Findings Of Fact The Public Employer filed a petition for determination of managerial and confidential employees with PERC on February 21, 1975. The job positions for which managerial or confidential status is requested, and the persons who occupy the positions are set out in the petition. The petition was presented to the Public Employee Relations Commission on May 8, 1975. The hearing in this case was scheduled by notice dated August 1, 1975. The Public Employer recognized the MCEA as the exclusive bargaining agent of instructional personnel employed by the Public Employer prior to the instant petition being filed. A contract between the Public Employer and MCEA was signed on August 26, 1975, and was received in evidence at the hearing as Public Employer's Exhibit 5. The Public Employer's evidence respecting the responsibilities, duties, and day-to-day activities of the persons who occupy the positions for which managerial or confidential status is being sought was received primarily in the form of job descriptions, and a chart showing the functions of each position which justify managerial or confidential status as perceived by the Public Employer. The job descriptions were received in evidence as Public Employer's Exhibit 2. The chart was received in evidence as Public Employer's Exhibit 3. The job descriptions accurately describe the duties, responsibilities, and day- to-day activities of each position. If the persons who occupy the positions are not performing their duties in accordance with the descriptions, then they are performing their duties improperly. It is likely that if the jobs were being performed contrary to the descriptions, this fact would be known to the Superintendent. The positions for which managerial or confidential status is being sought are described in Public Employer's Exhibit 2 beginning at the following indicated page: the Assistant Superintendent for Service at page 27, the Assistant Superintendent for Instruction at page 5, the Assistant Superintendent for Business Affairs at page 32, the Director of Personnel at page 24, the Director of Instructional Support and People Personnel Services at page 20, the Director of Adult Education at page 17, the Director of Exceptional Child and Special Services at page 13, the Director of Federal Programs at page 22, the Director of Career Education at page 16, the Director of Secondary Education at page 7, the Director of Elementary Education at page 9, the Director of Vocational Education at page 15, the Director of Community Manpower Programs at page 18, the Director of Planning and Research at page 14, the Maintenance Supervisor at page 28, the Transportation Supervisor at page 29, the Supervisor of Custodial Services at page 30, the Food Service Supervisor at page 34, the High School Principal at page 8a, the Middle School Principals at page 8f, the Elementary School Principals at page 11, the Assistant High School Principals at page 8c, the Assistant Middle School Principals at page 8h, the High School Department Heads at page 8d, the Curriculum Coordinators at page 8i and 12a, the Helping Teacher at page 12c. The references in the chart which was received as Public Employer's Exhibit 3 are to paragraphs in the job descriptions set out in Public Employer's Exhibit 2. The Public Employer is seeking to implement what was described at the hearing as a "team management system" in order to accomplish management a baser level. Under this system Principals, Assistant Principals, and department Heads would take on increased management functions. Principals are expected to initiate action respecting policy changes which they consider appropriate. The School Board, the Public Employer's legislative body, is ultimately responsible for adopting policy. The School Board typically adopts policies based upon the recommendations of the elected Superintendent, the Public Employer's chief executive officer. The Principal's recommendations respecting policy, especially policy which would be applicable primarily in the Principal's school are given great weight. One recent policy making decision in which a principal played a part involved parking at Martin County High school. The school Principal advised the superintendent of a need for a change in rules and regulations respecting parking. The principal went before the Board to describe the problem, and the Board directed the Principal and the Assistant Superintendent for Service to write a new policy for the Board's consideration. This policy was formulated primarily by the school Principal and was presented to the superintendent. The superintendent presented the policy to the School Board and recommended its adoption. The School Board adopted the policy without amendment. There are ten Principals employed by the Public Employer. There are one High School Principal, three Middle School Principals, and six Elementary School Principals. The High School Principal, one Middle School Principal and one Elementary School Principal were appointed by the Public Employer to the team which negotiated a contract with the MCEA. Under the agreement that has been signed by the Public Employer and by the MCEA, the Principal is charged with administering the agreement within his or her school. The Principal takes on a primary responsibility in the grievance procedure established in the agreement. The Principal is primarily responsible for making determinations respecting hiring and firing of personnel employed at his or her school. The Principal does not have the absolute authority to hire or fire personnel. The Principal makes recommendations to the superintendent, who in turn makes recommendations to the School Board. The School Board has the ultimate authority. In Martin County the Principals' recommendations respecting hiring and firing are followed, possibly without exception. The Principal is responsible for evaluating the personnel employed at his or her school. The evaluation is done on a form that has been adopted by the School Board. The evaluation goes into the employee's personnel file, and becomes a part of the employee's permanent employment record. The Public Employer's system for formulating and administering its budget is somewhat decentralized. Money is budgeted to a school based on the number of students. The school budget, which does not include expenditures for salaries or capital improvements, is prepared by the Principal. The Principal's budget is for all school supplies including textbooks. The central administration reviews the Principal's budget and would have authority to change items that were out of line. The budget ultimately adopted by the School Board actually reflects ten separate school budgets. The Principal has no control over the amount of money that will be budgeted to his or her school, but the Principal does have considerable latitude in setting the budget priorities for his or her school. Once the budget is adopted, the Principal has the authority to make expenditures based upon the budget. The Principal signs all purchase requisitions emanating from his or her school. The duties of Assistant Principals vary among the schools in Martin County, depending in part upon the responsibilities which are delegated by the Principal to the Assistant Principal. Virtually any of the Principal's responsibilities can be delegated by the Principal to the Assistant Principal, although ultimate responsibility would remain with the Principal. Generally Assistant Principals are charged with establishing schedules, and assigning teachers. The witness Clara Bevis Fulton is presently Principal at Martin County High School. She was previously Assistant Principal. As Assistant Principal she would hold initial interviews with job applicants. If the applicant appeared satisfactory she would call in the Department Head in the area in which the applicant works and would check the applicant's references. She would evaluate the teachers based on information given to her by Department Heads, and based upon her own classroom visits. She made recommendations to the Principal respecting hiring and firing. The Principal's budget responsibilities were handled by Mrs. Fulton while she was Assistant Principal at Martin County High School. There are six Department Heads employed by the Public Employer. All of the Department heads work at Martin County High School. The Department Heads typically spend approximately 4/5 of their time as classroom teachers, and the remaining time fulfilling administrative duties. The Director of Guidance, who is classified as a Department Head, spends more than half of his time on administrative duties. Department Heads are paid on a management pay scale rather than on a teacher's pay scale. The opinions of the Department Heads respecting new employees and old employees are solicited by the Principal or Assistant Principals. The Department Heads give considerable input into teacher evaluations. Department Heads serve as the first step in the grievance procedure adopted in the collective bargaining contract that has been signed by the Public Employer and by the MCEA. The School Superintendent refers to Department Heads as the front line of management. The Principal or Assistant Principals seek information from the Department Heads respecting the budgetary needs of their department. This information would primarily amount to an explanation of the coming year's needs in relation to the past year. This budget information relates to supplies and textbooks, not to salaries. The primary function of Curriculum Coordinators is to plan and administer a school's curriculum. The Curriculum Coordinator plays a role in evaluating teachers by forwarding information to the Principal or Assistant Principals. Information is sought from the curriculum Coordinators respecting budgetary needs, especially from the perspective of the priority of conflicting needs. The Curriculum Coordinator has no classroom duties. ENTERED this 16 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: All parties of record
The Issue Whether Respondent’s employment as a school psychologist should be terminated on the grounds set forth in the Notice of Specific Charges.
Findings Of Fact At all times material hereto, Respondent was a school psychologist employed by Petitioner pursuant to a continuing contract. Respondent was first employed by Petitioner in 1968 as a guidance counselor. In 1974 she began her employment as a school psychologist. At all times relevant to this proceeding, Respondent was a member of the United Teachers of Dade (UTD) and subject to the provisions of the collective bargaining agreement between Petitioner and UTD. At all times material hereto, Petitioner was a duly- constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 1001.32, Florida Statutes (2005).2 For administrative purposes, Petitioner’s school district is divided into regions. R3 is the region to which Respondent has been assigned at the times relevant to this proceeding. In R3, each school, whether an elementary, middle, or high school, has a CST. Each such team includes an administrator, a school counselor, one or more special education teachers, a school psychologist, and other specialists as appropriate. Typically, a child is referred to the CST because he or she is experiencing difficulties, such as academic or behavioral problems. The child’s case is discussed at a CST meeting and the CST decides whether to refer the child to a school psychologist for a psychoeducational evaluation. If that decision is in the affirmative, certain background information is put together and that information is sent to the R3 office to be opened as a case file. The assigned school psychologist receives the case file, performs a psychological evaluation on the child, writes a report detailing his or her findings, and returns the case file to a staffing specialist. The staffing specialist schedules another CST meeting to determine the next appropriate step in the process, which may result in the preparation of an Individualized Education Plan (IEP) for the student. Petitioner has adopted a manual titled “Psychological Services Procedures Manual” (the Manual) that defines the psychological services provided by Petitioner and delineates the procedures school psychologists are to follow in testing, evaluating, referring and placing students who qualify for the ESE program. The Manual also provides an evaluation report format that school psychologists are to follow. School psychologists are required to keep certain records and file certain monthly reports. They are required to report the number of evaluations and other services performed during the month on a form titled “Psychological Services Monthly Report.” They are also required to keep a case log by school for each student with an open case file at that school. The case log contains the names of children whose cases are opened at each school and the status of the case. The case log is updated monthly to reflect the status of each case. A school psychologist is an essential member of the CST and is a critical player in the development of IEPs for students who qualify for ESE. Time constraints are placed on the CST and on each school psychologist. Petitioner’s policy is that the period from the initial referral of a child to a CST to the development of the child’s IEP (for those children who qualify for ESE services) should not exceed 90 days. Since September 2004, Florida Administrative Code Rule 6A-6.0331 has required that students who are suspected of having a disability must be evaluated within a period of time, not to exceed 60 school days in which the student is in attendance. School psychologists are instructed to make every effort to complete the psychological evaluation report and to submit the report for typing within five days after the evaluation is completed. Typically, each school psychologist in R3 is responsible for two or three assigned schools. In an average week, school psychologists spend most of their time at their assigned schools, where they are required to keep the same work hours as the instructional personnel assigned to that school. At the school, the school psychologist meets with other school personnel (whether informally or as part of a CST) and evaluates students. Each school psychologist has at least one day a week at the R3 office, where he or she writes reports and consults with other R3 personnel as needed. During the R3 office day, new cases are assigned and special assignments are made. EVALUATIONS THROUGH SCHOOL YEAR 2001-02 From the school year 1990-91 through the school year 2000-01, Martha Boden was Respondent’s supervisor. For each of those school years, Ms. Boden evaluated Respondent’s performance. During those years, Ms. Boden received a myriad of complaints about Respondent’s job performance. Several school principals testified that they would not want Respondent to serve as their school psychologist based on unfavorable experiences with Respondent during the school years Ms. Boden served as her supervisor. Despite the complaints she received about Respondent, Ms. Boden evaluated Respondent’s performance as being acceptable for each year Ms. Boden supervised Respondent. Each annual evaluation of Respondent by Ms. Boden was a summative evaluation in the sense that Ms. Boden considered all information, both good and bad, that she had about Respondent’s job performance. Ms. Boden’s conclusion that Respondent was an acceptable employee for each of the years that she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the school years 1990-91 through 2000-01 does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance was problematic and provides a context for subsequent evaluations. Ms. Boden exerted considerable effort in attempts to help Respondent improve her job performance. Respondent did not take advantage of the help Ms. Boden offered. Respondent knew from Ms. Boden that she was required to produce timely, accurate psychological evaluations and monthly reports. Myra Silverstein supervised and evaluated Respondent for the 2001-02 school year. That evaluation was also a summative evaluation and also concluded that Respondent was an acceptable employee. Ms. Silverstein’s conclusion that Respondent was an acceptable employee for the year she supervised Respondent is persuasive. The evidence presented by Petitioner as to Respondent’s job performance during the 2001-02 school year does not establish the allegations set forth in the Notice of Specific Charges. That evidence does, however, establish that Respondent’s job performance continued to be problematic and provides additional context for subsequent evaluations. DELAYED EVALUATIONS AND REPORTS During the school years subsequent to the 2001-02 school year Respondent failed, on multiple occasions, to timely evaluate and complete reports for children who were being evaluated for ESE services. At Olinda Elementary School, a student was tested by Respondent on February 23, 2004 and Respondent did not close the case until January 12, 2005. Partly because of that delay, the principal of Olinda Elementary School requested that a school psychologist other than Respondent be assigned to her school. During the 2004-05 school year, Respondent was assigned to evaluate two students at Miami Springs Elementary School. More than a year passed between the time Respondent received her assignment and the time she did the testing. During the 2003-04 school year, Respondent was assigned a case in January 2004. Respondent did not do the testing on this student until July 2004 and she did not complete her report until January 2005. At Orchard Villa Elementary, Respondent was assigned a case during the summer of 2004. As of June 2005, the case had not been closed. There was no justification for the lapses in time between the dates of assignment and the dates of completion of Respondent’s reports.3 The CSTs could not determine appropriate strategies for the students Respondent was assigned to evaluate without a psychological report. Respondent’s lapses between her assignments and the completion of her reports delayed the staffing of those students and delayed the development of and the provision of appropriate services for those students. Mary Paz, the Instructional Supervisor at the R3 office became Respondent’s supervisor in March 2004. After she assumed that responsibility, Ms. Paz received multiple complaints from principals and parents as to Respondent’s repeated failures to timely complete evaluations and/or reports. In May 2004, Ms. Paz received a memorandum from an assistant principal at Banyan Elementary School regarding an incomplete evaluation report done by Respondent. Material in the case file established that the Bender Gestalt evaluation was administered, but the Respondent’s report made no mention of that diagnostic tool. Another school psychologist was called in to complete Respondent’s report. Pamela Sanders-White was the principal of Orchard Villa Elementary School during the 2004-05 school year. Respondent was the school psychologist for that school during that school year. Ms. Sanders-White received complaints from teachers, parents, and students pertaining to Respondent’s failure to timely complete her work. Ms. Sanders-White requested that a school psychologist other than Respondent be assigned to her school for the school year 2005-06. CONFRONTATIONS AT IEP MEETINGS Petitioner presented evidence that Respondent argued with other professionals during several CST meetings and that she walked out of one such meeting. Petitioner also presented evidence that a few of Respondent's professional opinions were rejected by other professionals. That evidence, while accepted as credible, did not prove or tend to prove that Respondent was incompetent or that she was insubordinate, which are the charges alleged in the Notice of Specific Charges. Consequently, the proposed findings in paragraphs 22, 23, 25, and 26 of Petitioner's Proposed Recommended Order have not been considered by the undersigned in reaching the ultimate findings of this Recommended Order. INACCURATE REPORTS Gail Pacheco has been the Chairperson for Psychological Services in R3 since the 1989-90 school year. She is not a supervisor of the R3 school psychologists, but she works with their supervisors as the supervisor’s designee in resolving problems. At Joseph Jackson’s request after he became Respondent’s supervisor in 2003, Ms. Pacheco reviewed 30 reports prepared by Respondent and monitored all 28 school psychologists in R3 for compliance with time frames for testing, preparation of psychological reports, and case closure. Each of the 30 reports prepared by Respondent and reviewed by Ms. Pacheco had at least one error.4 On May 28, 2003, Mr. Jackson requested all school psychologists, including Respondent, to select a sample evaluation report for review by the respective region chairperson. Respondent did not timely comply with Mr. Jackson’s request. When she did comply, the evaluation report she submitted contained numerous errors, including Respondent’s erroneous conclusion as to the student’s qualification for services.5 In December 2003 Dr. Sue Lee Buslinger-Clifford became the Instructional Supervisor of Psychological Services at the District office. Her job duties included the supervision of all school psychologists, which included the authority to give directives to all school psychologists, including Respondent. Dr. Buslinger-Clifford’s testimony, considered with the other evidence presented by the parties, established that Respondent failed to follow District procedures in the use of two personality or emotional assessments instruments in evaluating students. Respondent’s reports were not individualized for each student, with most of her reports using similar, standardized language. In the academic assessment of students, the reports should identify the needs of the child, the skill level of the child, and specific recommendations. Respondent’s reports often contained the same recommendations written in general, non- specific language that did not recommend the implementation of specific services for the student. Some reports were missing information and others contained limited information that was not helpful for the teacher and the members of CSTs. In addition to typographical and grammatical errors, Respondent’s reports contained test use and procedural errors. On one evaluation report Respondent misinterpreted evaluation data, which caused her to reach an erroneous conclusion as to a student’s eligibility for services.6 On some occasions, Respondent’s narrative report was inconsistent with the report of the evaluation data. Respondent had difficulty managing her time. Her student evaluations generally took longer than they should have. Dr. Buslinger-Clifford reviewed certain reports submitted by Respondent and advised Respondent as to corrections that needed to be made. Respondent did not comply with that advice. Mr. Jackson, as Respondent’s supervisor, reviewed her monthly reports for August through October, 2003, and determined that Respondent’s productivity was greatly below that of the average school psychologist, despite having a similar caseload. Mr. Jackson further determined that Respondent had a backlog that was growing each month; that some of the reports were incomplete; and that some of the reports were inconsistent or misleading. On October 31, 2003, Mr. Jackson notified Respondent in a memorandum of serious concerns that he had related to her poor job performance, and he directed Respondent to provide him with answers to certain questions pertaining to her performance7 no later than November 10, 2003, at 9:00 a.m. Mr. Jackson requested information as to six specific issues. First, he wanted a written response as to an alleged incident at Westview Middle School during which Respondent got into an argument with a staffing specialist in front of a student’s parents during a CST meeting. Second, he wanted to know why three identified cases had not been completed in a timely manner and ordered her to attach the psychological reports for those students with her response. Third, he wanted her to explain her lack of productivity and provide Medicaid forms for nine students who she had evaluated. Fourth, he wanted Respondent to provide Ms. Pacheco with a copy of a recent psychological report so Ms. Pacheco could review it. Fifth, he wanted an explanation as to why she had not provided a psychological report for review when such a report had been requested of her on three occasions. Sixth, he wanted Respondent to explain why she continued to use an instrument (WIAT) that she allegedly could not score. On November 7, 2003, Respondent responded to Mr. Jackson’s memorandum and requested a 60-day extension of the deadline for her response to his questions. Respondent’s response included the following: You have demanded a written response in five (5) days to a long list of you [sic] allegations, to which you offered not [sic] proof, only conjecture, opinions, and a partially extracted table; that was delivered by registered mail on Saturday afternoon at my residence. I feel sure that this memorandum was written and typed on the MDCPS [Miami-Dade County Public School] time clock. No consideration was given for my time clock, or the release of my daily time schedule to complete such a task. The sixty-day extension period is therefore needed to consult my archives in order to give you a detailed and accurate response. I need ample time to secure financial expense; legal advisement and representation; and a typist (all of which I will be seeking reimbursement), before undertaking such a task. Mr. Jackson gave Respondent until November 14, 2003, to respond to his memorandum. That was a reasonable deadline. Respondent did not meet the deadline established by Mr. Jackson. On December 17, 2003, Respondent responded in writing to the questions Mr. Jackson had asked in his memorandum.8 Mr. Jackson was not satisfied with Respondent’s response and continued to have concerns about her job performance. Mr. Jackson’s dissatisfaction with Respondent’s response was reasonable. His continued concerns about her job performance were also reasonable. JANUARY 2004 CONFERENCE FOR THE RECORD On January 15, 2004, Mr. Jackson had a Conference for the Record (CFR) with Respondent. A CFR is a meeting of record, held by a supervisor with an employee who is or may be under investigation for possible disciplinary action, to apprise the employee of the review of the record and the possible disciplinary action, and to give the employee an opportunity to respond or append the record. At the CFR conducted January 15, 2004, Mr. Jackson discussed his continued concerns with Respondent and considered her responses (both written and verbal). Mr. Jackson prepared a memorandum dated January 22, 2004, which summarized the events that transpired at the CFR held January 15, 2004. In the memorandum, Mr. Jackson gave Respondent the following directives: Your are to be professional and courteous to all staff at all times. You are also to represent the school system in a positive light at all times. This directive begins immediately and continues indefinitely. You are to complete evaluations of each child within a week of the beginning of testing, unless approved by the Executive Director or the Instructional Supervisor of the Division of Psychological Services or the ACCESS Center 3 Chairperson. Additional testing must be approved by the Chairperson which may be suggested by you and/or the Chairperson. The additional testing is to be completed within one week of notification of the determination for more testing. A completed report of each evaluation must be submitted for typing to the ACCESS Center within two weeks after the evaluation is completed. (Day that the last assessment instrument has been administered.) All evaluations are to be correctly reflected on your monthly report (log). This directive is ongoing and will be reviewed by the 10th of each month, for the next three months. Your monthly reports/logs are to reflect increased productivity beginning with the February report, averaging a minimum of 10 psychoeducational evaluations per month, unless approved by the Executive Director. Your productivity will be reviewed monthly. If you do not have the assigned cases, you are to request cases from your ACCESS Center chairperson. You are to complete a minimum of 10 psychological evaluations during the next four weeks. The Psychological Services Monthly Report, with a copy of the completed typed report for each of the 10 evaluations attached, is to be submitted to the office of the Executive Director of the Division of Psychological Services on February 27, 2004. All psychological evaluation reports are to be completed and delivered to Ms. Gail Pacheco for review within two weeks after the day the last assessment instrument has been administered. All corrections are to be completed within two school days after they have been received from Ms. Pacheco. No case should be given to the staffing specialist for staffing until the case has been approved by Ms. Pacheco. This directive is to be implemented immediately and will be reviewed randomly by the Executive Director of the Division of Psychological Services during the next six weeks. Reviewing of all reports by the ACCESS Center Chairperson and timelines for completion will be adjusted as needed. You were referred to the Employee Assistance Program through a Supervisory Referral for performance of professional duties related to assignment failures. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to your professional status with Miami-Dade Public Schools. In the memorandum dated January 22, 2004, Mr. Jackson advised Respondent that he would review the information in the CFR with appropriate school officials and that he would take the following additional action: All directives will be monitored as stated in the conference and in this memorandum. If you successfully complete the directives, the requirements of the directives will be adjusted to reflect the requirements of all ACCESS Center based school psychologists. If you do not successfully complete the directives, additional directives will be added to assist you in becoming the desired professional you are capable of being. MARCH 2004 CFR Mr. Jackson conducted a second CFR with Respondent on March 19, 2004. Petitioner established that there continued to be concerns with all six of the directives given to Respondent following the January 2004 CFR. As to directive 1, Mr. Jackson continued to receive complaints as to Respondent’s interaction with school-based staff. Petitioner established that Respondent failed to comply with directives 2, 3, 4, and 5. Respondent did not timely complete the evaluation of each child to whom she was assigned nor did she seek or obtain approval from the R3 chairperson for additional testing. Respondent did not submit completed psychological evaluation reports to the R3 office within two weeks of completing all of the evaluations. Respondent’s case log report reflects that 10 cases were completed but only eight evaluation reports were submitted. None of the evaluation reports on Respondent’s monthly case log report were submitted for review as required. Psychoeducational evaluation reports were not timely submitted to Ms. Pacheco for review. Numerous errors were reflected on the psychoeducational evaluation reports that were submitted. Ms. Pacheco returned the reports to Respondent with instructions to correct the reports. Respondent did not return corrected reports to Ms. Pacheco. Respondent declined to participate in the Employee Assistance Program, which was offered in Directive 6.9 In addition to re-issuing the directives that had been given at the January CFR, Mr. Jackson issued directives requiring Respondent to report to work on time, to report her presence at the school site to a designated contact person, and to complete a Professional Improvement Plan (PIP) that was based on specified indicators pursuant to Petitioner’s Professional Assessment and Comprehensive Evaluation System (PACES).1 In addition, Mr. Jackson changed Respondent’s schedule to reduce the number of schools she would have to travel to in order to conduct the number of evaluations Mr. Jackson had directed her to evaluate each month. This change was made in an effort to assist Respondent meet her productivity directives. MAY 2004 CFR Mr. Jackson conducted a CFR with Respondent on May 7, 2004. Petitioner established that Respondent continued to fail to meet the directives that Mr. Jackson had imposed as to productivity. Respondent’s evaluation reports and monthly case reports continued to contain procedural and substantive errors. Respondent failed to submit copies of her evaluation reports to Mr. Jackson’s office as directed. Mr. Jackson issued revised directives to Respondent. Those revised directives, which were similar to the previously issued directives, are set forth in Petitioner’s Exhibit 143 and are incorporated herein by reference. Again, Respondent was directed to complete a PIP on specified indicators on the PACES evaluation system. The PIP Respondent was required to complete was admitted into evidence as Petitioner’s Exhibit 144. ANNUAL EVALUATION FOR 2003-04 SCHOOL YEAR On May 7, 2004, Mr. Jackson completed his annual evaluation of Respondent’s job performance for the 2003-04 school year.11 Part A of the evaluation form contains six domains. Mr. Jackson rated Respondent as meeting standards for each of the six domains in Part A. Those domains are “Preparation and Planning”, “Management”, “Human Relationship”, “Professional Practice”, and “Contribution to School Improvement”. Part B contains the seventh domain of “Professional Responsibilities”. For that seventh domain, Mr. Jackson rated Respondent as not meeting standards. Mr. Jackson’s overall rating of Respondent was that she did not meet standards. On the PACES evaluation form, the evaluator can make one of the following three recommendations: “Recommended for Employment”, “Not Recommended for Employment”, or “Performance Probation Carry-over.” Mr. Jackson recommended the third option, which meant that Respondent’s performance probation was to be carried over to the next school year. Respondent’s May, June, July, and August, 2004, case reports established that she continued to fail to meet productivity directives. She typically did not timely submit reports for typing and she did not complete the assigned number of evaluations. She developed a backlog for her assigned cases. SEPTEMBER 2004 CFR On September 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. Dr. Buslinger-Clifford attended that meeting. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 165 and are incorporated by reference. Included in the directives was another PIP (Petitioner’s Exhibit 167). Mr. Jackson ordered Respondent to return 17 cases that had been assigned to her to Dr. Buslinger-Clifford for reassignment. On September 24, 2004, Respondent complied with that order and those cases were reassigned. Also as directed, Respondent reviewed with Dr. Buslinger-Clifford Respondent’s backlog of 26 other cases. Dr. Buslinger-Clifford observed that Respondent’s case files were disorganized, some contained mold, and some contained pieces of dead roaches. Respondent submitted 26 reports for typing in mid October 2004. Her October 2004 case report fails to reflect that those cases were submitted for typing. NOVEMBER 2004 CFR On November 16, 2004, Mr. Jackson had a CFR with Respondent because she had not complied with the directives that had been given to her. She had not completed her PIP; the psychological evaluation reports she submitted contained typographical, grammatical, and procedural errors; and she did not submit contact information she had been instructed to submit. Eleven revised directives, similar to the previously- issued directives, were given to her. Those revised directives are set forth in Petitioner’s Exhibit 188 and are incorporated by reference. On November 16, 2004, Mr. Jackson reprimanded Respondent in writing. That reprimand is set forth in Petitioner’s Exhibit 189, which is incorporated herein by reference. On November 17, 2004, Respondent provided Mr. Jackson with a report listing the cases that had been assigned to her. That list was not accurate because Respondent failed to list five cases that had been assigned to her. Respondent continued to fail to evaluate cases that had been assigned to her on a timely basis. Respondent’s case status reports for January and February 2005, did not follow district polices. From those reports, Mr. Jackson could not determine the status of cases that had been assigned to Respondent. FEBRUARY 2005 CFR For the school year 2004-05, Robert Kalinsky was the personnel director for R3 and DanySu Pritchett was the Administrative Director of Petitioner’s Office of Professional Standards (OPS). On February 15, 2005, Ms. Pritchett conducted a CFR with Respondent at the OPS offices. Respondent, Mr. Kalinsky, Mr. Jackson, Dr. Bulsinger-Clifford, and two union representatives also attended the CFR. Petitioner’s Exhibit 206, a summary of that CFR, is hereby incorporated by reference. The summary of that CFR reflects the following statement by Ms. Pritchett: The record reflects that you have been repeatedly insubordinate and grossly insubordinate to directives issued to you by Mr. Jackson. Additionally, the record reflects your failure to complete and submit psychological evaluation reports [for] review by the required timelines and your failure to submit monthly reports/logs. . . . Mr. Kalinsy received numerous complaints from school- based personnel about Respondent’s performance. Mr. Kalinsky had difficulty locating Respondent on one occasion because Respondent was not at her scheduled location and had not informed her contact person at the school where she was going. He had difficulty locating her on another occasion because she did not timely report to work at the school site she was scheduled to serve. On March 2, 2005, Mr. Kalinsky wrote Respondent a memorandum advising her that she was in violation of directives that had been issued to her at prior CFRs. That memorandum, Petitioner’s Exhibit 214, is hereby incorporated by reference. On March 5, 2005, Mr. Kalinsky revised Respondent’s schedule so that Tuesdays, Wednesdays, and Thursdays of each week were reserved for completion of prior assignments. Mr. Kalinsky directed Respondent to submit five completed cases to R3 each Friday. Mr. Kalinsky had the authority to issue that directive to Respondent. The directive was reasonable. On Friday, March 18, 2005, Respondent failed to comply with that directive. Respondent also failed to comply with Mr. Kalinsky’s directive on Friday, March 25, 2005. Mr. Kalinsky issued another memorandum to Respondent on March 31, 2005, for failing to comply with his directive. That memorandum, Petitioner’s Exhibit 222, is incorporated by reference. On May 27, 2005, in the PACES annual evaluation for the School Year 2004-05, Mr. Kalinsky rated Respondent as not meeting standards. Respondent had consistently failed to follow directives that had been issued to her as to timelines and productivity, had failed to adhere to Petitioner’s policies and procedures, and had turned in reports that contained inaccuracies, errors, and misleading information. Mr. Kalinsky did not recommend Respondent for further employment because he reasonably concluded that Respondent had not been fulfilling her professional responsibilities. Respondent’s supervisors recommended the termination of her employment as a school psychologist. Petitioner followed all applicable procedures in processing that recommendation, which resulted in the School Board action at its regular meeting on May 18, 2005, that underpins this proceeding. Dating from Ms. Boden tenure as Respondent’s supervisor in the 1990s, Petitioner made reasonable efforts to try to help Respondent improve her performance. Respondent consistently rejected those efforts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a Final Order adopting the findings of fact and conclusions of law set forth herein. It is also RECOMMENDED that the Final Order terminate Respondent’s employment. DONE AND ENTERED this 25th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 25th day of April, 2006.
The Issue Did Petitioner successfully complete the necessary requirements for the Polk County School Board's (Board) Interim Principal Program as mandated in the Program for Preparing New Principals, promulgated under Section 231.087(5), Florida Statutes, by the Board and if so, should Petitioner be granted certification as a school principal in the Polk County School District?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: In accordance with Section 231.087(5), Florida Statutes, the Board adopted a certification program for new principals in Polk County titled Program for Preparing New Principals (Program). All new principals in the Polk County School System are required to successfully complete and be certified under the Program. The Program is composed of several different programs. One of the programs is the Interim Principal Program which provides as follows: Introduction The Interim Principal Program provides a year-long experience which is designed to assist the Interim Principal in enhancing his/her administrative competencies. The Interim Principal Training Program is designed as a support program rather than performance appraisal mechanism. Goals The goal of the Polk County Interim Principal Program is to enable the Interim Principal to: Practice the skills of administration with the support and coaching of a supervisory team. Determine needs, set goals, establish priorities and seek avenues for achieving positive results. Adapt to stressful situations. Effectively and clearly express information orally and through written means, in both formal and informal situations. Develop self-confidence in a work setting and work role. Develop the expertise to manage a school site. Meet the requirements of Section 231.0861 (3), Florida Statutes. Be creative, maintain a positive climate and encourage teamwork within the school organization. Assume responsibilities at the school site with the guidance and support of peer principals. Participate in additional learning experiences to enhance the on-the-job experiences. Program Goals/Strategies Documentation will consist of the Interim Principal's goals expressed in a way which identifies the objective, lists the activities leading to the attainment of the objective, and the expected results in specific, measurable terms when possible. Two types of goals are to be formulated by the Interim Principal. They are: Organizational Goals Professional Growth Goals (developmental) The Interim Principal will formulate a minimum of two (2) goals within each of the categories. Formative Checklists These instruments are based on the Florida Principal Competencies and Job Function/Task Analyses. They are used as resources for identifying developmental needs of the Interim Principal and may provide a basis for the goals and related strategies and/or the off-site experiences and other training activities. Developmental Activities Program This is a calendar of events/activities which lists the specific activities in which the Interim Principal participates during the school year. These activities may be related to district, regional and state-wide training workshops or any off-site experiences in which the Interim Principal participates. Handbook of Helpful Hints for the First Year Principal Summative Checklist The handbook contains a "list of things to do" for the first year principal and is used by the Interim Principal to document areas of focus related to job expectations. Items are checked-off as they are handled. Supervisory Team The supervisory team for an Interim Principal consists of: The appropriate area superintendent Two peer principals Human Resource Development representative The two peer principals are selected by the area superintendent in consultation with the Human Resource Development representative and Interim Principal. They will also serve as members of his/her support team. The supervisory team's function is to review the Interim Principal's program and to provide input regarding the progress of the Interim Principal to insure the completion of his/her goals and developmental activities program. Each member of the supervisory team will interact with the Interim Principal at the school at varying times during the year. At least three (3) team conferences will be held with the Interim Principal, one meeting by the end of month three, one by the end of month eight and one by the end of month eleven. These meetings are in addition to the regular meetings with the area superintendent as a part of the district's performance appraisal system. Support Team Support team consists of: 1. Two peer principals The support team provides guidance and aid to the Interim Principal in the development of the goals and assists the Interim Principal as needed. Support team members serve as professional resource persons with whom the Interim Principal may consult during the year. Portfolio A portfolio for each Interim Principal will be housed in the Area Superintendent's office. The portfolio will include the names of the support staff, the written development goals, the formative checklists, Developmental Activities Program, "Handbook For The First Year Principal" checklist and a copy of the annual performance appraisal forms. Performance Appraisal The evaluation process for Interim Principals will be the same as that for experienced principals, and the same performance appraisal instruments will be used. Procedures Procedure Dates/Time Parameters Step No. 1 First/Month The Human Resource Development representative will provide an orientation concerning the Interim Principal Program, with emphasis on documentation methods. The Interim Principal and previous supervisor complete formative checklists related to Florida Principal Competencies and Job Function/Task Analyses. Interim Principal plans potential goals. Step No. 2 End of First Month The Interim Principal schedules a meeting with area superintendent and Human Resource Development representative to discuss possible goal statements, discuss formative checklists, select members of peer support team, and schedule supervisory team meetings. Step No. 3 Second Month The Interim Principal and Human Resource Development representative meet to establish Developmental Activities Program and to devise an action plan for the attainment of the potential developmental goals. Step No. 4 End of Second Month The Interim Principal prepares annual goals to include at least two developmental (professional growth) goals and two organizational goals. He/she submits copy to Area Superintendent and Human Resource Development representative. These goals will be a part of the district performance appraisal procedure. The Interim Principal meets with the peer principals to provide them with an orientation to the school, its programs, etc. Step No. 5 Third Month The Interim Principal experiences a two hour "shadowing activity" by each peer principal on separate dates. Peer principals record observations which will be shared at the initial meeting of the supervisory team to be scheduled by the end of the third month. The Interim Principal also may schedule time to shadow each of the peer principals prior to their shadowing visit. Shadowing experiences may occur throughout the interim principal program. Step No. 6 End of Third Month The Interim Principal schedules the initial meeting of supervisory team and provides agenda. First half of the meeting should include a status report of activities/progress made on each of the organizational and developmental goals. Second half of agenda will involve support team and Interim Principal in any additional planning that might be appropriate. The peer principals also discuss observations from their "shadowing" experience. **Additional meetings of the supervisory/support team may be scheduled on a group or individual member basis as needed. Step No. 7 End of Fifth Month The Interim Principal meets with the peer principals to review goals and strategies and to seek their input concerning goal/strategy adjustment and/or revision. Step No. 8 End of Eighth Month The Interim Principal schedules a second team meeting. The purpose is to prepare for major activities in function/task areas as are appropriate to the calendar. Plans and concerns are shared. Team members provide input and assistance. Step No. 9 Eleventh Month The Interim Principal schedules the final meeting of supervisory team and provides agenda. The purpose of the meeting is to review the results obtained by the Interim Principal in reference to his/her goals and participation in DAP activities and to reach a consensus among team members concerning a recommendation for Level II certification. Step No. 10 Eleventh Month The Area Superintendent and Human Resource Development representative verify portfolio. The Area Superintendent completes summary appraisal forms (if necessary) and makes the appropriate recommendation to the superintendent related to Level II certification. In 1996, Petitioner was appointed by Dr. John Stewart, who was then Superintendent of the Polk County Schools, to participate in the Interim Principal Program. Petitioner was assigned to the Haines City High School as principal for the 1996-97 school year, and remained there as principal through the 1997-98 school year. Petitioner had not participated in the Principal Intern Program. Shortly after being appointed as Interim Principal, Petitioner, in consultation with his area superintendent, Carolyn Baldwin, selected Sharon Knowles and David Lewis as his peer principals, who together with Carolyn Baldwin and the Human Resource Development representative, William P. Strouse, was the Team for the Petitioner's Interim Principal Program. As required by the Interim Principal Program, William Spouse conducted the orientation program for all new interim principals for the Polk County School District on September 30, 1996. The Interim Principal Program is driven by the interim principal who has the obligation of organizing the activities and scheduling of the activities and meetings. Petitioner did not schedule any activities or meetings in his Interim Principal Program during the Fall of 1996. In December 1996, Carolyn Baldwin directed David Lewis to set up an appointment with Petitioner for an orientation with Petitioner at Haines City High School The orientation occurred in January 1997. The orientation consisted of a walk around the campus of Haines City High School and a discussion that focused on the concern for the number of uncertified personnel on the staff at that time and the need for improving student achievement. On April 3, 1997, prior to any Team meeting, Petitioner was provided a copy of the Administrative Performance Appraisal (Appraisal) completed by Carolyn Baldwin, Area Superintendent. The categories provided in the Appraisal only provided for "Above Expectations," "At Expectations," and "Below Expectations." Although Ms. Baldwin had some reservations, she, in fairness to Petitioner, rated him "at expectation" in all 19 of the Performance Expectations listed in the Appraisal. To the Performance Expectation "Commitment to School Mission" Ms. Baldwin added the comment "real sense of commitment to Haines City High School." To the Performance Expectation "Managing Interaction" Ms. Baldwin added the comment "develop a system for prompt attention to parents with problems." The Appraisal also included three individual or unit goals stated by Petitioner as goals to be accomplished. Ms. Baldwin rated Petitioner "at expectations" on all of Petitioner's stated goals. After Petitioner's stated goal, "Enhance and improve the overall appearance and function of the school - this 1st impression for the community, parents, staff and students should be one to be proud of, appealing, and reflective of the academic attitude of the school," Ms. Baldwin added the comment "school climate enhanced significantly in this area, good public relations." After the meeting with David Lewis, there was no further formal activity in Petitioner's Interim Principal Program until April 1997. On April 16, 1997, the Team met with Petitioner. During this meeting, the Team reviewed Petitioner's program and found that there were no interim program professional development goals, no development activities, no complete developmental monthly activities plans, and no peer shadowing had taken place. Also at the April 16, 1997, meeting, Petitioner was advised that it was unlikely that Team would recommend him for certification under the Interim Principal Program. Petitioner proceeded to work on the deficiencies expressed by the Team at the April 16, 1997, meeting. After the April 16, 1997, meeting, the Team expressed concern related to Petitioner's complacency with respect to the Interim Principal Program and Petitioner's level of completion up to that point. It was suggested, and agreed to by the Team, that Knowles, Lewis, and Baldwin would complete an analysis of their interactions with Petitioner related to the Florida Principals Competencies. During April and May 1997, Petitioner conducted shadowing activities and peer principal visits with Lewis and Knowles. On June 11, 1997, Carolyn Baldwin met with Petitioner and discussed her concerns as well as Petitioner's concerns regarding Petitioner's activities, job performance as Principal of Haines City High School, and his progress in the Program. The meeting apparently ended on a positive note. On June 13, 1997, Petitioner conducted another shadowing at the Haines City High School. In June 1997, the Team met to determine Petitioner's areas of need and development. Petitioner was neither invited nor did he attend this meeting. In June 1997, Strouse circulated a list of the 19 Florida School Principal Competencies among the Team members and requested that each Team member identify those areas in which Petitioner had developmental needs. Strouse took the areas in which all members of the Team specified that Petitioner had developmental needs and developed a program for Petitioner to address those needs. This program was titled Florida Principal Competencies -- Analysis of Developmental Needs for Lonnie Smith, Interim Principal Haines City High School (Plan). There was no team meeting with Petitioner or with the team as a whole to discuss the outcome of the survey, the compilation of the results, or to jointly draft the Plan. Petitioner was not aware of, nor did he have knowledge of, the Plan prior to the August 14, 1997, meeting with Superintendent Reynolds. The Plan was presented to Petitioner at the August 14, 1997, meeting with Superintendent Reynolds, Area Superintendent Baldwin, William Strouse, and Assistant Superintendent of Personnel Denny Dunn. Petitioner was advised at this meeting that his Interim Principal Program would be extended a year. The Plan dated August 1997, provides as follows: CLUSTER CONSTANCY OF PURPOSE COMPETENCIES COMMITMENT TO VISION AND MISSION CONCERN FOR THE SCHOOL'S REPUTATION ORGANIZATIONAL SENSITIVITY COMMITMENT TO VISION AND MISSION is a pledge to develop and act in accordance with the shared vision, mission and values of the school. The principal needs to exhibit COMMITMENT TO VISION AND MISSION in which he: *personally holds a set of values which are in harmony with the vision and mission of the school; e.g., respect and caring for each individual, belief that everyone can succeed, etc. *is purposeful about linking the school's mission to expected behavior *identifies, models and reinforces behavior which is congruent with the mission and goals of the schools CONCERN FOR THE SCHOOL'S REPUTATION is caring about the impressions created by self, the students, the faculty, the staff, and parents, and how these are communicated both inside and outside the school. The principal needs to demonstrate a greater CONCERN FOR THE SCHOOL'S REPUTATION in which he: *Maintains a safe, orderly and clean school and expects everyone to assume their responsibility for doing so *builds a school culture that provides the best possible teaching/learning environment *controls the flow of negative information. ORGANIZATIONAL SENSITIVITY is an awareness of the effects of one's behavior and decisions on all stakeholders both inside and outside the organization. The principal needs to demonstrate ORGANIZATIONAL SENSITIVITY by documenting that he: *considers the overall consequences to the school's culture before initiating changes *keeps individuals, both inside and outside the school, informed when data are relevant to them *considers the position, feelings and/or perspectives of other parts of the organization when planning, deciding and organizing *develops and maintains a school climate conductive to learning *is open to discussion and change *builds coalitions and seeks, secures and recognizes allies CLUSTER: PROACTIVE ORIENTATION COMPETENCIES PROACTIVE ORIENTATION PROACTIVE ORIENTATION is the inclination and readiness to initiate activity and take responsibility for leading and enabling others to improve the circumstances being faced or anticipated. The principal must demonstrate a more PROACTIVE ORIENTATION in which he: *provides support for teachers, staff and parents as they take initiative for school improvement CLUSTER: CONTINUOUS IMPROVEMENT COMPETENCIES ACHIEVEMENT ORIENTATION DEVELOPMENTAL ORIENTATION ACHIEVEMENT ORIENTATION is having to do things better than before by setting goals that encourage self and others to reach higher standards. The principal give more attention to ACHIEVEMENT ORIENTATION in which he: *shows appreciation for individual and group efforts and accomplishments *identifies discrepancies between goals and the current status in order to stimulate achievement *uses criteria for effective schools to assess the status of the school as one basis for school improvement. DEVELOPMENTAL ORIENTATION is holding high and positive expectations for the growth and development of all stakeholders through modeling self-development coaching and providing learning opportunities. A principal needs to enhance his DEVELOPMENTAL ORIENTATION in which he: *builds a school, community and culture that supports learning and growth for everyone including self *participates in professional developmental activities as a learner. CLUSTER: COMMUNICATION COMPETENCIES IMPACT/PERSUASIVENESS SELF PRESENTATION IMPACT/PERSUASIVENESS is influencing and having an effect upon the school stakeholders by a variety of means...e.g., persuasive arguments, setting an example or using expertise. The principal needs to demonstrate IMPACT/PERSUASIVENESS in which he: *persists until ideas, beliefs and goals are clear to all stakeholders *uses personal presence to influence others, maintains visibility and accessibility. SELF PRESENTATION is the ability to clearly present one's ideas to others in an open, informative and non-evaluative manner The principal must enhance his skills of SELF PRESENTATION in which he: *checks to see that messages are received, and persist until ideas, beliefs and goals seem to be understood *models effective interpersonal communication skills *uses effective listening skills before responding to questions by others. CLUSTER: FACILITATION COMPETENCIES MANAGING INTERACTION TACTICAL ADAPTABILITY INTERPERSONAL SENSITIVITY MANAGING INTERACTION is getting others to work together effectively though the use of group process and facilitator skills. A principal needs to improve his skills of MANAGING INTERACTION when in which he: *facilitates team and group membership *moderates group discussions and encourages consensus *facilitates interpersonal and intergroup communication *creates a non judgmental atmosphere in order to stimulate open communication personally *promotes collegial behavior. TACTICAL ADAPTABILITY is the ability to adapt one's interaction and behavior to meet the situation. The principal needs to develop skills of TACTICAL ADAPTABILITY in which he: *adopts various roles of listener, facilitator, and confronter as needed *understands how own behavior affects others and makes appropriate adjustments. INTERPERSONAL SENSITIVITY is the ability to discover, understand, verbalize accurately and respond empathetically to the perspectives, thoughts, ideas and feelings of others. The principal must demonstrate greater INTERPERSONAL SENSITIVITY in which he: *encourages others to describe their perceptions, thoughts, feelings and perspectives *listens attentively and accurately describe others' behavior, expressed ideas, feelings, and perspectives CLUSTER: CRITICAL THINKING COMPETENCIES INFORMATION SEARCH AND ANALYSIS CONCEPT FORMATION CONCEPTUAL FLEXIBILITY INFORMATION SEARCH AND ANALYSIS is the gathering and analysis of data from multiple sources before arriving at an understanding of an event or problem. The principal needs to display an enhanced competence in INFORMATION SEARCH AND ANALYSIS in which he: *creates and manages a systemic informational gathering process among the various stakeholders of the school community *keeps up-to-date, striving to gather new information from research and other sources which can then be used by the school CONCEPT FORMATION is the ability to see patterns and relationships and form concepts, hypotheses and ideas from the information. The principal must evidence CONCEPT FORMATION when he: *processes data logically and intuitively to discover and/or create meaning *presses self and others to define and understand issues so that problem solving techniques can be applied *practices reflective thinking CONCEPTUAL FLEXIBILITY is the ability to use alternative or multiple concepts or perspectives when solving a problem or making a decision. The principal must demonstrate CONCEPTUAL FLEXIBILITY in which he: *views the situation being faced and the events leading up to it from multiple perspectives *values divergent thinking and considers conflicting or differing views in the process of identifying options for actions *appreciates different perspectives, and ensures that alternative courses of action and their consequences are considered before decisions are made *makes decisions based upon an analysis of options *demonstrates contingency planning skills. CLUSTER: DECISION-MAKING COMPETENCIES DECISIVENESS DECISIVENESS is the readiness and confidence to make or share decisions in a timely manner, using appropriate levels of involvement so that actions may be taken and commitments made by self and others. The principal needs to exhibit greater DECISIVENESS in which he: *recognizes the importance of sharing decisions and decision-making with stakeholders as integral part of organizational learning and development *recognizes that decisions are made at several levels by different people *faces personnel problems as they occur, provides feedback on performance, and makes difficult personnel decisions when necessary *acts quickly to stop possible breaches of safety and/or interruption in operations in discipline situations *decides to let others decide. CLUSTER: MANAGERIAL COMPETENCIES ORGANIZATIONAL ABILITY DELEGATION MANAGEMENT CONTROL ORGANIZATIONAL ABILITY is the "know-how" (knowledge and skill) to design, plan and organize activities to achieve goals. The principal must improve his ORGANIZATIONAL ABILITY in which he: *develops action plans for goal achievement in collaboration with the school improvement team *recruits teachers whose goals align with the mission and goals of the school community DELEGATION is entrusting of jobs to be done, beyond routine assignments, to others, giving them authority and responsibility for accomplishment. The principal must improve his DELEGATION COMPETENCE in which he: *assesses the expertise of self and others and, whenever possible considers the developmental needs and aspirations of others in relation to the jobs and tasks to be assigned *seeks outside help and assistance for tasks or jobs for which time and talents are not available within the school *gains understanding and acceptance for delegated tasks *specifies responsibility and authority for delegated tasks MANAGEMENT CONTROL is the establishment of systematic processes to receive and provide feedback about the progress of work being done. The principal must improve his skills of MANAGEMENT CONTROL in which he: *walks around campus purposefully to check the status of events *holds frequent conferences with staff about student progress *asks for feedback to see how well self is doing *reconsiders, at least annually, the shared vision of the school, its mission and the stated goals *schedules follow-up for all delegated and assigned activities. RECOMMENDED ACTION PLAN FOR THE NEEDS RELATED TO THE FLORIDA PRINCIPAL COMPETENCIES AS IDENTIFIED BY THE SUPPORT TEAM Lonnie Smith, Interim Principal, Haines City Senior High, will implement the following activities as a way to document successful achievement of the Florida Principal Competency criteria for certification as a School Principal: Develop and maintain a portfolio which contains artifacts related to each of the indicators (as appropriate) for the Florida Principal Competencies as identified by the support team in July of 1997. Provide written behavioral examples for specific competency indicators for which artifact documentation is inappropriate. Provide oral behavioral examples in an interview setting to his supervisor related to specific competency indicators as identified in the summary of developmental needs. Read the Polk County School Board Policy Book and consult with his supervisor and/or other appropriate district level resource people when specific policy questions arise. Participate in Leadership Academy training activities as follows: Facilitative Leadership Leadership Self-Assessment Seven Habits Of Highly Effective People Schedule, plan, and facilitate at least four (4) meetings of the Interim Principal Support Team to provide status reports concerning the developmental needs as identified and action plan accomplishments. One meeting should be scheduled in each of the following months: October, 1997; January, 1998; March, 1998; June 1998. Meet all expectations/processes as outlined in the performance appraisal procedures for school-based administrators. Participate in other training as might be suggested by the Assistant Area Superintendent and where time and content are appropriate. Secure and administer the "School Climate Quality Survey" from Anchin Center, USF (813- 974-5959). Develop an action plan to address any areas of need as identified by the survey results. Participate in additional shadowing experiences with each peer principal at least twice during the 1997-1998 school year. Limit military leave time to a minimum so as to concentrate on successful demonstration of all duties comprehensive of the principalship. Despite several objections to the Plan, including the requirement to reduce his military obligation, Petitioner accepted the Plan and proceeded to work on the 11-point recommended action set out in the Plan. Petitioner did not at this time, or at any previous time, advise the Team that he was of the opinion that he had successfully completed the Program. In accordance with the recommended action set out in the Plan Petitioner: developed and maintained a portfolio; provided written behavioral examples for specific competency indicators for which artifact documentation is inappropriate; provided his Team and supervisor with oral behavioral examples; read the Polk County School Board Policy Book and consulted with his supervisor or other appropriate district level resource personnel when specific policy questions would arise; participated in the leadership academy training activities and completed the three courses outlined in the recommended action set out in the Plan; d scheduled, planned, and facilitated at least three meetings of the Interim Principal Support Team. A fourth meeting of the Interim Principal Support was scheduled and planned by Petitioner but did not occur due to the Program being terminated prematurely in March 1998; participated in other training that was suggested by Area Superintendent Carolyn Baldwin, went to training titled Building a Team, and also went to training provided by the Board and Ms. Baldwin in particular. secured and administered the "School Climate Quality Survey" and, pursued furthering shadowing with the two peer principals. On January 26, 1998, the Team met to review Petitioner's progress, The Team member expressed concern regarding Petitioner's leadership in the instructional/academic programs at Haines City High School, and the need for an academic plan for the school was discussed. On March 5, 1998, the Team met to review Petitioner's progress on the Plan and the Program. The Team's concern regarding the school's academic plan was again discussed. Petitioner was requested to prepare a written description of a plan for improving the school's academic and instructional performance. Petitioner subsequently submitted such a plan to the Team members. Each of the Team members found shortcomings in Petitioner's academic plan. Petitioner's plan: (a) did not address what Petitioner had been asked to address by the Team; (b) lacked substance; (c) lacked quality; and (c) was difficult to understand. On March 16, 1998, the Team met without Petitioner to discuss his progress with the Plan and Program. Petitioner was not present at this meeting due some minor surgery. Petitioner was offered the opportunity to postpone the meeting but decided to let the Team meet without him. However, Petitioner had submitted material to the Team regarding the Plan. After reviewing the material submitted by Petitioner (which apparently included Petitioner's portfolio), the Team, individually and collectively, concluded that Petitioner had not successfully completed the Program in that he had failed to demonstrate satisfactory performance of the 19 Florida Principal Competencies. At this meeting the Team reached a consensus that the Team could not recommend Petitioner for certification as a principal. A memorandum was prepared advising Superintendent Reynolds that the Team was recommending that Petitioner should not receive certification as a principal. Additionally, the memorandum advised Superintendent Reynolds that although Petitioner had made some improvements there had not been a demonstration of performance whereby the Team could recommend School Principal Certification for Petitioner. The Team also agreed at the March 16, 1998, meeting that since Petitioner's evaluation was an integral part of the certification program that Ms. Baldwin, as Petitioner's supervisor, would complete Petitioner's evaluation. On March 17, 1998, Ms. Baldwin prepared Petitioner's Principal Performance Summary Assessment and rated Petitioner "Ineffective" in the following Clusters of Florida Principal Competencies: Proactive Orientation with the following comments: has been proactive in relationship to the physical facility and grounds needs of Haines City High School. lacks proactive orientation in relationship to school's academic performance. discipline issues often become complaint status. Parents express concern about the accessibility of the principal for problem resolution and frequently report referral to the staff persons when the [sic] specifically request to speak with the school principal. Some parents say they do not know who the principal is. lack of participation in decision making regarding emergency plans for school double session (December 1997). decisiveness in relation to safety issues questionable, i.e. bomb threat incident and delay of school evacuation as documented by investigation of Mr. Fred Murphy, Director of Disaster Preparedness; also lack of a clear plan even after numerous bomb threats (which staff members were to search which parts of the building) staff report hesitancy in interaction in planning meetings (guidance staff, specifically) difficulty in simple decision making and follow through (i.e., FBLA supplements, principal awarded 2 available supplements at 100% and 2 more at 33 1/3% with conflicting paperwork on file at the county level.) complaints re: cheerleaders coaching and advertisement of supplemental positions as per collective bargaining agreement affecting basic program start up timeliness and county requirements Sensitivity does not seem to have recognition of consequences of his actions in the larger organization (i.e., letting teachers go home during duty day perceived as abdication of responsibility) development of team approach weak considering 2 years to accomplish (relationships with other administrators disjointed and awkward) tends to isolate himself and participate in peripheral ways only (observed in East Area principal's meetings as well as reported by school staff) lack of networking with peer principal's [sic]; evidences reluctance to use peer principals as resources Analysis weakness in interpreting school's academic data. Uses large minority population and high mobility rate as reasons for school underachievement no observation in concept through conversation or practice of elements of concept formation or conceptual flexibility at a proficient level Leadership Managing interaction weak in group problem solving high number of parent complaints about interaction with school personnel (principal and others) as compared to other area high schools. Four times the number of complaints requiring intervention compared to the next highest number from another high school (48:12 ratio). One other area high school has only 3 complaint calls Work Standards have not observed level of developmental orientation expected of a principal performing effectively Written Communication some ambiguity in written communication, some ideas not clearly communicated (i.e., materials provided to team for interim principal program) Sharon Knowles concluded that Petitioner had failed to adequately perform in the competency of proactive orientation which includes decision-making, improving the school, and decisiveness. Knowles cited specific examples such as Petitioner's decision to delay evacuating the school upon being advised of a bomb threat and his decision to attend a scholarship competition at another school during the time that a law enforcement officer had been killed in the community and his school was in a lock-down. To Knowles this indicated a lack of decisiveness. Also, Knowles concluded that Petitioner's failure to move the Program along in the beginning indicated a lack of responsibility on the part of Petitioner. David Lewis concluded that Petitioner had failed to adequately perform in the competency of proactive orientation. Lewis cited specific examples such as Petitioner's delay in responding to a bomb threat and his lack of involvement in taking the leadership role in diffusing the situation. Lewis cited Petitioner's lack of leadership in responding to a tornado disaster. Lewis cited Petitioner's failure to return to his school during a lock-down of the school after the shooting death of a law enforcement officer in the neighborhood. Lewis also concluded that Petitioner had failed to perform in the cluster of Critical Thinking (Information Search and Analysis, Concept Formation, and Conceptual Flexibility). As a specific example, Lewis cited Petitioner's inability to properly prepare and present an academic and instructional plan for Haines City High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding that Petitioner did not successfully complete the necessary requirements for the principal certification under the Interim Principal Program and, is further recommended that Petitioner be denied principal certification under that program. DONE AND ENTERED this 26th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1999. COPIES FURNISHED: Robert H. Grizzard, II, Esquire Post Office Box 992 115 Trader's Alley Lakeland, Florida 33802-0992 Donald H. Wilson, Jr., Esquire Boswell and Dunlap LLP Post Office Drawer 30 Bartow, Florida 33831 Mr. Glenn Reynolds Superintendent of Schools Polk County School Board 1915 South Floral Avenue Bartow, Florida 33830-0391 Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Homestead Senior High School, South Dade Senior High School, and Dr. William A. Chapman Elementary School. The School Board provides 180 days of instruction for students during the regular school year. Respondent has been employed as a teacher by the School Board since 1983.1 She has a continuing contract of employment with School Board. From 1983 through the end of the 1992-93 school year, Respondent was assigned to Homestead Senior High School (Homestead). Respondent was reassigned to South Dade Senior High School (South Dade) for the 1993-94 school year. She remained at South Dade until 1997. At both Homestead and South Dade, Respondent taught mathematics. Donald Hoecherl was the principal of South Dade from 1994 until 1999. During his first year at South Dade, Mr. Hoecherl had "problems and concerns [regarding Respondent's] numerous absences from work and the fact that those absences seriously impacted the delivery of the education product" to Respondent's students. He reviewed Respondent's South Dade attendance records and discovered that there was a "pattern of absences": 102 absences during the 1993-94 school year and 74.5 absences during the 1994-95 school year, as of May 19, 1995. Mr. Hoecherl then prepared the following memorandum, and gave it to Respondent (on May 19, 1995), after discussing its contents with her: MEMORANDUM May 19, 1995 TO: Henrietta Dolega, Teacher FROM: Donald A. Hoecherl, Principal South Dade Senior High School SUBJECT: ABSENCE FROM WORK SITE DIRECTION Please be advised that you have been absent from the worksite during the 1994-95 school year for a total of 74.5 days. Additionally, during the 1993-94 school year you were absent from the worksite for a total of 102 days. The absences were listed as follows: sick-9, personal-1, contagious disease-7, leave without pay-24, hardship- 32, sick leave bank-18, and emergency leave- 11. Your absences from duty adversely impact the educational environment by: failing to provide support services for students, impeding the academic progress of your students, failure in providing a continuity of instruction and effective operation of this school. As a result of your continued absences from work you are advised of the following procedures concerning any future absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Dawson and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the faculty handbook. Emergency lesson plans for twenty days on file with your department chairperson. Maintain the emergency lesson plans at 20 days upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Dawson upon your return to work along with a medical release to return to full duties. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. These directives are in effect upon the receipt of this notice and are necessary to prevent adverse impact to students and their academic progress, and to insure a continuity of the educational program. Additionally, these procedures are meant to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities. The directives contained in the memorandum were reasonable in nature and within Mr. Hoecherl's authority to give Respondent. Mr. Hoecherl required Respondent to have "[e]mergency lesson plans for twenty days on file with her department chairperson" because "there would often be that many [consecutive] da[ys] [that Respondent would be] out." On May 22, 1995, Mr. Hoecherl held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences from work." Mr. Hoecherl subsequently prepared (on June 2, 1995) and furnished to Respondent (on June 7, 1995) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on May 22, 1995, in the office of the principal. The conference was attended by: Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, Carol Brown, Assistant Principal and Donald A. Hoecherl, Principal. The conference as indicated in the notification dated May 19, 1995, addresse[d] your excessive absences from work. Please find attached the memorandum titled "Absence From [Work] Site Direction." The procedures outlined in that directive were reviewed during the conference. You are reminded that these procedures must be adhered to. Mrs. Chinni indicated that you felt two areas outlined in the absence from work site direction procedures were unreasonable and bordered on violating your contractual rights. The items were the requirement to have 20 days of emergency lesson plans on file with your department chairperson and direction to notify two people of your absences. After further review the established guidelines will remain as written in the "Absence From Work Site Direction." That memorandum, therefore is now a formal part of this summary of the conference for the record. Additionally, you were provided information regarding areas of assistance available to you through the Dade County Public School System. I am confident that the concerns identified can be corrected. You are reminded that you are entitled to attach a written response to be included as part of this process. In an effort to help Respondent improve her attendance, Mr. Hoecherl referred Respondent to the School Board's Employee Assistance Program on May 25, 1995. Respondent's attendance, however, did not improve. Furthermore, "she didn't always" follow the directives set forth in Mr. Hoecherl's May 19, 1995, memorandum. There were occasions when she did not have a 20-day supply of lesson plans on file with her department chairperson; neither did she consistently notify Mr. Hoecherl or Mr. Dawson of her intent to be absent. Accordingly, on December 19, 1995, Mr. Hoecherl held another Conference-for-the-Record with Respondent. Mr. Hoecherl subsequently prepared (on January 16, 1996) and furnished to Respondent (on February 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A conference for the record was held on December 19, 1995 at 9:05 A.M. in the office of the principal. The conference was attended by Katrina Chinni, Union Steward, Henrietta Dolega, Teacher, and Donald A. Hoecherl, Principal. The conference as indicated in the notification of the conference for the record dated January 15, 1995, addressed your continual absence from work. It was noted during this conference for the record that as of December 19, 1995 you have acquired twelve absences from work. It was noted that your absence disrupts the educational process for our students. Additionally, it was noted that as of December 19, 1995 you were out of all accrued sick leave. Also, you were reminded that on several occasions you failed to follow the prescription provided on May 19, 1995 in the Absence From Work Site Directi[on]. You were reminded that you must notify the Principal or the Principal's Designee in addition to Ms. Dafcik. Additionally, you were reminded that failure to comply with the guidelines outlined in the conference for the record and the Absence Form Work Site Directi[on] would result in additional administrative action. Please feel free to contact me if I may be of any help in providing any assistance in an effort to mediate this ongoing problem. You are reminded that you are entitled to attach a written response to be included as a part of this process. I am confident that the concerns identified in this conference can be corrected Ms. Chinni, on behalf of Respondent, submitted the following written response to Mr. Hoecherl's January 16, 1996, memorandum and requested that it be considered an "addendum" to the memorandum: In the summary of conference for the record for Henrietta Dolega held Tuesday, December 19, 1995, the following items were omitted: The conference was also attended by Ted Hennis, Assistant Principal. The union stated that Ms. Dolega had documentation for all of her absences and that she was actively trying to address her health problems. The union stated that Ms. Dolega had shown a pattern of intent to comply with the directive to inform Mr. Hoecherl when she was going to be absent. Respondent was absent a total a 46 days during the 1995-96 school year. From the beginning of the 1996-97 school year through October 24, 1996, Respondent had ten days of absences. Respondent also arrived late to work and failed to provide "emergency lesson plans" in accordance with Mr. Hoecherl's May 19, 1995, memorandum. Accordingly, on October 24, 1996, Mr. Hoecherl held another Conference-for-the-Record with Respondent to address these ongoing problems. Mr. Hoecherl subsequently prepared (on October 25, 1996) and furnished to Respondent (on October 28, 1996) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: A Conference-for-the Record was held on Thursday, October 24, 1996 at 8:54 a.m. Present at the conference were Ted Hennis, Assistant Principal; Henrietta Dolega, Teacher; Donald A. Hoecherl, Principal; and Katrina Chinni, UTD Representative. This conference was held in compliance with the UTD Contract Article XXI and addressed: Absences from work. Lateness to work. Failure to provide emergency lesson plans as outlined in the work site directive. Absences from Work A review of your attendance indicated that in addition to your absences addressed during the Conference-for-the-Record held on January 16, 1996, you missed an additional twenty-seven (27) days for a total of 46 days during the 1995-1996 school year. As of this date, you have been absent a total of ten (10) days for the 1996-1997 school year. Additionally, you are currently out of accrued or personal leave. Furthermore, it has been noted that on several occasions you have been late to work. Your absences from duty and lateness to work adversely impact[] the educational environment by: failing to provide support services for students, impeding [t]he academic progress of your students, failure in providing a continuity of instruction and effective operation of this school Your failure to maintain the emergency lesson plan file is in direct disregard for the procedures established prior to and re- established during the Conference-for-the Record held January 16, 1996. In an effort to be clear, as this is a new school year, you are reminded that, as a result of your continued absences from work you are advised that you must continue to adhere to the following procedures concerning any further absences: Intent to be absent must be communicated directly to Mr. Hoecherl or Mr. Hennis and then to the appropriate secretary to secure a substitute in accordance with procedures delineated in the Faculty Handbook. Emergency lesson plans for twenty (20) days on file with your Department Chairperson and Mr. Hennis. Emergency lesson plans must be reviewed by Mr. Hennis prior to being placed in your emergency lesson plan file. Maintain the emergency lesson plans at a twenty (20) day level upon return from absences. Absences for illness must be documented by your treating physician and a written medical note presented to Mr. Hoecherl or Mr. Hennis upon your return to work along with a medical release to return to full duty. Any absence not documented as indicated above and outside of your six (6) personal days will be listed as unauthorized leave without pay. If it is determined that future absences are imminent, leave must be requested and procedures for Board Approved leave implemented. In regard to [the] Gail L. Grossman, Attorney at Law, request to reschedule the Conference-for-the-Record as she was unavailable to attend and provide representation[,] [y]ou were reminded that Article XXIV of the UTD Contract states "An employee ma[]y not be represented by a minority/rival union or by an attorney in a Conference-for-the-Record. This administrator asked if you had any comments and you replied that in regard to the lesson plans provided during one of your absences that the Department Chairperson misunderstood your references to the mixed review, thus not providing an adequate lesson for the day. The directives established are in effect as of this conference and are necessary to prevent adverse impact to students and their academic progress and to [e]nsure a continuity of the educational program. Additionally, these procedures are necessary to maintain an effective worksite operation. Also be assured that assistance will continue to be provided upon your request. In conclusion, failure to comply with these directives will result in additional disciplinary action. You are apprised of your right to append, to clarify or to expand any information recorded in the conference by this summary. Mr. Hoecherl again referred Respondent to the School Board's Employee Assistance Program on October 24, 1996, in a continuing effort to help her improve her attendance. Respondent's attendance, however, continued to be a problem. By February 24, 1997, Respondent had accumulated 40 days of absences for the school year (nine days of sick leave, two days of personal leave, 25 days of authorized leave without pay, and four days of unauthorized leave without pay). By memorandum, dated February 25, 1997, to Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, Mr. Hoecherl requested a "determination of fitness" for Respondent. The memorandum read as follows: I am by way of this memorandum requesting the assistance of the Office of Professional Standards regarding Ms. Henrietta Dolega (employee # 143398). Ms. Dolega has a history of excessive absenteeism from the 1993-1994 school year to present. Ms. Dolega's attendance pattern has seriously impacted the students in her charge. At the present time, she is assigned to teach Algebra II for five class periods. Based on the information provided, I am requesting that a Determination of Fitness be conducted prior to Mrs. Dolega's return to South Dade High School. Please contact me at 247-4244 if you require any additional information. Appended to the memorandum was a "leave history that Mr. Hoecherl provided to Dr. O'Donnell" indicating the number and types of Respondent's absences from the 1993-1994 school year up to February 24, 1997. As of March 10, 1997, Respondent had been absent 28 consecutive days. On March 7, 1997, Respondent had requested, in writing, "a leave of absence without pay effective 2/24/97 through 3/10/97 (TENTATIVE)." On March 10, 1997, Mr. Hoecherl sent the following memorandum to the School Board's Leave Office requesting that Respondent's leave request be denied: I am requesting that the Leave Without Pay Request from Henrietta Dolega, employee #143398 be denied. As you can see from her request, Ms. Dolega is requesting leave from February 20 through March 10, 1997. Ms. Dolega has been absent from work a total of fifty (50) days this school year. Her latest absences began January 27, 1997, and as of March 10, 1997, continues for 28 consecutive days. This current request for Leave Without Pay comes to us after the fact. As a result, a permanent substitute could not be secured. Ms. Dolega continues to notify us on a weekly basis of her attendance status. Additionally, a review of Ms. Dolega's attendance history indicates that this is not a first time occurrence. . . . On March 14, 1997, Dr. O'Donnell held a Conference- for-the-Record with Respondent, at which it was agreed that Respondent would be placed on medical leave (without pay) until April 30, 1997. Dr. O'Donnell subsequently prepared (on March 19, 1997) and then mailed to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On March 14, 1997, a meeting was held with you in the Office of Professional Standards. In attendance were: Mr. Don Hoecherl, Principal, South Dade Senior; Ms. Julia Menendez, Director, Region VI; Ms. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. This meeting was held to clarify your status in reference to returning to work and your future employment with Dade County Public Schools. Your attendance pattern over the past four years was reviewed as follows: 1993-94 102 total days absent 1994-95 75.5 total days absent 1995-96 46 total days absent 1996-97 55 total days absent as of 3-14-97 Despite the fact that you have provided documentation from your physician, your pattern of absences has caused serious problems with the delivery of an appropriate curriculum and the continuity of the educational program. You have been absent the past 35 consecutive days and you were notifying the school on a daily or weekly basis. Therefore, Mr. Hoecherl was not able to hire a full-time certified teacher to replace you. At this point, the following options were reviewed with you: be in attendance every day resign you position from Dade County Public Schools retire, if eligible request leave. Your pattern of absences and leaves is disruptive and must stop. A long term solution is vital. You agreed to request leave through April 30, 1997. By April 23, 1997, you will provide official written clearance by your physician or you will extend your leave through the end of the 1996-97 school year. Should you return this school year, Mr. Hoecherl will expect you to be in attendance every day. If you are absent, the school will take action. Also, you will be required to clear through the Office of Professional Standards prior to your return either in May or August 1997. You were reminded to follow the directive previously given you regarding absences. You must speak with Mr. Hoecherl or Mr. Hennis during work hours. Do not leave messages on answering machines or with anyone else. Further, you were directed to provide original notice from your physician rather than a fax. It is the desire of DCPS that you can resolve your health issues and return to work. However, if you cannot, a more permanent resolution must be reached. You agreed to provide to me the original leave form with an attached doctor's notice by March 24, 1997. Respondent, who suffered from adhesions, thereafter requested, and was granted, a series of extensions of her medical leave (without pay). After being on medical leave for three years, Respondent became depressed and started seeing a psychiatrist, Stephen Kahn, M.D. By letter dated March 30, 2001, Dr. Kahn "released [Respondent] to resume her position as full-time teacher without restriction." On April 25, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss Respondent's return to the classroom. Dr. O'Donnell subsequently prepared (on April 26, 2001) and furnished to Respondent (on May 5, 2001) a memorandum in which she summarized what had transpired at the conference. The memorandum read as follows: On April 25, 2001, a conference-for-the- record was held with you in the Office of Professional Standards (OPS). In attendance were: Ms. Clemencia D. Waddell, Region Director, Region VI; Dr. Randy Biro, Bargaining Agent Representative, United Teachers of Dade (UTD); and this administrator. Service History As you reported in this conference, you were initially employed by Miami-Dade County Public Schools as a teacher in October 1983, and you were assigned to Homestead High School through June 1993. You were assigned to South Dade Senior High School from August 1993 through January 1997. You have been on Board approved leave since January 1997 through the present. You indicated that your teacher certificate is valid through June 30, 2004, in Elementary Education, Mathematics, and that you hold a Continuing Contract (CC) with the District. Conference Data Reviewed A review of your personnel file in the Office of Professional Standards reveals an extensive documentation of attendance and performance problems since 1984. On March 14, 1997 a conference-for-the-record was held in the Office of Professional Standards. On that date, your attendance pattern was reviewed from the prior four years and is as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days (prior to March 14th) At the March 14, 1997, conference-for-the- record held in the OPS, you were told that despite the extensive documentation provided from a variety of treating physicians, your absences are deemed to be excessive. You were advised that if you could not be in regular attendance to request a Board- approved leave of absence; which you did. A review of your leave history is as follows: Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal As of this date, you have exhausted all leave options available to you through Miami-Dade County Public Schools and no further requests for any type of leave would be honored. You were asked if you understood this condition and you indicated that you did. You were told that your treating physician, Dr. Stephen Kahn, forwarded a statement which read, "Ms. Dolega is released to resume her position as full-time teacher without restriction." However, he did not respond to several requests from OPS to review the job descriptions for both elementary and secondary teacher. Dr. Randy Biro stated that you feel you can perform all of the responsibilities of a teacher. Ms. Clemencia Waddell informed the participants that you are assigned to William A. Chapman Elementary School with teaching duties within your area of certification. You were told that, from information provided by the payroll department, you would be granted four sick days upon your return. You were also told that taking into consideration your previous history with poor attendance that you would be referred to OPS if you were absent; you said that you understood. Action Taken You were reminded of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences. Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered LWOU and employment action will ensue. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to students and their academic progress, the operation of the work unit, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A- 4E-1.01, Absences and Leave. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin, Principal, was apprised as to your return to the worksite on April 30, 2001, to assume classroom duties. Action To Be Taken You were advised that the information prescribed in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region VI and the Principal of William A. Chapman Elementary School. Any noncompliance with the prescriptive directives issued would result in the recission of site disciplinary action and compel district disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. The directives given to Respondent at the April 25, 2001, Conference-for-the-Record (and "delineated" in Dr. O'Donnell's summary of the conference) were reasonable in nature and given with proper authority. The "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent" at Dr. William A. Chapman Elementary School (Chapman Elementary) required each teacher to have a folder containing lesson plans for a five-day period for use by a substitute in the event of the teacher's absence. Respondent returned to the classroom after more than a four-year absence on April 30, 2001. She was assigned to Chapman Elementary to teach a third grade class with 13 or 14 students. Paulette Martin is now, and has been since the 2000-01 school year, the principal of Chapman Elementary. In early May of 2001, shortly after Respondent's return to the classroom, her younger brother passed away. Too upset to come to work, Respondent took off from work the following day. Her absence was covered by accrued leave and authorized. Respondent took off from work one other day during the 2000-01 school year following her return to work. Feeling "bad[ly]" about her brother's death and her failure to have attended his funeral (in Maryland), Respondent had trouble sleeping at night. It "got to a point" where Respondent believed that, for the sake of her health, she needed to take a day off from work. That day was June 7, 2001. This second absence following her return to the classroom was also covered by accrued leave and authorized. Respondent was not assigned to teach summer school following the 2000-01 school year. Respondent returned to Chapman Elementary for the 2001-02 school year. In September and October of that year she was absent a total 12 days (September 4, 14, 27, and 28, and October 1, 2, 3, 4, 5, 10, 22, and 23). Six of these days of absences (September 4, 14, 27, and 28 and October 1 and 22) were covered by accrued leave and authorized. The remaining days of absences were not covered by accrued leave and they were unauthorized. These absences "had a negative impact on [the students in Respondent's] class." On October 30, 2001, Ms. Martin prepared the following memorandum, which she subsequently gave to Respondent: SUBJECT: NOTICE OF EXCESSIVE ABSENCES September 4 Sick September 14 Sick September 27 Sick September 28 Sick October 1 Sick It has been determined that you have been excessively absent during the 2001-2002 school year. To date, you have been absent on the following days: October 2 LWOPU[2] October 3 LWOPU October 4 LWOPU October 5 LWOPU October 10 LWOPU October 22 Sick October 23 LWOPU Your absences total twelve (12) days, exceeding the number of days you have accrued. As stated in the Summary of the Conference-for-the-Record of April 25, 2001, you were advised of past absences and directed as follows: Be in regular attendance and on time. Intent to be absent must be communicated directly to the principal. Site procedures for provision of lesson plans and materials for substitute teachers when absent must be adhered to in the event of absence. Should future absences exceed the number of days accrued, absences will be considered Leave Without Pay (Unauthorized) and employment action will ensue. You were also advised that noncompliance with these directives would necessitate a review by the Office of Professional Standards for imposition of disciplinary measures. Please be advised that this memorandum is being submitted to the Office of Professional Standards and the Region Director for Personnel for review and subsequent action. Ms. Martin brought to Dr. O'Donnell's attention that "once again [Respondent] was experiencing attendance problems and had been excessively absent." Accordingly, on November 16, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent. Dr. O'Donnell subsequently prepared (on that same date) and furnished to Respondent a memorandum in which she summarized what had transpired at the conference. The memorandum read, in pertinent part, as follows: Conference Data Reviewed A review of the record included reference to the following issues: Attendance-to-date Leave/attendance history Previously issued attendance directives. You returned to the work site on April 30, 2001. You were absent two days before the end of the school year which ended on June 15, 2001. Your attendance for the current school year is as follows: Sick/Personal 6 Temporary Duty 1 Leave Without Pay 6 (Unauthorized) 13** **through October 23, 2001 15 days absence since your return from leave on April 30, 2001 You were asked if you wished to respond to this continuing pattern and you said that in reference to your absences last May, your brother passed away. You stated that you have had all of your teeth pulled and replaced and that is why you have been absent this school year. You were reminded of the directives regarding attendance that you have been previously issued. You were told that your dental problem should have been addressed during the summer or winter break or any time that would not interfere with the educational program of the students. You were then reminded of a meeting held with you in the Office of Professional Standards on March 14, 1997, which was held to review your absences and ability to return to work. The following options were reviewed with you at the meeting: Be in attendance every day Resign your position from Miami-Dade County Public Schools Retire, if eligible Request leave You effected a leave retroactive to January 1997 after the March 1997 meeting. You were reminded of your previous record of absences and leaves as reviewed at the conference- for-the-record held in the Office of Professional Standards on April 25, 2001 which was as follows: Years Days Absent 1993-1994 102 days 1994-1995 78.5 days 1995-1996 46 days 1996-1997 55 days** **through January 1997 when you effected leave. Leave From Through Type October 8, 1992 December 16, 1992 Illness October 25, 1994 December 16, 1994 Illness February 2, 1994 May 31, 1994 Illness February 18, 1997 February 15, 2001 Personal You were reminded that previously your absences had been deemed to be excessive. You were also reminded that you have exhausted all leave options and no further requests for any type of leave would be honored. You were asked if you wished to respond to this information and you declined comment. At the April 25, 2001 conference-for-the- record, which was held in OPS, your treating physician forwarded a statement which read in full, "Ms. Dolega is released to resume her position as full-time teacher without restriction." At that meeting, Dr. Randy Biro, your Member Advocate, stated that you are able to perform all teaching responsibilities. You were also reissued attendance directives. You have failed to comply with the directives which were issued to you by virtue of your six unauthorized absences during the current school year. Your actions are considered to be gross insubordination. You were asked if you had any statement to make regarding your continued pattern of excessive absences and you did not. Action Taken You were told that due to your history of excessive absences, you had been referred to OPS. On two previous occasions, as well as today's conference, you were issued the following directives: Be in regular attendance and on time. Intent to be absent must be communicated directly to Ms. Paulette Martin, Principal, William A. Chapman Elementary. Site procedures for provision of lesson plans and materials for the substitute teacher when absent must be adhered to in the event of any absence from the site. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU) and employment action will ensue. Pending further review of this case and formal notification of the recommended action of disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit and to the services provided to students, as well as to insure continuity of the program. Noncompliance with these directives will necessitate further review by the Office of Professional Standards for the imposition of (additional and immediate) disciplinary action. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely affects this level of professionalism. Ms. Martin was apprised as to your return to the worksite. You were advised to keep the information presented in this conference confidential and not discus this with students or staff. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Superintendent of Region VI, Assistant Superintendent in the Office of Professional Standards, and the Principal of William A. Chapman Elementary School. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include any of the following: a letter of reprimand, Domain VII (PACES Professional Responsibilities Component) Professional Improvement Plan (PIP) which could impact the annual evaluation decision, suspension, or dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have such response appended to your record. Respondent was not absent in November of 2001. Her next absence was on December 10, 2001. This absence was covered by accrued leave and authorized. A determination was made that Respondent "be recommended for dismissal for the following charges: gross insubordination, willful neglect of duty and incompetency." On December 12, 2001, Dr. O'Donnell held a Conference- for-the-Record with Respondent to discuss this recommendation. Respondent was given the option to resign or retire "in lieu of dismissal." Speaking through her union representative, Respondent declined the offer, claiming that her "absences were due to illness." On the days that she was absent following her return to the classroom on April 30, 2001, Respondent did not report to work because she believed that she was too ill to do so. Although she was well aware of the directive that she had been given to "[b]e in regular attendance," she felt that, because of her condition on these days, she was not able to come to work and properly discharge her classroom teaching responsibilities. At the beginning of the school year, Respondent cut her leg on her dishwasher and the wound did not heal properly. She consulted her physician, who prescribed two antibiotics for her. The antibiotics "knocked [her] for a loop" and she missed work as a result. Respondent also missed a day of work because she had a bout of diarrhea. On September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, Respondent was recovering from oral surgery (the extraction of all of her remaining teeth) that was performed on her after school on Wednesday, September 26, 2001. She was absent on these days because she was "taking pain pills and [she] was really in pain." The surgery that resulted in her absences on September 27 and 28, 2001, and October 1, 2, 3, 4, and 5, 2001, was done to enable Respondent to receive full upper and lower dentures. Respondent had a long-standing need for such dentures. The dentures were necessary, as her dentist, Dr. Hans Sperling, testified (by deposition), because: [Respondent] ha[d] extensive decay in her mouth present to the point that the teeth were not restorable. She also had severe periodontal disease, extensive bone loss around the teeth, which will not render the teeth appropriate to use as [an] abutment to retain either a partial denture or fixed bridges. Dr. Sperling first noticed "extensive decay in [Respondent's] mouth" during her initial visit to his office on October 9, 1999. At that time, Dr. Sperling told Respondent that "she needed the extractions" and that they should be "done by an oral surgeon" because of the "extensive amount of teeth that need[ed] to be taken out." He further advised her "that she would need a complete exam before anything else was done." Respondent did not see Dr. Sperling again until April 6, 2001, when Dr. Sperling gave her a "complete exam," which revealed that she still had "severe decay in her teeth." Dr. Sperling also found that she had "severe periodontal disease." Respondent next saw Dr. Sperling on June 26, 2001. On that date, Dr. Sperling "took impressions of her lower and upper jaws," the first step in the process to provide her with dentures. Respondent was next scheduled to see Dr. Sperling on July 19, 2001, but she "broke[] this appointment." Respondent next saw Dr. Sperling on August 9, 2001. During this visit, Dr. Sperling "registered her bite so [he could] articulate the models on an articulator." Respondent's next visit to Dr. Sperling was on September 5, 2001, when she "tried . . . the [dentures] that she was going to be having." Her last pre-surgery visit to Dr. Sperling was on September 25, 2001, when she picked up the dentures that the oral surgeon was going to place in her mouth. Dr. Sperling advised Respondent that it would take approximately four days for her to recover from the oral surgery and suggested that she schedule the surgery for a Thursday so she would be able to return to work on the following Monday. Respondent scheduled the oral surgery for Wednesday, September 26, 2001. Respondent believed that, by having the surgery on this date, she would miss only two days of work and only one day with her students inasmuch as Friday, September 28, 2001, was a teacher planning day and she anticipated that she would be able to return to the classroom the following Monday, October 1, 2001. Respondent had enough accrued leave to cover this anticipated two-day absence. Respondent's recovery, however, took longer than anticipated and she was absent the entire workweek (Monday, October 1, 2001, through Friday, October 5, 2001) following the surgery. Dr. Sperling conducted a "post-operative evaluation" of Respondent on October 1, 2001. He observed that "the healing was within normal limits," although Respondent did complain to him that she was still experiencing pain. Respondent did not have the surgery done during the preceding summer, when she was not working, because she could not afford it at that time. The dentures that were placed in her mouth "are temporary[.] [E]ventually [she will] have implants." While Respondent's absences following her return to the classroom on April 30, 2001, were not contumacious acts, she did willfully disregard the directives given her that her "[i]ntent to be absent must be communicated directly" to Ms. Martin and that "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent must be adhered to in the event of any absence from the site."3 Respondent repeatedly failed to follow these directives despite having the apparent ability to do so (just as she had ignored similar directives when she was teaching at South Dade under Mr. Hoecherl's supervision). Respondent did not communicate her intent to be absent to Ms. Martin prior to any of her absences. Furthermore, Respondent did not maintain a folder containing lesson plans for substitute teachers to use in her absence. Respondent was verbally advised that she was not in compliance with the "[s]ite procedures for provision of lesson plans and material for the substitute teacher when absent." Nonetheless, to the detriment of the students in her class, she continued to wait until after the instructional day had begun (anywhere from 45 minutes to an hour and beyond) to provide (by facsimile transmission) lesson plans for the substitute teacher (rather than maintaining a folder with a five-day supply of lesson plans). At its January 16, 2002, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [her] from all employment by the Miami-Dade County Public School, effective the close of the workday, January 16, 2002, for gross insubordination; incompetency; and willful neglect of duty."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment as a continuing contract teacher with the School Board for her "gross insubordination" and "willful neglect of duty," as more specifically described above. DONE AND ENTERED this 7th day of June, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2002.
Findings Of Fact The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor. In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder". As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him". During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass". Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again. The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years: His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however. DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact 1-23. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence. Accepted. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox". Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 28-29. Accepted. Rejected, as not supported by preponderant, competent evidence. Rejected, as not supported by preponderant, competent evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence. 33-35. Accepted. 36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 37-39. Accepted. 40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 41-47. Accepted. 48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record. 49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 57-61. Accepted. 62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-13. Accepted. 14. Rejected, as not supported by preponderant evidence. 15-22. Accepted. 23. Rejected, as not entirely in accordance with the preponderant evidence. 24-30. Accepted. 31-36. Accepted. 37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence. 38-41. Accepted. 42-48. Accepted. 49-51. Accepted. 52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 53-54. Accepted. Rejected, as not in accordance with the evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 64-72. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected, as not in accordance with the preponderant evidence of record. (Second No. 74). Accepted. 75-78. Accepted. 79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability. 80-85. Accepted. COPIES FURNISHED: Jack W. Simonson, Superintendent P.O. Drawer 820 Panama City, FL 32402 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Franklin R. Harrison, Esq. HARRISON, SALE, ET AL. 304 Magnolia Avenue P.O. Drawer 1579 Panama City, FL 32401 David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A. 210 South Monroe Street P.O. Box 430 Tallahassee, FL 32302
The Issue Whether the Respondent's employment with the Petitioner should be terminated as alleged in the Amended Notice of Specific Charges filed on July 31, 2000.
Findings Of Fact At all times material to the allegations of this case, the Respondent was employed as a math teacher at Mays Middle. As such, the Respondent was responsible for the day-to-day teaching assignment of the students enrolled in his class. The Respondent's duties also encompassed maintaining the appropriate records to be in order to fulfill his teaching responsibilities. These records included lesson plans, grade sheets, attendance records, class rosters, and time cards. The Petitioner is the agency charged by Florida law to administer the public schools within the Miami-Dade County School District. The Petitioner is authorized to hire and to, when appropriate, discipline teachers within the Miami-Dade County school system. Mays Middle is a public school within the Petitioner's district. At all times material to the allegations of this case, Mr. Cooper was the principal at Mays Middle and was the supervisor responsible for personnel performance at the school. He has been a principal at several schools within the Miami-Dade school district and is a candidate for a doctorate degree in educational leadership. Mr. Cooper met the Respondent in approximately 1997 when he became the principal at Mays Middle. The Respondent was already employed at Mays Middle as a math teacher. All teachers at Mays Middle are required to attend faculty meetings, to turn-in class lists, to maintain teacher logs, to compile grades for students, to arrive at work on time prepared to teach, and to prepare appropriate lesson plans to be followed for the instruction of the students in the event the teacher is absent from school. All teachers at Mays Middle are provided with a faculty handbook that outlines their responsibilities. All teachers are required to follow the directives and instructions issued by the school principal regarding their responsibilities. All teachers who are cited for a performance deficiency are issued a prescription to address the identified problem. The prescription requires the teacher to perform specific acts to encourage remediation of the deficiency within a specified time. On November 17, 1998, Mr. Cooper issued a reprimand to the Respondent. This reprimand cited the Respondent's failure to notify or report to the worksite on November 6, 1998, and his failure to submit grades with gradesheets in a timely manner. In connection with this reprimand, Mr. Cooper conducted a conference for the record (CFR) with the Respondent in order to review the professional responsibilities of reporting to school timely or notifying the school and of submitting required paperwork in a timely manner. On January 13, 1999, the Assistant Principal, Mrs. Kaloostian, went to the Respondent's classroom to perform an observation. The class was to run from 9:30 a.m. until 11:15 a.m. Instead of beginning class promptly with the bell, the Respondent left the room after observing Mrs. Kaloostian in the rear of the classroom. Instead of returning to teach the class, the Respondent returned to the room at approximately 9:40 a.m., removed his bags and announced he was going home. Thereafter the school administrators attempted to locate a substitute for the Respondent's classes. The Respondent did not leave emergency lesson plans for the classes. Emergency lesson plans are required of all teachers so that a substitute teacher has material to review with the class. In this case, the Respondent did not leave plans for the day he left or the two days that followed. On January 22, 1999, Mr. Cooper conducted another CFR with the Respondent. This time the Respondent was placed on prescription for his conduct of January 13, 1999, and his failure to report to work the next two days. The doctor's note submitted by the Respondent to justify the absence indicated the Respondent was able to return to work on January 14, 1999. The prescription issued on January 22, 1999, outlined directives regarding lesson plans, attendance guidelines, the teacher code of ethics, and employee conduct requirements. The timelines for the Respondent's completion of these prescription directives were defined, ample, and unambiguous. When the Respondent did not timely complete the prescription, he was afforded additional time within which to complete the prescription directives. On February 17, 1999, the Respondent arrived at a faculty meeting 20 minutes late. The Respondent later stated that the tardiness was unintentional. On February 25, 1999, the Respondent was given a reprimand. Mr. Cooper conducted a CFR to review the attendance requirements and to address the Respondent's continuing failure to meet his professional responsibilities. All teachers employed by the Petitioner are evaluated pursuant to a Teacher Assessment and Development System (TADS). TADS evaluators must be trained in the assessment tool and all teachers are advised of the categories covered by the instrument. Mrs. Kaloostian performed a formal TADS observation of the Respondent's class on February 18, 1999. This evaluation cited the Respondent with deficiencies in six categories covered by the assessment tool. The prescription issued with the TADS evaluation provided the Respondent with specific corrective measures to be completed by March 26, 1999. On March 1, 1999, the Respondent reported late to work. On March 23, 1999, the Respondent reported late to work and failed to attend a faculty meeting. On April 2, 1999, Mr. Cooper issued a reprimand to the Respondent for insubordination, failure to comply with attendance directives, and failure to comply with directives regarding tardiness or absences. On March 23, 1999, Mrs. Kaloostian performed a TADS observation in the Respondent's class. This assessment found the Respondent deficient in five categories of performance. The Respondent was provided a prescription to be completed by May 4, 1999. Under the terms of the teachers' contract, the successful completion of prescription requirements results in the remediation of the deficiency identified. Thus a teacher on prescription must complete the directives of the prescription in order to show remediation. The Petitioner makes personnel and other resources available to a teacher to assist the completion of the prescription. On April 12, 1999, the Respondent refused to sign a time card as directed by the Principal. The Respondent disagreed with the information on the card and refused to comply with Mr. Cooper's instruction to sign the card. Following this incident, the Respondent was given a written reprimand. On May 4, 1999, Mrs. Kaloostian wrote a memorandum to Mr. Cooper outlining the Respondent's failures regarding the prescription that was to be completed by that date. On May 5, 1999, Mr. Cooper gave the Respondent an additional 24 hours to complete the TADS prescription materials. On May 13, 1999, the Respondent asked to speak with Mrs. Kaloostian. At that time he gave her a letter describing his medical problems and represented that he would be seeking a medical leave effective the end of the school day. After completing papers regarding the leave, the Respondent refused to deliver his gradebook to Mrs. Kaloostian. He was asked several times to turn the gradebook in and each time he refused. The Respondent represented he would deliver it the next day at 9:00 a.m. He did not return the gradebook by 2:00 p.m., May 14, 1999. In addition to not delivering the gradebook, the lesson plans for Respondent's classes were not provided. As a result the math department chair had to provide lessons for the Respondent's classes. On or about June 14, 1999, the Respondent turned in his gradebook through another teacher. The gradebook was deficient in the information it was designed to log. On May 14, 1999, the Respondent did not attend a scheduled CFR. Accordingly, the record of the deficiencies cited by Mr. Cooper and the prescription for correction was provided to the Respondent by certified mail. Such prescription noted the Respondent's continuous failure to meet the prescription activities. During the 1998/1999 school year, the Respondent was absent from school 42.5 days. Nineteen of those days occurred prior to May 14, 1999. From February 6, 1998 through April 1, 1999, the Respondent received five prescriptions for Category VII deficiencies in professional responsibilities. On August 9, 1999, Dr. O'Donnell, director of the Office of Professional Standards, conducted a CFR with the Respondent. The conference addressed Respondent's performance assessments, attendance, medical fitness to perform his duties, noncompliance with directives, violations of the Code of Ethics, and future employment with the Petitioner. Following the CFR the Respondent was to return to Mays Middle to assume his responsibilities on August 26, 1999. In order to afford the Respondent with additional time to complete his prescriptions, the 90-calendar day probationary period was extended. Since he did not timely complete the prescription but effected medical leave commencing May 14, 1999, the time for formal observations was extended. All parties knew the observation would be conducted between September 13, 1999, and October 19, 1999. Moreover, the Respondent knew as a result of the CFR that he would be required to comply with his professional responsibilities. Nevertheless, on August 31, 1999, the Respondent failed to submit class counts; he did not submit emergency lesson plans on September 3, 1999; and he did not provide a class list on September 8, 1999. As a result, Mr. Cooper conducted a CFR on September 17, 1999. The Respondent was deemed insubordinate in all of the areas of professional responsibilities that had been previously delineated. He knew or should have known that the administration was not going to tolerate the failures to submit the required documents. Further, he knew or should have known that the untimely submission of the documents would also not be acceptable. If the Respondent had a medical condition that impaired his ability to timely complete and submit his records, he did not fully explain it to Mr. Cooper. On September 15, 1999, between 9:30 a.m. and 11:15 a.m., Mrs. Kaloostian observed the Respondent's class and performed a TADS assessment. The Respondent knew or should have known the assessment would be forthcoming. He had ample opportunity to be prepared for the assessment. He was not. The deficiencies cited in the September 15, 1999, evaluation required prescriptive remediations to be completed by October 1, 1999. Again the prescription identified persons available to the Respondent to assist in the prescription activities. The Respondent did not timely complete the prescription and was given 24 additional hours to complete the work. The Respondent failed to submit attendance cards on time on September 5, 1999, and September 7, 1999. The Respondent failed to timely submit Student Interim Progress Reports on October 6, 1999. On October 5, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. Deficiencies were outlined and the Respondent was provided until October 19, 1999, to complete the prescriptive activities. On October 22, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. This observation also established deficiencies in the Respondent's performance. Consequently, Mr. Cooper recommended that the Respondent's employment with the School District be terminated. On November 3, 1999, the superintendent of schools issued a letter advising the Respondent that the Petitioner would take action on November 17, 1999, regarding the recommendation to terminate the Respondent's employment contract. The Petitioner did approve the termination as outlined by the superintendent's letter. Thereafter, the Respondent timely challenged the action and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. At the hearing, the Respondent did not provide a credible explanation as to why he failed or refused to complete the prescriptions that were provided for him. He did not provide a credible response as to why he failed to be punctual with reports, attendance of meetings, or to comply with the directives provided by the principal and assistant principal. The directives and suggestions were reasonable in nature and should have afforded the Respondent with an ample opportunity to correct the performance deficiencies. At all times the Respondent was entitled to and had a representative from the union to advise him and to assist him for the CFRs conducted with school personnel. The Respondent was repeatedly offered additional time to complete prescriptive assignments. The Respondent was offered assistance and resources to complete the prescriptive assignments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the termination of the Respondent's employment with the Miami-Dade County School District be affirmed. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Room 912 Miami, Florida 33132-1308 Charlie L. Bradley 130 Northwest 193rd Terrace Miami, Florida 33169 John Greco, Esquire Miami-Dade County School Board 1450 North East Second Avenue, Suite 400 Miami, Florida 33132 Paul J. Schwiep, Esquire Aragon, Burlington, Weil & Crockett, P.A. Office in the Grove, Penthouse 2699 South Bayshore Drive Miami, Florida 33133
The Issue The issue is whether Petitioner has just cause, within the meaning of Subsection 1012.33(6)(a), Florida Statutes (2007),1 to terminate Respondent’s professional services contract for the reasons alleged in a letter dated November 18, 2008.
Findings Of Fact Respondent has taught in the Polk County School System since 2000. For the first four school years, Respondent taught drama at the Rochelle School of the Arts. The next school year, Respondent taught English for one year at Kathleen Middle School. Beginning with the 2005-2006 school year, Respondent taught middle school English at Gause Academy until January 13, 2009. The allegations at issue in this proceeding pertain to the 2007–2008 school year at Gause Academy. By letter dated November 18, 2008, the superintendent of the Polk County Public Schools notified Respondent that the superintendent was recommending that Petitioner terminate the professional service contract of Respondent. On January 13, 2009, Petitioner followed the recommendation of the superintendent. The letter dated November 18, 2008, is the charging document in this proceeding. The letter notifies Respondent of the alleged grounds for termination of her employment and provides Respondent with a point of entry into the administrative process. In relevant part, the stated grounds for termination of employment are: . . . excessive absenteeism, dishonesty, and ongoing gross insubordination. Progressive discipline, as specified in the applicable Collective Bargaining Agreement, has been followed in this case, and the next step of progressive discipline is termination. A preponderance of the evidence does not support a finding of excessive absenteeism during the 2007-2008 school year at Gause Academy. It is undisputed that the absences for Respondent during the 2007-2008 school year totaled 43 days, of which many were before or after a weekend and resulted in three or four consecutive days. However, it is also undisputed that absences were due to illness and the remaining 14 absences were suspensions or leave time imposed by Respondent’s employer. During the 2005-2006 school year, Respondent missed days due to illness, and Petitioner determined that Respondent was a good, dynamic teacher who related well with students and worked well in the classroom. Petitioner did not show by a preponderance of the evidence any credible and persuasive reason why 30 absences for sickness during the 2005- 2006 school year were acceptable to Petitioner, but that 29 absences for sickness during the 2007-2008 school year warranted termination of Respondent’s professional service contract. The medical reasons for Respondent’s absences during the 2005-2006 and 2007-2008 school years were the same. Respondent has suffered debilitating migraine headaches from a very young age. When Respondent suffers a serious migraine headache, it is difficult for her to function. However, Respondent has managed to control the effects of her migraines. A preponderance of the evidence does not explicate persuasive reasons why 30 absences during the 2005-2006 school year did not prevent Respondent from doing her job satisfactorily, but that 29 absences during the 2007-2008 school year justifies the termination of Respondent’s professional service contract. The allegation of dishonesty relates to a form, identified as an Employee Application for Leave, that Respondent completed for absences from October 1 through October 3, 2008. The form provides that Respondent was sick and unable to leave her bed from October 1 through 3, 2008. Respondent signed the form on October 6, 2008, and the school principal approved the form on October 7, 2008. Sometime after October 7, 2008, the principal received information that Respondent had been arrested on October 1, 2008. The testimony of the principal during the hearing shows that he has no knowledge of the circumstances of the arrest, including the time of the arrest and the time Respondent was released and returned to her home. Nor does the principal have any knowledge of whether Respondent was ill with a migraine from October 1 through 3, 2008. Local law enforcement officers arrested Respondent at her home at 6:00 a.m. on October 1, 2008, on a charge that Respondent had issued a bad check. The officers took Respondent to the courthouse, the amount was paid, and Respondent was back home by 9:00 a.m. Between 6:00 a.m. and 9:00 a.m. on October 1, 2008, Respondent’s mother called the school and told school officials that Respondent was ill and would not be in to work. Neither Respondent’s mother nor Respondent misrepresented Respondent’s illness. Respondent was ill with a migraine headache while she was at the courthouse and, upon her return home, was confined to bed for three days. The remaining allegation is that Respondent did not prepare adequate lesson plans. A preponderance of the evidence does not support a finding of inadequate lesson plans. At the conclusion of the 2006-2007 school year, the principal performed a Quality Performance Summary Assessment for Respondent, which is the equivalent of a year-end evaluation. The principal rated Respondent as “Needing Improvement” in the areas of Planning for Learning Communication and Professionalism and rated Respondent as “Unsatisfactory” in the area of Managing the Learning Environment. The principal indicated an appropriate Professional Development Plan (PDP) would be written for the 2007-2008 school year. The PDP was presented to Petitioner at the beginning of the 2007-2008 school year. The primary strategies identified for improving classroom planning included: maintenance of a plan book to be turned in at the end of each week to the assistant principal and participation in in-service training for expanded classroom strategies. The PDP identified a Professional Resource Team to assist Respondent in the implementation of the PDP. The team consisted of the assistant principal, guidance counselor, and dean of students. Lesson planning at Guase Academy is left to the discretion of individual teachers. There is no template for lesson plans. Each teacher is left to develop lesson plans in a manner that is appropriate for his or her purposes. The assistant principal and guidance counselor did not provide Respondent with meaningful assistance toward the PDP goals. The assistant principal instructed all teachers that they could use documents identified in the record as “curriculum maps” as lesson plans. Respondent relied on the assistant principal and utilized curriculum maps to develop her lesson plans. Respondent worked extensively with the dean of students to formulate and complete lesson plans in a manner that was satisfactory to the principal. Respondent also worked with three fellow teachers who evaluated Respondent’s lesson plans and found them to be sufficient. None of the lesson plans were ever satisfactory to the principal. Respondent met with the principal on numerous occasions during the 2007-2008 school year. At each meeting, the principal gave only a cursory review of the plans, concluded they were inadequate, and gave no explanation of a specific deficiency. Respondent never refused to provide lesson plans and never failed to submit lesson plans until after it was apparent that no lesson plan from Respondent would satisfy the principal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order reinstating Respondent’s professional services contract with back pay. DONE AND ENTERED this 20th day of August, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of August, 2009.
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether there is "just cause" to terminate Respondent, Edward Starcher, from employment as a teacher in the Collier County School District.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent is a teacher certified by the State of Florida in the areas of physical education, recreational dance, and driver's education. On August 18, 1986, the School Board hired Respondent as a teacher. Since being hired in 1986, Respondent taught continually in the Collier County public school system, except for a one-year leave of absence. Respondent began his career at Highland Elementary School and taught there for approximately two to three years. He then taught for nine years at Village Oaks Elementary School. Respondent, subsequently, taught at Gulf Coast High School, where he also served as a basketball coach. In the 2000-2001 school year, Respondent was employed at NHS as a physical education teacher, driver's education teacher, and head basketball coach for the boys' varsity basketball team. At all times relevant herein, Respondent was a driver's education teacher and head coach of the boys' basketball team at NHS. Throughout his teaching career with the School Board, Respondent received positive evaluations and was recognized for having a passion for coaching. Prior to the disciplinary action at issue in this proceeding, there is no evidence that Respondent has been previously disciplined by the School Board. At all times relevant herein, A.K., a female, was a high school student in her senior year at NHS. In January 2003, A.K. was enrolled as a peer tutor under the direction of Respondent, along with two other students--A.D., a female, and A.F., a male. A.K., A.D., and A.F. were enrolled as peer tutors during the fourth block, which commenced at 12:45 p.m. As peer tutors, they assisted Respondent with doing the laundry, folding towels and T-shirts, and delivering them to the storage closet. At the beginning of fourth block, the peer tutors would typically meet Respondent in his coaching office or outside of it, and he would give them their assignment for the day. On Monday, February 10, 2003 (February 10), A.K. reported to Respondent's office during fourth block for her peer tutor responsibilities. A.D., another peer tutor, was absent that day, but A.F. and K.C. were present. K.C., an NHS student, was not assigned as Respondent's peer tutor, but he sometimes assisted Respondent and his peer tutors during the fourth block. On February 10, as Respondent and the peer tutors were exiting Respondent's office to walk to the laundry room, Respondent "put [A.K.] in a little bit of a headlock," in a playful manner. After arriving at the laundry room, Respondent and the peer tutor folded laundry. At some point, Respondent handed A.K. a pile of towels and told her to take it to the storage closet. Respondent also took a pile of towels or jerseys and both A.K. and Respondent proceeded from the laundry area across the gym to the boys' locker room. On this trip to the storage closet, only A.K. went with Respondent across the gym to the storage closet area. A.F. remained in the laundry room because Respondent told only A.K. to come with him. The storage closet was located in the boys' football locker room on the opposite side of the auxiliary gym from the laundry room. On February 10, there was a physical education class with at least 20 students and an instructor on the gym floor playing volleyball. The physical education class was divided into two groups at the opposite ends of the gym so that when the peer tutors and Respondent took the laundry across the gym floor to the storage closet, they would pass between the two groups. Respondent and A.K. entered the boys' locker room area and proceeded to the storage closet to drop off the towels and/or jerseys. A.K. entered the storage closet area first followed by Respondent. After A.K. put the towels down, she noticed Respondent shutting the door quickly, turning the lights off and on, and then opening the door. A.K. asked Respondent what he was doing, and he replied that he was just joking around. During the first trip to the storage closet, as A.K. was walking through the locker room, she saw J.C., a NHS student, near his locker. Some time after Respondent and A.K. walked through the locker room, J.C. walked around to the bench near the storage closet doorway to put on a knee brace. Thereafter, J.C. saw Respondent in the doorway of the storage closet, and Respondent introduced him to A.K. J.C.'s locker was adjacent to the storage closet wall, and he had to walk to the end of the wall and around the corner to get to the doorway of the storage closet. Due to the location of his locker, there was a period of time when J.C. was not near the doorway of the storage closet and could not see that doorway. At some point while A.K. and Respondent were in the storage closet, Corporal Ronald Byington (Coach Byington), the NHS youth relations deputy and an assistant football coach at the school, walked through the locker room from the adjacent coaches' room. Coach Byington stopped and talked to Respondent about a minute and a half. During his very brief conversation with Respondent, Coach Byington did not observe anything out of the ordinary. After briefly talking with J.C., Respondent and A.K. returned to the laundry room. After a short period of time, Respondent handed A.K. a bag of jerseys to take with her to the storage closet and proceeded alone with her back across the gym to the boys' locker room. J.C. was not in the locker room when Respondent and A.K. returned to the storage closet. When A.K. and Respondent returned to the storage closet with laundry a second time, Respondent again followed her into the storage closet, closed the door, and turned off the lights. Respondent then kissed A.K. on her neck and lips, grabbed her leg, and pushed it up against his side. A.K. pushed Respondent away from her, after which he turned on the lights, grabbed himself and remarked, "This is what you do to me." As A.K. approached the door to walk out, he placed A.K.'s hand on his groin. A.K. described the manner in which Respondent kissed her on the neck as "more of a sucking" than a kiss. After the incident described in paragraph 16, A.K. returned to the laundry room followed by Respondent. Upon returning, A.F. and K.C. noticed that A.K.'s neck was red and told her so. When A.F. and K.C. commented about the red mark on her neck, Respondent stated that it was because he had put her in a headlock. After the brief discussion about the red mark on A.K.'s neck, A.K. returned to the boys' locker room a third time, this time with A.F. and Respondent. A.K. had to wait outside the locker room since there were football players in there changing for weight training. Because A.K. could not enter the locker room, she handed the laundry she was carrying to A.F. and/or Respondent. Upon returning to the laundry room from the third trip to the storage closet, Respondent "kind of stopped [A.K.]" as they were walking across the gym floor. He then had A.K. hold her hand up while he did the same and intertwined his little finger with hers while he asked her to "pinkie swear" (promise) she would not tell anybody, and she agreed to do so. However, Respondent then told A.K. that he could not promise that it would not happen again. This brief exchange took place out of A.F.'s earshot. Moreover, given the considerable activity in the gym, it is reasonable that A.F. did not hear this conversation. A.K. returned a fourth time to the locker room to get her book bag and left school. She was in a state of shock, drove home, changed, and left for work. That evening A.K. did not tell her parents about the incident with Respondent because she was embarrassed and uncertain as to how they would react. The next morning, Tuesday, February 11, 2003 (February 11), A.K. was sitting in her car in the NHS parking lot waiting for the first-block bell to ring when her friend, E.W., a senior at NHS, approached her. E.W. noticed that there was something wrong and asked A.K. what was the matter. A.K. started to cry and told E.W. that Respondent had kissed her. As they walked to class, A.K. told E.W. more of what happened. A.K. told E.W. that on the first visit to the storage closet Respondent shut the lights off. A.K. asked him what he was doing and he turned them on. A.K. also told E.W. that on the second visit, Respondent shut the lights off and imposed himself on her, including kissing her on the neck and lips and grabbing her leg. Sometime during the course of the day, A.K. told E.W. about Respondent's having her touch his penis area. On the morning of February 11, soon after A.K. told E.W. about the incident, E.W. asked A.K. whether she had told anyone. A.K. replied that she had not. E.W. then told A.K. that she needed to report the incident to Mary Ellen Bergsma, the school guidance counselor. Although A.K. agreed to do so, she was hesitant and embarrassed to discuss the incident with Ms. Bergsma or anyone. At the beginning of the first block, E.W. accompanied A.K. to Ms. Bergsma's office. Ms. Bergsma invited both girls into her office and shut the door. Initially, when she went into Ms. Bergsma's office, A.K. was visibly upset, choked up, and unable to speak. After being encouraged by E.W., A.K. told Ms. Bergsma about the incident with Respondent. A.K. told Ms. Bergsma that Respondent had "hit on her," meaning that he had kissed her. In response to her question, A.K. told Ms. Bergsma that the event occurred in the storage closet area and then explained what happened in more detail. During this time, A.K. continued crying and had a hard time talking. After A.K. told Ms. Bergsma about the incident, Ms. Bergsma informed A.K. that she would have to talk with Gary Brown, the principal of NHS, about the incident. Later that morning, Ms. Bergsma accompanied A.K. to Mr. Brown's office. Although A.K. appeared uncomfortable and nervous and was crying, she told Mr. Brown basically what she had told Ms. Bergsma. At the end of the day, E.W. went to Ms. Bergsma to report some of the additional details that A.K. was too embarrassed to tell Ms. Bergsma, including Respondent's putting her hand on his genital and saying, "This is what you do to me." Over the next few weeks, Ms. Bergsma had follow-up conversations with A.K. to see how she was doing. She found that A.K. was having difficulty concentrating at school, not sleeping well, and, overall, was "having a tough time." On February 11, after A.K. reported the incident to Ms. Bergsma, she decided to remove A.K. from Respondent's peer tutor class. At 9:02 a.m. that morning, Ms. Bergsma e-mailed Respondent advising the following: "FYI – A.K. is out of your class 4th block." The e-mail was opened by Respondent at 9:05 a.m. and deleted by him at 9:05 a.m. Five minutes later, at 9:10 a.m., Respondent prepared a separate E-mail stating, "Thanks for the info. Have a great day." Respondent never contacted Ms. Bergsma to find out why A.K. was no longer in his fourth-block class. Respondent testified that the e-mail was no big deal to him and that it might have meant A.K. was out just that day since the e-mail from Ms. Bergsma did not have the word "permanently" contained in it. Between approximately 12:00 to 12:30 p.m., on February 11, Mr. Brown told Respondent in person that he wanted to meet with him in Mr. Brown's office at about 2:00 p.m. When Respondent met with Mr. Brown in his office that afternoon, Mr. Brown asked Respondent if he knew why he had been called to his office. Respondent seemed to think about the question and replied that it must be a parent complaining about his basketball program. He thought up several possibilities until Mr. Brown told him it had nothing to do with basketball. Mr. Brown then told Respondent that the meeting pertained to a complaint from a female student who had peer counseling with him and related to inappropriate physical contact that Respondent had with the student. After progressing through each of his classes and being informed by Mr. Brown that it regarded a complaint from the fourth block the preceding day, Respondent stated that the complainant had to be A.K. because she was the only female present that period on February 10. After Mr. Brown informed Respondent of the allegations, Respondent's head dropped down. He had tears in his eyes and stated that he could not believe this was happening to him. Mr. Brown then asked Respondent if he could think of any reason why A.K. would make such an accusation against him. Respondent told Mr. Brown about an incident at the NHS basketball game on January 31, 2003, which involved A.K. Respondent stated that he had spoken with A.K. on February 3, 2003, about her conduct at the game. Respondent then retrieved a letter from his brief case and presented it to Mr. Brown. The letter was dated February 3, 2003, and was addressed to Coach Byington. Respondent had authored the letter and typed it on a computer. The letter stated that during half-time of the January 31, 2003, basketball game, while Respondent was outside for "a breath of fresh air," he saw A.K. and two other NHS students, K.S. and S.W., and a former NHS student, J.W., outside. In the letter, Respondent indicated that the students appeared to be intoxicated and under the influence of drugs or alcohol; that two of the students approached him; and that A.K. then began making derogatory comments about two NHS assistant football coaches, one of whom was Coach Byington. Also, the letter indicated that on February 3, 2003, Respondent spoke to A.K., during fourth block about her being intoxicated. According to the letter, Respondent told A.K. that she and those with her on January 31, 2003, were "lucky that [Respondent] was in the middle of a game and [they] had not been caught." In addition to information about A.K.'s being intoxicated at the game, Respondent included statements in the letter which were unrelated to the January 31, 2003, incident. Apparently, referring to his February 3, 2003, conversation with A.K., Respondent wrote in the letter: It was during this conversation that I figured out [A.K.] was extremely bitter about coaches at NHS. After further research, it was determined that [A.K.] need not be trusted. [A.K.] on several occasions accused Byington and the football staff of starting rumors about her . . . and she claimed people had given her a hard time about being a senior dating a freshman. I had never heard of such rumors and felt that she was overplaying this to an extreme. After refusing to discuss any more of these matters with her, she became very irate and said that I [Respondent] was just like the others. In quotes "jerks". [sic] Just wanted you to have this information on file. Respondent told Mr. Brown that he had never given the letter to Coach Byington because he did not want to get A.K. in trouble. Coach Byington never received Respondent's letter dated February 3, 2003, nor did Respondent speak to Coach Byington about its contents. If a letter with allegations like the ones made in the letter dated February 3, 2003, were brought to his attention, Coach Byington would look into the matter or take some action. The letter dated February 3, 2003, accurately states and it is undisputed that (1) Respondent saw NHS students, A.K., K.S., and S.W., and a former NHS student, J.W., on January 31, 2003, during half-time at the basketball game that evening; (2) the students, including A.K., were intoxicated; and (3) on February 3, 2003, Respondent talked to A.K. about being intoxicated at the basketball game. The letter dated February 3, 2003, falsely and inaccurately states when Respondent saw A.K. on January 31, 2003, she talked to him about her dislike for two of NHS football coaches and said derogatory things about them. Rather, after exiting the gym at half-time, A.K. and K.S. spoke to Respondent only briefly, about a minute. During that conversation, A.K. asked Respondent about his daughter, Callie, and how the basketball game was going; she also wished him luck in the second half. A.K. and K.S., along with S.W. and J.W., continued to walk to A.K.'s friend's car to have a few shots of alcohol during half-time. On the evening of January 31, 2003, A.K. never said anything to Respondent about Coach Byington or any other coach at NHS. In light of the purpose for which Respondent claimed he wrote the letter dated February 3, 2003, there is no reasonable explanation for Respondent's inclusion in the letter of the statement that "[a]fter further research, it was determined that [A.K.] need not be trusted and that A.K. said that Respondent was jerk [sic], just like the other coaches. Since becoming a peer tutor for Respondent and prior to January 31, 2003, A.K. had talked to Respondent on several occasions and told him that she did not like Coach Byington. The reason A.K. did not like Coach Byington was that she believed that he gave preferential treatment to football players and had made A.K. the butt of jokes because she was dating a freshman football player. A.K. made no secret that she "did not care" for Coach Byington and candidly admitted her feelings about Coach Byington at hearing. There were no other coaches at NHS who A.K. disliked or told Respondent that she disliked. The letter dated February 3, 2003, also inaccurately and falsely stated that when Respondent talked to A.K. at school on February 3, 2003, about being intoxicated at the January 31, 2003, basketball game, she became irate. Respondent's testimony at hearing regarding this conversation is not credible. Contrary to Respondent's account, the conversation took place in the gym and not in Respondent's office. Moreover, during the conversation, Respondent seemed to be joking with A.K. about her being intoxicated at the January 31, 2003, basketball game. At no time during that conversation did Respondent talk to A.K. about the kind of people she should hang out with. Respondent also never indicated to A.K., during that conversation or at any other time, that he would report her to school officials or tell her parents that she was intoxicated. Respondent provided confusing and contradictory testimony in connection with the letter dated February 3, 2003. First, despite the date on the letter, it is not clear when Respondent wrote the letter. Respondent testified that he prepared the letter on Monday, February 3, 2003, but also testified that he could have finished it later that week. This testimony is consistent with a letter Respondent wrote in March 2003, in response to the report of the School Board's investigator. Respondent also testified that even if he did not finish the letter on February 3, 2003, he would not have changed the date because he did not consider the letter an official document. During the investigation of A.K.'s complaint against Respondent, the School Board's computer system technicians checked the school's computers and found no record of the letter in the system. If, as Respondent testified, he made changes to the letter over a period of time, the letter would have been saved on the system and the computer technicians would have been able to retrieve it. Respondent's testimony and representations regarding the preparation of the letter dated February 3, 2003, are confusing and not reasonable. In his March 2003 letter to the School Board in response to the investigator's report, Respondent stated that after initially writing the February 3, 2003, letter, he waited to review it before delivering it to Coach Byington. Despite all the time Respondent indicated he took to write, review, and edit the letter, Respondent never gave the letter to Coach Byington, even though Coach Byington's office was only a 20- to 30-second walk from Respondent's office. According to Respondent, the reason was that he had a busy basketball schedule. Respondent testified that the reason he prepared the letter dated February 3, 2003, was to give Coach Byington a "heads up." Yet, Respondent provided no explanation as to why Coach Byington needed a "heads up." Respondent's testimony regarding the reason he wrote the letter dated February 3, 2003, is not credible. Respondent did not prepare the letter dated February 3, 2003, to give to Coach Byington and did not deliver it to him or discuss it with him. The letter was instead prepared to give to Mr. Brown to undermine the credibility of A.K. At all times relevant to this proceeding, E.M., a male, was a student at NHS. E.M. and Respondent had a close relationship and have known each other for about five years, having first met when E.M. was in the sixth grade and was coached by Respondent. While a coach at NHS, Respondent sometimes gave E.M. lunch money and also hired E.M. to work in summer basketball camps. During the investigation of Respondent, E.M. voluntarily came forward to provide information supportive of Respondent. E.M. told Mr. Brown and testified at hearing that when he was in the boys' locker room on February 3, 2003, he overheard Respondent tell A.K. that she should hang out with better people; that he then saw Respondent leave his office; that he saw A.K. leave the office soon after Respondent left the office; and that he noticed that as she was leaving, A.K. was on a cell phone saying to someone that she hated the coaches at NHS and was going to get back at them. A.K. did not make a cell phone call from school on February 3, 2003. In fact, she does not bring her cell phone to school. Moreover, A.K.'s cell phone records show that no call was made at the time E.M. claimed the call was made. Finally, as noted in paragraph 45, the February 3, 2003, conversation between Respondent and A.K. took place in the gym, not in Respondent's office. The testimony of E.M. was not credible and was refuted by competent and substantial evidence. There is no reasonable explanation for A.K. to file false charges against Respondent. As even Respondent admitted, A.K.'s animus was directed to Coach Byington, not toward Respondent. Prior to the February 10 incident in the storage closet, A.K. liked Respondent and considered him a good friend. She had been a student in Respondent's aerobics class during her sophomore year at NHS. During the first semester of her senior year, A.K. had been an office assistant at NHS and in that capacity, she was required to hand out passes to designated or assigned teachers. Respondent was one of the teachers A.K. had to deliver passes to on an almost daily basis. When A.K. delivered the passes to Respondent, they often had conversations. The second semester of her senior year, A.K. specifically requested to be a peer tutor for Respondent because she thought he was a "cool teacher." As a consequence of the February 10, 2003, incident, A.K., in a consultation with her parents, began seeing Dr. Marta Gallego, a clinical psychologist in Naples, to help her address her fears and concerns. The counseling sessions began on or about February 19, 2003, with the initial intake session involving A.K. and her family, and continued until early May 2003. The therapy sessions with Dr. Gallego focused on A.K.'s reactions to the incident, helping her deal with her reactions, and processing the incident. During the counseling sessions, A.K. exhibited symptoms related to the trauma, was anxious at times, and was depressed. Also, after the February 10 incident, A.K. withdrew from friends and family, had difficulty concentrating at school, and felt pain over the impact that the incident had on her family. Finally, A.K. expressed to Dr. Gallego that she could not understand how a teacher that she trusted could violate her trust.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent from his position as a teacher with the Collier County School Board. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 4th day of June, 2004. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Jon D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive, Third Floor Naples, Florida 34103 Dr. H. Benjamin Marlin Superintendent of Collier County School Board 5775 Osceola Trail Naples, Florida 34109-0919 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
