The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Whether the Duval County School Board (Board) may terminate Respondent, Cleveland F. William, Jr.'s, employment as a teacher based upon incompetence under the Duval Country Teachers Tenure Act (the Act). This issue is dependent upon whether the Board showed Respondent to be incompetent and whether the Board complied with the procedural requirements of the Act.
Findings Of Fact Respondent was first assigned to Fort Caroline Middle School during the academic year 2000-2001 to teach 6th grade science. Kathy Kassees was the principal at Fort Caroline Middle School during that school year. Respondent's brother was extremely ill and died during the school year. Respondent's performance evaluation for that school year was less than satisfactory. See Exhibit 2, 2000-2001 Performance Evaluation. Respondent concedes that his performance in 2000-2001 was less than satisfactory. See paragraph 56 of Respondent's Post-hearing Brief. When a tenured teacher in the Duval County system has a performance evaluation of less than satisfactory, the teacher may elect to transfer to another school, and Respondent exercised that option for the school year 2001-2002. Respondent was moved to Stillwell where he was assigned to teach 7th grade science. In addition, he was assigned for the first time to teach inclusion classes. Inclusion classes are made up of students who are exceptional education students who may have various exceptionalities. These exceptionalities may include disabilities such as deafness, emotional and behavioral problems, and developmental disabilities. Behavioral problems may include students diagnosed with attention deficit disorder and hyperactivity. Stillwell utilizes a program of instruction called the America's Choice Plan (ACP). The ACP is a comprehensive educational program which covers all aspects of instruction, organization of the classroom, and display of student materials in the classroom. ACP has its own vocabulary of terms to describe activities and things. For example, "artifacts" refers to student work and other materials posted in the classroom. It is expected that "artifacts" will be posted and changed periodically. Weekly meetings to discuss the system are called "Tending the Garden" meetings. ACP had been used at Stillwell previously and the returning faculty were familiar with it. Respondent had never worked with ACP before. Ms. Kassees had prepared a Success Plan for Respondent after he received his unsatisfactory evaluation to help him improve his deficiencies. Respondent took this plan with him to Stillwell, but the plan did not address ACP or inclusion classes. Mr. Marjenhoff, the principal at Stillwell, met with Respondent and discussed Marjenhoff's expectation of Respondent. They did not discuss any special requirements or changes necessitated by ACP or inclusion classes. Petitioner was unable to establish that it had prepared and delivered a new Success Plan to Petitioner at Stillwell. After his poor evaluation in February of 2002, Respondent asked Mr. Marjenhoff for a copy of the Success Plan and one was produced which was signed by Mr. Marjenhoff and dated August 6, 2001, and by Respondent on March 27, 2002. See Exhibit 13. Respondent did attend various ACP, "Tending the Garden" in-service educational classes presented by Dianne Rahn; Urban Systemic Initiative (USI) seminars presented by Rose Curry; and classes presented by his department head, Margarita Arroyo. His attendance and punctuality at these meetings was on par with his peers. The first indication of evaluative inspections came in a November 28, 2001, memo to Respondent from Marjenhoff stating that Dianne Dunn, a cadre member, would be contacting him about setting up a classroom visit. She did not conduct a visit until January 28, 2002. See Exhibit 11 and attachments. The annual evaluation of faculty occurs in February. Petitioner concedes that other than the cadre work by Dunn and some instruction on USI by Curry, little was done by way of individualized in-service training to address Respondent's shortcomings. Respondent was not afforded much in the way of unique, individualized oral counseling or critiques of his performance during the first part of the school year. See paragraphs 21 and 22 of Petitioner's Post-hearing Brief. A review of Curry's visits reflects she met with Respondent approximately once each month for a rough average of an hour, with the exception of the first meeting which was four hours. Curry's logs do not reflect the corrective actions taken with regard to Respondent's teaching. This hardly constitutes an accelerated effort to improve Respondents performance. See Exhibit 21. The dates of the various class visits and evaluations by Marjenhoff are in February and March. See Exhibits 12, 18 and 19. A review of the records of the in-class visits and commentaries by the observers reveal that too many general recommendations were made rather than specific, concrete changes to implement. For example, Darrell Perry visited Respondent's class and was concerned about its physical organization, i.e., where the television was located, the direction in which the seats were oriented, and where Respondent's desks was located. This was written up in March, which was late in the year to raise these issues, and Perry did not suggest or volunteer to help Respondent alter the room to meet Perry's expectations. Also see Exhibit 11 and attachments. In sum, there was too much jargon and too little performance-oriented, hands-on correction of Respondent. Memoranda relating to Respondent's performance all seem to be dated after January 2002. See Exhibits 16 and 17. The corrections that were made came too late to have a meaningful impact upon the improvement of Respondent's teaching performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board provide Respondent another year in which timely and appropriate in-service training is provided to correct his deficiencies in teaching. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 29th day of January, 2003. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Michael B. Wedner, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent should be discharged from her employment as a teacher with the Duval County public school system for professional incompetency as provided in Section 4(e) of the Duval County Teacher Tenure Act?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida to teach in early childhood, biology, science, junior college and driver's education. The Respondent's license to teach is current, in full force and effect and valid through 1998. The Respondent received a bachelor's degree in biology and chemistry from Florida A & M University in 1970 and a master's degree in early childhood education from Antioch College in 1976. The Respondent has been employed as a teacher by the Petitioner since 1977. At all times relevant to this proceeding, the Respondent was employed as a tenured teacher with the Petitioner. Beginning with the 1977-78 school year, the Respondent was assigned to teach at Paxon Senior High School (hereinafter referred to as "Paxon"). The Respondent continued to teach at Paxon through and including the 1984-85 school year. Through the 1983-84 school year the Respondent received satisfactory evaluations of her performance as a teacher from the principal of Paxon. For the 1984-85 school year Mr. Frank Castellano was assigned as the principal of Paxon. This was Mr. Castellano's first year as principal of Paxon. During the 1984-85 school year, the Respondent was observed teaching by Mr. Castellano, Mr. William Jackson, the Vice-Principal of Paxon, and Dr. Jed R. Klein, the Director of Science and Environmental Studies of the Petitioner. On March 15, 1985, the Respondent was rated unsatisfactory on a Mini Evaluation Form by Mr. Castellano. This evaluation was based upon the observations of Mr. Castellano and the other individuals that had observed the Respondent listed in finding of fact 8. On April 26, 1985, the Respondent was again rated unsatisfactory by Mr. Castellano. The form used for this evaluation was a more detailed form which listed 36 factors. Mr. Castellano rated the Respondent "satisfactory" on 13 of the factors, "needs to improve" on 14 of the factors and "unsatisfactory" on 9 of the factors. The unsatisfactory factors were included in the general categories of classroom management and teaching effectiveness. Prior to evaluating the Respondent, Mr. Castellano reviewed the Respondent's previous evaluations back to 1980. Those evaluations do not note similar deficiencies to those noted by Mr. Castellano. The Respondent had had no problems with administration in the past. Although Mr. Castellano did not implement a specific program of remediation for the deficiencies he had observed in the Respondent's teaching performance, efforts were made to assist the Respondent in correcting noted deficiencies. The Respondent was provided with written summaries of the various observations and conferences were held between the Respondent and the individuals observing her. Following the unsatisfactory evaluations by Mr. Castellano, the Respondent was informed by Mr. Castellano that she had the right to transfer to another school for the 1985-86 school year. Mr. Castellano was required to inform the Respondent of this option pursuant to the Duval County Teacher Tenure Act (hereinafter referred to as the "Tenure Act"). Mr. Castellano told the Petitioner that if she did not believe that she would be treated fairly at Paxon, she might want to transfer. Mr. Castellano did not, however, try to convince the Respondent that she should transfer. Mr. Castellano recognized that the decision could only be made by the Respondent and so advised her. Although the Respondent had been at Paxon for 7 years before Mr. Castellano arrived and did not want to leave, she made the decision to request a transfer. The Respondent's decision was based upon her conclusion that she would not receive fair treatment if she remained at Paxon. The Respondent was transferred to Ed White Senior High School (hereinafter referred to as "Ed White"), where she taught during the 1985-86 school year. The Respondent was given no choice as to what school she was transferred to. Such a choice is not mandated by the Tenure Act. Nor is it a policy of the Petitioner to give such a choice. Mr. James Jaxon, the Principal of Ed White, was aware of the Respondent's unsatisfactory evaluation by Mr. Castellano. Mr. Jaxon met with the Respondent on August 23, 1985, in a pre-planning conference. In a memorandum dated August 26, 1985, Mr. Jaxon memorialized the steps that Mr. Jaxon and the Respondent had agreed on August 23, 1985, would be followed to attempt to improve the Respondent's teaching performance. Mr. Jaxon did not request that the Respondent be transferred to Ed White and would not have hired her if she had applied for a position. Mr. Jaxon was not "out to get the Respondent" as suggested by this finding of fact being proposed by the Respondent. Mr. Jaxon attempted to assist the Respondent in improving her teaching skills and provided her with an opportunity to improve her performance. The Respondent was provided in-service training during the 1985-86 school year as required by Section 4(e)(3) of the Tenure Act. The primary source of the Respondent's in-service training was provided by Ms. Gloriden J. Norris. Ms. Norris is a Teacher Education Center Consultant. She is employed by the University of North Florida and not the Petitioner. Mr. Jaxon and Ms. Norris met with the Respondent on September 4, 1985. The Respondent was informed in a memorandum dated September 5, 1985, of the steps that would be followed in assisting the Respondent. During the 1985-86 school year, Ms. Norris observed the Respondent's class on 6 different occasions: September 19, 1985, October 7, 1985, November 26, 1985, December 4, 1985, January 21, 1986 and April 25, 1986. Ms. Norris also conducted approximately 8 to 10 conferences with the Respondent, gave her written materials to assist her in improving her teaching skills and talked to the Respondent on the telephone. In addition to Ms. Norris' observations, the Respondent was observed by Mr. Jaxon (October 13 and 22, 1985, February 3 and 13, 1986 and March 5, 1986), Mr. George Paugh, the Assistant Principal/Student Services at Ed White (September 3, 5 and 26, 1985) and Dr. Klein (March 18, 1986). Written comments concerning most of the observations of the Respondent during the 1985-86 school year were provided to the Respondent. Conferences were also held with the Respondent throughout the school year. The Respondent followed up on some of the suggestions Mr. Jaxon made to her concerning improving her teaching skills and she asked about an in- service workshop. The Respondent did not sufficiently implement recommendations for improvement made to her. Ms. Norris was not able to establish a rapport with the Respondent and therefore her ability to assist the Respondent was diminished. This lack of rapport was a result of the Respondent's attitude toward those who were attempting to assist her in improving her teaching abilities. The Respondent evidenced a belief that she was being treated unfairly and that she had no significant problems as a teacher. This attitude of defensiveness hampered the efforts of Ms. Norris and others to assist the Respondent. After January 21, 1986, Ms. Norris did not check to see if the Respondent had incorporated her suggestions as to the development of a lesson plan. On October 30, 1985, Mr. Jaxon rated the Respondent's performance as unsatisfactory. Mr. Jaxon also rated the Respondent's performance unsatisfactory on March 27, 1986. Respondent's deficiencies were in the areas of classroom management and teaching effectiveness. The following deficiencies concerning the Respondent's classroom management were observed during the school years in question: The Respondent was late to class or in starting class (according to Mr. Jackson, Mr. Castellano, Mr. Jaxon and Ms. Norris); Students were late to class (according to Mr. Jackson, Dr. Klein and Mr. Jaxon); The students were allowed to dismiss themselves (according to Dr. Klein and Ms. Norris); No roll was taken (according to Mr. Jaxon); On numerous occasions students were not paying attention -- they talked, combed their hair and put on makeup, read unrelated materials including magazines and paperback books, daydreamed and slept (according to Mr. Jackson, Mr. Castellano, Dr. Klein, Mr. Paugh and Mr. Jaxon); and Some students did not have their textbooks with them (according to Mr. Jaxon). The following deficiencies concerning the Respondent's teaching effectiveness were observed during the school years in question: The Respondent did not have her lesson plans with her in the classroom (according to Mr. Castellano) or were not followed (according to Dr. Klein); The Respondent failed to check to see if students understood directions (according to Ms. Norris); Only low order questions (those dealing with facts and knowledge) were asked. No high order questions (those requiring reasoning, justification, comparison or analysis) were asked (according to Ms. Norris); The Respondent allowed group responses to questions. She did not call on one student to answer a question. This resulted in incorrect responses not being corrected (according to all those who observed the Respondent); The Respondent did not give summaries or reviews to place lessons in perspective (according to Mr. Jaxon and Dr. Klein); Lag time or dead time was allowed at the end of the classes. This resulted in students having nothing meaningful to do (according to Mr. Paugh and Ms. Norris); and The Respondent was unable to justify grades she had given to some students who complained (according to Mr. Castellano and Mr. Jaxon). The Respondent timely prepared her lesson plans. On the occasions when she did not have her lesson plans in the classroom with her they had been prepared but she did not have them with her. She had turned them in as required on Friday for approval by the principal and they had not yet been returned. The plans were not always approved by the following Monday. The Respondent had been instructed, however, that if the plans had not been approved by the following Monday, the plans were to be picked up before class anyway. The lesson plans prepared by the Respondent were "good" according to Don Price, Dean of Boys of Paxon. Mr. Price so advised Mr. Castellano. Mr. Price also advised Mr. Castellano that the Respondent was a "good teacher." During the school years in question, the Respondent did not demonstrate the ability to plan and teach a meaningful lesson. Ms. Norris attempted to assist the Respondent in demonstrating this ability. Neither Mr. Jaxon nor Ms. Norris ever saw the Respondent teach a lesson in the manner suggested by Ms. Norris. Based upon Dr. Klein's observation of the Respondent during the 1985- 86 school year, the Respondent did not materially improve her abilities from the time he observed her during the 1984-85 school year. Dr. Klein did believe that the Respondent had improved her ability to discipline a little. During the 1984-85 school year, students were taken out of the Respondent's classes to equalize class loads. Except for slightly larger classes during the first part of the 1984-85 school year, there was nothing unusual about the size or makeup of the Respondent's classes. Because students must be scheduled to take certain courses in secondary schools as opposed to one teacher having the same group of students for the entire year, school administrators have less control over the size or composition of classes. During the 1985-86 school year the Respondent taught in an "open school." A large area was divided into several classrooms creating problems with noise and other distractions. These problems were not proved to be sufficient to account for the Respondent's deficiencies as a teacher. Other teachers are able to teach effectively in these circumstances. During the 1985-86 school year the Respondent was assigned to teach marine biology for the first time. The Respondent had never had any courses in marine biology. Marine biology is, however, a subject within the Respondent's areas of certification. The evidence did not prove that the additional effort required of the Respondent in teaching marine biology was the cause of the Respondent's deficiencies. During the 1984-85 and 1985-86 school years the Petitioner provided the Respondent with detailed statements concerning her deficiencies, as required by Section 4(e)(1) of the Act. Most of the 30 exhibits offered by the Petitioner are letters or memoranda written to the Respondent in an effort to inform the Respondent of her perceived deficiencies and to offer suggestions for improvement. The Respondent responded to most of these documents in writing. By certified letter dated May 16, 1986, Herb A. Sang, the Superintendent of Duval County Public Schools, brought charges against the Respondent seeking her discharge for professional incompetency during the 1984- 85 and 1985-86 school years. The Respondent was informed of her right to a hearing pursuant to Chapter 120, Florida Statutes, as required by Section 4(e)(4) of the Tenure Act. The Respondent was given the right to a speedy and public hearing, she was informed of the nature and cause of the accusations against her, she was confronted with accusing witnesses, she was allowed to subpoena witnesses and documents and she had the assistance of counsel in compliance with Section 4(e)(5) of the Tenure Act. No definition of "professional incompetency" is provided in the Tenure Act.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be dismissed as a tenured teacher within the Duval County public school system, effective immediately. DONE and ORDERED this 10th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3564 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection RO 1 and 4. RO 4. 3 RO 9-10, 31 and 42. 4 RO 45. Conclusion of law. RO 10 and 31. 7 RO 32. 8 RO 33. 9 RO 20. 10 RO 21-22. RO 24 and 28. Not supported by the weight of the evidence. Not a proposed finding of fact. 14 RO 38. 15 RO 39. 16 RO 40. 17 RO 26 and 41. 18 RO 13, 15 and 17. 19 RO 43-44. 20 RO 44. RESPONDENT'S PROPOSED FINDINGS OF FACT: 1 RO 3. 2 RO 1-2. 3 RO 4. 4 RO 5. 5 RO 6. 6 RO 7. 7 RO 9-10. 8 RO 8. 9 RO 33. 10 RO 34. 11 RO 35. 12 Hereby accepted. 13 RO 11. 14 RO 12. 15 RO 13-14. 16 RO 11 and 15. 17 RO 15. 18 RO 16 and 18. 19 RO 23. 20 RO 24. 21 Irrelevant. 22 RO 24 and 26. 23 RO 29-30. 24 RO 25 and 35. 25 RO 36. 26 RO 19. 27 Mr. Jaxon did testify that he could find deficiencies in nearly any classroom teacher. He also testified thatit would be unusual for a large numberof teachers to suddenly become incompetent. 28 RO 37. Hereby accepted. The first sentence is hereby accepted. The second sentence is rejected as not supported by the weight of the evidence. 31-33 Irrelevant or not supported by the weight of the evidence. 34 RO 41. 35 RO 27. COPIES FURNISHED: Mr. Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Gary E. Eckstine, Esquire Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Phil J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
Findings Of Fact The Respondent, Deborah Green, hold Florida teaching certificate 586445, covering the areas of Math, Elementary Education and Educational Leadership. The certificate is valid through June 30, 1997. During the 1992/1993 school year, the Respondent was a teacher in the Pinellas County Schools GOALS program at Dixie Hollins High School. GOALS stands for Graduation Options - Alternative to Leaving School. It is a drop-out prevention program. Although the evidence did not describe the GOALS program in detail, the evidence suggests that GOALS teachers may be in the position of having to change some of the rules of regular education in order to keep students from dropping out and yet may still be subject to criticism for not conforming to the rules of regular education. Put another way, there appears to be the potential for some of the priorities of the GOALS program to be inconsistent with some of the priorities of regular education, and it was not clear from the evidence how GOALS teachers are supposed to balance the competing interests. One of the Respondent's GOALS students in history class during the 1991/1992 school year was Andrew Patrick. By definition, as a GOALS student, he was at risk to drop out when he entered the program. He also was a poor student, especially in math. Emotionally, Patrick seemed to suffer from an abnormally strong need to feel popular while at the same time failing to realize that the results of his efforts to be popular generally were the opposite of what he intended. After letting down his guard and allowing himself to be friendly and civil with the Respondent, he soon came to like her personally. At the same time, he seemed to sense (probably correctly) that a personal relationship with the Respondent, who was a very popular teacher, could make him popular by association. Over time, a close teacher-student relationship developed between the Respondent and Patrick. The Respondent was able to use this relationship to further her goal of keeping Patrick interested in school. In addition, the Respondent discovered that Patrick became more interested in school the more he was allowed to help the Respondent in the classroom. As a means of legitimate "positive stroking," the Respondent gave Patrick more and more responsibilities in her classroom and praised him for carrying them out successfully. Over time, Patrick developed an adolescent crush on the Respondent. He became unusually interested in her and in the details of her personal life. He learned, accidentally at first, that the Respondent was dating a man named Michael Miller, who was married and who was the principal of another Pinellas County high school. He questioned her repeatedly about her relationship with Miller and also pestered the Respondent's adopted daughter, who also was in the GOALS program, for information about the Respondent and her personal life. (Actually, the girl was the daughter of a close friend of the Respondent. The Respondent and her friend helped each other raise their children. Both families lived in the Respondent's home, and the Respondent referred to the girl as her daughter.) In addition, for a student, he bought her relatively expensive gifts; he also bought her gifts more frequently than the other students. The Respondent did little to discourage Patrick's obvious crush on her. Instead, she exploited it, in part in furtherance of her objectives as his GOALS teacher but also, during the 1992/1993 school year, in part for her benefit. During the 1992/1993 school year, Patrick's role in the Respondent's pre-algebra classroom expanded to what seemed to be practically the Respondent's personal assistant. The Respondent gave Patrick a desk at the front of the classroom near her teacher desk, facing the students, such as a teaching assistant might have. The Respondent had Patrick prepare weekly GOALS progress reports for her to fill out for each student. (He wrote her name in the appropriate blank, but it was not proven that the blank necessarily called for her signature or initials, as opposed to just her identity as teacher.) The Respondent also had Patrick maintain the hall passes for her use. When a student needed a hall pass, she referred the student to Patrick to get one. Patrick would fill out the hall pass and give it to the student. Usually, the hall pass required the Respondent's signature but, on occasion, Patrick forged the Respondent's signature. When the Respondent was made aware that Patrick had forged her signature, she admonished him not to, but she did not monitor very closely or control him very well. The Respondent also had Patrick complete daily attendance slips to be picked up by a runner from the administrative offices. The Respondent also had Patrick use an answer key to grade daily class assignments and some quizzes for his class and other classes she taught and had him enter the grades in a grade book. (There also was one other student who used an answer key to grade some daily class assignments and some quizzes and enter the grades in a grade book for the Respondent, but the other student was not nearly as heavily involved in these activities as Patrick.) It is not clear from the evidence whether Patrick and the other student entered the daily class assignment and quiz grades in the Respondent's official class grade book or in one of the other grade books that the Respondent maintained for other purposes. Patrick usually performed tasks for the Respondent during math class, but sometimes (as the Respondent was aware) he left other academic classes during the school day to the Respondent's classroom to perform tasks for her. Patrick rarely took quizzes himself. The Respondent had determined that Patrick did not test well, and she devised alternative means of measuring his progress in her classroom. Often, Patrick didn't even know when the Respondent was evaluating and grading what he was doing for her in the classroom. Patrick relished his role as the Respondent's assistant, applied himself to it and did a very good job in the role. He obviously tried very hard to please the Respondent, and she gave Patrick credit for his effort and performance. But it seems questionable how the Respondent fairly and accurately could have evaluated and graded Patrick's progress, especially in a class like pre-algebra, based on his performance in the tasks she was assigning him to do for her in the classroom. On the other hand, what she was doing kept Patrick in school, and there was no evidence that the general approach was incorrect in the context of a GOALS program pre-algebra class. During the 1992/1993 school year, the Respondent was under stress at least in part due to her relationship with Miller. It probably comforted her to an extent to allow Patrick to draw her into discussions about subjects such as her relationship with Miller. She stopped short of discussing the intimate details of the relationship, but in some respects Patrick could use his imagination to fill in the blanks. Later in the fall, the Respondent had to deal with the additional stress of having to decide whether to accept an offer of marriage from a well-to-do friend from Texas. She freely discussed her dilemma with Patrick. By January, 1993, the Respondent was having serious difficulty handling the stress and began to suffer physical symptoms. She accepted the advice of her chiropractor, who was treating the physical symptoms of her stress, to take a medical leave of absence. Her application for leave was approved through June 11, 1993, and she began her leave on January 27, 1993. When Patrick inquired about the Respondent's absence from school, and was told that she was gone and probably would not be back, he became hysterical. He went to the principal's office and angrily accused the principal of getting rid of the Respondent because of her relationship with Miller (which the principal knew nothing about) because he was confidant that his (Patrick's) relationship with the Respondent was much too close for her to have left voluntarily without consulting with him. He described the nature of their relationship. When the principal denied that he had anything to do with it, Patrick began to blame himself, saying that he had encouraged the Respondent to drop her relationship with Miller and marry the friend from Texas. The principal calmed Patrick down and had him sent home. That evening, Patrick's mother telephoned the principal to complain about the Respondent. She had talked to her son and obtained new information from him about his relationship with the Respondent and his role in her classroom. After receiving the mother's telephone call, the principal telephoned the Respondent to inform her that a student had made serious allegations about her and that the student's mother had called him very upset. He would not tell her what the allegations were but told her the name of the student. The Respondent declined to talk about it further over the telephone but readily agreed to meet with the principal, Patrick and his mother the next day at 1:00 p.m. The Respondent also agreed to write Patrick and his mother to explain that she was on medical leave of absence. It was not proven that the principal told the Respondent not to talk to Patrick before their meeting the next day. On the morning of the next day, the Respondent telephoned the school office to have Patrick paged to speak to her. The office assistant told her that she only could do so if it was an emergency. The Respondent told her that it was. The Respondent spoke with Patrick for about ten minutes. She asked Patrick what he had said to the principal. When he told her, she admonished him that his statements had put her at risk of losing her job and that he had better "get his story straight." He correctly interpreted her to mean that she wanted him to recant his statements in order to protect her and her job. At the meeting at 1:00 p.m., Patrick recanted his earlier statements and claimed that his mother had blown everything out of proportion. It was improper for the Respondent to use Patrick (and, to a lesser extent, the other student), as she did during the fall of the 1992/1993 school year, as a personal assistant to grade class papers for her and enter grades in grade books for her. Her practice gave Patrick improper access to too many students' grades on papers and quizzes. It also tended to create an unhealthy appearance of favoritism. Although it was not proven that a certain amount of special treatment for good behavior and effort would be inappropriate especially in the context of a GOALS class, the Respondent went overboard when it came to Patrick.) It was improper for the Respondent to engage in the close personal relationship that developed between her and Patrick during the fall of the 1992/1993 school year. It became harmful to the learning environment, it changed the relationship from a teacher-student relationship to a friend-friend relationship, and it tended to create an unhealthy appearance of favoritism. Encouraging Patrick to lie for the Respondent in order to protect her job (and Miller's reputation) exposed him to conditions harmful to his learning and mental and emotional health and safety. The Respondent exploited her relationship with Patrick for personal gain or advantage during the fall of the 1992/1993 school year in that she used him improperly as her personal assistant. Except for the incidents that were the subject matter of this case, the Petitioner has a fine record as a teacher. In fact, at the time she took her medical leave of absence, she was about to be interviewed as part of the School Board's Targeted Selection Process for recruiting and training qualified teachers for promotion to a managerial position. The Respondent's inappropriate conduct during the fall of the 1992/1993 school year resulted from the exercise of poor judgment in the degree to which she varied from the conduct expected of a teacher in regular education while teaching in the GOALS program. The Respondent's poor judgment may have resulted in part from the debilitating personal stress from which she was suffering and which, actually on the eve of her Targeted Selection interview, required her to take a medical leave of absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order suspending the Respondent for 45 days based on the charges that have been proven in this case. RECOMMENDED this 17th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1629 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, accepted and incorporated. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that either graded test papers or that test grades were entered or that grades were entered in the Respondent's official grade book. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (She gave them A's in part for the work they did for her, rather than solely for scores earned on tests and quizzes administered to the other students.) Second sentence, accepted and incorporated. Accepted but subordinate and unnecessary. Rejected as not proven that a "sexual relationship" with the Texan was discussed. Otherwise, accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, rejected as not proven. Otherwise, accepted and incorporated. First sentence rejected as not proven that she did not agree to meet until after talking to the student. Otherwise, accepted and incorporated. Rejected in part as conclusion of law. Also, rejected as not proven that it is improper for a teacher to have a student grade another student's daily class assignments and homework assignments for immediate feedback. (This usually is done by exchanging papers in class.) Otherwise, accepted and incorporated. (The extensive use of Patrick as if he were the Respondent's personal assistant was improper.) Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick. Accepted but subordinate and unnecessary. (It was not proven that the Respondent allowed Patrick to forge her signature to hall passes.) Rejected as not proven in the context of the GOALS program. Accepted and incorporated. Rejected as not proven as to Shannon. Accepted and incorporated as to Patrick. Respondent's Proposed Findings of Fact. (For purposes of these rulings, consecutive numbers have been assigned to the unnumbered paragraphs of proposed findings of fact in the Respondent's proposed recommended order.) 1. Accepted and incorporated to the extent not subordinate or unnecessary or conclusion of law. 2.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that the Respondent just told Patrick to "tell the truth." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Generally accepted but subordinate, some to facts contrary to those found. The documents in evidence reflect that the Respondent did give quizzes in her GOALS classes. And, while evaluators who observed her classrooms saw students grading class assignments, the evidence was not clear that they were aware of the extent of Patrick's role as the Respondent's personal assistant. Last sentence, rejected as contrary to the evidence. But the rest is accepted and incorporated to the extent not subordinate or unnecessary. 7.-8. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as to Patrick as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, accepted and incorporated. The rest is rejected as contrary to facts found and to the greater weight of the evidence. Fourth sentence, rejected as contrary to facts found and to the greater weight of the evidence. The rest is rejected as contrary to facts found and to the greater weight of the evidence. Accepted but subordinate and unnecessary. COPIES FURNISHED: J. David Holder, Esquire Suite 100 1408 North Piedmont Way Tallahassee, Florida 32312 Bruce P. Taylor, Esquire 501 First Avenue North Suite 600 St. Petersburg, Florida 33701 Marguerite Longoria Robinson, Esquire Kelly & McKee, P.A. 1718 E. 7th Avenue, Suite 301 P. O. Box 75638 Tampa, Florida 33675-0638 Karen Barr Wilde Executive Director 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is 45 years of age. He is married and has two children. In 1968, following his graduation from college, Respondent began his career as a classroom teacher with the Dade County School Board. He remained with the Board until 1974, when he went to work for the Xerox Corporation. Respondent was rehired by the Board during the 1987-88 school year and assigned to teach sixth grade at Highland Oaks Elementary School in North Miami Beach. Virginia Boone has been the Principal of Highland Oaks for the past 27 years. At all times material hereto, Barbara Cobb has been her Assistant Principal. Respondent was reassigned to the fifth grade at Highland Oaks at the beginning of the 1988-89 school year. He taught fifth grade for the remainder of his stay at Highland Oaks, which ended during the 1990-91 school year. As a fifth grade teacher at Highland Oaks during the 1988-89, 1989-90 and 1990-91 school years, Respondent was a member of a team consisting of four other fifth grade teachers: Terri Lynne, Arnold Pakula, Virginia Valdes and Betty Kravitz. Each member of the team had a home room class and was responsible for teaching math and language arts to the students in that class. In addition, each team member was assigned a special subject, such as health, science, social studies, maps/globes or spelling/handwriting, to teach to all of the fifth graders. All such instruction took place simultaneously in a large open area shared by the five fifth grade teachers, rather than in separate rooms. In accordance with the Board's Teacher Assessment and Development System (TADS), principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. For the 1987-88 and 1988-89 school years, Respondent received an acceptable rating in all seven assessment categories on the TADS annual evaluations he received. There was a precipitous decline, however, in Respondent's overall performance, which began during the first half of the 1989-90 school year and continued the following school year until his suspension. Respondent's attendance was irregular at best. He was frequently absent. When he was not absent, he often came late and left early. As a result, he did not participate with his team members in a number of early morning and late afternoon parent-teacher conferences that were held during his scheduled workday. Respondent did not adequately plan his lessons as directed. His failure to prepare sufficient written lesson plans was a particular problem because of his frequent absences. Without such plans, substitutes were unable to provide Respondent's students with any substantial continuity in instruction. Respondent also failed to grade and record his student's work and to prepare progress reports and report cards as directed. On a daily basis, Respondent would leave his class unattended without notifying any of his team members. Invariably, the students would become boisterous in Respondent's absence and disrupt the instruction that was taking place in the other fifth grade classes. Very little instruction occurred in Respondent's classroom. He appeared more interested in amusing his students with his antics than in teaching them. He sang, danced, told jokes, balanced boxes on his head, hung bags from his ears, made guttural noises and engaged in other childish behavior unbecoming a teacher. The laughter these antics generated made it difficult for the students in the other fifth grade classes to learn. Respondent regularly ate in the classroom in front of his students when he was supposed to be instructing them, notwithstanding that such conduct was clearly prohibited. To make matters worse, he often did not clean up after eating. At times, Respondent fell asleep in class and had to be awakened by his students. Although it was his responsibility to do so, Respondent frequently failed to pick up his students in a timely manner from their physical education, art and music classes which were held in areas of the school outside the fifth grade pod. Respondent's dereliction of his responsibilities placed an additional burden on the other fifth grade teachers. They tried to offer him advice and counsel, but Respondent was not receptive. Principal Boone and Assistant Principal Cobb, who received complaints about Respondent from his team members and from the parents of his students, also met with Respondent in an effort to make him a more productive member of the fifth grade team. During these meetings, they reminded Respondent of what was required of him as a teacher at Highland Oaks. Respondent, however, defied their directives and continued to act irresponsibly. Among the conferences that Boone had with Respondent was one held on October 26, 1989. Cobb, as well as Respondent's union steward, were also present. During this conference, Boone specifically directed Respondent to record for each of his students a minimum a three grades per week per subject, to prepare appropriate lesson plans for substitute teachers to use during Respondent's absences, to prepare daily lesson plans reflecting the day's activities, to ensure that his students were under supervision at all times and to participate in scheduled parent-teacher conferences. On December 1, 1989, Boone referred Respondent to the Board's Employee Assistance Program (EAP), which is a program designed to help employees who are having personal problems that are interfering with their work performance. On the form she submitted to the Coordinator of the EAP, Boone indicated that the referral was being made because of the following: "excessive absences;" "excessive tardiness;" "absences on Mondays and/or Fridays;" "changes in personal appearance;" "marked changes in mood;" "marked changes in activity level;" "frequent trips to restroom;" "poor judgment:" and "assignment failures" on Respondent's part. On the bottom of the form, Boone added the following comments: Mr. Long has not set the world on fire with his teaching since he came to our school, but he did receive acceptable evaluations. However, this year presents a different story. He has been absent 16 days out of 60 since 9/5/89, papers are not graded, tests are not given, lesson plans are not done and, if they are, very little. His discipline is poor, pals with students telling jokes. He has a long list of excuses for being late to work or not coming at all. I know I have given him every inch of rope I can. I must have someone who cares about the students to teach. On December 6, 1989, Respondent slept throughout a faculty meeting at which the Board's "Drug Free Workplace" rule was discussed. Following this meeting, Boone met with Respondent and reiterated the directives she had issued during their October 26, 1989, meeting. On the following day, Cobb attempted to conduct a formal observation of Respondent's classroom teaching. Cobb noted many deficiencies in Respondent's performance, including his failure to have a written lesson plan. She left after only sixteen minutes in the classroom. Instead of completing a formal post-observation report with prescriptions and handing it to Respondent, Cobb spoke with Respondent after the observation and informed him of those things that he needed to do to improve his performance. On December 12, 1989, Cobb reviewed Respondent's grade book. Her review revealed that Respondent still had not complied with the specific directives concerning grading that Boone had first issued Respondent on October 26, 1989, and had reiterated on December 6, 1989. Cobb therefore ordered Respondent to comply with these directives by January 2, 1990. Cobb reexamined Respondent's grade book on January 2, 1990. She found that the directed improvements had not been made by Respondent. On January 12, 1990, while in the cafeteria with his students, Respondent playfully held a straw to his nose as one would do if he was snorting cocaine. This incident was reported to Boone. It was further brought to Boone's attention that Respondent had been derelict in his responsibility to properly supervise his class that day. Boone reacted by relieving Respondent of his duties for the day. On June 18, 1990, a conference-for-the record was held. In attendance were Respondent, his union representative, Boone, Doretha Mingo, the Coordinating Principal for the Board's Region II and, as such, Boone's supervisor, and James Monroe, who, at the time, was the Director of the Board's Office of Professional Standards. Respondent was advised of the various complaints that had been made against him. Among the matters discussed was the January 12, 1990, incident with the straw, Respondent's repeatedly falling asleep in class and at meetings, his failure to properly supervise his students, his refusal to record student assessment data in accordance with established procedures and grading criteria, his lack of planning and preparation of written lesson plans, his erratic attendance and his unwillingness to attend scheduled conferences as required. Another subject of discussion was an incident that had occurred the month before during which Respondent had conducted a search, in contravention of Board policy, of two students on school property. Respondent had been aware of this Board policy at the time he conducted the search. At the June 18, 1990, conference-for-the-record, Respondent was directed by Mingo to return his grade book to Boone no later than the following day. Respondent did not comply with this directive. Directives were also issued by Monroe at the June 18, 1990, conference-for-the-record. He ordered Respondent to remain on alternate assignment at home, beginning the next day, and while on such assignment to be accessible by telephone during his seven-hour and five-minute workday between 8:15 a.m. and 3:20 p.m. Monroe further informed Respondent that Respondent was required to undergo a medical examination and drug test to determine his fitness to perform his assigned duties. On January 19, 1990, Monroe telephoned Respondent at home. He directed Respondent to report for his medical examination on January 22, 1990. He further instructed Respondent that, following the completion of the medical examination, Respondent was to remain at home during the remainder of the workday. On January 19, 1990, Respondent submitted to a drug test. The results were positive for cocaine. Respondent failed to appear for his medical examination on January 22, 1990. The examination was rescheduled for Saturday, January 27, 1990. On January 23, 1990, and again on January 24, 1990, Monroe made various attempts to reach Respondent at home by telephone during the workday. Respondent, however, was not at home and therefore Monroe was unable to contact him. Monroe finally got in touch with Respondent on January 25, 1990. He advised Respondent that Respondent was expected to report for his rescheduled medical examination on January 27, 1990, and to remain at home by the telephone during the rest of the workday. He further informed Respondent that he considered Respondent to have been insubordinate and that any further acts of noncompliance on Respondent's part would be deemed gross insubordination and result in a recommendation that Respondent's employment with the Board be terminated. On Monday, January 29, 1990, Monroe received a report from the physician who was to have examined Respondent that Respondent had not kept his January 27, 1990, appointment. That day, January 29, 1990, and the next, Monroe tried telephoning Respondent at home during Respondent's scheduled work hours, but was unable to reach him. 1/ Monroe tried again on January 31, 1991. This time he was successful in reaching Respondent. He ordered Respondent to report immediately to a new alternate assignment at the Board's Region II administrative office. While on this assignment, Respondent was to be supervised by Mingo. Respondent reported to the Region II administrative office later that day. He met with Mingo who provided him with the following written instructions: Effective January 31, 1990 you are directed to report to the Region II office for your assignment. Your work schedule is from 8:15 a.m. to 3:20 p.m. You are to sign in upon arrival and sign out when leaving in the Region II office. If you are going to be absent, you are to call 891-8263 and report your absence to Mrs. Escandell. You may take one hour for lunch between the hours of 11:30 a.m. to 1:00 p.m. You must be back from lunch by 1:00 p.m. You are not to make any personal calls. Requests to make emergency calls must be forwarded to Mrs. Escandell or any secretary in the front office during her absence. Any deviation from this schedule must be approved by Mrs. Mingo. During the Conference for the Record with you on January 18, 1990, you were directed to return your grade book to your school on the following day, January 19, 1990. As per your principal, Mrs. Boone, you have failed to provide the school with the official grade book for your class as of this date. You are directed to turn your grade book in to this writer [Mingo] effective February 1, 1990. Additionally, you will be supplied with a box of ungraded papers from your class which are to be corrected and grades recorded while you are assigned to this office. A schedule for completing this task will be discussed with you on February 1, 1990. Further, during this assignment, you are directed not to report to or call Highland Oaks Elementary School. If there is a need to communicate with anyone at the school, discuss the need with me. Respondent turned in his grade book the following day. That same day, Mingo established a deadline of February 6, 1992, for Respondent to complete his grading of the uncorrected papers with which he had been supplied. On February 5, 1990, Monroe conducted another conference-for-the- record with Respondent. As he had done during the previous conference-for-the-record, Monroe discussed with Respondent the provisions of the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida and directed Respondent to comply with these provisions. He emphasized that it was imperative that Respondent maintain the respect and confidence of colleagues, students, parents and other members of the community, that he make every reasonable effort to protect his students from conditions harmful to learning and safety, and that he not expose students to unnecessary embarrassment or disparagement nor violate their legal rights. Respondent was placed on authorized medical leave effective February 5, through June 21, 1990, to enable him to receive treatment for his drug abuse problem. He was advised that his failure to pursue such treatment would be grounds for dismissal. At the time he was placed on authorized medical leave, Respondent had not completed the grading of the uncorrected papers he had been given. Shortly after being placed on authorized medical leave, Respondent was admitted to Mt. Sinai Hospital where he participated as an inpatient in the hospital's 28-day drug abuse treatment program. He remained in the program for the entire 28 day period. After leaving Mt. Sinai, Respondent went to a halfway house, where he stayed until late April, 1990. On April 26, 1990, Respondent enrolled as an inpatient in the drug abuse treatment program at Concept House. He transferred to Concept House's outpatient program three months later. As an outpatient, Respondent was required to meet with his counselor once a week and to attend group therapy sessions twice a week. On August 21, 1990, the Board's Office of Professional Standards received a sworn statement from Respondent's counselor at Concept House that Respondent was "in treatment and [was] employable at this time." That same day, Joyce Annunziata, Monroe's successor, gave Respondent clearance to return to work as a fifth grade classroom teacher at Highland Oaks. Respondent's continuing employment, however, was conditioned upon his remaining in treatment for his drug abuse problem. It became evident, following Respondent's return to Highland Oaks, that he had not mended his ways. From the outset, he was embroiled in controversy. During the teacher planning days before the opening of school, Respondent loudly argued, without reason, with team members over his spelling/handwriting assignment and declined to participate with them in planning for the upcoming school year. After school opened, Boone began receiving the same type of complaints about Respondent that she had received the previous year. There was no improvement on Respondent's part. If anything, his conduct and performance were worse than the 1989-90 school year. Particularly disturbing were the disparaging remarks Respondent directed to individual students during class in front of their classmates. On or about December 5 or 6, 1990, it was brought to Annunziata's attention that Respondent was no longer participating in the outpatient program at Concept House. He had been terminated from the program on December 3, 1990, because of noncompliance with his treatment plan. Respondent had started missing required individual and group counseling sessions in September. At the time of his termination from the program, he had not had any face-to-face contact with his counselor for at least 30 days. On December 6, 1990, Annunziata prepared a memorandum directed to Respondent which read as follows: At the conference in the Office of Professional Standards on August 21, 1990, you were cleared to return to full classroom duties at Highland Oaks Elementary School. This release was contingent upon your compliance with program requirements structured by the District's support agency. It has been brought to my attention that you are not complying with program requirements and are thus jeopardizing your employment. Please be advised that if you do not contact the District's referral agency within forty-eight hours of receipt of this memorandum and prepare to contract with the District to participate in a structured program, this office will pursue disciplinary measures. By copy of this memorandum, Ms. Boone is advised to provide to OPS all documentation relating to your performance during the 1990-91 school year. Future noncompliance with program directives will be considered an exhaustion of assistance and engender district action. Respondent received the memorandum on December 28, 1990. On or about December 17, 1990, Respondent's behavior was such that he had to be relieved of his duties for the day. He sang and danced in the cafeteria during lunchtime and slept in the classroom when he was supposed to be teaching, despite a student's attempt to wake him. When awake, he was unable to stand to conduct his class. Instead, he remained slumped in his seat. While seated, he sucked on a candy cane and his fingers making loud, exaggerated noises. He also swung his arms and kicked his legs in all directions. At the request of one of the other fifth grade teachers who reported that Respondent was "out of it," Cobb went to Respondent's classroom. After confirming that Respondent, who appeared glassy-eyed and unaware of his surroundings, was in no condition to continue teaching, she approached Respondent and told him that she wanted to speak with him in her office. In Cobb's office, Respondent told Cobb that he was tired because he had not gotten any sleep the night before. He then went on to tell Cobb a bizarre story about what had purportedly occurred at his house the prior evening. By all appearances, the story, which he repeated for Boone's benefit, was a product of Respondent's imagination. Respondent was supposed to exchange student progress reports with the other fifth grade teachers on December 17, 1990. He was unprepared to do so, however, on this date. On December 29, 1990, Respondent was arrested for possession of cocaine and drug paraphernalia. 2/ He remained in jail until January 18, 1990, when he was released on his own recognizance. On Sunday, January 6, 1991, the day before classes were to resume after the winter holiday break, Respondent telephoned Cobb at home. He told her that he would be absent because he had to go out of town to attend his father- in-law's funeral and that he did not know when he would be able to return. He did not mention anything about his arrest and incarceration, which was the real reason he would be unable to report to work the following day. By misrepresenting his situation to Cobb, Respondent was laying the groundwork to obtain sick leave benefits to which he was not entitled. While Board employees are entitled to paid sick leave for absences resulting from the illness or death of their father-in-law, they are not entitled to such leave for absences resulting from their own incarceration. On or about January 11, 1991, Annunziata reassigned Respondent from Highland Oaks to the Region II administrative office, where Respondent was to be under Mingo's supervision. January 22, 1991, was Respondent's first day back to work after his arrest. He reported to the Region II office and met with Mingo. Mingo gave him the same instructions, which are recited in paragraph 38 above, that she had given him the prior school year when he had been assigned to her office. On January 24, 1991, Annunziata conducted a conference-for-the record with Respondent to address issues relating to his continued employment with the Board. She informed Respondent during the conference that no final decision would be made until the matter was further reviewed. On Friday, February 8, 1991, Respondent left the Region II office for lunch at 11:30 a.m. He did not return to work that day. It was not until around 2:00 p.m., well after he was supposed to be back from his lunch break, that he first called the office to advise that he was having car trouble. Respondent was also absent the following workday, Monday, February 11, 1991. He telephoned the office to give notice of his absence that day. On February 12, 1991, Respondent neither reported to work, nor telephoned the office to give notice of his absence. Respondent returned to work on February 13, 1991. Upon his return, Mingo spoke with him. She reminded him of the directives she had previously given him regarding leave and attendance matters and made clear to Respondent that he was expected to comply with these directives. Furthermore, she indicated that Respondent would not be paid for the time he was away from the office on February 8, 1991, and February 12, 1991, because she considered his absences on these dates to have been unauthorized. Mingo was concerned not only with Respondent's noncompliance with leave and attendance reporting requirements, but with his sleeping while on duty as well. She therefore directed him, at around 9:10 a.m. on February 13, 1991, to submit to a drug test. She referred him to the urine collection site nearest the office and ordered him to report back to work after he had dropped off his urine sample. Respondent went to the collection site, 3/ but did not return to work that day as directed. Respondent reported to work the next workday. Mingo had another meeting with him. She expressed her displeasure with his having again failed to comply with her directives regarding leave and attendance matters. She once again repeated what those directives were. At around 11:05 a.m. that same day, February 14, 1991, Respondent left the office without authorization at approximately 11:05 a.m. He did not return until around 3:40 p.m. As Respondent was signing out for the day, Mingo confronted him about his unauthorized absence from the office that day. In response to Mingo's inquiry, Respondent told her that, after leaving the office that morning, he had spent the remainder of the day in his car in the parking lot outside the office. Mingo conducted a conference-for-the-record with Respondent on February 20, 1991. She discussed with him his failure to comply with the directives she had given him. During the conference, she reiterated those directives and ordered Respondent to follow them. A month later, on March 20, 1991, the Board took action to suspend Respondent and to initiate dismissal proceedings against him. At the time of his suspension, Respondent was serving under a continuing contract. The directives referenced above that Cobb, Boone, Mingo, Monroe and Annunziata gave Respondent during the 1989-90 and 1990-91 school years and which Respondent refused to obey were reasonable in nature, consistent with Board rules and policies and within these administrators' authority to issue. Respondent's failure to comply with these directives was the product of his unwillingness, rather than a lack of capacity, to do so. Although Respondent may not have received a TADS annual evaluation for the 1989-90 and 1990-91 school years, nor received at any time during these school years a TADS Post-Observation Report reflecting unacceptable performance, he was certainly put on notice by the administration through other means of his deficiencies and what he needed to do to cure these deficiencies. He was given a fair and reasonable opportunity to improve, but simply failed to take advantage of the opportunity. During the 1989-90 and 1990-91 school years, Respondent did not teach effectively and efficiently in accordance with the prescribed curriculum. As a result, his students suffered. They were deprived of the education to which they were entitled. Respondent displayed little or no concern for the educational development and potential of his students. Nor did he appear particularly interested in protecting them against conditions harmful to their safety and general well-being. Respondent's behavior in the classroom during the 1989-90 and 1990-91 school years was inconsistent with the standards of public conscience and good morals. It has brought him notoriety among his colleagues, students and their parents. Such notoriety can only serve to impair his effectiveness as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the School Board of Dade County issue a final order sustaining the charges of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency against Respondent and dismissing him from employment. RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of February, 1992. STUART M. LERNER 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 11th day of February, 1992.
The Issue Whether Petitioner has cause to terminate Respondent's professional service contract based on his failure to correct his performance deficiencies during his 90-Day Performance Probation. Whether Respondent’s performance was properly evaluated.
Findings Of Fact At all times material hereto, Respondent was a classroom teacher employed by Petitioner pursuant to a professional service contract. 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 230.03, Florida Statutes. Petitioner has employed Respondent as a classroom teacher since 1993. He taught at Redland Middle School from 1993 to 1996. He taught at South Miami Senior High School from 1996 to 1999. During the times pertinent to this proceeding (the school years 1999/2000 and 2000/2001) Respondent taught eighth grade math at Palmetto. Between 1984 and the school year 1999/2000 all teachers employed by Petitioner were evaluated under the Teacher Assessment and Development System (TADS). The United Teachers of Dade (UTD) is the collective bargaining unit representing all classroom teachers employed by Petitioner, including Respondent. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-day performance probation period for annual and professional service contract teachers who are observed to have unsatisfactory performance. 1/ Petitioner and the UTD collectively bargained a Memorandum of Understanding (MOU) to implement the 90-day performance probation. The new evaluation system is known as PACES, an acronym for the Professional Assessment and Comprehensive Evaluation System. The MOU amended the collective bargaining agreement between the UTD and Petitioner to authorize the replacement of TADS with PACES. During the 1999/2000 school year, the School Board piloted PACES in selected schools. During the 2000/2001 school year, PACES was utilized throughout the school district. Teacher evaluations at Palmetto were performed pursuant to PACES during the 1999/2000 and the 2000/2001 school years. The evaluations at issue in this proceeding were performed pursuant to PACES. PACES has been approved by the Florida Department of Education. PACES observers must be extensively trained to observe and evaluate teaching performance and student learning. School supervisory personnel perform PACES observations and evaluations. The principal and two assistant principals at Palmetto performed the observations and evaluations at issue in this proceeding. Respondent asserted at the final hearing that certain administrators who participated in observing and evaluating Respondent were insufficiently trained. That assertion is rejected as being contrary to the greater weight of the evidence. PACES was a major district initiative, and both teachers and administrators received extensive training in PACES. The greater weight of the credible evidence established that the principal and the assistant principals at Palmetto who observed and evaluated Respondent were appropriately trained in observing and evaluating teachers in accordance with PACES procedures. 2/ Individual schools across the district, including Palmetto, conducted PACES training for teachers. During the 2000/2001 school year each faculty member at Palmetto had a handbook which contained PACES information, including discussion on each domain, the indicators, the PACES website, and training videos on the website. Several faculty meetings were devoted to discussions of PACES. There were mini-workshops within various departments at Palmetto and all-day workshops for teachers were available in the district. The Palmetto assistant principals divided all six domains between themselves and explained and discussed them with the faculty. A projector was used to show the teachers how to get to the PACES website on the computers. There were 300 computers for teacher use at Palmetto by which Petitioner’s website could be accessed. The faculty meetings at Palmetto were mandatory. If a teacher missed any of the meetings, it was the teacher’s responsibility to come to an administrator to find out what was missed. Teachers who missed meetings were given the handouts that had been utilized at the faculty meetings. At the times pertinent to this proceeding, Respondent knew, or should have known, the evaluation criteria of PACES. 3/ Prior to the beginning of the 90-day probation under PACES an appropriately trained administrator must observe the teacher's classroom performance and find that performance to be below articulated standards. This observation is officially referred to as the “initial observation not of record.” Unofficially, this observation is referred to as the “freebie.” The freebie observation triggers the probation process, but it is not used to terminate a teacher’s employment. The same administrator who conducted the freebie observation meets with the teacher, goes over the observation, and notifies the teacher that he or she will be observed in approximately one month. The administrator offers a PGT to the teacher, the use of which by the teacher is voluntary at this point. Next is the “first observation of record,” which is unofficially referred to as the "kickoff observation." If this observation is below performance standards, a Conference-for- the-Record (CFR) is held. Next, a Professional Improvement Plan (PIP) is first given to the teacher, and the 90-day Performance Probation begins the next day. The Performance Probation lasts 90 days, not counting certain specified weekends and school holidays. There must be two official observations within the 90-day period. A PIP is given after any official observation that is below performance standards. If the second official observation is below performance standards, a confirmatory observation takes place after the end of the 90-day period to determine whether the teacher has corrected the deficiencies. The confirmatory observation must be completed within 14 days after the conclusion of the probationary period. The evaluator must thereafter forward to the Superintendent a recommendation whether to terminate the teacher's employment. In PACES, there are six domains. Each domain has components and each component has indicators. It takes only one unacceptable indicator for an observation to be rated below performance standards. If a teacher improves in a particular indicator from one observation to the next, but becomes unacceptable in another indicator, the second observation is rated below performance standards. Mr. Cromer conducted Respondent’s freebie observation on October 24, 2001. The observation did not meet performance standards. Mr. Cromer testified as to his observation of Respondent on October 24, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because he was going over 30 homework problems and simply giving out the answers, not making an effort to know whether the students understood. He did not seek input from the students. The students had no opportunity to participate. There was no interaction between Respondent and the students. There was no introduction to the lesson, thereby failing to establish motivation to learn. Respondent did not tell the students what they should learn from the lesson or why it was important that they understand the material. Respondent failed to provide a logical sequence and pace. He was going much too fast for the students. Respondent only demonstrated one math problem, failing to demonstrate any of the others, although there were six different types of problems for review. Respondent failed to utilize higher order cognition, teaching at only one cognitive level. There was no effort to clarify, using different words or examples. The students were not encouraged to make any association or consider examples from their own experience. The students were not asked questions and were not given an opportunity to answer questions. Respondent did not monitor the engagement or involvement of the students in the learning process. He made no effort to gauge whether the students understood the material. He sought no questions from the students and gave no feedback. Then Respondent sat down for approximately fifteen to twenty minutes. He did not walk around to monitor what the students were doing. Most of the students were not doing their work. Respondent failed to meet performance standards in components of Domain III, Teacher- Learner Relationships; Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom- based Assessment of Learning. Mr. Cromer met with Respondent on November 1, 2001, and went over each item on the observation and explained why Respondent did not meet performance standards. Mr. Cromer made suggestions for improvement. He advised Respondent that he would be coming back to do a follow-up observation and that Respondent was entitled to have a PGT. At first Respondent declined the PGT, but the next day, he accepted it. PGTs are for first year teachers and for any teacher on a PIP. PGTs are made up of seasoned teachers who are trained in PACES and give support and assistance to other teachers. Usually the administration chooses one member of the PGT and the teacher chooses the other. In this case, Respondent was permitted to choose both teachers. He chose Vivian Taylor and Maria Mayo. Both teachers gave appropriate assistance to Respondent. Under PACES, the same administrator who conducted the freebie observation must conduct the kickoff observation. On November 26, 2001, Mr. Cromer conducted Respondent’s kickoff observation. Mr. Cromer testified as to his observation of Respondent on November 26, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because many of the students in his class were excluded from the first twenty minutes while Respondent focused exclusively on two students at the board. One student finished her problem very quickly. The other student was completely confused. Respondent did the problem for him but did not make sure the student understood. The rest of the class was ignored during that time. The students were not given any explanations as to what the two students had done. The remainder of the class talked among themselves, looked around the class, and one student was sleeping. There was no introduction to the lesson and no transition into the second portion of the lesson. The students were not engaged in critical analysis or problem solving. Respondent did not develop any associations between the pie graph he was working on and its relationship to percentages and fractions. Respondent did not provide sufficient “wait time” after questions to encourage the students to think about the answers. Instead, the same few students called out answers. Respondent did not meet performance standards in components of Domain III, Teacher/Learner Relationships; Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. On December 5, 2001, Mr. Merker and Mr. Cromer held a CFR with Respondent and Respondent’s union representative to address Respondent’s substandard performance, his Performance Probation, recommendations to improve the specific areas of his unsatisfactory performance, and Respondent’s future employment status with the School Board. Respondent’s input was sought. Those in attendance at the meeting on December 5, 2001, met again the following day. Respondent’s input was again sought. He was given a copy of the summary of the CFR and a PIP at that time. The PIP required Respondent to read and summarize pertinent sections from the PACES manuals. Respondent’s Performance Probation began on December 7, 2001. The time frame was established with the help of OPS. Respondent was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed timeframe. Respondent's deadline to complete his PIP was January 10, 2002. On January 15, 2002, Mr. Merker conducted an official observation of Respondent in his classroom. Mr. Merker testified as to his observation of Respondent on January 15, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards because the students were not actively engaged in learning. Only six students out of 27 were involved in the lesson. Many of the students did not have the materials and were not able to follow through with the lesson. Respondent did not monitor what the students were doing. Many students were off-task, inattentive, and bored. Respondent did not re-engage the students. Respondent did not re-direct the off-task behavior, which persisted for the entire period. Learning routines were not apparent. Respondent did not give directions for the lesson. Respondent’s explanations were unclear. No adjustments were made. Respondent did not assess the learning progress during the lesson. Respondent solicited only basic knowledge in his questioning. He did not utilize a range of questions to assess student understanding. Respondent did not meet performance standards in components of Domain II, Managing the Learning Environment; Domain IV, Enhancing and Enabling Learning; and Domain VI, Classroom-based Assessments of Learning. Mr. Merker conferred with Respondent on January 24, 2002, made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes. Respondent's deadline to complete his PIP was February 22, 2002. On February 27, 2002, Mr. Meneses conducted the second official formal observation of Respondent in his classroom. Mr. Meneses testified as to his observation of Respondent on February 27, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Meneses’ testimony. Respondent did not meet performance standards because the students were not engaged in learning. After wasting 27 minutes copying numbers from the board, only three to four minutes were left for the main part of the lesson. Respondent wasted a lot of time during the lesson going over non-essential information, and the students were only presented with basic knowledge-level tasks. Inaccurate information was given by Respondent and accepted by the students. Students were not given "wait time" after a question to think about the answers. The learners were not given any introduction to the learning outcomes of the lesson. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. Mr. Meneses and Mr. Merker conferred with Respondent on March 5, 2002, made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. Respondent’s PIP required him to complete a self- assessment through the PACES website. Respondent's deadline to complete his PIP was March 22, 2002. Respondent’s Performance Probation ended on March 24, 2002. Respondent completed all of the activities required by all of his PIPs. He never indicated that he had any difficulty understanding them. Because Respondent’s second observation within the Performance Probation was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether or not Respondent had corrected his performance deficiencies. On March 26, 2002, Mr. Merker completed Respondent’s confirmatory observation. Mr. Merker testified as to his observation of Respondent on March 26, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom-based Assessments of Learning, because the lesson appeared staged. It was a lesson on fractions that had been presented approximately five weeks earlier. Respondent went full steam ahead regardless of what the students were doing. Respondent had not improved his questioning techniques since Mr. Merker’s prior observation. Mr. Merker notified Respondent on March 26, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and that Mr. Merker was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. 4/ Mr. Merker notified the Superintendent of Schools on March 29, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and recommended that Respondent's employment be terminated. On April 3, 2002, the Superintendent of Schools notified Respondent that the Superintendent was going to recommend that the School Board terminate Respondent's employment contract because Respondent had failed to satisfactorily correct his performance deficiencies during his Performance Probation. Petitioner established that it met all procedural requirements and time frames set forth by statute, by PACES, and by the MOU. Under the collective bargaining agreement and under PACES, a teacher is entitled to a fair, equitable, and impartial evaluation. Respondent’s evaluations were fair, equitable, and impartial. On April 17, 2002, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract subject to his due process rights.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the termination of Respondent's professional service contract, effective April 17, 2002. DONE AND ENTERED this 10th day of September, 2002, in Tallahassee, Leon County, Florida. 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 10th day of September, 2002.
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1994.
The Issue The issue in this case is whether the professional service contract of the Respondent with the School Board of Dade County should be terminated for misconduct in office, gross insubordination and incompetency due to inefficiency.
Findings Of Fact The Respondent, who is 40 years old, became a teacher in 1985 and taught from 1985 through March 4, 1992 as an employee of the School Board of Dade County. She held a professional service contract. Before the 1989-90 school year her teaching performance was adequate. During the 1989-90 school year she was employed at Kinloch Middle School as a sixth grade language arts teacher. Students at Kinloch are predominately of Hispanic background. In May, 1990 she was reassigned to Edison Middle School, where the students are predominantly African-American. During the 1990-91 school year, Respondent had a difficult time managing the behavior of the children in her classroom. Walking by her classroom at Kinloch, administrators often saw the class in serious disorder, with students running around, yelling, throwing papers, and not doing school work. On one occasion an assistant principal found 40 to 50 paper balls on the floor of her classroom. On another day while the students were engaged in a "paper fight," one of the students broke a glass display case with his head. One of the assistant principals at the school, Irving Rashkover, performed a formal observation of the Respondent's teaching on March 5, 1991, using the formal observation instrument for assessing teacher performance developed by the School Board of Dade County for all teachers, known as TADS, the Teacher Assessment and Development System. He found that the Respondent was significantly deficient in the areas of preparation and planning, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. As is required when an observation shows deficient performance, the Respondent was given prescriptions designed to assist her in improving her performance in her areas of deficiency. Prescriptions are also directives which are given by an administrator requiring the teacher to perform the specific prescriptive tasks, which are designed to improve classroom performance. The prescriptions given to Respondent included such things as requiring her to prepare lesson plans and tests to be turned in to another assistant principal, Mrs. J. Reineke. The Respondent failed to comply with these prescriptions. It would have been difficult for her to perform all the directives, because she was removed from the classroom and assigned to the regional office, not long after the observation of her teaching. She nevertheless failed to perform the tasks that did not require her to be on the school site, such as the preparation of lesson plans for the substitute teacher in her classroom, and recreating her grade book. Because of her poor work performance, the Board required that the Respondent have a psychological evaluation. That evaluation indicated that she might benefit from psychotherapy, but that she could return to the classroom. The Respondent also requested to change her work location. Both she and school administrators believed that a change in schools might assist her in improving her performance, so in May 1991 she was transferred from Kinloch Park to Miami Edison Middle School. Ordinarily, teachers whose performance has been found deficient and who are therefore working on prescriptive activities to improve their teaching are not eligible for transfer. The approval of this transfer showed that the School Board was making a special effort to accommodate the Respondent in an effort to improve her teaching. Respondent was transferred to Miami Edison Middle School as a team teacher. This meant that she did not have primary responsibility for the classroom in which she worked. Another experienced teacher had primary responsibility, and Respondent assisted in teaching. An external performance evaluation was done for Respondent, that is, the TADS evaluation was done by an evaluator who was not an administrator at Miami Edison Middle School. In the new team teaching situation, the external evaluation resulted in an acceptable performance rating for the Respondent. She received an acceptable annual evaluation for the 1990-91 school year, despite her earlier problems that year at Kinloch, the need to remove her from the classroom, assign her to the district office and have the psychological evaluation done before her reassignment to Miami Edison. Respondent was placed in a self contained classroom at Miami Edison for the 1991-92 school year. Unfortunately, the deficiencies that she had exhibited at Kinloch returned. A TADS observation of her teaching was done on October 24, 1991. The evaluation found her deficient in planning, classroom management, techniques of instruction and assessment techniques. She was given prescriptive activities to help her to remediate these deficiencies to complete by November 21, 1991, but she did not do them, even though the matter was brought to her attention in a memo dated December 3, 1991. The Respondent was wholly unable to control her classroom. Her students essentially engaged in free-for-alls during her class periods. They would not remain in their seats, they were talking, running, throwing paper balls at each other, going in and out of the classroom and engaging in fights. While this disorder was taking place around her, Respondent merely sat at her desk and did nothing to control it. Simply put, Respondent did not teach. Her inability or disinclination to require discipline of her students made it impossible for anyone to teach in the circumstances prevailing in her classroom. This was coupled with other unusual behavior by the Respondent: she directed her students to make up and insert their own grades in their progress reports. This is wholly unacceptable conduct by a teacher. Administrators at Miami Edison became aware of the disarray in Respondent's classroom because of complaints by students and parents. Her classroom had been on the second floor, but when students were seen sitting on the window sill, the school administration moved her classroom to the first floor, near the main office. It was hoped that the move would make her classroom more safe for her students, since if she failed to control them they would not be in danger from sitting in upper floor windows, and the proximity to the main office was designed to help improve student behavior since they would be so close to the school administration. The misbehavior, however, continued unabated in her classroom. The level of disorder in the classroom and the consequent lack of teaching caused continuing parental complaints to administrators about the Respondent's performance. Another TADS classroom observation was performed by the school's principal in the Respondent's classroom on November 22, 1991, the day after her prescriptive activities from the October observation were to have been completed. Her performance again was found deficient in classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Additional prescriptions were issued to Respondent but again she did not complete these either. When these failures were again brought to her attention her response to the administration was that "she didn't feel it was necessary" to comply with the prescriptions (Tr. 87). On December 19, 1991, the principal had a conference with Respondent on her failure to complete the prescriptive activities assigned after the two evaluations in October and November 1991. The principal followed up again, and specifically told the Respondent on January 6, 1992 that unless she complied with the prescriptions, he would recommend that she not be reappointed as a teacher. The disarray in her classroom continued. School security had to go to her classroom to break up fights. Continuing complaints by parents came both to the school administration and to the central administration of the School Board. The photographs of her classroom taken on December 20, 1991, are almost unbelievable (School Board Composite Exhibit 12). The classroom looks as if it were the scene of a riot. Shortly after that day, Respondent was removed as a classroom teacher. During a formal "conference for the record" with the Director of the Office of Professional Standards of the school board, Dr. Joyce Annunziata, in January 1992, the Respondent stated that student behavior was the responsibility of the students, not the teacher; the teacher's duty is to teach and the student's duty is to learn, but if students don't want to learn there is nothing the teacher can do about it; and, that she was powerless to change the student's behavior. The principals of Kinloch Middle School and Edison Middle School both testified that in their opinion, which is credited, the Respondent was incompetent as a teacher, and that her failure to maintain discipline in her classroom after receiving assistance in doing so through prescriptions for improved classroom management constituted misconduct in office and gross insubordination. Neither would willingly reemploy her as a teacher at their schools. The repeated complaints about her classes, rising from the school level to that of the central district administration, is further persuasive evidence that Respondent has lost her effectiveness as a teacher in the community. The Respondent has failed to create an effective and safe learning environment for students in her classrooms. Based on her prior acceptable evaluations, she knows how to keep order in her classes. She has also demonstrated by her repeated failure to teach and impose classroom discipline that she is now incompetent to teach. Moreover, her repeated refusal to comply with prescriptions given to improve her classroom performance by administrators at Kinloch and Miami Edison Middle Schools, which are specific directions which have been given to her by administrators with proper authority, constitutes gross insubordination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Dade County terminating her employment as a teacher for misconduct in office, incompetency and gross insubordination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1993. WILLIAM R. DORSEY, JR. 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 22nd day of February 1993. APPENDIX The findings proposed by the School Board have been accepted. Findings proposed by the Respondent: Paragraphs 1-3 have been accepted. Paragraphs 5-8 are rejected for the reasons stated in the Findings of Fact dealing with her ineffectiveness, gross insubordination and incompetency by reason of inefficiency. It is true that no annual evaluation of the Respondent's teaching performance showed an unacceptable evaluation. This occurred because she was transferred to the district office and removed from the classroom for a substantial period of time in 1991, and the annual evaluation could not be one finding unsatisfactory performance since, by the end of the year, she was performing satisfactorily in the team teaching situation with another teacher (Tr. 105). She may be able to perform adequately in that situation, but the School Board is not required to employ her as a teacher who needs a guardian in the form of another teacher in her classroom. A competent teacher keeps order in her class herself. COPIES FURNISHED: James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 William Du Fresne, Esquire Du Fresne & Bradley, 2929 Southwest Third Avenue Miami, Florida 33129 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Octavio J. Visiedo, Superintendent Dade County Public Schools Office of Professional Standards 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132
The Issue The issues are whether Respondent has violated Sections 231.28(1)(b), 231.28(1)(f), and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida teaching certificate number 335745. He is certified to teach Social Science Education through June 30, 1998. The Duval County School District employed Respondent as a teacher at Highlands Middle School for the 1993-1994 school year. Respondent taught geography during his first period class at the middle school. On or about February 10, 1994, a student in Respondent's classroom, C. L., was talking to a student in an adjacent classroom through a hole in the wall. Respondent lost his temper and threw a geography book at C. L., hitting him in the head. Respondent's testimony that the book slipped from his hand is not persuasive. After the book-throwing incident, the Duval County School District transferred Respondent from Highlands Middle School to the district's book depository. Two months later, the school district transferred Respondent to Joseph Stilwell Middle School for the remainder of the 1993-1994 school year. The principal of Highlands Middle School, George Reynolds, prepared Respondent's annual evaluation on March 1, 1994. Mr. Reynolds found that Respondent's performance was unsatisfactory in the following two areas: (a) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (b) shows sensitivity to student needs by maintaining positive school environment. These ratings resulted in a deduction of four points and an overall "unsatisfactory" evaluation. Mr. Reynolds, however, inadvertently marked Respondent's overall evaluation as "satisfactory." The Duval County School District transferred Respondent to Landon Middle School for the 1994-1995 school year. Within weeks, it became apparent that Respondent had difficulty controlling the students in his classes. In September 1994, Respondent called one of his student's a "trashy kid." During a subsequent parent-teacher conference, Respondent referred to his students as "bad" kids. As to classroom control, he stated that "a teacher can only do so much" and that "his hands were tied." After the parent-teacher conference, the Landon Middle School principal, Elaine Mann, had a conference with Respondent. During this conference, Respondent stated again that he had trouble maintaining classroom control because he had a number of bad students. Ms. Mann and Respondent agreed that she would observe his second period class on October 3, 1994. Ms. Mann observed Respondent's sixth grade World History class on the agreed date. Respondent's performance during this observation was unsatisfactory in the following ways: (a) Respondent allowed students to spend too much time on one activity; (b) Respondent's lesson did not include a way to evaluate classwork; (c) Respondent's lesson did not include an introduction or summary; (d) Respondent's lecture was disjointed; and (e) Respondent's stated objectives were not appropriate. In a memorandum dated October 6, 1994, Ms. Mann described Respondent's strengths and weaknesses and included recommendations to improve his teaching techniques. Ms. Mann conducted a conference with Respondent on October 10, 1994, to discuss her observations and recommendations. Ms. Mann observed Respondent's eight grade U.S. History class on November 14, 1994. For the second time, Ms. Mann found that Respondent's performance was unsatisfactory. A memorandum dated November 16, 1994, lists the following weaknesses: (a) Respondent did not require students to be in class on time; (b) Respondent wasted instructional time; (c) Respondent permitted students to sleep in class; (d) Respondent did not introduce the lesson or use a handout appropriately; (e) Respondent's lecture/discussion lacked organization; (f) Respondent turned his back to one side of the room for most of the period; and (g) Respondent only interacted with six students. Ms. Mann provided Respondent with a written memorandum dated November 16, 1994, setting forth his strengths, weaknesses, and recommendations for improvement. She advised Respondent that she would request assistance for him from the Professional Development office. Ms. Mann wanted that office to establish a support team to work on a "success plan" to improve Respondent's performance. Ms. Mann set a goal for Respondent to achieve a satisfactory evaluation by March 15, 1995. On January 3, 1995, Ms. Mann observed Respondent's class informally. She found that the students were not under control. Their behavior towards Respondent was disrespectful. Ms. Mann and Respondent signed a written success plan on January 11, 1995. The plan included strategies to meet the following objectives: (a) demonstrate effective classroom management skills; and (b) demonstrate effective presentation of subject matter. A member of the support team, Marlene Rasmussen, observed Respondent on January 19, 1995 and January 23, 1995. The focus of the observations was Domain Four, presentation of subject matter. Based on her observations, Ms. Rasmussen recommended that Domain One, lesson planning, be added to Respondent's success plan. Ms. Rasmussen also recommended that Respondent attend a workshop to learn effective teaching behaviors. Ms. Mann arranged for Respondent to attend this three-day workshop. On January 13, 1995, Ms. Mann received a complaint that Respondent used the word "shit" in addressing a student in his class. Ms. Mann admonished Respondent regarding his inappropriate language in a written memorandum dated January 30, 1997. Peggy Clark, a member of the in-service support cadre, provided assistance to Respondent beginning in February 1995. She worked with Respondent in the area of lesson planning. Ms. Clark observed Respondent's classroom performance on two occasions. She conducted two post-observation conferences with Respondent. Ms. Clark was unable to complete her duties in assisting Respondent because of his absences. Louise Peaks, the eight-grade house administrator, was a member of Respondent's success team. As a resource person, she assisted him, on an informal basis, by providing him with feedback from his student disciplinary referrals. She counseled him during casual conversations in the hallway and in his classroom. Respondent never implemented any of the advice or suggestions that Ms. Peaks gave him. Ms. Peaks received complaints from Respondent's fellow teachers concerning his failure to follow school procedures. He allowed his students to come and go as they pleased. His classroom was very disorganized. Pat Barker, the sixth-grade house administrator, was a member of Respondent's success team. She observed him on March 10, 1995, and March 13, 1995. Ms. Barker found that Respondent's students were disorganized. She saw no evidence of classroom management. According to Ms. Barker, Respondent appeared to be unaware whether certain students were in or out of the room. Ms. Barker observed that a majority of the students were uninvolved in Respondent's lesson. Some of the students were asleep. Respondent was not alert to student misbehavior. Ms. Mann issued her annual evaluation of Respondent on March 15, 1995. She found that his over-all performance was unsatisfactory. Specifically, Respondent's performance was unsatisfactory in the following areas: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. On May 26, 1995, Ms. Mann received a written complaint from the teacher whose classroom was located above Respondent's classroom. The complaint concerned disturbing noise from Respondent's room on May 25 and 26, 1995, days during which standardized tests were being administered. Following receipt of Ms. Mann's evaluation, Respondent requested a transfer to another school for the 1995/1996 school year. In response to this request, the Duval County School District transferred Respondent to Paxon Middle School. On August 24, 1995, Respondent's new principal, Quentin Messer, held a private conference with Respondent to develop a plan to improve Respondent's teaching performance. That same day, a written success plan was signed by Respondent and Mr. Messer. The objective of the plan was to provide Respondent with assistance in demonstrating effective classroom management skills and effective presentation of subject matter. The success plan identified support team members, outlined strategies to meet the objectives, and set timelines for completion of proposed activities. Ms. Arnette Smith was a cadre assistant and trainer from the Professional Development office during the 1995/1996 school year. On September 18, 1995, Ms. Smith received a request to assist Respondent in improving his lesson planning skills. Ms. Smith met with Respondent and Dr. Ben Titus, assistant principal, on September 22, 1995. During this meeting, Ms. Smith reviewed Respondent's success plan and arranged a time for an informal observation in Respondent's classroom. In a subsequent meeting, Respondent and Ms. Smith discussed the ways she could assist him with his lesson plans. Respondent expressed a negative attitude toward his students during his conversations with Ms. Smith. He told her that his students did not have values and did not want to learn. Ms. Smith observed Respondent informally on October 11, 1995. After the observation, Ms. Smith discussed her suggestions with Respondent and provided him with a copy of her notes, which outlined specific recommendations. Ms. Smith offered to demonstrate the planning and teaching methods that Respondent could use to enhance his classroom effectiveness. Principal Messer observed Respondent formally and informally through out the 1995/1996 school year. Most of his informal observations were in response to complaints from students, parents, and other teachers. On October 25, 1995, Mr. Messer conducted his first formal observation of Respondent. Mr. Messer found that Respondent's performance was at the lowest or next to the lowest level in 17 out of 24 criteria. Mr. Messer found that Respondent's lesson plan, consisting of one word, was inadequate. Respondent wasted valuable class time collecting papers, sharpening pencils, and arguing with students. Mr. Messer noted that there was no rapport between Respondents and his students. Ms. Smith, personnel development cadre assistant, met with Respondent again on November 7, 1995. The purpose of the meeting was to prepare for her observation of Respondent's class at a later time. Ms. Smith and Respondent reviewed the planning- data form in detail. She advised Respondent to have the form complete prior to the planned observation on November 9, 1995. After observing Respondent on November 9, 1995, Ms. Smith found that Respondent needed improvement in thirteen of twenty-four indicators. Respondent had not adopted or followed any of Ms. Smith's suggestions. He was inadequately prepared and had not completed the planning documents. Ms. Patricia Downs, house administrator of the sixth grade, provided Respondent with assistance in the 1995/1996 school year. She conducted formal and informal observations of Respondent in November 1995, in the area of classroom management, Domain Two. Classroom management was an area of concern due to the number of complaints received from students, parents, and faculty regarding the noise and confusion in Respondent's classroom. Ms. Downs observed Respondent's sixth grade social studies class on November 13, 1995. During that observation, Respondent exhibited a total of 10 effective behaviors and 44 ineffective behaviors. For example, she observed that students were sleeping, working off-task, and otherwise not participating in the lesson, while Respondent proceeded as if those students were not present. The following day, November 14, 1995, Ms. Downs reviewed her findings with Respondent. She discussed specific incidences showing Respondent's lack of classroom control and made suggestions to improve his classroom management. On December 4, 1995, Mr. Messer made a written suggestion that Respondent contact the Duval County School Board's Wellness Center because he appeared nervous and disoriented. On February 6, 1996, Mr. Messer conducted his second formal observation of Respondent. Mr. Messer concluded that Respondent's performance was only marginally satisfactory. That same day, Mr. Messer advised Respondent that if his performance was not elevated to an acceptable level by March 15, 1996, he would be given an unsatisfactory evaluation for the 1995/1996 school year. Mr. Messer continued to observe Respondent informally after February 6, 1996. Based on these informal observations, Mr. Messer concluded that Respondent had not improved over the course of the school year in any of his areas of deficiency. Principal Messer asked Dr. Titus, assistant principal of Paxon Middle School, to assist Respondent with his success plan. Dr. Titus coordinated cadre support for Respondent. On March 7, 1996, Dr. Titus observed Respondent in his classroom. When Dr. Titus arrived for the observation, three students in the hall said that Respondent would not let them enter the room. Respondent explained that he closed the door because the students were late. During his observation, Dr. Titus noted a lack of order, confusion, and negative interaction between Respondent and his students. A majority of the students were off-task because Respondent had no apparent system for classroom management. Respondent's performance was very unsatisfactory. Ms. Downs, sixth-grade house administrator, observed Respondent for the second time on March 8, 1996. She again concluded that Respondent's performance was unsatisfactory. Ms. Downs reviewed her observations with Respondent on March 13, 1996. During that meeting, Respondent told Ms. Downs that he considered the school to be a "cesspool." He also stated that the students were impossible to teach. On March 29, 1996, Mr. Messer issued an overall unsatisfactory annual evaluation for Respondent. This decision was based on the results of Mr. Messer's formal and informal observations and the input he received from Dr. Titus, Ms. Smith, and Ms. Downs. Pursuant to a resignation agreement with the Duval County School District, Respondent resigned his employment effective June 12, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's teaching certificate for one year. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Francis W. Keefe 6176 Fordham Circle Jacksonville, Florida 32217 Kathleen M. Richards, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-2500 Jerry W. Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Karen Holcomb.
Findings Of Fact Respondent Karen Holcomb is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.1/ Ms. Holcomb's complete employee file was not presented at the hearing. Performance evaluation documents that were entered into evidence show that she was an employee of the School Board for at least the following periods and in the following capacities: eighth grade math teacher at Eustis Middle School for the 2002-2003 and 2004-2005 school years; guidance counselor at Mount Dora Middle School for the 2005-2006 school year; math teacher at South Lake High School for the 2007-2008 school year; and art teacher at Eustis High for the 2009-2010 and 2010-2011 school years. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains six sections and 12 subsections. The subsections are further divided into sub-subsections.2/ The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I results in probationary status for the teachers, triggering the NEAT procedure and further evaluations. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance Form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. The record evidence indicates that Ms. Holcomb received a grade of 12 on her Appraisal I for the 2002-2003 school year, dated February 10, 2003, as a math teacher at Eustis Middle School and on her Appraisal I for the 2005-2006 school year, dated March 1, 2006, as a guidance counselor at Mt. Dora Middle School. On March 21, 2006, Ms. Holcomb received an Appraisal II for her failure to timely update a student's accommodation plan under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. On April 25, 2006, Ms. Holcomb received two Appraisal IIs. One cited Ms. Holcomb for a failure to report to work, stating that she did not inform administration or school site personnel that she would not be at work on April 7, 19, 20, and 21, 2006. The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement in notifying her worksite of her absences. In response, Ms. Holcomb submitted an affidavit from her husband stating that on the dates in question, Ms. Holcomb was either sick with a severe headache or in the hospital for cardiac problems. Ms. Holcomb's husband took responsibility for any failure to contact the proper school authorities regarding Ms. Holcomb's absences from work on those dates. The other April 25, 2006, Appraisal II stated that Ms. Holcomb was "not able to perform her job requirements due to excessive absences. The total number of days out as of April 21, 2006 is 31.5 days." The "recommended procedure for correction" was that Ms. Holcomb should "come to work on time and when required by work calendar designated by School Board and school site policy." The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement. In response, Ms. Holcomb filed a memorandum explaining that her absences were due to legitimate illness and injury, including a 15-day hospitalization for broken ribs and collarbone, two days missed due to severe headaches, and four days missed due to hospitalization with heart attack symptoms. Ms. Holcomb suggested that the Appraisal II was part of an effort by school administrators "to undermine my current Professional Services Contract with Lake County Public Schools and destroy my reputation, due to an unknown agenda." As noted above, Ms. Holcomb began work as an art teacher at Eustis High during the 2009-2010 school year. On October 27, 2009, she received an Appraisal II from then- assistant principal Kristine Durias due to her classroom management. Ms. Durias explained the unacceptable aspects of Ms. Holcomb's classroom management as follows: I noted on several occasions that students in your classroom were not abiding by District, school and classroom procedures and were without correction from you as their teacher. On my last visit to your classroom on 10/22/09, 3 students had iPods out, 5 students were wandering around the classroom not engaged in the project and 1 student had their head down, all without regard from the teacher. Ms. Durias also provided Ms. Holcomb with a Prescription/Assistance Form setting forth the areas of performance that required improvement and providing resources to assist Ms. Holcomb in bringing her performance level up to the School Board's standards. These resources included page references to the IPPAS Handbook section on "Classroom Management," in-service classes on "Effective Classroom Management Strategies" and "Classroom Management for Secondary Teachers." The Prescription/Assistance Form also stated that Ms. Durias would contact the instructional coach to assist Ms. Holcomb and would ask another staff member to mentor Ms. Holcomb on school policies and procedures. The Prescription/Assistance Form provided that Ms. Holcomb's performance should show improvement "immediately," but also stated that her performance would be checked within three weeks. On November 17, 2009, from 12:40 p.m. until 1:20 p.m., Ms. Durias observed Ms. Holcomb and scored her on the Appraisal I form. Ms. Durias gave Ms. Holcomb a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Durias found Ms. Holcomb's performance deficient in two sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." She was graded as unsatisfactory in four of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" "Recognizes response/amplifies/gives corrective feedback;" and "Directs lesson." At a post-appraisal conference on December 2, 2009, Ms. Durias gave Ms. Holcomb a Prescription/Assistance Form. This form essentially directed Ms. Holcomb to continue with the recommendations set forth in the Prescription/Assistance Form issued on October 27, 2009. Because the November 17, 2009, evaluation resulted in a score that was below the minimum IPPAS requirement of 12, Ms. Durias designated it as an "Observation" rather than a formal Appraisal I that would immediately affect Ms. Holcomb's employment status.3/ In the Prescription/Assistance form, Ms. Durias informed Ms. Holcomb that another IPPAS appraisal would be conducted within three weeks. The appraisal was not conducted within the stated three weeks because Ms. Holcomb was out on sick leave from January 21, 2010, through April 20, 2010. On April 23, 2010, two days after Ms. Holcomb returned to work from her lengthy absence, an Appraisal I of her performance was conducted by assistant principal Marta Ramirez, who joined the staff at Eustis High School in March 2010. Ms. Ramirez testified that it is not at all unusual to evaluate a teacher who has been out of work for a long period of time. Teachers are frequently out on maternity leave or due to illness. Ms. Ramirez stated that the School Board expects every teacher to perform at the level required to pass an IPPAS appraisal whenever she comes to teach, whether it is the first day of school or the first day back from an extended leave. Ms. Ramirez observed Ms. Holcomb from 12:44 p.m. until 1:44 p.m. and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 8 on the appraisal, rating her unsatisfactory in four of the 12 subsections. The section "Teaching Procedures" contains four subsections, one of which is "Displays skills in making assignments." Ms. Ramirez found Ms. Holcomb's performance deficient in that subsection due to an unsatisfactory score in the sub-subsection titled "Gives clear and explicit directions." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in three of the four sub-subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in both subsections: "Demonstrates knowledge and understanding of the subject matter" and "Communicates and presents subject matter in a manner that enables students to learn." As to the first subsection, Ms. Holcomb was graded as unsatisfactory in one of two sub-subsections, "Sequence is logical." As to the second subsection, she was graded as unsatisfactory in three of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" and "Directs lesson." At the hearing, Ms. Ramirez testified as to her observations of Ms. Holcomb's teaching methods. Ms. Ramirez stated that there is a standard procedure for ensuring a prompt start to the class. Before the students come into the classroom, the teacher writes a "bell ringer" on the blackboard, i.e., an activity that the students are expected to work on while the teacher takes attendance. Ms. Holcomb had no bell ringer activity prepared for her students, who sat down at their tables with nothing to do. The students talked among themselves, a distraction that lengthened the process of taking attendance to six minutes. Ms. Ramirez found Ms. Holcomb's performance deficient in the areas of starting class promptly and being on task. Ms. Ramirez stated that another standard classroom procedure is the teacher's stating the objective of the day's lesson. Ms. Holcomb stated no objective either orally or in writing. Because there was no stated objective, the lesson did not proceed in a meaningful, orderly fashion. Ms. Holcomb seemed to jump from one thing to another. Some students were confused, looking to Ms. Holcomb and trying to figure out what they were supposed to do. Ms. Ramirez noted that the lack of a set procedure or guidance from the teacher naturally leads the students to lose focus and begin talking among themselves. Ms. Holcomb's students began chatting, which led Ms. Holcomb to attempt disciplinary measures. She began by saying "cut." Ms. Ramirez was not sure what "cut" meant, but surmised that it was Ms. Holcomb's instruction to the students to stop talking. The instruction had no effect on the students. Ms. Ramirez testified that there was still some confusion 20 minutes into the class period. The students still did not understand the assignment. They were blurting out questions such as, "What are we doing?" and "Is this for a grade?" They were asking each other what they were supposed to be doing. At some length, they understood the assignment and began work, though an undercurrent of confusion remained. Ms. Ramirez attributed this undercurrent to Ms. Holcomb's failure to state an objective or purpose to the assignment. Ms. Ramirez was also critical of Ms. Holcomb's interactions with the students. Ms. Ramirez stated that accepted practice is for the teacher to state a single question, wait for a moment, call on a student, and affirm the correct answer. If the answer is incorrect, the teacher provides feedback that steers the class toward the correct answer. Ms. Ramirez testified that Ms. Holcomb allowed the students to shout out answers in a chaotic manner. Ms. Ramirez stated that the class period lasted for 90 minutes, but that she left after an hour because the class "didn't seem to be headed any direction, just headed downhill." The students were not on task and were not learning anything. As a result of the substandard Appraisal I score, Ms. Ramirez completed a Prescription/Assistance Form that she gave to Ms. Holcomb at a post-observation conference on April 29, 2010. Eight areas for improvement were listed, corresponding to the eight sub-subsections for which Ms. Holcomb received unsatisfactory scores on the April 23 Appraisal I. Eight pages of the IPPAS Handbook were attached as reference resources to assist Ms. Holcomb to improve her performance. The Prescription/Assistance Form also provided that an instructional coach would assist Ms. Holcomb in applying best teaching practices and that she could obtain in-service instruction in classroom management. The form also "encouraged" Ms. Holcomb to take staff development workshops provided by Lake County. Also on April 29, 2010, Eustis High principal Al Larry issued a memorandum to Ms. Holcomb advising her of performance deficiencies in the areas of "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter," as reflected in the April 23 Appraisal I. Mr. Larry noted that as to the latter two areas, Ms. Holcomb had shown deficiencies in the observation of November 17, 2009, and that those deficiencies had not been corrected. Mr. Larry's memorandum closed as follows: "Based on the performance deficiencies, I am placing you on performance probation for 90-calendar days beginning on Monday, August 23, 2010. The 90-calendar days will end on Monday, November 22, 2010." By letter dated May 7, 2010, Superintendent of Schools Susan Moxley warned Ms. Holcomb of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Ms. Ramirez testified that she contacted Claude Pennacchia, a former principal who acts as instructional coach for eight schools. Mr. Pinnachia agreed to contact Ms. Holcomb and set up a meeting. Because she called Mr. Pennacchia near the end of the school year, Ms. Ramirez contacted him again at the start of the new school year in August to remind him of the need to provide training to Ms. Holcomb. Mr. Pennacchia told her that he had tried to arrange a meeting with Ms. Holcomb, but they could not agree on a time. Ms. Ramirez testified that to the best of her knowledge Ms. Holcomb never made herself available to meet with Mr. Pennacchia. Ms. Ramirez was not aware that Ms. Holcomb ever did anything that was recommended by the April 29, 2010, Prescription/Assistance Form. Ms. Ramirez testified that Ms. Holcomb was in school for the first two weeks of the 2010-2011 school year, then became ill and was out until sometime in November 2010. The follow-up observation was conducted by Ms. Ramirez on December 1, 2010, after the running of the 90-day probation period. Ms. Ramirez observed Ms. Holcomb from 10:23 a.m. until 11:00 a.m.4/ and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 7 on the appraisal, rating her unsatisfactory in five of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in two of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in one subsection, "Communicates and presents subject matter in a manner that enables students to learn." Within that subsection, Ms. Holcomb was graded as unsatisfactory in two of seven sub- subsections: "Uses questioning techniques" and "Recognizes response/ amplifies/ gives corrective feedback." Under the section "Assessment Techniques," Ms. Holcomb was rated unsatisfactory in the sole subsection, "Uses assessment strategies to assist in the continuous development of the student." Within that subsection, Ms. Holcomb was graded as unsatisfactory in one of four sub-subsections, "Checks student progress based on the performance standards required of students in Florida public schools, analyses data, including annual learning gains at the classroom and school levels, and makes appropriate adjustments." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in one of three subsections, "Engages in continuous professional improvement for self and school." This subsection contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." At the hearing, Ms. Ramirez explained that the sections of the Appraisal I document being scrutinized during the observation are "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter." The sections titled "Planning," "Assessment Techniques," and "Personal Characteristics and Professional Responsibilities" are covered in the post-observation conference with the teacher, at which time the teacher shares her portfolio or other evidence of compliance with IPPAS standards with the evaluator. Ms. Ramirez testified that on this occasion Ms. Holcomb had an assignment on the board as the students entered, but that the students still appeared confused. They did not seem to know what they were supposed to be doing. The students continued to talk among themselves even when Ms. Holcomb began a review. Ms. Ramirez noted that Ms. Holcomb was still using "cut" to end the students' conversations, and that it was still being ignored. Ms. Holcomb had posted rules of conduct in her classroom that included raising one's hand and being called on by the teacher before asking a question. Ms. Ramirez testified that this rule was ignored by the students and Ms. Holcomb. The students would blurt out questions, and Ms. Holcomb would answer them. Ms. Ramirez found it highly problematic that Ms. Holcomb was not even attempting to enforce her own rule. Ms. Ramirez noted that students walked into class several minutes after the bell and Ms. Holcomb took no notice. Students walked into the class with food and started eating. Other students simply stood up and walked out of class. Ms. Holcomb did not address any of these misbehaviors. Ms. Ramirez testified that before leaving the classroom, a student is supposed to ask permission, get a pass, and sign out. Ms. Holcomb seemed unaware that students were walking in and out of the classroom while she taught the lesson. Ms. Holcomb's failure to observe the hall pass protocol created a dangerous situation because there was no accountability for these children. They were without adult supervision outside the classroom and could go anywhere or do anything. During cross-examination, Ms. Ramirez was questioned regarding the size and configuration of Ms. Holcomb's classroom in connection with the fact that Ms. Holcomb was using a wheelchair during this period. Counsel was attempting to demonstrate that at least some of the discipline problems were not Ms. Holcomb's fault because the layout of her classroom ensured that she was unable to see all of her students from her position in the wheelchair. Ms. Ramirez acknowledged that Ms. Holcomb's art class was large, between 35 and 40 students, and that Ms. Holcomb had to navigate the room in a wheelchair. However, Ms. Ramirez also testified that being in a wheelchair did not absolve Ms. Holcomb of her responsibility for the safety of the children in her classroom. More than one person in the Eustis High administration had urged Ms. Holcomb to rearrange the tables in her classroom to give herself a clear view of all the students. Ms. Holcomb had been advised to look at the classroom of the art teacher next door for ideas on how to arrange the tables. For some reason, Ms. Holcomb declined to change the configuration of the tables in a way that would curtail the students' ability to essentially hide from her. Ms. Ramirez conducted a post-observation conference with Ms. Holcomb on December 6, 2010. Prior to the conference, Ms. Ramirez spoke to Mr. Larry about the results of the Appraisal I. She told Mr. Larry that Ms. Holcomb had requested that her union representative be present at the conference and that "it doesn't look good" for Ms. Holcomb because she received unsatisfactory scores in two of the same subsections she had failed on the April 23, 2010, Appraisal I. In light of this information, Mr. Larry decided that he would attend the conference as well. On December 7, 2010, Ms. Holcomb submitted written comments that provided as follows, in relevant part: To begin, this is the culmination of Mr. Larry's hostile attitude toward my... appointment to Eustis High School.... Mr. Larry has not spoken one kind word to me since the appointment in August of 2009. Since my appointment to Eustis High School, I have had to work in a hostile environment where Mr. Larry has been using the Florida Statute 1012.34 assessment procedures as a weapon to fire me. Using an assessment procedure where nothing less than perfect is failing, Mr. Larry used his assistant principals to do his bidding where acceptable or unacceptable grades are completely subjective. In other words, the assessment is biased where any teacher that the principal does not like has no chance of passing and there is no supervisory protection or due process afforded to the teacher. . . (Emphasis in original.) Ms. Holcomb also alleged that Mr. Larry "violated the intent of the ninety days rule" for performance probation when he did not extend the time for improvement of her deficiencies in light of her eight-week stay in the hospital. Ms. Holcomb also alleged that Mr. Larry refused her request to move to an open guidance counselor position that would not require her to show classroom management skills. There was no record evidence that Mr. Larry held any grudge against Ms. Holcomb.5/ Ms. Ramirez denied receiving any instruction or direction from Mr. Larry as to her evaluations of Ms. Holcomb's performance as a teacher. There was no record evidence that Ms. Holcomb applied for a guidance counselor position during the period in question. By letter dated December 7, 2010, Mr. Larry informed Superintendent Moxley that Ms. Holcomb had failed to correct her performance deficiencies, that Mr. Larry did not believe Ms. Holcomb capable of correcting those deficiencies, and recommending that Ms. Holcomb's employment be terminated. In a letter to Ms. Holcomb dated December 10, 2010, Superintendent Moxley wrote as follows: Pursuant to Florida Statute 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Please be advised that I will recommend to the Board that your employment be terminated as of January 10, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb filed a grievance pursuant to School Board Policy 6.35. In light of that grievance, Superintendent Moxley rescinded Ms. Holcomb's termination until such time as Ms. Holcomb could receive a second Appraisal I observation by an administrator from outside Eustis High. June Dalton, the principal of Tavares High School, was selected by chief of curriculum Nancy Velez to conduct the observation. Ms. Dalton began teaching in Lake County in 1978 as a physical education teacher. After teaching for 13 years, Ms. Dalton became an administrator. She has served 14 years as a principal, including eight years at the high school level. Ms. Dalton has been trained in use of the IPPAS Handbook and sat on a committee charged with updating the IPPAS program. She has trained administrators on the IPPAS system. At the time she accepted the assignment from Ms. Velez, Ms. Dalton had never met Ms. Holcomb. Ms Dalton met Ms. Holcomb for the first time at the pre-observation conference on January 11, 2011. They discussed the appraisal form, including every aspect of the observation and the areas on which Ms. Dalton would focus. Ms. Dalton assured Ms. Holcomb that she was there to help her meet the minimum standards in her appraisal. Ms. Dalton testified that Ms. Holcomb had some concerns about the layout of her classroom and asked for her ideas. Ms. Holcomb told Ms. Dalton that she had trouble maintaining order with some of the students in her classroom. Ms. Dalton testified that Ms. Holcomb's classroom was long and narrow, with tables arranged in such a way that at times some students were facing away from the teacher. Ms. Dalton suggested setting the tables end to end along the length of the room, so that Ms. Holcomb could lecture in front and be seen by all of the students. Ms. Dalton stated that when she came to the room for the observation, the tables had not been moved.6/ Ms. Dalton asked to see Ms. Holcomb's individual personal development plan ("IPDP"), a document that all teachers are required to complete that identifies individual goals and objectives designed to promote their personal growth. The teacher is required to state objectives that are feasible and primarily under her control, are measureable and/or observable, and are agreed to and signed by the teacher and her supervisor. Ms. Dalton stated that it is her practice at Tavares High School to review her teachers' IPDPs before their observations. Ms. Holcomb told Ms. Dalton that she had turned in her IPDP to Ms. Ramirez, but that she could not find her copy of the signed document. Ms. Holcomb printed a copy of the IPDP to show to Ms. Dalton. After reviewing the IPDP, Ms. Dalton concluded that it was not a workable plan as written because there was no way that Ms. Holcomb could document the student progress that she intended to bring about. Ms. Dalton gave Ms. Holcomb some suggestions for making her IPDP into an acceptable document. Ms. Holcomb agreed that she would rewrite the IPDP and have it ready for Ms. Dalton at the time of the observation. However, on the day of the observation, Ms. Holcomb told Ms. Dalton that she had not had time to work on it. Through his questioning of Ms. Ramirez, counsel for Ms. Holcomb insinuated that that Ms. Holcomb had turned in an IPDP to Ms. Ramirez in October 2010, but that Ms. Ramirez had lost the IPDP by the time she performed her Appraisal I on December 1, 2010. Ms. Ramirez testified that the first time she ever saw an IPDP from Ms. Holcomb was at the December 6 post- observation conference. The document was handwritten and was missing significant information. Ms. Holcomb had been notified that that the IPDP was part of her Appraisal I and that she needed to bring it to her post-observation conference. Ms. Ramirez gave her an unsatisfactory mark for the incomplete IPDP. The testimony of Ms. Dalton and Ms. Ramirez is credited as to the IPDP. It is apparent that Ms. Holcomb created a typed IPDP at some point between December 6, 2010, and January 11, 2011, but that she never gave it to her supervisor at Eustis High for review and approval. Ms. Holcomb tried to make Ms. Dalton believe that the IPDP she printed at the pre- observation conference on January 11 was an approved, finished product when in fact it was, at best, a draft IPDP. After they finished with the pre-observation conference, Ms. Dalton and Ms. Holcomb discussed dates for the observation. Ms. Holcomb did not want the observation to take place until after semester exams. Ms. Dalton agreed that little would be gained from having her observe Ms. Holcomb as she proctored an exam. They agreed on a date, but Ms. Holcomb was out sick on the scheduled date. After a few reschedulings, the observation took place on February 17, 2011. Ms. Dalton's observation lasted from the time the bell rang at 12:44 p.m. until class was dismissed at 2:14 p.m. Ms. Dalton was in the classroom several minutes before the opening bell. On the Appraisal I form, Ms. Dalton gave Ms. Holcomb a score of 6, rating her unsatisfactory in six of the 12 subsections. The section "Planning" contains a single subsection titled "Plans, implements, and evaluates instruction," for which Ms. Holcomb was given an unsatisfactory score. Within that subsection, Ms. Holcomb was given an unsatisfactory score on one of the four sub-subsections, titled "Develops short and long term personal and professional goals related to instruction as evidenced by an Individual Professional Development Plan." The section "Teaching Procedures" contains four subsections, in two of which Ms. Dalton graded Ms. Holcomb's performance as unsatisfactory. Under the subsection titled "Uses instructional materials effectively," Ms. Holcomb was graded unsatisfactory in the sub-subsection titled "Uses technology in the teaching and learning process." Under the subsection titled "Recognizes and provides for individual differences," Ms. Holcomb was given an unsatisfactory score in the sub-subsection titled "Attends to student needs." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which students are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Dalton found Ms. Holcomb's performance deficient in three of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in two of the three subsections. The first subsection, "Engages in continuous professional improvement for self and school," contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." The second subsection was titled "Complies with Board rules, policies, contract provisions, and published school-site rules and policies consistent with Board rules and contract provisions" and contained no sub-subsections. Ms. Dalton testified that Ms. Holcomb did not have a bell ringer activity to keep the students engaged while she took attendance. Ms. Holcomb frequently had to stop taking attendance to admonish talkative students. Ms. Dalton stated that Ms. Holcomb was still taking attendance at 12:53, nine minutes after the opening bell. She started entering the attendance into her computer at 12:58, and was not finished with marking attendance until 1:01, seventeen minutes into the class period. Ms. Dalton found it apparent from the start that there was no class routine. The students had to be told what to do at every step of the way. At the end of attendance, Ms. Holcomb explained a journal assignment she had written on the board, but most of the students talked all the way through her explanation and some did not perform the assignment at all. There were no consequences for their misbehavior. Ms. Holcomb held up samples of a project the class had begun in a previous session and was continuing to work on. The students in the middle of the room had a good view of the samples, but the students at the far end of the room had a hard time seeing. Ms. Dalton noted that some students were working on the project and some were not. Some were talking. Students at two different tables were texting or playing with their cell phones. Ms. Dalton stated that Ms. Holcomb frequently stopped to announce that she was waiting for the class to be quiet. She also used a technique called "harsh desist," singling out a student to threaten with removal from class. One such student replied, "Good, get me out of here." Ms. Holcomb called out to Table Five that she was taking away five points for talking, though not everyone at the table was talking. Ms. Dalton heard one of the students at the table say, "Well, it doesn't matter, she doesn't know our names anyway." Ms. Dalton took this statement as a sign that Ms. Holcomb's method of correcting misbehavior was not effective. Ms. Dalton noticed that Ms. Holcomb did not have current class rosters. The rosters and seating charts in her folder were from the previous semester. Ms. Holcomb did not know the names of the students at Table Five and therefore was unable to deduct points from them. Ms. Holcomb told another table that she was awarding it bonus points, but Ms. Dalton wondered how Ms. Holcomb could do that when she did not know the students' names. Ms. Dalton noted that Ms. Holcomb's voice was loud to the point of yelling. Ms. Dalton believed that if Ms. Holcomb would use a quieter voice, then the students who were not being intentionally disruptive might quiet down. Ms. Dalton testified that in her experience students will stop talking if they cannot hear what the teacher is saying. If they can hear the teacher over their own quiet conversation, then they will go on talking. Ms. Dalton stated that Ms. Holcomb had some technology in the classroom but for some reason declined to use it. Ms. Holcomb had a document camera that could have been used to show a document to the entire class. All of the components to the camera appeared to be present, but Ms. Holcomb failed to use it. Ms. Dalton observed three students at one table who did nothing for 35 minutes but draw on their arms, talk, and play with their phones. Finally, Ms. Holcomb addressed two of the students. However, they continued to draw on their arms and not work even when Ms. Holcomb sat next to one of them. Ms. Holcomb gave these students no further corrective feedback. Ms. Holcomb attempted to gain control of the class by threatening detention for the next Tuesday. She stated that if a student receiving a detention became argumentative or disrespectful, she would escalate the discipline to a referral. Ms. Dalton saw Ms. Holcomb's threats as empty because the promised detentions were five days in the future. Ms. Dalton also noted that Ms. Holcomb had not yet contacted the parents of any of the disruptive students. Ms. Dalton testified that Ms. Holcomb did some things well. She worked with some students individually. She gave them feedback. Overall, Ms. Dalton saw a class in which some students were trying to do their work, and in which many other students were talkative, did not seem to care about their work, and did not fear any consequences. Ms. Holcomb's method of dealing with the discipline problem was to make empty threats. Ms. Dalton acknowledged that the score of six was "a bad score." The observation gave her concerns about Ms. Holcomb's ability to teach in a classroom. Ms. Dalton stated, "It was a difficult class to watch." The students who wanted to learn were not getting what they needed because the teacher was spending so much time ineffectively trying to get minor misbehaviors under control. Ms. Dalton testified that the post-observation conference, held on February 18, 2011, was uneventful. She asked Ms. Holcomb whether she had called the parents of the students who were disrupting her class. Ms. Holcomb stated that she intended to commence calling them that evening. From Ms. Holcomb's reply, Ms. Dalton concluded that Ms. Holcomb was not taking charge or involving the parents in getting the misbehaviors under control. On February 22, 2011, Ms. Holcomb submitted her written comments on the evaluation. She again decried the subjectivity of the evaluation criteria and the fact that a perfect score is required for a satisfactory appraisal. She alleged that Eustis High and the School Board were "using the Florida Statute 1012.34 as a tool to fire me because I am a handicapped teacher in a wheelchair." Ms. Holcomb stated that she had turned in her IPDP more than once but that her administrator never signed it. She stated that the document camera did not work properly. She argued that the school had a faulty system for removing disruptive students and that her phone calls to parents had not improved the students' behavior. Ms. Holcomb argued that she could not properly manage the classroom when there were students in the room who did not want to be there but whom Mr. Larry would not permanently remove from her class. Ms. Dalton testified that during the post-observation conference, Ms. Holcomb said nothing about the document camera not working. Ms. Dalton saw only one student who expressed a desire to be out of Ms. Holcomb's classroom. She reiterated her opinion that the disciplinary problem in Ms. Holcomb's classroom was minor but that Ms. Holcomb escalated the problem through her mishandling of the disruptive students. Ms. Dalton saw nothing in Ms. Holcomb's comments that changed her mind about the scores she gave Ms. Holcomb on the Appraisal I. In a letter to Ms. Holcomb dated March 14, 2011, Superintendent Moxley wrote as follows: Pursuant to Florida Statutes 1012.33 and 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Due to the global nature of the identified performance deficiencies, you have demonstrated incompetence and the lack of the qualifications needed to be an effective teacher. Please be advised that I will recommend to the Board that your employment be terminated as of March 28, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb timely requested a due process hearing by letter dated March 18, 2011. On the same date, Superintendent Moxley notified Ms. Holcomb in writing that she would recommend that Ms. Holcomb be placed on unpaid suspension at the March 28, 2011, School Board meeting and that the suspension last until the conclusion of the due process proceeding. The first duty of school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. The evidence established that the process followed by School Board personnel in evaluating Ms. Holcomb's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA.7/ The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. At the outset of the final hearing, the School Board announced that it intended to proceed exclusively pursuant to the "just cause" provision of section 1012.33. Therefore, there is no need for extensive findings as to whether the School Board met all of the substantive criteria for teacher dismissal set forth in section 1012.34(3).8/ The issue is whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1). On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Holcomb for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011.
