under a specific item. These guidelines are applicable to the Florida Teacher Certification Examinations program . . . . Section 1 defines those behaviors that constitute cheating. Section 2 lists materials, equipment and other aids that examinees are prohibited from using during the examination. . . . Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: * * * c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. * * * Section 2: Prohibited Aids The following aids are prohibited during examination administration: . . . papers of any kind, including scratch paper; . . . * * * Annette Lorenzo, a College employee, was the "room supervisor" in the room in which Petitioner took the Test. Ms. Lorenzo was assisted by another College employee, Gladys Manrique, "who was "working as a proctor" in the room. When Petitioner arrived in the room the morning of the Test, she was checked in by Ms. Lorenzo, who assigned her a seat near the front of the room. Upon being told of her seat assignment, Petitioner "pointed to the last seat of the last row" and asked if she could sit there instead. Ms. Lorenzo "said, 'Okay, no problem,' and [Petitioner] went and sat down in that seat." After "checking everybody in," Ms. Lorenzo read "instructions for the exam" to the examinees (including "go[ing] through all the guidelines on what constitute[d] cheating, as well as what [was] and [was] not allowed in the room"), and, with Ms. Manrique's help, handed out the testing materials. Testing then began (at approximately 8:45 a.m.). Ms. Lorenzo and Ms. Manrique "walk[ed] around the room, up and down the aisles," to "mak[e] sure that nobody [was] cheating or using anything [prohibited]" while the test was being administered. As she was doing so, during the essay portion of the Test, Ms. Lorenzo noticed Petitioner periodically "looking into her [cupped] left hand [which was positioned on the desk in front of her, just above her answer booklet, and appeared to contain tissues] while she was writing" in the booklet with her right hand. Ms. Lorenzo observed Petitioner's engaging in this suspicious conduct for "[a]t least ten minutes." During this time, Ms. Lorenzo was "staring at [Petitioner], watching her very closely." When she eventually made eye contact with Ms. Lorenzo, Petitioner moved her hands towards her face and "made a noise like she was blowing her noise." She then closed her left hand into a fist and continued writing with her right hand. Ms. Lorenzo advised Ms. Manrique that she suspected that "something [was] going on" with Petitioner, and she asked Ms. Manrique to "take a look." Ms. Manrique observed Petitioner for approximately five minutes, after which she reported back to Ms. Lorenzo that she "believe[d] there [was] something going on as well." Ms. Lorenzo then "walked to the back of the room and stood to the right of Petitioner." From her vantage point, Ms. Lorenzo noticed "sticking out the bottom of [Petitioner's left] hand," which was "still in a fist," not only tissues, but "paper with some writing on it." Upon making this observation, Ms. Lorenzo asked Petitioner to show her "everything [Petitioner] had in her hand."3 Petitioner's immediate response was to "[u]s[e] her right hand [to] grab[] the tissues out of her left hand," which she then quickly closed into a fist again. She gave the tissues she had transferred from her left to right hand to Ms. Lorenzo, explaining that she had "just tissues" and nothing else. Ms. Lorenzo, however, knew otherwise and demanded that Petitioner open her left hand. Petitioner complied, revealing the paper that Ms. Lorenzo had seen "sticking out" of the hand when it was clenched. The paper was the size of a "small note [pad] sheet." It was crumpled from being held tightly by Petitioner. On the paper was a complete essay that that Petitioner had written before entering the examination room. The essay was entitled, "A Place to Visit: San Antonio Park."4 Ms. Lorenzo took the paper, as well as Petitioner's testing materials, including Petitioner's answer booklet, from Petitioner. In her answer booklet, Petitioner had written an essay about San Antonio Park, substantial portions of which were identical, word for word, to what was on the paper that Ms. Lorenzo had confiscated from Petitioner's left hand. Petitioner had knowingly brought this paper into the examination room with the intent to use it as an aid in answering the essay question on the general knowledge portion of the Test,5 and she carried out this intent once the Test began.6 As Petitioner started to "g[e]t a little bit loud," Ms. Lorenzo escorted her from the room and took her to see Juan Meza, the College's testing director.7 On the way to Mr. Meza's office, Petitioner insisted that she had not cheated and "begg[ed] [Ms. Lorenzo] to let her go finish the exam." Ms. Lorenzo responded that Petitioner's "test [was] over for today." After Ms. Lorenzo had told Mr. Meza that she had "found [Petitioner] cheating," Mr. Meza spoke to Petitioner and told her that she could not "continue taking the test" because she had been caught cheating. Petitioner denied to Mr. Meza that she had been cheating. Mr. Meza, in turn, informed Petitioner that he would send an "irregularity report" to the Department and that the Department would "make [a] decision" as to whether she had been cheating and then "contact her to let her know what [was] going on." As promised, on or about April 19, 2004, Mr. Meza sent an "irregularity report" to the Department (along with the materials that Ms. Lorenzo had taken from Petitioner in the examination room). On April 26, 2004, the Department sent the following letter to Petitioner: This letter is in response to information I have received from staff at Miami Dade College, Kendall campus confirming that you failed to follow testing procedures during the administration of the General Knowledge Test on April 17, 2004. Along with the admission ticket you received for the examination, you received a letter that outlines the State's policy on cheating. Section 1 (c) and (f) and Section 2 state the following: "Section 1: Cheating Cheating is any unauthorized activity that impairs or alters the circumstances of the examination as a measure of the knowledge or skills it was designed to assess, including but not limited to the following: c. Bringing, or attempting to bring, into the examination room, materials, equipment, or information in any tangible form that could be used to provide unauthorized assistance in responding to examination questions or directions. * * * f. During the examination, using or attempting to use, prohibited aids, as identified in Section 2. Section 2: Prohibited Aids The following aids are prohibited during examination administration: Timex Data Link™ wrist watch; electronic pager; cellular telephone; pocket organizer; electronic writing pen or pen-input device; any electronic device with an alphabetic keyboard; dictionary or other books; ruler; papers of any kind, including scratch paper; slide rule; protractor; compass; laptop computer; calculator watch, or calculator except those calculators provided at the test center for the following tests: Mathematics 6-12, the math portion of Middle Grades Integrated Curriculum (MGIC), Middle Grades Mathematics 5-9, Chemistry 6-12, Physics 6-12, and the math subtests of the General Knowledge Test." As a result of your failure to abide by this policy, the score on the Essay subtest of the General Knowledge Test under your name and Social Security number . . . for the April 17, 2004, test administration has been invalidated. By copy of this letter, I am also informing Professional Practices Services and the Bureau of Educator Certification of this decision. This decision means that you have yet to fulfill the State's requirements for a passing score on the Essay subtest of the General Knowledge Test. You are entitled to dispute this decision through legal administrative procedures. If you wish to do so, you must send a written request for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. The written request must be postmarked within twenty (20) calendar days of the date you receive this letter and submitted to the following address: . . . . If you fail to submit the written request within the specified time period, you will have waived the opportunity to contest the decision through administrative proceedings, and the score invalidation decision will be final, subject only to judicial review pursuant to Section 120.68, Florida Statutes. Petitioner responded by sending a letter to the Department, which read (verbatim) as follows: I have received your letter about the problem I had the day of test. I'm so sorry about the day. In 20 years of being a teacher, I never had that kind of problem. That day I had a bad cold and when I finished my test, the only thing that I had to do was to check it, but I was coughing badly and I took a napkin that was inside my bag on the floor, but together with the napkin came out a paper. I took both in my hand. I put my hand up, because I knew that if the teacher saw me in this moment I got in trouble, but it was too late. The teacher came to me, asked for the paper and the napkin and without I could explain anything. She took to the supervisor and explained everything to him. He told he had to follow the rules, then he had to report the incident. So I think I should have an opportunity to do my tests again. The Commissioner subsequently notified Petitioner that her application for certification was being denied because she had "attempted to cheat" on the essay portion of Test "by referring to a complete essay she had in her possession when she entered the room." This denial of Petitioner's application for certification is the subject of the instant proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order sustaining the denial of Petitioner's application for certification. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2005.
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of June, 1994.
The Issue The issue is whether Petitioners are entitled to the Best and Brightest Scholarship as established and defined by section 1012.731(3)(c), Florida Statutes (2017).
Findings Of Fact In 2015, the Legislature enacted, by way of a line item in the annual appropriations bill, the Best and Brightest Program to award cash scholarships to Florida teachers who have been evaluated as “highly effective” by their school districts and who scored at or above the 80th percentile (top 20%) on the SAT or ACT when they took the test. Ch. 2015-232, § 2, line item 99A, Laws of Fla.1/ In 2016, the Legislature enacted a stand-alone statute for the Best and Brightest Program, codifying the appropriations bill language and providing that the program is to be administered by the Department of Education (the “Department”). Ch. 2016-62, § 25, Laws of Fla., codified at § 1012.731, Fla. Stat. (2016). Rather than enacting a statutory scholarship amount, subsection (5) of the 2016 version of section 1012.731 provided that the scholarships would be awarded to every eligible classroom teacher “in the amount provided in the General Appropriations Act.”2/ The 2016 statute also explained that the Best and Brightest Program was intended to provide “categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic achievement.” § 1012.731(2), Fla. Stat. (2016). Section 1012.01(2) defines “instructional personnel,” including “classroom teachers,” as follows: INSTRUCTIONAL PERSONNEL.— “Instructional personnel” means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel: Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists. Librarians/media specialists.-- Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. Other instructional staff.--Other instructional staff are staff members who are part of the instructional staff but are not classified in one of the categories specified in paragraphs (a)-(c). Included in this classification are primary specialists, learning resource specialists, instructional trainers, adjunct educators certified pursuant to s. 1012.57, and similar positions. Education paraprofessionals.--Education paraprofessionals are individuals who are under the direct supervision of an instructional staff member, aiding the instructional process. Included in this classification are classroom paraprofessionals in regular instruction, exceptional education paraprofessionals, career education paraprofessionals, adult education paraprofessionals, library paraprofessionals, physical education and playground paraprofessionals, and other school-level paraprofessionals. In 2017, the Legislature amended section 1012.731(3) to establish that the scholarship award would be $6,000 for those classroom teachers rated “highly effective” who also had the requisite SAT or ACT scores: (3)(a) To be eligible for a scholarship in the amount of $6,000, a classroom teacher must: 1. Have achieved a composite score at or above the 80th percentile on either the SAT or the ACT based on the National Percentile Ranks in effect when the classroom teacher took the assessment and have been evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded, unless the classroom teacher is newly hired by the district school board and has not been evaluated pursuant to s.1012.34. * * * In order to demonstrate eligibility for an award, an eligible classroom teacher must submit to the school district, no later than November 1, an official record of his or her qualifying assessment score and, beginning with the 2020-2021 school year, an official transcript demonstrating that he or she graduated cum laude or higher with a baccalaureate degree, if applicable. Once a classroom teacher is deemed eligible by the school district, the teacher shall remain eligible as long as he or she remains employed by the school district as a classroom teacher at the time of the award and receives an annual performance evaluation rating of highly effective pursuant to s. 1012.34 or is evaluated as highly effective based on a commissioner- approved student learning growth formula pursuant to s. 1012.34(8) for the 2019-2020 school year or thereafter. Ch. 2017-116, § 46, Laws of Fla. The 2017 amendment to section 1012.731 also added a new subsection (3)(c), providing that lesser amounts could be awarded to teachers rated “highly effective” or “effective,” even if they could not demonstrate scores at or above the 80th percentile on the SAT or ACT: Notwithstanding the requirements of this subsection, for the 2017-2018, 2018- 2019, and 2019-2020 school years, any classroom teacher who: Was evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded shall receive a scholarship of $1,200, including a classroom teacher who received an award pursuant to paragraph (a). Was evaluated as effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded a scholarship of up to $800. If the number of eligible classroom teachers under this subparagraph exceeds the total allocation, the department shall prorate the per-teacher scholarship amount. This paragraph expires July 1, 2020. Id. By December 1 of each year, each school district must submit to the Department the number of eligible classroom teachers who qualify for the scholarship, as well as identifying information regarding the schools to which the eligible classroom teachers are assigned. § 1012.731(4)(a)-(c), Fla. Stat. For the 2017-2018 school year, the December 1, 2017, submission deadline was extended to January 2, 2018, due to a hurricane. The School Board’s deadline for teachers to apply for the scholarship was accordingly extended from November 1, 2017, to December 1, 2017. By February 1 of each year, the Department is required to disburse scholarship funds to each school district for each eligible classroom teacher to receive a scholarship. § 1012.731(5), Fla. Stat. By April 1, each school district is required to award the scholarship to each eligible classroom teacher. § 1012.731(6), Fla. Stat. In 2018, the Legislature amended section 1012.731 to provide that a school district employee who is no longer a classroom teacher may receive the $6,000 award if the employee was a classroom teacher in the prior school year, was rated highly effective, and met the requirements of this section as a classroom teacher. § 1012.731(3)(b)2., Fla. Stat. (2018). The Legislature did not add a similar provision stating that former classroom teachers who are still school district employees remain eligible for the $1,200 and $800 awards. § 1012.731(3)(c)2., Fla. Stat. (2018). The Legislature funds the Best and Brightest Program. The School Board had no role in creating the Best and Brightest Program. The School Board is required to determine the eligibility of classroom teachers who qualify for the Best and Brightest Program pursuant to the requirements of the statute. Petitioners in this case claim entitlement only to the $1,200 award established by the 2017 version of the statute. Brenda Troutman, director of Instructional Personnel, is the School Board employee in charge of the Best and Brightest Program application and submission process. Ms. Troutman has worked for the School Board for 17 years. She has been a junior high classroom teacher and an assistant principal and vice principal at the high school level. Though no longer teaching in the classroom, Ms. Troutman retains her certifications in math grades 5-9, exceptional student education (“ESE”), educational leadership, and school principal. When working as a high school administrator, Ms. Troutman was the master scheduler for her school, meaning that she built the schedule for every teacher at the school. This task required that she become very familiar with the School Board’s course code directory. Ms. Troutman also had to understand the certification system in order to hire and assign teachers. If a teacher asked to teach a certain course, Ms. Troutman had to know both the course requirements and the teacher’s certifications to determine whether the teacher was eligible to teach the course. As part of her current position in the School Board’s human resources department, Ms. Troutman is required to know the School Board’s various job titles and descriptions. She is responsible for replacing obsolete job descriptions and posting current job descriptions on the School Board’s website. Ms. Troutman testified as to how she manages the application and submission process of the Best and Brightest Program. She starts by making herself familiar with any changes the Legislature may have made to the program. She then issues a notice to teachers about the program and the current eligibility requirements. For the 2017-2018 Best and Brightest Program, Ms. Troutman prepared a draft email that Superintendent Addison Davis reviewed and sent to all of the school district’s teachers and administrators on September 28, 2017. The email explained that to be eligible for the $6,000, $1,200 or $800 scholarship, an applicant must meet the definition of classroom teacher as set forth in section 1012.01(2)(a). Ms. Troutman developed the School Board’s application for the Best and Brightest Program, based upon her understanding of the statutory requirements. All completed applications for the Best and Brightest Program come into Ms. Troutman’s office. Ms. Troutman testified that she received approximately 2,000 applications for the 2017-2018 award. Ms. Troutman, with the aid of her assistant, reviews and verifies the information on the applications. If Ms. Troutman has any questions about an application, she seeks the opinion of her direct supervisor David Broskie, the director of Human Resources. In some cases, they also have discussions with Superintendent Davis and School Board Attorney David D’Agata. The School Board employs two major data programs. FOCUS is the program/database that holds all student information, including attendance, grades, disciplinary actions, test information, and demographics. TERMS is the program/database that houses all employee information. When verifying information on the Best and Brightest Program applications, Ms. Troutman uses both FOCUS and TERMS, and on occasion conducts additional investigation. The School Board’s application asks for the teacher’s assignment. Because the application was titled “2017-2018 Clay County Application: Florida Best & Brightest Teacher Scholarship,” Ms. Troutman believed that the teachers were required to provide their 2017-2018 teacher assignments. As will be discussed in more detail below, the year of the teacher assignment was a major point of disagreement between Petitioners and the School Board. The application provided a checkmark system for the teacher to indicate which scholarship was being sought. The $1,200 scholarship line provided as follows: I am applying for the $1,200.00 highly effective scholarship. I have attached a copy of my 2016-2017 highly effective final evaluation (with student performance measures). The application’s language led Petitioners to believe that the 2017-2018 scholarship awards would be based on their teacher assignments and evaluations for 2016-2017. Ms. Troutman explained that this belief was incorrect. Eligibility for the 2017-2018 scholarship was based on a teacher’s assignment for the 2017-2018 school year. The plain language of the statute requires that one must be a “classroom teacher” in order to be eligible for the scholarship; having been a classroom teacher in a previous year does not suffice. Ms. Troutman stated that she verified with Mr. Broskie, Mr. Davis, and Mr. D’Agata that the School Board should base the award on the teacher’s 2017-2018 assignment. Petitioners, on the other hand, argue that the statutory language requires only an evaluation of “highly effective” for the 2016-2017 school year. The statute is silent as to whether a teacher applying for the $1,200 scholarship must be teaching in a classroom situation during the 2017-2018 school year. Petitioners argue that the School Board is reading a requirement into the statute that is not evident from the plain language. Ms. Troutman further explained that the applications for the 2017-2018 scholarships were to be submitted prior to the conclusion of the 2017-2018 school year. Therefore, as required by section 1012.731(3)(a)1. and (3)(c), the application requested the evaluation for “the school year immediately preceding the year in which the scholarship will be awarded.” Ms. Troutman testified that it is sometimes obvious from the teaching assignment that the teacher qualifies as a “classroom teacher.” If an application states that the assignment is “chemistry teacher” or “algebra teacher” or “fifth grade classroom teacher,” it is clear that the applicant meets the definition. Aside from verifying the assignment in the TERMS database, Ms. Troutman takes no further action. However, some applications require additional research before Ms. Troutman can conclude that the applicant qualifies as a classroom teacher. For example, Petitioner Abbie Andrews identified her assignment on her application as “classroom teacher.” Ms. Troutman went to TERMS and saw that Ms. Andrews was designated as an “ESE Support Facilitator” for the 2017-2018 school year. Ms. Troutman testified that ESE Support Facilitators are sometimes assigned to teach classes and therefore could be classified as “classroom teachers” for purposes of the Best and Brightest Program. Ms. Troutman examined both the master schedule and the teacher’s personal account in FOCUS to determine whether Ms. Andrews was assigned to teach any courses. Ms. Andrews had no teaching assignments for 2017-2018 in FOCUS. Ms. Andrews and fellow Petitioners Cherry Deaton, Donna Foster, and Danielle Perricelli held the position of ESE Support Facilitator during the 2017-2018 school year. The School Board concluded that these Petitioners did not qualify for the $1,200 scholarship because their schedules did not assign them the professional activity of instructing students in courses in a classroom situation, as required by the statute. It was undisputed that these Petitioners had been rated “highly effective” for the 2016-2017 school year. It was also undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the statutory definition of a classroom teacher for the 2016-2017 school year. The School Board’s general job description for an ESE Support Facilitator provides as follows: The teacher is responsible directly to the Principal. He/she provides for the instruction, supervision, and evaluation of assigned students on an as needed basis. He/she supports both general education and ESE teachers. He/she serves in a staff relationship with other teachers and supports and promotes ESE inclusion activities. (Emphasis added). The School Board contrasts this job description with that of “Classroom Teacher,” which provides: “The teacher is responsible directly to the principal for the instruction, supervision, and evaluation of students.” The classroom teacher is fully responsible for the “instruction, supervision, and evaluation” of the students in her classroom, whereas the ESE Support Facilitator performs those activities only “as needed.” The School Board also points out that, unlike a classroom teacher, an ESE Support Facilitator is not required to be certified in-field for the position. The ESE Support Facilitator is not the teacher of record for any particular course. Their schedule is fluid. The ESE Support Facilitator comes and goes as needed (“pushes in,” to use the teaching vernacular) in the classroom, and is expected to be wherever the ESE student assigned to them needs their services. Sometimes they push into the classroom and sometimes they pull students out of the class to work on a specific concept or skill. An ESE Support Facilitator is assigned “contact students” for whom individualized educational plans (“IEPs”) are prepared. The classroom teacher of record is responsible for giving the student course credit or a grade and is responsible for recording attendance in FOCUS. One-third of the classroom teacher’s evaluation is tied to student performance. Only the classroom teacher has default access to FOCUS in order to enter attendance and grade information for the students in the class. An ESE Support Facilitator must seek and be granted access to student’s FOCUS information. An ESE Support Facilitator is expected to meet with each contact student at least once a month; in practice, these meetings tend to occur more frequently. The ESE Support Facilitator goes over accommodations the student needs and assignments the student did not understand. The facilitator reteaches the course material if need be and stays in touch with the student’s teachers and parents, making sure all stakeholders in the student’s success are on the same page. The evidence presented at the hearing indicated that all of the students served by the ESE Support Facilitators in this case attended classes in regular classrooms, not in separate ESE classes. In such “inclusion” classes, the ESE Support Facilitator’s role is to push in and assist contact students in the regular classroom, ensuring that their IEP requirements are met and that the students are progressing satisfactorily through the course material. Based on these definitional and operative distinctions, Ms. Troutman considered ESE Support Facilitators to be “other instructional staff” as defined by section 1012.01(2)(d), rather than “classroom teachers” as defined by section 1012.01(2)(a). Ms. Andrews was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Andrews met the definition of a “classroom teacher” for the 2016-2017 school year. During the 2017-2018 school year, Ms. Andrews was a full-time ESE Support Facilitator at Middleburg High School, not assigned to teach any courses. In FOCUS, she was assigned as the “contact teacher” for approximately 60 students, meaning that she was primarily responsible for writing their IEPs and ensuring that they made adequate progress in their classes. She met with all of her contact students on an as needed basis, at least once per month but often as much as twice per week. However, Ms. Andrews was not listed in FOCUS as the teacher of record for any class. Even though she routinely pushed into classes to support her assigned ESE students, Ms. Andrews was not the primary teacher of record. She was there to assist her contact students with whatever they needed to learn the course, but the course was not assigned to her to teach. Ms. Andrews did not have a traditional classroom. She was not the teacher of record in any course for which students received academic credit, and she did not assign grades to students for the material she was teaching. Ms. Andrews prepared IEPs that were individualized to particular contact students. She did not prepare daily lesson plans in the manner of a classroom teacher. Ms. Andrews described her job as an ESE Support Facilitator as follows: My job is to teach, mentor, challenge students to make them -- make them ready for graduation, become productive members of society. I believe that’s the same thing a classroom teacher does. I am using the Florida standards to prepare lessons for remediation if a student needs it. I am constantly having conversations with not just students, but their parents, keeping them on track or making sure their students are on track because ultimately, a parent wants that student to graduate on time as well. I believe that the questions that are asked of me as a support facilitator are the same questions that parents would ask of a classroom teacher because they are very concerned. I am not just answering questions based on one classroom. I'm answering questions based on six classes. I'm responsible for that student being successful in six classes. The IEPs that I write, they're legally binding. I am involved in the academics, behavior, discipline. I deal with discipline problems. All of these things are the same things that a classroom teacher would deal with. I do not have a schedule in Focus; however, when a need arises, I'm there, I'm in a classroom, I'm helping, and I'm doing what's needed to be done for the kids to be successful. Ms. Deaton was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Deaton met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Deaton was a full-time ESE Support Facilitator at Middleburg High School, with approximately 60 contact students assigned to her in FOCUS. She was not assigned to teach any courses. If she pushed into a class to support her assigned ESE students, she was not the primary teacher of record. She was not designated as a co-teacher,3/ but she would assist teaching classes on an as-needed basis if she was not busy testing students or preparing IEPs. For those classes, she was provided access to view grades in FOCUS, but she did not have access to give grades. She would meet students as needed in her office, in another teacher's classroom, or in the computer lab. She did not develop lesson plans on her own, but provided suggestions and advice on lesson plans to the primary teacher. As an ESE Support Facilitator, Ms. Deaton did not have a classroom or teach a classroom full of students. She had no schedule assigned to her in FOCUS, but had contact students assigned to her in FOCUS. Ms. Foster was employed as an English/language arts and ESE Inclusion Teacher during the 2016-2017 school year. She taught four classes as ESE inclusion teacher. The remaining two periods were devoted to her position as ESE department head. Ms. Foster had a schedule in FOCUS. She had her own classroom and students, prepared daily lesson plans, and assigned grades. Students in her classes received academic credit. Ms. Foster was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Foster met the definition of a “classroom teacher” for the 2016-2017 school year. Ms. Foster was employed as an ESE Support Facilitator and ESE department head during the 2017-2018 school year. She retired at the end of the school year, effective June 7, 2018. As an ESE Support Facilitator, Ms. Foster did not have a set schedule. Ms. Foster’s assigned ESE students did not receive academic credit for the services she provided, but her assistance was integral in helping them pass their courses. Ms. Foster assisted with an American history class during the 2017-2018 school year, but was not assigned as the primary teacher in FOCUS. Ms. Foster testified that she did not believe she had ever been identified as a co-teacher in FOCUS, though she thought she should have been. Ms. Foster testified that she had IEPs for the American history class that listed both the class setting and the service delivery method as “co-teach.” She explained that because the class had both general education and ESE students, the teacher had to be certified in both the subject matter and ESE. Because the primary teacher was certified only in the subject matter, it was necessary for Ms. Foster to co-teach the class. Ms. Foster testified that she split lesson plan preparation with the primary teacher. Ms. Foster believed she was not listed in FOCUS as the co-teacher because the school administration never bothered to remove the name of Kristin Heard, the ESE teacher originally assigned to the class, who was moved to a science class early in the year. Ms. Foster pursued the matter with the assistant principals at Lakeside Junior High, but nothing came of it. Mallory McConnell, the principal at Lakeside Junior High School during the 2017-2018 school year, confirmed that Ms. Foster was not listed as a co-teacher on the master schedule. Ms. McConnell testified that in 2017-2018 there were no “true co-teacher” situations, by which she meant two teachers who equally shared responsibility for the instruction and grading of every student in the class. Ms. McConnell was aware of situations in which a student’s IEP mandates co-teaching in a class, but she testified that she was unaware of any student at Lakeside Junior High School in 2017-2018 whose IEP required a co-teacher. Ms. McConnell conducted infrequent walkthrough observations of the American history class. She testified that she saw Ms. Foster providing support services to the ESE students but never saw Ms. Foster teaching at the front of the class. Ms. McConnell stated that she would not have expected to see Ms. Foster teaching the class or creating lesson plans for the class as a whole because those tasks were not her job responsibility. Ms. McConnell was in no position to state whether Ms. Foster did, in fact, prepare lesson plans and teach the class. Ms. McConnell was able to state that for at least one month during the school year, Ms. Foster administered tests to her ESE students, meaning that she could not have been co- teaching the American history class. Ms. Foster did not tell Ms. Troutman that she had assisted teaching the American history class during the 2017- 2018 school year, nor did she include such information on her application for the Best and Brightest Program, because she believed the award was based upon her position in 2016-2017 and because she believed the school administration’s failure to include her as teacher of record in FOCUS was an “in-house” issue. Ms. Perricelli was employed as an ESE Support Facilitator, ESE department head, and MTSS intervention team facilitator at Orange Park Junior High School. “MTSS” is an acronym for Multi-Tiered System of Support, a framework for providing support to students who are struggling academically or have an identified need in a specific area such as speech, language, or behavior. MTSS interventions may be used for regular education or ESE students. Ms. Perricelli testified that she was not the teacher assigned by FOCUS for any class in 2016-2017. In addition to her regular ESE duties, Ms. Perricelli taught “grade recovery” to two students in language arts, science, and math. Grade recovery is a class offered to students who have failed a course and lack the credits to move on to the next grade level. Ms. Perricelli designed lesson plans and curriculum assessments for each subject, graded papers and tests, and reported the students’ grades to the school. Ms. Perricelli testified that she was not given the authority to enter the grade recovery students’ grades into FOCUS in 2016-2017. She requested a course code but was never provided one. Ms. Perricelli taught grade recovery for two periods, one for each student. For the other four periods of the school day, Ms. Perricelli would push into classrooms and work with ESE students, usually in small groups with students who needed remediation. She had around 40 contact students and developed IEPs for each of them. Most of her contact students were in the classrooms that she was going into, so she would see them throughout the week. She would meet with her other contact students about once a week. Ms. Perricelli would work with the assigned teacher to modify the course material to meet the needs of the ESE students. Ms. Perricelli was evaluated as “highly effective” for the 2016-2017 school year, based on standard classroom teacher criteria. She was observed working with her grade recovery students and in the classrooms in which she pushed in. Ms. Perricelli testified that her assignments were the same for the 2017-2018 school year. She taught one student in a grade recovery course. Due to her persistence, Ms. Perricelli was able to get a course code from Ms. Troutman for the grade recovery course in 2017-2018. The grade recovery course was named “Unique Skills.” In 2017-2018, Ms. Perricelli was assigned around 70 contact students for whom she prepared IEPs. As department head, Ms. Perricelli oversaw 22 ESE instructors. She was the only ESE Support Facilitator at the school. Janice Tucker was vice principal at Orange Park Junior High School in 2017-2018. She testified that early in the school year, the assigned teacher for seventh grade math left for another county. A long-term substitute, Lashonda Campbell, took over as teacher of record. Ms. Perricelli testified that she developed some of the curriculum in Ms. Campbell’s math classes, which included ESE and non-ESE students. She stated that she taught the class alone once a week when Ms. Campbell started, then tapered off into pulling out small groups of ESE students who needed remediation. She worked with four periods of seventh grade math classes that year. Ms. Perricelli testified that she gave grades to students in those courses and gave them to Ms. Campbell for entry into FOCUS. Ms. Tucker testified that Ms. Perricelli was not a co- teacher for the math class. Ms. Campbell was the teacher of record. Ms. Tucker testified that when she observed the math class, she saw Ms. Perricelli working with small groups in the back of the class or at a table in the hallway, and Ms. Campbell at the front teaching the class. Ms. Tucker never saw Ms. Perricelli at the front of the class teaching. Ms. Tucker conceded that she had no knowledge whether Ms. Perricelli was involved in creating lesson plans or assigning grades for the math class. Ms. Perricelli was evaluated by Ms. Tucker for the 2017-2018 school year. Ms. Tucker observed Ms. Perricelli in the seventh grade math class and in the Unique Skills class. Ms. Perricelli was again rated “highly effective.” Ms. Perricelli testified that she did not mention teaching the math class on her scholarship application. She stated that she did not tell Ms. Troutman about the math class because at the time, the school was still attempting to get a full-time teacher for the class. Ms. Troutman obviously knew about the “Unique Skills” class, having issued the course code to Ms. Perricelli. Ms. Troutman testified that she consulted with Mr. Broskie and Mr. D’Agata as to whether having one assigned class in FOCUS should qualify Ms. Perricelli for the scholarship. They concluded that teaching one class with one student was insufficient to qualify as a “classroom teacher” for purposes of the Best and Brightest Program. Ms. Troutman testified that this conclusion was consistent with the School Board’s historic practice of considering two or more classes as the “cutoff” for a classroom teacher. Ms. Troutman believed that if an ESE Support Facilitator taught two classes, then she would qualify as a “classroom teacher.” Petitioner Easter Brown taught a fourth grade classroom at Grove Park Elementary School during the 2016-2017 school year and was rated “highly effective.” It is not disputed that Ms. Brown met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Brown was a full-time SPRINT specialist. “SPRINT” stands for Supervisor of Pre-Interns and New Teachers. SPRINT specialist is a support position for teacher trainees and new teachers, operating under an agreement between the School Board and the University of North Florida (“UNF”), each of which pays half of the SPRINT specialist’s salary. Ms. Brown taught field classes at UNF and conducted workshops for clinical educator training and professional development. Ms. Brown kept Grove Park Elementary as her home base and shared a classroom there with two other teachers. She taught UNF students in classes at the university and worked with new teachers at the school. She estimated that she spent half her time at UNF and half at Grove Park Elementary. Ms. Brown had no K-12 courses or K-12 students assigned to her in 2017-2018. She had no courses assigned to her in FOCUS. She gave grades to only UNF students. Ms. Brown did not create traditional lesson plans but did assist new teachers in writing lesson plans. Ms. Brown testified that she did some teaching in a regular classroom for purposes of modeling teaching techniques for her student teachers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Finding that Petitioners Abbie Andrews, Cherry Deaton, and Donna Foster were not eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were not classroom teachers during the 2017-2018 school year; and Finding that Petitioners Easter Brown and Danielle Perricelli were eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were classroom teachers during the 2017-2018 school year, and directing staff to take all practicable measures to secure the scholarship monies for Ms. Brown and Ms. Perricelli. DONE AND ENTERED this 18th day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2019.
