The Issue Whether the Education Practices Commission (EPC) should suspend, revoke, or otherwise discipline the Respondent's Florida teaching certificate for the violations alleged in the Administrative Complaint filed by the Petitioner herein.
Findings Of Fact The Respondent holds Florida teaching certificate 456761, covering the area of Elementary Education, which is valid through June 30, 1999. During the 1995-1996 school year, the Respondent was employed by the Sumter County School District as a reading teacher at Webster Elementary School. During the 1995-1996 school year, Shaun Boone was enrolled at Webster Elementary School as a fifth grade student. Shawn Boone was born on February 22, 1985, and was eleven years of age at the time of the incident. During the 1995-196 school year, Respondent taught reading to Shaun Boone in a "pullout program" in which students were assigned to go the Respondent's classroom each school day for fifty minutes. During the 1995-1996 school year, the Respondent shared a classroom with Patsy Rogers, another reading teacher. The room was divided in half by a row of bookshelves and file cabinets extending from one wall approximately three-quarters of the length of the room. Each teacher was assigned his and her own class of students. During Shaun's reading class on May 22, 1996, both the Respondent's and Ms. Rogers' students were gathered on the Respondent's side of the classroom to watch a videotape. During this class period Shaun was working on a reading exercise in Ms. Roger's side of the room. Shaun asked the Respondent for help with his reading exercise. The Respondent and Shaun sat down side by side at a table in Ms. Roger's area with the reading exercise papers on the table in front of them. The Respondent sat to the right of Shaun. Their backs were to the bookshelves and cabinets which divided the room. While seated in this position, the Respondent placed his left hand on top of Shaun's right leg and began to rub his leg. He then moved his hand up to Shaun's groin area and rubbed the student's genitals through his clothing. This touching occurred beneath the table in front of them. The Respondent's touching of his leg and genitals frightened Shaun. He immediately stood up and started to move away. As he stood up, the Respondent grabbed and squeezed his buttocks. Shaun slapped the Respondent's hand away from his buttocks and moved away from him. After school, Shaun went to Wednesday night church services; however, he told his parents what the Respondent had done to him at school that day when they got home from church. Shaun's father became very upset and, together with his wife, took Shaun to school the next morning. He met the school's principal, Ms. Carolyn Stephens, on the steps of the school when she arrived at 7:30 a.m. the next day, May 23, 1996. After speaking to the parents and interviewing the student. Ms. Stephens called the Superintendent of Schools to report the incident. Ms. Stephens was instructed to report the matter to the School Resource Officer and did so. Later on that same day, May 23, 1996, FDLE Special Agent (S/A) Alfred Danna arrived at Webster Elementary School to conduct an investigation at the request of the Sumter County Sheriff's office. S/A Danna was based in Tampa. Prior to that day, S/A Danna did not know any of the individuals involved in this matter. S/A Danna interviewed Shaun in the Principal's office. Shaun related the same information to S/A Danna that he had shared with his parents the previous day and with Ms. Stephens earlier on May 23. After interviewing Shaun, S/A Danna interviewed the Respondent in Ms. Stephens' office. S/A Danna explained to the Respondent that he did not have to talk with him. After initially denying any knowledge of the incident, the Respondent admitted to S/A Danna that he had accidentally touched Shaun's leg while getting out of his chair. After S/A agent Danna's confrontational questioning, the Respondent admitted that he had rubbed Shaun's leg and groin and touched his buttocks, but explained that he was an affectionate person and that the touchings were not intended to be sexual in nature, only affectionate. Based upon S/A Danna's investigation, the Respondent was arrested and charged by the State Attorney for the Fifth Judicial Circuit with two counts of lewd and lascivious act upon a child under sixteen years of age. The charging information was filed on June 3, 1996. On February 6, 1997, the Respondent entered a plea of nolo contendere to one count of Battery. The Respondent was adjudicated by the Court to be guilty of Battery and was sentenced to probation for one year, and ordered to pay a $1,000 fine within nine months. The Respondent was specifically ordered to have no contact with children under 18 without adult supervision and to not teach anyone under the age of 18 while on probation. Based upon the report of the incident described above, the Respondent was suspended without pay by the Sumter County School Board and remained under suspension at the time of the formal hearing on September 9, 1998.
Recommendation Based upon the findings of fact and conclusions of law, and considering the disciplinary guidelines, it is RECOMMENDED: That the Education Practices Commission enter a final order revoking the Respondent's certificate. DONE AND ENTERED this 2nd day of December, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1998. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 489 DeFuniak Springs, Florida 32435 Mark Herdman, Esquire Herdman and Sabellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34584 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner’s five Head Start/pre-K Exceptional Student Education (“ESE”) blended classrooms involving the Volusia County School District’s Joint Educational Program are entitled to an exemption from childcare licensure.
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, the testimony offered by witnesses, and admitted facts set forth in the Prehearing Stipulation. Respondent, DCF, is the state agency responsible for regulating childcare facilities in Florida. Petitioner, Mid Florida, is a private, not-for-profit 501(c)3 Florida corporation operating various social service and early education programs. Petitioner operates 20 different Head Start classrooms in three counties, including Hernando, Sumter, and Volusia Counties. Petitioner initiated a relocation of Westside Head Start Classroom (“Westside”), one of its existing Head Start classrooms, from a portable located on the real property of Westside Elementary School, which is part of the VCS, to a classroom located directly inside Westside Elementary School. As Westside was licensed by DCF as a childcare facility prior to the relocation, Mid Florida completed and submitted a childcare license questionnaire to DCF for a determination as to whether Westside, now located within the Westside Elementary School, still needed to be licensed. In response to the childcare license questionnaire for Westside, the Department issued a determination letter, dated August 22, 2017. Rather than limiting its determination to Westside, the Department stated that 18 of Mid Florida’s Head Start classrooms, located in three different counties, were subject to licensure. Those 18 sites included five VCS Head Start programs operated in partnership with Mid Florida. The five VCS sites at which Petitioner provides Head Start program services are commonly known as Head Start “blended classrooms.” The term “blended classrooms” refers to the inclusion of students that are typically developing peers that are not otherwise students of VCS into Volusia County School classrooms with students with disabilities. The blended classrooms include Blue Lake Head Start blended classroom, Deltona Lakes Head Start blended classroom, Horizon Head Start blended classroom, Indian River Head Start blended classroom, and Woodard Head Start blended classroom. The five blended classrooms are not currently, and have never been, licensed as childcare facilities. VCS provides K-12 public education in Volusia County, and provides certain pre-kindergarten (pre-K) ESE programs in accordance with the Individuals with Disabilities Education Act (IDEA). The IDEA requires public schools to provide services for students with disabilities aged three to 21, including a free and appropriate public education. In 2008, Head Start programs, among others, were identified by the Florida Department of Education’s Bureau of Exceptional Student Education and Student Services as one of the potential partners for schools to expand opportunities for schools to provide services to pre-K children with disabilities. In 2009, VCS implemented pre-K ESE programs for students aged three and four with various levels of disabilities. VCS implemented the program, which was designed to place students with disabilities in a learning environment with typically developing peers. Typically developing peers are students without disabilities who acquire specific skills and behaviors according to a predictable rate and sequence. In 2010, VCS contacted Mid Florida to explore the possibility of Mid Florida collaborating with VCS to expand blended pre-K ESE programs to include a Head Start blended classroom. As the need to serve more students with disabilities increased, VCS expanded its pre-K ESE Programs to include different types of blended classrooms. As a result, VCS entered into a Cooperative Agreement (“Coop Agreement”) with Mid Florida for Referral, Evaluation, Placement, and Transition Head Start; Florida Diagnostic Learning Resource System (“FDLRS”) Child Find; and pre-K ESE programs. The Coop Agreement served as the basis to establish the blended pre-K/Head Start program provided by VCS as part of Mid Florida’s services offered to serve students with disabilities. VCS pre-K ESE programs include partial-day, full-day, and blended pre-K classroom options (at issue in this matter). Students in partial-day programs receive two and a half hours of instruction in a separate class setting. Students in full-day programs receive a full day of instruction in a separate class setting. All ESE students participating in any of the VCS pre-K ESE programs, including blended pre-K programs, have individualized education plans (IEP) subject to age-appropriate standards established by the State Board of Education. There are four types of VCS blended pre-K VE programs: employee blended, Head Start blended, community blended, and the Easter Seals Charter School. The employee-blended classrooms pair eight ESE VCS students, and 10 non-ESE students that are children of VCS employees, but not otherwise VCS students. The Head Start blended classrooms pair eight ESE VCS students, and 10 non-ESE students that are not otherwise VCS students, but are eligible to enroll in a Head Start program. The community- blended classroom pairs eight ESE VCS students and 12 non-ESE voluntary pre-k students from the community who are not otherwise VCS students. The Easter Seals Charter School is a private, not-for-profit charter school operated by Easter Seals, and pairs eight ESE students with 10 non-ESE students (identified and enrolled by Easter Seals). Overall, the blended classrooms are required to meet Department of Education standards. VCS determines each year whether there is a need or not for a Head Start blended classroom at each of its locations. VCS monitors a feeder pattern of students to identify VCS students aged three to five that are in need of pre-K ESE services, and then determines at what locations and how many Head Start blended classrooms will be needed in any given school year. If VCS determines that a Head Start blended classroom is not needed, then Mid Florida would not provide services under the Coop Agreement for that classroom, and the non-ESE typically developing peer/students would be relocated to either another VCS Head Start blended classroom, or to a Head Start site not associated with VCS, such as Westside. The facilities, classroom, and playground for Head Start blended classrooms (used by students) are provided by VCS. The curriculum used in the VCS Head Start blended classrooms are selected and approved by VCS, and then Mid Florida must adapt its Head Start services to that curriculum. At all of its other non-blended classroom Head Start locations, Mid Florida has used a different curriculum than what was adopted by VCS for the Head Start blended classroom. The curriculum is implemented using a co-teaching model in which instructional, and other staff, in the Head Start blended classrooms work collaboratively to implement the curriculum. The blended pre-K/Head Start program is staffed with one VCS teacher, one VCS paraprofessional, one Mid Florida Head Start teacher, and one Mid Florida Head Start assistant. The VCS teacher and paraprofessional have primary responsibility for ensuring that the ESE students with IEPs obtain the level of instruction and other services required under the IEP, and that age-appropriate standards are being taught. The Head Start teacher has primary responsibility for ensuring that all students enrolled in the Head Start program receive Head Start services, and the Head Start assistant aids the Head Start teacher in carrying out Head Start services. Supervision of all students in the classroom is the responsibility of all instructional, and other staff, in the classroom. However, ultimate responsibility for the safety and security of the students resides with the VCS teacher, and ultimately the VCS principal. Therefore, it is the particular school sites’ policy on parent pick-up and drop-off that must be adhered to by all parents of students participating in a Head Start blended classroom. Any parent or other volunteer visiting or working in the Head Start blended classrooms must meet VCS screening standards, must adhere to VCS policies applicable to school classrooms, and must adhere to the security and sign-in procedures in place at each school site. For all students in the blended pre-K/Head Start program, both ESE and non-ESE students, the school principal/administrator has the final authority about whether or not a student may be sent home due to a students’ behavior or conduct. The Head Start blended classrooms follow the VCS instructional schedule and calendar, including dismissal days and hurricane closure make-up days. The VCS’ policies on health services and communicable diseases take priority in Head Start blended classrooms over any similar policies in place for Mid Florida Head Start programs. The VCS principals have input regarding food plan and administration of meals. Generally, the Head Start program emphasizes meals being served family style. While Head Start may encourage family-style eating, the principal of the respective blended classroom facility determines the method of meal services. For instance, a principal may permit meals to be delivered to the classroom. On the other hand, a principal may require that the Head Start students eat in a cafeteria. In short, VCS and the Mid Florida work together to determine the method of delivery of meal services for blended classrooms. The evidence offered at hearing demonstrates that one purpose of the partnership between Mid Florida and VCS is for Mid Florida to provide services to VCS pursuant to the Coop Agreement necessary for VCS pre-K children with disabilities to achieve academic success and high quality of life. Another purpose is to ensure compliance with the Head Start Act of 2007. Based on the totality of the circumstances, the evidence demonstrated that the five Head Start blended classroom sites (Blue Lake, Deltona, Horizon, Indian River, and Woodward) are integral programs of the VCS. Therefore, given these facts, Petitioner is not required to license the five sites as childcare facilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order as follows: Finding Petitioner’s five Head Start/pre-K blended classrooms are exempt from licensure as childcare facilities, pursuant to section 402.302(2)(a); and Reversing the decision requiring Petitioner to license the five Head Start/pre-K blended classrooms as childcare facilities. DONE AND ENTERED this 4th day of June, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 4th day of June, 2018. COPIES FURNISHED: Jane Almy-Loewinger, Esquire Department of Children and Families 210 North Palmetto Avenue, Suite 447 Daytona Beach, Florida 32114 (eServed) Jennifer C. Rey, Esquire The Hogan Law Firm 20 South Broad Street Brooksville, Florida 34605 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following bindings of fact: The Respondent, Consuelo DeArmendi, holds a Rank I Florida teaching certificate #399385, expiring June 30, 1987, authorizing her to teach foreign languages in secondary education. The Respondent has been employed as a foreign language teacher by the Dade County school system for approximately eight (8) years beginning in 1978. Respondent was initially employed at Miami Palmetto Senior High School for the 1978-79 school and taught at Highland Oaks Junior High School for the 1979-80 school year. Beginning with the 1980-81 school year, Respondent taught Spanish and French at Miami Carol City Senior High School where she remained until her suspension on June 4, 1986. 1980-81 SCHOOL YEAR During the 1980-81 school year, the Respondent was late or absent from Miami Carol City Senior High School on many instances and failed to call the school office as prescribed in the Faculty Handbook. According to the handbook, which is provided to all teachers, a teacher is required to notify the school prior to leaving if the teacher is aware that he or she will be absent the following day. A teacher may also call a designated member of the clerical staff between 6:00 p.m. and 9:30 p.m. if they intend to be absent the following day but were unaware of the intended absence prior to leaving school. Finally, the teacher is allowed to report an unexpected absence to the school on the morning of the absence between 6:30 and 6:45 a.m. Advance notice of an absence allows the school to secure substitute teacher coverage for the class. For the 1980-81 school year, Respondent was observed and evaluated by her principal and rated "unacceptable" in preparation and planning, professional responsibility and supportive characteristics because of repeated absences and tardiness. On February 10, 1981, the principal placed the Respondent on extended annual contract for failure to improve her attendance at work and failure to comply with school policy regarding teacher absences. 1981-82 SCHOOL YEAR The classroom observation of Respondent conducted on November 11, 1981 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 1, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques; Category VI - Teacher-Student Relationships; and Category VII - Professional Responsibility. The classroom observation of Respondent conducted on March 18, 1982 by the assistant principal resulted in an overall "unacceptable" rating. Respondent was rated unacceptable in Category III - Classroom Management; Category IV - Techniques of Instruction; Category VI - Teacher-Student Relationships and Category VII - Professional Responsibility. The classroom observation of Respondent by Ms. Wally Lyshkov, the school district foreign language supervisor, conducted on April 15, 1982, resulted in an overall "unacceptable" rating. In particular, Respondent was found unacceptable in Category I - Preparation and Planning; Category III - Classroom Management; Category IV - Techniques of Instruction; Category V - Assessment Techniques and Category VI - Teacher-Student Relationships. Ms. Lyshkov's observation of Respondent's teaching techniques and materials revealed that Respondent had a multi- level class (Spanish II and III combined), but only used one set of lesson plans. The lesson plans did not include the variety of activities that are usually and normally found in a multi-level class. The students tended to ignore any directions that Respondent gave and there was little, if any, exchange with the students. There was almost no activity or active participation on the part of the students, and Respondent was generally unaware of what the students were doing. During the 1981-82 school year, the Respondent received assistance and recommendations from Ms. Lyshkov on handling multi-level classes and assistance in establishing various student-directed and teacher-directed activities. In Ms. Lyshkov's opinion, the Respondent did not demonstrate an ability to deliver quality education or instruction because of her ineffectiveness in transmitting her knowledge to the students. During the 1981-82 school year, the principal became concerned with Respondent's excessive number of absences and her failure to comply with the school's procedures for calling in and reporting absences. In addition, the principal had received several complaints from students and parents concerning Respondent's excessive absences. On March 8, 1982, the principal gave her a notice of not complying with procedures and requested a formal conference to discuss Respondent's excessive absenteeism and student complaints. On June 3, 1982, Respondent was officially observed in the classroom by the principal and received an overall rating of acceptable. However, Respondent was rated unacceptable in Category VIII - Professional Responsibility, because of her consistent failure to follow guidelines in reporting her absences and her excessive number of absences which negatively impacted on the continuity of instruction provided to her students. In the Respondent's Annual Evaluation Report for the 1981-82 school year, the principal recommended that Respondent not be re-employed. The Respondent was rated "unacceptable" in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, professional responsibility and supportive characteristics (teacher contribution to total school program). Despite the principal's recommendation, Respondent was re-hired because she had already achieved continuing contract status. 1982-83 SCHOOL YEAR On January 26, 1983, the principal conducted a conference-for-the- record with Respondent. The conference was held because of Respondent's attendance record, lack of planning and failure to comply with instructions governing the reporting of absences. On several occasions, the Respondent failed to timely notify the school about her intention to be absent which resulted in difficulties obtaining a substitute teacher and often required another teacher to cover the Respondent's classes as well as his/her own class. In addition, teachers are required to have emergency lesson plans on file for use by substitute teachers when the primary teacher is absent. The Respondent did not have any emergency lesson plans on file. Respondent had been absent from her teaching assignment twenty-seven (27) days since the beginning of the 1982-83 school year. During the January 26, 1983 conference, Respondent informed the principal that she was taking medication (lithium) because of a manic-depressive disorder and that her most recent string of absences were due to a failure to take a proper dosage of the medication. The principal reminded Respondent of her responsibility to properly notify the school when she was going to be absent or tardy and referred her to the Employee Assistance Program. 1983-84 SCHOOL YEAR During October 1983, the Respondent was warned by the assistant principal on several occasions about her failure to properly inform the school regarding her absences. She was referred to the Faculty Handbook to review teacher's absences. Further, she was asked to prepare at least one week of emergency lesson plans to be used in her absence. Respondent did not prepare the emergency lesson plans as required. A classroom observation of Respondent conducted on November 22, 1983 by the assistant principal resulted in an overall "unacceptable" rating. In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning because she did not have adequate lesson plans for the subjects being taught. The lesson plans were not suitable for Respondent's mixed-level class because there was no distinction between student activities. Respondent was rated "unacceptable" in Category IV - Techniques of Instruction because there was no distinction in instruction provided to the different levels and groups of students. Respondent was rated "unacceptable" in Category V - Assessment Techniques because she did not follow school policy concerning grades which required at least one grade per week. There were only two or three grades on the roll book per student (this was the ninth week of school) and there was no rationale for the grades. Respondent did not maintain any records of student achievement other than what was on the roll book. Respondent was found "unacceptable" in Category VII - Professional Responsibility and Category VIII - Supportive Characteristics because of her excessive absences and her failure to follow proper procedure in reporting absences. The Respondent's excessive absences led to problems with continuity in student instruction as well as parental and student complaints. As a result of the observation on November 22, 1983, Respondent was given a prescription of planned activity which was designed to help her improve in these areas that had been rated unacceptable. On December 2, 1983, the Respondent was again warned by the assistant principal about reporting absences in a timely fashion. As was the case in most instances, the Respondent was absent and had failed to notify the school in a timely manner. A classroom observation of Respondent conducted on January 19, 1984 by the assistant principal resulted in an overall rating of "unacceptable". In particular, Respondent was rated "unacceptable" in Category I - Preparation and Planning; Category V - Assessment Techniques; Category VII - Professional Responsibility; and Category VII - Supportive Characteristics. For the 1983-84 school year, the principal rated Respondent as acceptable and recommended her for employment primarily because he had noted a sharp turnaround in Respondent's performance in the second half of the school year, starting in February, 1984. The principal knew that Respondent had been hospitalized in December 1983, and believed that as long as she was receiving medical attention and taking medication, she would be capable of performing in the classroom. 1984-85 SCHOOL YEAR At the conclusion of the 1984-85 school year, the principal rated the Respondent acceptable in all categories and recommended her for employment. 1985-86 SCHOOL YEAR On October 4, 1985, the principal held a conference for the record with Respondent to discuss her continued excessive absenteeism, failure to timely notify the school regarding her absences and numerous parent and student complaints regarding the instruction in Respondent's classroom. On October 4, 1985, the school year had been in session for students for twenty-two (22) days. The Respondent had been absent 10 days and had only completed one full week of school without an absence. At a conference on October 4, 1985 with the principal, Respondent indicated that she was under medication and that the problems she was experiencing would be corrected. On October 17, 1985, the assistant principal conducted an observation of Respondent's classroom. Respondent was rated overall as "acceptable", but was rated "unacceptable" in classroom management. Respondent was rated "unacceptable" in classroom management because of an apparent lack of control over the students in her classroom. When the assistant principal entered the classroom, the teacher was sitting at the desk and seemed to have little or no control over the students. Only four (4) or five (5) students were participating in the class discussion and the balance of the 25-30 students in the classroom were combing their hair, talking, eating or doing whatever they chose to do. When Respondent noted the presence of the assistant principal, she began to shout loudly at the class in an unsuccessful attempt to gain control. After the October 17 observation, the assistant principal gave Respondent a prescription for classroom management which required her to plan instructional activity to cover the entire hour of the class, establish a seating chart, separate talking students, plan activities with other Spanish teachers for instruction, work with the guidance counselor and make parental contacts with students who were disruptive in class. Respondent did not comply with or perform the planned activities set forth in the prescription. On November 6, 1985, the principal directed Respondent to provide a doctor's statement whenever she was absent because of illness. Respondent was absent after the directive and did not comply with it or provide an explanation for her absence. Between November, 1985 and early February, 1986, the Respondent took leave. She returned to work on February 14, 1986 and shortly thereafter continued her pattern of absences. In early March, 1986 the principal scheduled a conference for the record with Respondent for March 5, 1986 to discuss several student and parent complaints which the school had received. The Respondent was absent and did not attend the conference scheduled for March 5. Although the Respondent called the school to report an intended one day absence, the school did not hear anything from Respondent nor anything of her again until March 14, 1986. On March 14 a corrections officer contacted the school and stated that the Respondent was in the Women's Detention Center on a charge of battery and was being held pending a psychiatric examination at Jackson Memorial Hospital. Respondent was absent from her school assignment from March 5 until May 7, 1986. This absence negatively affected instructional continuity and the quality of education provided to the students in Respondent's classes. During the 1985-86 school year, Respondent was absent from her work assignment for at least eighty (80) days. At the conclusion of the 1985-86 school year, Respondent was evaluated by her principal as "unacceptable" and was not recommended for employment. Respondent was rated "unacceptable" in classroom management and professional responsibility. Throughout her period of employment, Respondent has undergone psychiatric medical treatment from at least five different physicians: Dr. Martinez, Dr. Garcia-Granda, Dr. Diaz, Dr. Metcalf and Dr. Vilasusa. Respondent has been diagnosed as a manic-depressive, characterized by periods of deep depression and/or extreme elation. It was uncontroverted that Respondent has an excellent command of her academic specialities--Spanish and French.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be issued sustaining Respondent's suspension and dismissing Respondent from employment with the School Board of Dade County, Florida. DONE and ORDERED this 22nd day of June, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2274 The following constitutes my specific rulings pursuant to Section 120.59 (2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner. 1. Adopted in Finding of Fact 2. 2. Adopted in Finding of Fact 3. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 6. 6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 11 8. Adopted in Finding of Fact 11. 9. Adopted in Finding of Fact 12. 10. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 15. 17. Adopted in Finding of Fact 16. 18. Adopted in Finding of Fact 17. 19. Adopted in Finding of Fact 18. 20. Adopted in Finding of Fact 19. 21. Adopted in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in Finding of Fact 22. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Adopted in Finding of Fact 25. Rejected as a recitation of testimony. Adopted in Finding of Fact 26. Adopted in Finding of Fact 27. Adopted in Finding of Fact 28. Adopted in Finding of Fact 29. Adopted in Finding of Fact 30. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 33. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/orsubordinate. Rejected as a recitation of testimony and/orsubordinate. COPIES FURNISHED: Johnny Brown, Esquire Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 William DuFresne, Esquire 2929 S.W. Third Avenue Suite One Miami, Florida 33129 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 N.E. Second Avenue Miami, Florida 33132
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner Marion L. Hurst, a black male, has been employed with the Martin County school system since 1969. He presently holds an M.S. degree in Educational Administration and a Rank II certification in administration. Petitioner lacks two hours of graduate courses to add the subject of supervision to his certification. For the past nine years, in addition to teaching social studies classes, petitioner has held the position of team leader at Stuart Middle School, being responsible for the seventh grade reading, language arts and social studies programs. This involves approximately 350 students, six teachers and one or more teacher aides. The duties of a team leader include the scheduling and "levelling" of students, scheduling special assignments to teachers within the team, coordinating information and activities from the administration to the teachers, and weekly meetings with the school administrators. The petitioner adduced evidence that his teacher evaluations during his tenure at Stuart Middle School had been good to excellent overall. In contrast, the respondent presented evidence from several of his coworkers that petitioner occasionally has communication problems with the members of his team, receives complaints from the parents of his students regarding excess paperwork by the students as opposed to teaching by petitioner, and grammatical and spelling errors on petitioner's blackboard. While it is the team leader's responsibility to schedule students, petitioner has for the past several years utilized the reading teacher, Ms. Askeland, to perform that task. The petitioner has applied for many administrative positions in the school system. In April of 1977, petitioner, along with several other persons, applied for the position of assistant principal of Martin County High School -- the only high school in the county. The job description for that position required a Rank II certification with coverage in administration, supervision or curriculum. Petitioner did hold a Rank II certification in administration at the time of his application for the position. Another applicant, Wanda Yarboro, did not hold a Rank II certification with coverage in the required fields in April, 1977. Respondent Navitsky, Superintendent of the Martin County school system, recommended to the School Board that Ms. Yarboro receive the appointment as assistant principal of Martin County High School. Either because of a lack of funding due to the reorganization of the administration at Martin County High, or because Ms. Yarboro did not hold the certification required in the job description, the School Board originally failed to approve her appointment. During the summer months of 1977, a change was being effected in the School Board policy. The change allowed instructional administrators to acquire within twelve months of assignment a certificate covering the areas in which they are placed. Ms. Yarboro's appointment as assistant principal was approved by the School Board in August of 1977, and she received her certification in administration and supervision on September 28, 1977. Conflicting evidence was adduced at the hearing on the issue of whether Dr. Clifford Rollins, a person holding a higher ranked certificate and greater administrative experience than either Ms. Yarboro or petitioner, was also a candidate for the assistant principalship of Martin County High School in April of 1977. While his name appears on several lists of candidates for this position, the greater weight of the evidence leads to the finding that Dr. Rollins was not a candidate for that position. Superintendent Navitsky, though aware of Dr. Rollins desire to return to Martin County, did not consider him a candidate. Dr. Rollins testified that he was not a candidate for the position of assistant principal of the high school. While he did express an interest in returning to the community, he did not apply for this position because he was a former principal of that school and also because he was aware that other teachers and the department chairmen wanted Ms. Yarboro, who had been at the school for some time, to be promoted to the assistant principalship. Dr. Rollins had instructed the school personnel office to keep his application file active and this fact was offered in explanation of why his name appears on the list of candidates for the position. Ms. Yarboro had formerly occupied the position of department head of social studies at Martin County High School, which position became vacant upon her promotion to assistant principal. Although the school principal had recommended that Ann Crook be promoted to department head, Superintendent Navitsky called petitioner Hurst and offered him the position. This position involved responsibility for 33 teachers. Dr. David Anderson, a member of the Martin County School Board, received numerous telephone calls from other teachers at the high school in opposition to petitioner's appointment as department head of social studies. Dr. Anderson became concerned that petitioner was being "set up" in a hostile environment which would eventually lead to poor evaluations of petitioner and dismissal from his administrative position. Anderson believed that such an appointment may not be a good way for petitioner to begin his administrative career. Thereupon, Dr. Anderson arranged a meeting with Superintendent Navitsky, petitioner, himself and several other administrators. Dr. Anderson expressed his concerns at this meeting. Mr. Navitsky offered petitioner his support if he accepted the position. After discussing the matter, petitioner decided to withdraw his name as a candidate for the department head position. Superintendent Navitsky assured petitioner that declining the position would not adversely affect his candidacy for other positions. Petitioner believed that Navitsky was making him a promise that he would be appointed to the next administrative position. Gilbert Miller, the deputy superintendent for noninstructional services, was present at the meeting and recalled that Navitsky made no promise that petitioner would receive a specific appointment at a specific time in the future, but only an indefinite promise of a future administrative position. The next administrative position applied for by petitioner occurred in July of 1978. The former principal of Indiantown Middle School, located some twenty miles west of Stuart, resigned on short notice. Seven or eight persons applied for the position. Superintendent Navitsky interviewed all the candidates, including petitioner and Dr. Clifford Rollins. As noted above, Dr. Rollins had previously been the principal at Martin County High School. He had also been a principal at another Indiantown school and had most recently been a director of teacher education and the acting chairman of the department of education at a college in West Virginia. Dr. Rollins was recommended to the School Board by Superintendent Navitsky to fill the Indiantown Middle School principalship because of his past administrative experience and his previous service with and knowledge of the school district and the Indiantown area. The School Board approved the recommendation of Dr. Rollins. All witnesses, including petitioner Hurst, agreed that Dr. Rollins had better credentials than petitioner for this position. In August of 1978, the administrative position of curriculum coordinator at Murray Middle School became available. Seven or eight persons applied for the position, including the petitioner. The duties of a curriculum coordinator at a middle school include working with teachers to help develop curriculum and choose teaching material, evaluating testing and teaching techniques, assisting and scheduling students, evaluating teachers and a general knowledge of curriculum content at all levels. The principal at Murray Middle School, Edward Sheridan, personally interviewed all candidates for the position and developed a factoring or rating sheet for each candidate. He also discussed the candidates with his assistant principal, Quilley McHardy. The candidate receiving the highest rating was Joan Gallagher and Mr. Sheridan therefore recommended her for the position. Assistant Principal McHardy, a black, concurred in the recommendation. Superintendent Navitsky recommended her to the School Board because of Mr. Sheridan's recommendation and Ms. Gallagher was appointed as the curriculum coordinator at Murray Middle School. Joan Gallagher has been in the field of education for seventeen years. Until 1974, she taught at the elementary school level. Since 1974, she had been a sixth grade teacher at Murray Middle School and was the sixth grade team leader for a few months immediately prior to her appointment as curriculum coordinator. Two witnesses who were employed at Stuart Middle School had worked with both Ms. Gallagher and petitioner Hurst. The curriculum coordinator at Stuart testified that Ms. Gallagher was superior to petitioner Hurst in scheduling techniques. Ms. Askeland, the seventh grade reading and language arts teacher at Stuart who helped petitioner with scheduling at Stuart, testified that Ms. Gallagher had a better knowledge and understanding of curriculum concepts than petitioner. In the summer or fall of 1978, several members of the Young Men's Progressive Association, a civic organization of black businessmen and professionals, met with Superintendent Navitsky regarding the lack of black teachers in high school academics and in administration. According to two witnesses who attended the meeting, Mr. Navitsky acknowledged this problem, was sympathetic to their concerns, and agreed to do what he could to remedy this situation. While these witnesses felt there had been systematic discrimination in the school system, it was acknowledged that progress had been made in the promotion and recruitment of black teachers in Martin County due to the positive efforts of Superintendent Navitsky. Joint Exhibits 1A through 1D illustrate that during the period between 1974 and 1979, black persons received the appointment to an administrative position in those instances where they were candidates sixty percent of the time. In those instances where the only candidate was black, he or she received the appointment. Also, the percentage of black administrators to the total population of administrators in the Martin County school system increased from 13.6 percent in the 1974-75 school year to 19.2 percent in the 1979-80 school year. As of the date of the hearing in this cause, one-half of the ten available administrative positions in the 1979-80 school year were filled or offered to black candidates. In two of the instances where whites were appointed, there were no black candidates for the position.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the Commission on Human Relations enter a final order finding that the respondents did not engage in unlawful employment practices in appointing Dr. Rollins to the position of principal of Indiantown Middle School or in appointing Ms. Gallagher to the position of curriculum coordinator of Murray Middle School; dismissing petitioner's petition for relief in this cause; and denying petitioner's motion for attorney's fees. Respectfully submitted and entered this 25th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Paul A. Gamba, Esquire Post Office Drawer 1016 1451 East Ocean Boulevard Stuart, Florida 33494 Douglas K. Sands, Esquire 300 Colorado Avenue Post Office Box 287 Stuart, Florida 33494 Marva A. Davis, Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center, Cricle E Tallahassee, Florida 32301 Norman A. Jackson, Executive Director Florida Commission on Human Relations 2562 Executive Center, Circle E Tallahassee, Florida 32301
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
The Issue Whether Respondent's teacher's certificate should be revoked or otherwise disciplined.
Findings Of Fact Respondent held Florida Educator's Certificate No. 609670, covering the areas of Physical Education, General Science, and Education Leadership. The certificate expired on June 30, 2000. However, Respondent has the option to ministerially renew his certificate. In 1989, Respondent was a teacher at Pensacola High School. During the summer of 1989, Dona Snyder, then 18 years old, was a student at Pensacola High School. Respondent would often speak with Dona at school and telephone her at home to ask her to go out with him. She turned him down. However, the day before summer school ended Dona and Respondent engaged in romantic hugging and kissing. The last day of school they went to eat at a local restaurant. Later in the year, after Ms. Snyder had graduated, Dona and Respondent engaged in sexual intercourse, which resulted in the birth of a child. From 1994-1998, Respondent was employed as a Physical Education teacher at Pine Forest High School, in Escambia County. In 1994, M.M., aged 14, was a ninth-grade student at Pine Forest High School. She met Respondent during that year. When M.M. was in the tenth grade, Respondent chaperoned M.M's. ROTC class to Seattle, Washington. M.M. and Respondent became more familiar with each other during the trip. They became very comfortable with each other and Respondent began making comments of a sexual nature about M.M's. appearance. M.M. developed a crush on Respondent. When Respondent and M.M. returned from the Seattle trip, they visited each other at various locations at Pine Forest High School. In April 1996, towards the end of M.M.'s tenth grade year, Respondent told M.M. that he would like to see her away from school. Respondent made it clear that he was interested in a sexual relationship with M.M. M.M. was around 16 years old at the time. Respondent encouraged M.M. to either lie to her mother or sneak out of her home at night in order to meet him. At first, M.M. refused Respondent's suggestions. She did not think sneaking out was right. Later in 1996, Respondent and M.M. saw each other at a football jamboree. Respondent gave M.M. his telephone number. M.M. later telephoned Respondent and they decided to meet at the University Mall. It was agreed that M.M. would concoct a pretextual reason to go to the mall which she would tell her mother. After they met at the mall, Respondent took M.M. to his home. They went to his bedroom and had sex. After this first sexual encounter, Respondent and M.M. started meeting each other and having sex almost every weekend for more than a year. M.M., with Respondent's encouragement and complicity, would sneak out of her mother's home from her bedroom window at approximately 2:00 a.m. Respondent would pick her up several blocks away from her house. They would go to Respondent's house and have sex. Afterwards, Respondent would take M.M. back to the place where he picked her up. M.M. would then walk back to her house and enter through her bedroom window. Clearly, Respondent placed M.M. in a dangerous situation by encouraging and facilitating these late-night excursions. Respondent and M.M. had sex in various places, such as Respondent's home, Respondent's car, Belleview ball park, the school baseball field, and the baseball locker room. On one occasion, Respondent took M.M. and another female high school student to a local hotel for group sex. Respondent provided alcohol to the girls. He directed the girls to have sex with each other. While the girls had sex with each other, Respondent watched. Respondent had sex with the other student and then had sex with M.M. During their relationship, Respondent told M.M. not to tell anyone about their affair because he could lose his job and go to prison. Respondent also talked M.M. into foregoing her desire to pursue college and ROTC. Through this relationship, he directly contributed to M.M.'s grades deteriorating and a loss of self-esteem. The good relationship she had with her mother deteriorated. M.M. was known as Coach Bragg's girlfriend. He encouraged her to lie to her mother. None of these behaviors should be encouraged or promoted by a teacher. The relationship between Respondent and M.M. came to light when M.M's. mother woke one night and discovered her daughter missing. She confronted M.M. when M.M. was attempting to get back into her bedroom through the window. M.M's. mother telephoned the police. Later, Respondent lost his effectiveness as a teacher when he was removed from his teaching position. Respondent was arrested and charged with unlawful sexual activity with a minor. On or about July 7, 1998, the case against Respondent was nolle prosequi by the court because Respondent had instructed M.M. to lie about their relationship. During the time of the prosecution, Respondent also caused M.M. to ignore her subpoena to testify at Respondent's trial and go into hiding until the prosecution was dismissed. However, a bench warrant was issued for M.M. Once it became clear that the prosecution would be pursued, M.M. returned to Escambia County and was arrested and jailed on a bench warrant which had been issued for her failure to appear at trial. Respondent concocted a story for M.M. to tell to the prosecution. He talked her into marrying a best friend of Respondent's so that she could say she was seeing this friend instead of seeing Respondent. Respondent's lack of moral character is apparent. As a teacher, Respondent held a position of trust towards M.M. and Dona Snyder. Clearly by engaging in a sexual relationship with them he breached that trust and violated both the Florida Statutes and Florida Administrative Code. Respondent has repeated this predatory behavior over the course of his teaching career and cannot be trusted to protect female students from his amorous intentions. Clearly, Respondent does not have the moral character to be a teacher and should not be permitted to hold or renew his teaching certificate.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 609670. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 15th day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire 528 East Park Avenue Tallahassee, Florida 32301 Michael D. Tidwell, Esquire 811 North Spring Street Pensacola, Florida 32501 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Education Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The basic issue in this case is whether the Respondent, Theresa Callahan, should be dismissed as a member of the instructional staff of the Palm Beach County School Board. Respondent's dismissal has been recommended by the Petitioner, Thomas J. Mills, Superintendent of Schools, on the basis of allegations set forth in an Amended Petition For Dismissal in which it is alleged that the Respondent was incompetent and guilty of misconduct in office, willful neglect of duty, and gross insubordination, and subject to dismissal pursuant to Section 231.36, Florida Statutes. Petitioner based these charges on allegations of the Respondent's repeated failure to perform duties prescribed by law as requested by her supervisor(s), her repeated failure to communicate and relate to her students in the classroom to such an extent that they were deprived of a minimal educational experience, her continued verbal abuse of her co-workers, her continued denial of basic rights to her ESOL students and her discriminatory application of discipline to Haitian students. Numerous sub- issues are set forth at pages 15 through 18 of the Parties' Joint Pre-hearing Stipulation.
Findings Of Fact Based on the parties' stipulations and on the credible evidence received at the hearing, the following facts are found: Stipulated facts The Respondent has been employed as a classroom teacher with the Palm Beach County School Board since August 21, 1967. Respondent received her continuing contract of employment in November 1971. The Respondent was initially employed by the District as a Television Studio Teacher from August 1967 until June 1, 1970. In October 1970, the Respondent served in the capacity of an Elementary Education Teacher with the District. She held that position until June 1973. From August 1973 through November 1976, the Respondent worked as a Resource Teacher within the School Board's Bilingual Project. In August 1976, she was assigned to Pine Grove Elementary School where she worked as a bilingual teacher until November 1978. Effective December 1, 1978, through the present, the Respondent worked as a Bilingual Education Teacher at Atlantic High School and Boca Raton High School. Respondent is currently assigned and is fully certified to teach ESOL (Bilingual Education) to students in grades seven through twelve at Atlantic High School and Boca Raton High School. Respondent's present principals, Ms. Carole J. Shetler, Atlantic High School, and Dr. Norman Shearin, Boca Raton High School, are both charged with assessing the performance of duties and responsibilities of all employees at their schools, including the Respondent. Respondent acknowledges the receipt in January 1986 from the principal of Atlantic High School of a mid-year evaluation of her performance as a classroom teacher identifying that she needed to improve her performance in the following areas: Planning for Instruction; Communication, Verbal and Non-Verbal; Effective Working Relationship with Associates; Accepts Constructive Suggestions; and Submits Reports on Time. However, Respondent disagreed with the content of that evaluation. Respondent also received a mid-year evaluation from the principal at Boca Raton High School in which she was rated "Very Good" in five areas, "Satisfactory" in eleven areas and "Improvement Needed" in only one area which pertained solely to submitting timely reports. In the Respondent's annual evaluation for the 1985-1986 school year, the principal at Atlantic High School noted that she needed to improve her performance in the areas of: Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; and Effective Working Relationship with Associates. The areas titled "Planning for Instruction" and "Accepts Constructive Suggestions" had gone from improvement needed in the 1986 mid-year evaluation to unsatisfactory in the 1986 annual evaluation. Respondent acknowledged agreement with the content of that evaluation. In February 1987, the Respondent received another mid-year evaluation from the principal of Atlantic High School. The areas noted for improvement needed were: Planning for Instruction; Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Climate; Effective Working Relationship with Asso-ciates; and Organizes for Efficient Use of Resources. The area titled "Accepts Constructive Suggestions" was still noted as unsatisfactory. However, Respondent disagreed with the content of that evaluation which she so noted thereon. She also forwarded the District and the Atlantic High School Principal her letter dated March 12, 1987, stating her disagreement with the mid-year evaluation. In the recommendation section of the 1987 mid-year evaluation, the principal of Atlantic High School gave the Respondent four directives: Comply with request to take Assertive Discipline Training; Develop an Assertive Discipline Plan; Work in a positive and professional way with associates; and Complete appropriate lesson plans and utilize time for instruction. In May of 1987, the principal of Boca Raton High School, the Respondent's other work site, completed an annual evaluation of the Respondent's performance. The areas noted as improvement needed were: Planning for Instruction; and Organizes for Efficient use of Resources. The area titled "Submits Reports on time" was noted as unsatisfactory. The two areas noted as problem areas (Planning for Instruction and Organizes for Efficient use of Resources) were also addressed in the Respondent's 1987 mid- year evaluation by the principal of Atlantic High School. However, also noted in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was also rated as "Outstanding" in two areas, "Very Good" in four areas and "Satisfactory" in eight areas. The Respondent's annual evaluation from the principal of Atlantic High School reflects that the Respondent failed to improve the deficiencies noted in her 1987 mid-year evaluation. The Respondent still had seven areas which were classified as improvement needed. Those areas were: Management of Student Conduct; Instructional Organization and Development; Communication, Verbal and Non-Verbal; Climate; Effective Working Relationship with Asso-ciates; Accepts Constructive Suggestions; and Organizes for Efficient Use of Resources. However, as reflected in the May 1987 annual evaluation from the principal at Boca Raton High School, the Respondent was rated as "Outstanding" in two areas (Adheres to Defined Duty Days and Is Punctual) and "Very Good" in four areas (Management of Student Conduct, Communication, Verbal and Non-Verbal, Effective Working Relationship With Parents, and, Accepts Constructive Suggestions). The Respondent received an overall "Satisfactory" annual evaluation in May 1988 from the principal/assistant principal at Atlantic High School, although she did receive three areas of concern titled: Management of Student Conduct; Instructional Organization and Development; and Establishes an Appropriate Classroom Climate. In May 1988, Respondent also received her annual evaluation from the principal/assistant principal at Boca Raton High School. Every area was marked as "Acceptable" (satisfactory) and Respondent was given two commendations ("Accepting atmosphere - students from many cultures appear relatively comfortable" and "Practical application of English to the business world and their world"). In the Respondent's January 1989 mid-year evaluation by the principal/assistant principal at both Atlantic High School and Boca Raton High School, five areas of concern were reflected. They were: Management of Student Conduct; Instructional Organization and Develop-ment; Establishes an Appropriate Classroom Climate; Demonstrates Self Control; and Demonstrates Effective Working Relationship with Co-Workers. At or about that same time, the principal of Atlantic High School also tendered Respondent with a deficiency notice dated January 24, 1989, stating that Respondent failed to use her assertive discipline plan, delayed her lesson a significant part of the class period, failed to use appropriate language when she communicated with her students and her Aide, and refused to help a student who said they did not understand. About that same time, Respondent was also placed on a Professional Development Plan ("PDP") by both school administrations with respect to each identified area of concern, instructed to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. Respondent disagreed with the content of the Boca Raton High School evaluations/PDP but nonetheless did comply with and satisfactorily complete the specified instructional strategies set forth therein timely within the 30-day timeline schedule. The Respondent remained on both mid-year PDP's until the end of the school year. In June 1989 the principal at Atlantic High School tendered Respondent her annual evaluation also identifying the previous five areas of concern. In May 1989 the principal at Boca Raton High School tendered Respondent her annual evaluation identifying the previous five areas of concern as well as an additional one titled "Adheres to and Enforces School Policies." About the same time as tender of the respective annual evaluations, both principals again issued Respondent another PDP, each enumerating the respective annual evaluation areas of concern cited therein. Both PDP's again instructed Respondent to comply with certain informational/instructional strategies, and to demonstrate improvement in such areas within 30 days of commencement of the PDP. By letter dated June 8, 1989, to the District, with copies to the principal and assistant principal (her evaluator) at Boca Raton High School, Respondent stated her disagreement with the annual evaluation, acknowledged the earlier problem with the former aide, objected to the alleged deficiency in the annual evaluation on that issue since it was already identified on the mid-year evaluation, and agreed to work to improve on the areas noted in the annual PDP to demonstrate satisfactory performance. About September 1989, the Respondent attended District Level Remediation pursuant to the PDP's as directed by both schools. The workshops were scheduled for September 12, 1989, on Instructional Organization and Development and Communication Verbal and Non-Verbal; and September 13, 1989, on Management of Student Conduct and Classroom Climate. By letter dated December 6, 1989, the principal of Boca Raton High School informed the Respondent that her "performance in the classroom remains unsatisfactory" and stated the reason for the principal's decision and attached the evaluation instruments. In January 1990, the principal of Atlantic High School reviewed the Respondent's performance based on the results of her observations, the observations of Respondent in the classroom by the assistant principals, and the ESOL program coordinating teacher. The principal advised the Respondent that the five concern areas cited in her January and June 1989 evaluations were still areas of concern. The principal also informed the Respondent that two additional areas had been identified. The seven areas noted as concern on the 1990 mid-year evaluation and in the deficiency notice were: Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Cli-mate; Demonstrates Ability to Plan Effectively; Demonstrates Self Control; Demonstrates Effective Relationship with CoWorkers; and Adheres to and Enforces School Policies. Thereafter, in March 1990 Respondent was suspended and has remained suspended without pay since about mid-March 1990. The original petition and the instant Petition were later filed seeking Respondent's removal from/termination of her continuing contract teaching position with the District. During all times material, Respondent was the only teacher teaching English for Speakers of Other Languages (ESOL) at Atlantic and Boca. Facts established at the hearing The Respondent's ESOL Educational/Teaching Background Before she began teaching ESOL at Atlantic High School and Boca Raton High School about the 1978-79 school year, Respondent worked in the District's bilingual program where she wrote the grant for funding the bilingual program and trained teacher aides for that program. Respondent holds a Florida teaching certificate in ESOL, and is also certified through about 1996 in supervision, Spanish, and bilingual education. She has a Bachelor of Arts in Humanities, with a major in Spanish, a Master of Arts in Education, both from FAU, two and one-half years completed toward a 3- year Doctorate at Nova University in the field of administration and supervision, and various extension courses. She has been active in various bilingual and/or ESOL education organizations and activities (including Gulf TESOL and the ESOL Leadership Conferences) which include supervisors, coordinators, and other teachers, and her activities included providing advisory input concerning developments in bilingual/ESOL education to school districts, the Department of Education, and various universities which educate/train other such persons. At all times material, Respondent's classes were comprised of limited English proficient (LEP) students who had various English speaking, reading, and writing skill levels, which required Respondent to provide individualized and/or small group instruction and rotate between such persons and/or groups. Such "multi-level" instruction is the biggest challenge to ESOL educators. The Administrators who supervised, evaluated, or observed Respondent The ESOL Program for which Respondent was responsible was part of the English Department. The Chairperson of the English Department was Warren O'Toole. Although department chairpersons may be involved in some situations involving teachers, they are not involved with evaluation problems. Department chairpersons are not an official part of the administration, since they are members of the same bargaining unit as teachers. Department chairpersons lack the authority to conduct formal evaluations of teachers, or to recommend the termination of a teacher. Carole J. Shetler, the current principal at Atlantic High School, has been employed by the Palm Beach County School Board for sixteen years. She has served in the capacity of a classroom teacher, an assistant principal, an administrative assistant, and for the past six years as the principal of Atlantic High School. Ms. Shetler holds certificates from the State of Florida in the areas of English and Administration and Supervision. Ms. Shetler's duties require her to hire and evaluate personnel, manage the budget of the school, supervise student discipline and to supervise the instructional program at Atlantic High School. Since Ms. Shetler first became aware of the Respondent's teaching, in 1984, five administrators at Atlantic High School, including herself, have participated extensively in the Respondent's evaluation process. They were Ms. Shetler, Mr. Perlman, Mr. Williams, Ms. Dawson, and Ms. Thurber. Ms. Shetler observed the Respondent directly in the classroom and she also reviewed observations conducted by her assistant principals and district personnel who were called in to observe the Respondent. Dr. Clara DeFrank was the principal of Boca Raton High School from the 1986-87 school year through the end of the 1988-89 school year. Prior to the 1986-87 school year she worked as a principal at Boca Raton Middle School, an assistant principal, the director of guidance, and as a counselor. Dr. DeFrank was employed by the Palm Beach County School Board for 27 years. Dr. DeFrank has doctorate degrees in Education and Administration and Supervision. She also has a Masters Degree in Guidance Counseling and a Bachelor's Degree in Journalism. Dr. DeFrank is certified by the State of Florida in the areas of: (1) Administration & Supervision; (2) English; (3) Journalism; (4) Speech; (5) Social Studies; and (6) Guidance and Counseling. When Dr. DeFrank was assigned as the Principal of Boca Raton High School her duties required her to supervise the entire staff. Her supervisory responsibilities included the hiring of staff, the giving of assistance and recommending termination of staff when necessary. Dr. DeFrank has known the Respondent since the early 1970's. Dr. DeFrank and the Respondent have been able to communicate on an informal basis. For all three years that Dr. DeFrank was assigned to Boca Raton High School, Dr. Robert Murley, an assistant principal, evaluated the Respondent. Dr. Murley has a B.A. Degree in English, a Masters of Education Degree in Personnel and Organizational Behavior, and a Doctorate in Administration of Higher Education and Organizational Behavior. Dr. Murley is certified by the State of Florida in English, as an Assistant Principal, and as a Supervisor. Dr. Murley monitors and assists all of the beginning teachers at Boca Raton High School. Dr. Norman Shearin, the current Principal at Boca Raton High School, has been employed by the Palm Beach County School Board for 24 years. He has served in the capacity of a classroom teacher, department chairman, activities director, athletic coach, dean, assistant principal, and for approximately ten years as a principal. Dr. Shearin has been assigned as Boca Raton High School's Principal since July 1, 1989. Dr. Shearin has a Bachelor Degree in Mathematics and Social Studies, a Masters Degree in Educational Administration and Supervision and a Doctorate Degree in Educational Leadership and Behavioral Research. Dr. Shearin currently holds a Graduate Certificate from the State of Florida which certifies him in Educational Leadership, Mathematics and several other subjects. In addition to Dr. Shearin's employment with the Palm Beach County School Board, he has also served as an Adjunct Professor for Florida Atlantic University and Nova University. Dr. Shearin presently serves as the Senior Faculty Member for the Educational Staff at Nova University. Respondent's evaluator at Atlantic High School for the 1987-88 school year was James O. Williams. He currently holds a teaching certificate and a certificate in Administration and Supervision. Mr. Williams has been employed by the Palm Beach County School System for 25 years. Respondent's evaluator for the 1988-89 school year at Atlantic High School was Ms. Betty Dawson. Ms. Dawson has served in the position of assistant principal for seven years. Ms. Dawson is certified by the State of Florida in the areas of English and Administration and Supervision. Respondent's evaluator for the 1989-90 school year at Atlantic High School was Ms. Jean Thurber. Ms. Thurber has been employed as a teacher and as an assistant principal during her fifteen years of employment with the School Board. Ms. Thurber has a Bachelor's Degree in Art Education and English, and a Master's Degree in Administration and Supervision. Ms. Thurber is certified as an administrator. Ms. Diane Larange observed the Respondent on September 11, 1989. Ms. Larange has served as the ESOL Program Coordinating Teacher for nine of the twenty years she has worked for the School Board. Ms. Larange is an expert in bilingual education. She has a Master's Degree in Bilingual Education and a Bachelor's Degree in French with a Minor in Spanish and Foreign Language Education. Periodic Observations/Evaluations/PDP's 1/ Teachers are notified in the pre-school week of the evaluation forms which will be used and the basis upon which the teacher will be evaluated. Boca Raton High School also utilizes a mid-year evaluation, in addition to the final evaluation, to assist teachers by pointing out deficiencies prior to the end of the school year. Teachers are notified of the approximate date when the formal observation will take place. The periodic evaluations issued before the 1987-88 school year at Atlantic High School and Boca Raton High School did not reflect an overall satisfactory or unsatisfactory rating but did provide for the teacher to state agreement or disagreement with the content. The mid-year evaluation and the annual evaluation of Respondent's performance at Atlantic High School during the 1985-86 school year reflected the school administrators' concern about their perception of Respondent's interaction with Lloyd Taylor, her ESOL Aide. Respondent was given a letter of expectation by Ms. Shetler, dated October 7, 1986. The purpose of the letter was to set expectations for the new school year so that the problems noted in the prior school year could be avoided. Ms. Shetler was willing to assist Respondent with her noted problems. On February 17, 1987, Ms. Shetler had a conference with Respondent to review progress since the October 7, 1986, Letter of Expectation. During this conference, Respondent interrupted Ms. Shetler and stated that she wished Ms. Shetler "would stop talking about it because it was going in one ear and out the other." Ms. Shetler confirmed the discussion in a letter dated February 24, 1987. During the conference of February 17, 1987, and after the conclusion of the conference, Ms. Shetler felt that Respondent's performance, from the start of the year through their conference, had not improved. Ms. Shetler also believed that the Respondent was unwilling to cooperate with attempts to remediate her performance and behavior. When Ms. Shetler gave the Respondent the evaluation for the 1986-87 school year, she had another conference with the Respondent to discuss the areas that were noted as improvement needed. The specific problems discussed were: (1) The Respondent's waste of classroom time; (2) Respondent's negative classroom climate; (3) Respondent's failure to use the positive aspects of the assertive discipline training which she had been given; (4) Respondent's working relationship with professional staff and (5) Preparing lesson plans. After the evaluation format change in the 1987-88 school year, Respondent's May 1988 annual evaluation by assistant principal James Williams and principal Carole Shetler was overall "satisfactory" (like her May 1988 Boca evaluation), and Respondent received a commendation expressing her willinginess to accept suggestions and grow professionally. It has not been alleged and there is no record evidence that Respondent's performance at Boca before the 1988-89 school year was deemed anything but satisfactory. In the 1987-88 school year, Respondent was evaluated at Boca Raton High School by assistant principal Robert Murley and principal Clara DeFrank when she was rated fully "satisfactory" and awarded two commendations. Respondent's 1988-89 evaluator was assistant principal Betty Dawson who prepared the overall unsatisfactory January 1989 and June 1989 evaluations along with principal Carole Shetler. On October 10, 1988, Ms. Dawson had one of her many conferences with Respondent. Present during the conference were Ms. Shelter, the Respondent, and Ms. Kennedy, the Respondent's Classroom Teachers Association Representative. During the conference, Respondent agreed to use a letter grading system, to make her daily objectives for the students clearer, and to note the objectives on the board. While the meeting was being conducted, the Respondent spoke to her evaluator, Mrs. Dawson, in a manner which indicated that she was upset. On January 11, 1989, Atlantic High School completed a mid-year evaluation of Respondent's performance. The Respondent received five (5) areas of concern on this mid-year evaluation. Attached to Respondent's mid-year evaluation were: (1) October 21, 1988, observation notes, (2) Respondent's November 28, 1988, summative observation instrument, and (3) Summary of the conference which Ms. Dawson had with Respondent on December 1, 1988, which directed Respondent to "work on beginning class on time and handling material." With respect to her January 1989 mid-year evaluation at Atlantic High School, Respondent expressly noted thereon that it was a review of previously discussed ideas and that she disagreed with some of it. She was then placed on her first PDP with a 30-day timeline to complete the remediation prescribed. The numerical concerns on the mid-year evaluation correlate with the "criterion" numbers/areas of concern cited on the PDP. The Respondent's first PDP at Atlantic High School directed the Respondent to: (1) Read Domains 2, 3, and 5, in Domains of the Florida Performance Measurement System; (2) Visit with Ms. Tarkinson's and Ms. Fail's class; (3) "Demonstrate professionalism at all times;" and (4) "Make a sincere positive effort in working toward positive relations with co-workers." Assistant Principal Robert Murley and Principal Clara DeFrank at Boca Raton High School also evaluated Respondent in the 1988-89 school year when a mid-year evaluation was also conducted. Respondent was then cited with five areas of concern (identical to the 5 cited in her Atlantic mid-year evaluation). Like Atlantic's January 1989 mid-year evaluation, since Respondent also had five areas of concern cited at Boca Raton High School, she was placed on a 30-day PDP which she timely complied with and satisfied all of the remediation strategies. Attached to the Respondent's mid-year evaluation at Boca Raton High School in January of 1989 were (1) Summative observations for October 26, 1988, and January 18, 1989; (2) A Deficiency notice dated January 23, 1989; and (3) The Respondent's Professional Development Plan. The concerns expressed in the January 1989 mid-year evaluation at Boca Raton High School were based on the administrators' belief that: (1) The Respondent behaved unprofessionally with her students; (2) The respondent behaved unprofessionally with Ms. DelBarco; The Respondent failed to start class on time; and (4) The Respondent behaved inappropriately during a parent conference. The Respondent's first PDP at Boca Raton High School directed the Respondent to: (1) Read Domains 2 and 3 in Domains of the Florida Performance Measurement System; (2) Complete "Classroom Management Professional Growth Component;" (3) Display a positive professional demeanor at all times; and Demonstrate professional relationship with noninstructional personnel. In a conference which was held on June 12, 1989, the Respondent received her annual evaluation from Atlantic High School. Attached to the Respondent's evaluation were: (1) A deficiency notice dated June 6, 1989; (2) A summary of conferences held with the Respondent from February 23, 1989, through May 11, 1989; (3) Several incident reports involving students; (4) Respondent's summative observations dated February 28, May 1, and June 5, 1989; and (5) The Respondent's up-dated Professional Development Plan which recommended "district level remediation in the Fall." The observation documents reported that during the observations the Respondent either started late or that she had "very little instruction going on." At the time of the conference, Ms. Dawson still had concerns about the Respondent's performance. Although Respondent had successfully complied with and otherwise completed the remediation set forth in her January 1989 (first Atlantic) PDP timely, within the prescribed thirty days, Respondent was nonetheless again cited in those same five areas on her June 1989 evaluation by Dawson and Shetler. The areas of concern/criteria (C-12, self control, and C-13, effective working relationships with coworkers) were cited on both the 1988-89 mid-year and annual evaluations and related PDP's solely because of the September 8, 1988, Delbarco incident even though no other comparable incidents had occurred with any aide, coworker, or administrator. With 5 areas of concern cited (rather than 4 or less), Respondent's annual evaluation was "unsatisfactory' and she was necessarily placed on her Atlantic PDP. Had the areas of "concern" C-12 and C-13 not again been cited on her evaluation, Respondent would not have been placed on her June 1989 second (1988- annual) PDP since she would have had an overall "satisfactory" evaluation. However, since she was again placed on a PDP, she was the subject of District remediation at the beginning of the 1989-90 school year, increased observations, and a mid-year evaluation. Later, in May 1989, Respondent was tendered her annual, and last Boca evaluation, which was also completed by Murley and DeFrank, again citing the same five concerns set forth in the mid-year evaluation, as well as another titled "Adheres to and Enforces School Policies." On September 11, 12, and 13, 1989, the Respondent received District level remediation at the request of both schools. The Respondent was referred for District level remediation because the Administrators at both schools felt like they had exhausted their resources with regard to the workshops, reading, and suggestions they could offer. On September 11, 1989, the Respondent was observed and counseled by Ms. Diane Larange, the ESOL Program Coordinating Teacher. At a later date, Ms. Larange sent Ms. Shetler and the Respondent a list of ESOL teachers she felt the Respondent should visit. Ms. Larange was of the opinion that the observation was overall satisfactory, although there were some minor things that could have been improved. Ms. Larange had previously observed the Respondent on several occasions in prior years and all of those observations were generally satisfactory. On September 12 and 13, 1989, the Respondent received assistance from Dr. Mary Gray, an expert in teacher education. The Respondent was assisted in the areas of: (1) Instructional organization and development; (2) Verbal and nonverbal communication; (3) Management of student conduct; and (4) Classroom climate. During the remediation sessions the Respondent was, in general, unenthusiastic. This was largely because the Respondent did not feel that the remediation offered was addressing any specific professional need relevant to her. The Respondent had requested assistance specifically addressed to the teaching of ESOL classes, which assistance was not provided. At no time prior to December 14, 1989, did Murley or any other Boca administrator or designee discuss with Respondent the results of any of the observations or summatives preceding that date in the 1989-90 school year, including her last (11-1-89) fully satisfactory observation/summative. Ultimately, about January 5, 1990, Respondent was tendered her mid- year evaluation and later a letter with attachments from Shetler dated January 8, 1990, referencing the evaluations and attachments, and advising that further assistance would not be recommended. Except as to her June 1986 annual evaluation, Respondent expressly disagreed with the material content of most of her periodic evaluations setting forth areas allegedly needing improvement, unsatisfactory areas, and/or areas, of concern, from January 1986 through January 1990. In each instance where Respondent disagreed with the material content of those evaluations before the evaluation format change in the 1987-88 school year, Respondent expressly noted her disagreement by marking the box stating "I disagree with the content of this evaluation," and on two such instances she forwarded letters expressing the substance of her disagreement. ESOL Experts and Unique Nature of ESOL Instruction ESOL is an educational program which uses the English language exclusively to teach English to speakers of other languages. ESOL teachers are not required to know the languages spoken by their students. ESOL classes should ideally be taught in a non-threatening manner using fun activities. The field of ESOL encourages the "buddy system." The buddy system pairs a beginning level ESOL student with a higher level ESOL student who speaks the same language. ESOL advocates cooperative learning, in which students help one another. Yvonne Cadiz is an expert in ESOL education such as observing, assessing, evaluating, and providing expert training and teaching, implementing the currently accepted newer ESOL teaching methodologies to ESOL teachers, in advising and assisting county school districts in implementing the service plan containing such newer methodologies and training techniques, and in advising the State Board of Education in those areas to develop rules to implement on-going changes in ESOL education. Ms. Cadiz is the past president of Gulf TESOL and a past sponsor of the ESOL Leadership Conference. The evaluation instrument and related summative used by the District to evaluate teachers is geared primarily to regular classroom teachers, not to teachers of "multi-level" ESOL instruction, which contains unique teaching methodologies. Administrators performing the observations and evaluations using those instruments generally lack the specialized ESOL background to recognize or adequately evaluate ESOL instructional skills or otherwise make effective recommendations on how to improve ESOL educational techniques. At all times material, none of the District's principals or assistant principals assigned to observe or evaluate Respondent had any of the requisite ESOL educational background or knowledge of the unique nature of ESOL education or its teaching methodologies. Accordingly, the criticisms directed to Respondent by such evaluators in their observation summatives, related documents, and periodic evaluations cannot be fully credited as valid and accurate criticisms. Such evaluators or other District administrators do not appear to have adequately observed and/or evaluated Respondent's teaching abilities or to have otherwise suggested or offered competent, adequate, suggestions for improvement or related remediation of perceived performance deficiencies. Accordingly, I credit the opinion of ESOL experts Yvonne Cadiz and Diane Larange that Respondent's classroom teaching skills were satisfactory. Respondent's treatment of work associates An ESOL Aide named Roxana DelBarco was hired for the 1987-88 school year to be an aide in the Respondent's ESOL classes at both Boca Raton High School and Atlantic High School. 2/ Ms. DelBarco apparently worked as the Respondent's ESOL aide for the entire 1987-88 school year without any significant incident. Ms. DelBarco returned in the same capacity for the 1988-89 school year. On September 8, 1988, an incident occurred in which the Respondent became annoyed or frustrated by Ms. DelBarco's inability to successfully complete an errand. In the course of sending Ms. DelBarco on the errand a second time, the Respondent raised her voice or otherwise spoke harshly to Ms. DelBarco in front of the students. The manner in which the Respondent spoke to Ms. DelBarco hurt the latter's feelings and caused her to cry. As a result of the September 8, 1988, incident, Ms. DelBarco decided she no longer wished to work with the Respondent and reported her decision to resign to the school administrators. A conference was held to try to persuade Ms. DelBarco to change her mind. During the course of the conference, the Respondent admitted she had raised her voice, apologized for doing so, and offered to talk to Ms. DelBarco about changing her decision to resign. Ms. DelBarco did not change her mind. As a result of the September 8, 1988, incident involving Ms. DelBarco, the Respondent was given written reprimands by both Atlantic High School and Boca Raton High School. Atlantic High School provided the Respondent with two recommendations: (1) Treat future aides in a "courteous and professional manner," while discussing differences of opinion in private and (2) Communicate with students in a courteous and kind manner, while refraining from "sarcasm or humiliating remarks as a means of discipline." Boca Raton High School advised the Respondent that she was to behave with staff and her students in a manner which demonstrated "positive, courteous interactions free from sarcasm, unnecessary loudness/harshness, or embarrassment in front of others." At the time of the September 8, 1988, incident, the two schools could have disciplined the Respondent by at that time placing her on a PDP, citing "criterions" 12 and 13. Both schools elected not to do so at that time. However, even though there were no similar incidents, both schools cited "criterions" 12 and 13 in the Respondent's mid-year evaluations at both schools, and placed her on PDP's. The Respondent timely and satisfactorily complied with and completed the prescribed remediation set forth in her 1988-89 mid-year PDP's (her first PDP's) without any further incidents relating to "criterions" C-12 or C-13 during the 30-day period specified in the PDP's or during the remainder of the 1988-89 school year. The foregoing notwithstanding, the Respondent's annual evaluations at the end of the 1988-89 school year cited "criterions" C-12 and C-13. As a direct result of these repeat citations, the Respondent was placed on a second PDP at both schools, even though there had been no similar incidents since the DelBarco incident. Had these two "criterions" not again been cited, the Respondent's annual evaluations at both schools would have been satisfactory. In view of the time of and the nature of the September 8, 1988, incident with Ms. DelBarco, and in view of the fact that there were no similar incidents during the remainder of the 1988-89 school year, the Respondent should have received satisfactory annual evaluations at both schools for the 1988-89 school year. 3/ At the beginning of the 1989-90 school year, an ESOL Aide named Maria Montiel was assigned to be the aide in the Respondent's ESOL classes at Atlantic High School. From the very beginning, the Respondent was apparently annoyed by the fact that Ms. Montiel seemed to be somewhat lacking in initiative, energy, and direction, even though Ms. Montiel was, generally, a sweet, warm-hearted, caring person. 4/ The Respondent went to one of the administrators, Ms. Thurber, to explain that she was having problems getting Ms. Montiel to follow instructions. Among other things, Ms. Montiel had questioned whether she was required to perform certain tasks the Respondent had asked her to do; tasks Ms. Montiel seemed to regard as work more appropriate for custodians than for teacher aides. As a result of being dissatisfied and annoyed with Ms. Montiel's performance, on a couple of occasions during the first three weeks of the 1989- school year, the Respondent spoke to Ms. Montiel in a loud voice or in a harsh tone of voice. The Respondent had good reasons for being annoyed on both occasions. After about three weeks, Ms. Montiel decided that she did not wish to work as the Respondent's aide. At Ms. Montiel's request, she was transferred to work at another school. Ms. Montiel's primary reason for not wanting to work with the Respondent was that she felt under-appreciated and under-utilized. During the 1989-90 school year, after Ms. Montiel left, Harvey Lee, Jr., was assigned to work as an aide at Atlantic High School in the Respondent's first period class and for part of the Respondent's planning period. Early in their relationship there was an incident in which the Respondent spoke harshly to Mr. Lee. Mr. Lee discussed the incident with the Respondent, the Respondent apologized to Mr. Lee, and for the remainder of that school year Mr. Lee and the Respondent had a harmonious relationship. During the 1989-90 school year on one occasion the Respondent raised her voice to a substitute teacher, Inga D'Orazio, in front of the class. The Respondent was admonishing the substitute for not following instructions the Respondent had left. 5/ Respondent's treatment of her students The Respondent appears to have a tendency to be impatient with students who are disruptive or who otherwise appear not to be trying to learn. As a result of this tendency, she probably refers more students to the office than the average teacher. 6/ But the evidence in this case does not show that the Respondent regularly engages in inappropriate or excessive disciplinary referrals. 7/ It is probable that the majority of the students the Respondent referred to the office for disciplinary reasons were of Haitian origin. 8/ It is clear that the majority of the students in the Respondent's classes were of Haitian origin. The Respondent's discipline referrals were all based on Respondent's evaluation of the conduct of each student referred. The Respondent did not discriminate on the basis of race or place of national origin in her discipline referrals. The Respondent did not prohibit her students from going to the bathroom during class. She did, however, discourage them from doing so. Her discouragement was consistent with school policy at both schools which generally discouraged teachers from issuing restroom or hall passes to students, absent an emergency. The Respondent provided reasonable assistance to her students at reasonable times and permitted her aides to do likewise. The Respondent would refuse to assist students or to answer student's questions during the course of such activities as lectures or testing. Such refusals were reasonable. At all times relevant to this case, the Respondent communicated with and related to the students in her classrooms to such an extent that the students received at least a minimum educational experience. Miscellaneous Findings The School Board of Palm Beach County, Florida, has entered into an Agreement with the Classroom Teachers Association (CTA), the representative of the teachers' bargaining unit. Said Agreement delineates terms and conditions of employment for teachers and provisions of this Agreement are applicable to Respondent's employment. Teachers at Atlantic High School are expected to have their grade book, attendance book, and lesson plans available for substitute teachers. On one or two occasions during the 1989-90 school year the Respondent may have failed to have a lesson plan available or may have had an inadequate lesson plan available for a substitute. 9/ During the 1986-87 school year, the Respondent was slow in complying with written instructions that she complete her course expectation and class rules. She did, however, ultimately comply.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the School Board of Palm Beach County issue a final order in this case dismissing all charges in the Amended Petition For Dismissal, restoring the Respondent to her position of employment on the instructional staff, and awarding the Respondent back pay from the date of her suspension without pay until the day she is restored to her position of employment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June 1991. MICHAEL M. PARRISH 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 24th day of June 1991.
The Issue Did Respondent engage in a personal relationship with the student A. H. which involved sexual intercourse and kissing? Did the Respondent also send several notes and cards to A. H. about this alleged relationship? Was the student A. H. a minor at the time that Respondent is alleged to have engaged in these activities? If the facts are true, has Respondent violated various provisions of Section 231.28(1), Florida Statutes, and Rule 6B-1.006, Florida Administrative Code?
Findings Of Fact Respondent holds Florida Teaching Certificate 437177, covering the area of elementary education. The certificate is valid through June 30, 1998. Respondent was not employed as a teacher at times relevant to the inquiry. Respondent did have affiliation with Keystone Heights High School, Keystone Heights, Florida, in the capacity of volunteer trainer for the boys' basketball team in the school year commencing Fall 1990 through Spring 1991. In the calendar years 1990 and 1991 Respondent's primary occupation was as proprietor of a dance studio unaffiliated with public education. A. H. was a student at Respondent's dance studio. He had attended Respondent's dance school since he was in the 4th or 5th grade. A. H. was a freshman at Keystone Heights High School in the 1989-1990 school year, which commenced in the Fall of 1989 and concluded in the Spring of 1990. A. H. was born on April 25, 1975. In addition to A. H.'s association with Respondent's dance school, A. H. was part of the Keystone Heights boys' basketball team during the time that Respondent served as a volunteer trainer for that team, the school year 1990- 1991. In May 1990, Respondent, then 33 years old, and A. H. attended a dance competition. In that competition, Respondent and A. H. were partners. Respondent, A. H., A. H.'s mother, grandmother and two sisters were staying in a hotel in Orlando, Florida while attending the dance competition. The individuals in the party were staying in adjoining rooms. A. H. and Respondent went to one of the rooms to get dressed for the dance competition and to put on makeup. At this time A. H. and Respondent were alone. A. H. was sitting on the bed watching television having already dressed and prepared himself for the competition. Respondent approached A. H. and sat on his lap and they kissed. A. H. describes this activity as a mutual encounter. After the competition in Orlando, A. H. and the Respondent rode home together in the same car. When A. H. and Respondent got back from Orlando, they parked the Respondent's car behind the dance studio which was in a community known as Midway that is halfway between Melrose, Florida and Keystone Heights, Florida. Having parked the car, Respondent and A. H. engaged in what A. H. referred to as "heavy petting." In particular, A. H. fondled Respondent's breasts, and they kissed. Respondent kissed A. H.'s chest and neck. Before A. H. and Respondent stopped and engaged in this activity behind the studio, Respondent had commented on the trip back from Orlando to this effect, "at least you can't get me pregnant." When A. H. and Respondent engaged in their activities behind the studio after the trip back from Orlando, his shirt was off as was the Respondent's top garments. This encounter lasted approximately one hour and a half. During the summer of 1990, Respondent and A. H. made another trip to Orlando for a dance competition. On two separate nights during that trip, Respondent and A. H. engaged in sexual activity other than intercourse. On the morning of Memorial Day 1990 Respondent came to A. H.'s home in Keystone Heights. This rendezvous was arranged through a telephone conversation between A. H. and Respondent. When Respondent arrived at A. H.'s home he was alone. A. H. and Respondent went to A. H.'s room and engaged in sexual intercourse while in a state of undress. They then showered together and had sexual intercourse a second time. A. H. had never engaged in sexual intercourse before this date. Between Memorial Day 1990 and February 1991, Respondent and A. H. engaged in sexual intercourse approximately 30 times. In addition to having sex in A. H.'s home; they had sex at a duplex apartment in Keystone Heights that was owned by A. H.'s father; they had sex in a car that belonged to Respondent's mother-in-law; they had sex at Respondent's home; they had sex in a guest house on the same property as Respondent's home; and, they had sex at the dance studio. The rendezvous between A. H. and Respondent for purposes of the sexual encounters were clandestine. A. H. was unaware if he and the Respondent were seen or suspected of engaging in their activities. During the course of their relationship, Respondent mentioned marriage to A. H., but A. H. would not discuss marriage with the Respondent. Respondent told A. H. that when he reached the age of 18 that the Respondent and A. H. would run away together and she would work and put A. H. through school. A. H. stated that his reaction to that comment was "I was scared." He remarked about his response to her comments, "just for the time, you know, I'd agree with her, 'Yeah, sure. That's nice.' and try to blow it off and get to the next subject." During their relationship A. H. voluntarily and willingly participated in those pursuits. During the relationship, Respondent wrote notes to A. H. about her feelings for A. H., the details of which were not established at hearing through competent evidence so that facts might be found concerning the contents of those notes. During the relationship between A. H. and the Respondent, Respondent told A. H. that she loved him. Eventually the relationship was concluded by A. H., who states "I broke it off, I just--I couldn't take that much pressure. So I just told her I didn't want to continue the relationship." That decision to conclude the relationship was made in February 1991. At that time A. H. was a sophomore in high school. By virtue of comments made to his friends and acquaintances, it may be inferred that A. H.'s parents found out about his relationship with Respondent. That discovery was made on April 16, 1991. The circumstances involving A. H.'s decision to conclude the relationship in February 1991, the consequences of his parent's discovery in April 1991 and the overall relationship between A. H. and the Respondent were not shown to have left A. H. in a condition that was harmful to his mental or physical health or such that the events constituted harm to his ability to learn as a student, or found to cause A. H. unnecessary embarrassment or disparagement or were they matters which affected his safety.
Recommendation Based upon the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered finding the Respondent in violation of Counts I, III and VI; that dismisses Counts II, IV and V; and that revokes Respondent's teaching certificate for a period of 5 years. DONE and ENTERED this 20th day of February, 1995, in Tallahassee, Florida. CHARLES C. ADAMS 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 20th day of February, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact of the parties. Petitioner's Facts: Paragraphs 1 through 8 are subordinate to the facts found. Paragraph 9 is rejected in that it does not completely describe the reaction by A. H. Moreover, a finding concerning his reaction is not necessary to the resolution of the dispute. Paragraphs 10 through 12 are subordinate to the facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraphs 14 through 16 are subordinate to the facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 and 19 are subordinate to the facts found. Paragraph 20 is contrary to the facts found. Paragraph 21 is not necessary to the resolution of the dispute. Paragraph 22 is subordinate to the facts found. Paragraph 23 is not necessary to the resolution of the dispute. Paragraph 24 is subordinate to the facts found. Paragraphs 25 through 32 are not necessary to the resolution of the dispute. Paragraph 33 is subordinate to the facts found. Respondent's Facts: Paragraphs 1 through 6 are subordinate to the facts found. Paragraphs 7 and 8 are not necessary to the resolution of the dispute. Paragraph 9 is subordinate to the facts found. Paragraphs 10 and 11 are not necessary to the resolution of the dispute. Paragraphs 12 through 82 constitute recitation of testimony, legal argument and some suggested fact finding which is intended to exonerate Respondent. These paragraphs are rejected as contrary to the facts found. Paragraphs 83 through 86 are subordinate to the facts found. Respondent's proposed fact discussion concerning the alibi for Memorial Day 1990 is rejected in that it has been determined that the sexual encounter between the Respondent and A. H. occurred before her trip to Jacksonville, Florida on that date. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way, Suite G Tallahassee, Florida 32308 Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 244 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times pertinent to this hearing, Respondent, Jay S. Markley, was employed as a teacher of mathematics at Osceola High School (OHS) , Kissimmee, Florida, under a continuing contract. A continuing contract conveys tenure status upon the teacher holding it. Mr. Markley had been employed at OHS for approximately nine years. During that period, in addition to being a teacher, he has held the positions of swimming coach, director of athletics, and chairman of the faculty council. Mr. Floyd J. Scott, Jr., was principal of OHS during the 1982-83 school year and had served as such for four years. When he first arrived at OHS, he found a poor environment. Students were scoring low on the achievement tests, a small percentage of graduates was going on to college; discipline was poor, student participation in sports and other extracurricular activities was low, and the teams fielded by the school did poorly. His charter, upon assuming the principal's position, was to bring up the school standards and performance. Among the several things he did to create a favorable change was to, during the 1982-83 school year, place emphasis on the need for teachers to file lesson plans, something that had not been done for quite a while in the past. During the first week of school, he began his programs of emphasis with a low key approach. He would mention the need for them to be filed at faculty meetings, included the requirement that they be filed in the teachers' handbook given to each teacher at the beginning of the school year, and hired a coordinator to work the problem, Ms. Shirley S. Phillips. As time went on throughout the year, more and more emphasis was placed on the subject. Lesson plans are used by teachers to coordinate the information to be passed on to the students. They are a continuity document to be used by substitute teachers to work from in the event the regular teacher is absent. They are used by administrators to insure that required topics are covered, as verification of compliance with the county's scope and sequence plan, as part of the evaluation of teacher performance. Of great importance is the fact that they are considered as an evaluation factor by the Southern Association of Colleges and Universities in its evaluation of high schools for certification. An absence of certification makes it extremely difficult for a graduate of the unaccredited school to gain admission to a college or university outside the State of Florida. The term "scope and sequence" is used to show that curriculum materials are tied together, the order and relationship of topics. The lesson plans are to insure that the daily activities of the teachers fulfill the scope and sequence goals. They are like a road map -- the ways to achieve the tasks set out in the scope and sequence. Rule 5.4.6 of the Osceola County School Board requires teachers to follow a system of unit and lesson planning and specifically provides that the mere citation of text and workbook pages is not considered an adequate lesson plan. Repeated mention is made of lesson plans in the teachers' handbook supplied to each teacher at the beginning of each school year. Respondent recalls receiving his in August or September, 1982, and was also aware of the requirements of Rule 5.4.6. The handbook, at Page 6, requires detailed lesson plans to be in the substitute folder and, at Page 44, states that required "lesson plans will be submitted for review each Friday for the next week" to the curriculum coordinator, at first Ms. Zey, and later Ms. Phillips. Respondent knew of these requirements and knew that, except for two lesson plans submitted at the beginning of the 1982-83 school year, he failed to file any more for the rest of the school year, though he contends he was preparing lesson plans, his style, throughout the school year. Ms. Shirley Phillips became curriculum coordinator at Osceola High School on February 1, 1983. One of the jobs given to her was to collect and coordinate lesson plans which she monitored through a check-off system originally used by her predecessor. Prior to that, however, on November 30, 1982, Assistant Principal Tommy Tate notified Respondent, in an observation report acknowledged by him, that two areas in his performance needed improvement because of no lesson plans. This was followed up by the evaluation report submitted on Respondent by Mr. Scott, the principal, on December 15, 1982, and acknowledged by Respondent on December 17, 1982, that he was to keep lesson plans updated. The time line specified for achieving this improvement was "this marking period," or, in other words, right away. On February 18, 1983, Ms. Phillips, fulfilling her duties pursuant to Mr. Scott's instructions, prepared a letter to a certain 20 faculty members, including Respondent 1/ . This letter, which was approved by Mr. Scott before being sent out, notified the recipients that they were delinquent in filing lesson plans and warned them they would be evaluated "unsatisfactory" unless they turned them in. Respondent received his copy of that letter. Somewhat later, when Ms. Phillips checked on who had still not filed their lesson plans, she found that several, including Respondent, were still delinquent. Most of these, however, except Respondent, did submit their lesson plans within a month and a half; and those who were delinquent, except for one teacher, Mr. Reeder, were not nearly so delinquent as Respondent either in number delinquent or time. Even Reeder, however, ultimately brought his plans up to date. On March 18, 1983, a second letter was sent out, drafted by Ms. Phillips, but signed by the principal, again reminding some nine or ten teachers who had not as yet complied with the previous letter, including Respondent, that he expected each teacher to file the lesson plans and that those who did not would not only be rated unsatisfactory, but would also be considered insubordinate. Respondent and several other teachers who testified in his behalf, and to whom the letter was directed, indicated they did not get it. It is, therefore, quite possible that this particular letter did not get the wide dissemination Mr. Scott thought it did. However, its follow-up, on April 11, 1983, sent to those who did not respond to the March 18 letter, was received by Respondent, as he submitted the letter called for in specific response to this April letter which, it is noted, also advised of the consequences for noncompliance. In his letter of response, dated April 14, 1983, Respondent clearly stated his position in opposition to preparing and submitting lesson plans and, while not specifically stating he would not comply with Mr. Scott's previously expressed requirements, clearly indicated he would not be doing so. No other conclusion can reasonably be drawn from his willingness to accept an evaluation of unsatisfactory and a classification of insubordinate. The principal displayed an inordinate amount of maturity and patience in his response to Respondent of April 19, 1983. Again restating his reasons for requesting lesson plans, he then graciously requested Respondent to reconsider and comply. Though couched in terms far less than directive, under the circumstances, it is clear this was an official request which was the force and effect of a direction. Notwithstanding this latitude he was given, Respondent again failed to comply with the requirement to submit lesson plans and, on April 27, 1983, both the principal and vice principal, Messrs. Scott and Tate, rated him unsatisfactory in the one area on the observation and evaluation forms dealing with lesson plans. All other areas were rated satisfactory. Mr. Tate indicated that at this second observation, Respondent told him he would photocopy lesson plans if they wanted them. From Respondent's words and the tone of voice in which they were said, Mr. Tate inferred that Respondent thought it was stupid to do lesson plans and he did not see why he should have to. Finally, on May 6, 1983, Mr. Scott sent a memo directly to Respondent only, recounting in summary from the prior history of this dispute and the authority for the requirement. Respondent was also ordered and directed, in writing, to turn in all lesson plans for the 1982-83 school year, including those due for the week of May 9 through 13 2/ , to Mr. Scott's office before 8:35 a.m. on Monday, May 9, 1983. He was also warned that his failure to comply would be deemed gross insubordination and willful neglect of duty and would subject him to disciplinary action. At the meeting between the two, in Mr. Scott's office on May 6, when this letter was given to him, Respondent indicates he was told he was the only one in the whole school who had not turned in lesson plans. At this point, he agreed to do them, but told Scott then that he could not get them done by 8:35 a.m. on May 9. By 9 a.m. or so on May 9, when Respondent still had not brought any lesson plans to the office or contacted Mr. Scott for an extension, Mr. Scott sent his secretary, Barbara Rousch, to Respondent's room to pick them up. When she arrived there, Respondent did not offer her any plans. When she asked for the plans, Respondent said he was working on them. Specifically, he said, "I'll have them for you. Maybe not today, but I'm cooking on them." When he said this, Respondent was sitting at his desk working on the lesson plans while the students were in the room. 3/ Ms. Rousch was standing by his desk, and he neither showed her nor offered to show her the plans he had completed, though he contends that he showed her, from his desk book, what he had done. He states that he had completed at that time a complete set of plans for one of three classes of Algebra I and some plans for his class in consumer math. He admits he still had remaining to do two sets for the remaining Algebra I classes and one set for his class in Algebra II. After Ms. Rousch left Respondent's office, there was no further discussion regarding the lesson plans. Respondent finished out the school day and after school went to his place of business off campus. It was then, about 5:30 p.m. on May 9, that Mr. Vogel, Assistant Superintendent of Schools, told him that he had been suspended and was not to come to school the next day. Nonetheless, he completed the lesson plans and himself turned in 31 weeks' worth to Barbara Rousch on May 12, 1983. His daughter turned in three more plans to Ms. Phillips the same day. Respondent has remained suspended without pay since May 9, 1983. Respondent has been employed at OHS under five different principals since January, 1975. During all this time, he does not recall the rules requiring lesson plans to have been enforced prior to the 1982-83 school year. Since the beginning of this year, the enforcement has become stricter as the year went on. After Mr. Scott had been principal for a year, he removed Respondent as athletic director without stating a reason. However, when it appeared that there was thereafter a shortage on the books of the athletic department, Respondent reported the matter to Mr. Scott, who said he would look into it. When Respondent told Scott he wanted to look at the books kept on several sports programs, he was denied access. When he asked Scott about it somewhat later and Scott said he had not done anything about it, Respondent went to the bookkeeper, who told him Scott had the books. There have been other conflicts between the two individuals, as well. When Scott first came to the school, the principal ran the faculty council meetings. When Respondent took over as chairman of the council, he advised Mr. Scott that he, Respondent, would run the meetings, and he dictated to the principal how things would be done. According to Respondent, Scott neither resisted nor made comment about this. Though these conflicts existed, they appear to Respondent to be the result of a lack of communication. Even though there was no outward animosity from Scott to him, he feels it must have been hidden within Scott, who, he now feels, is singling him out for discipline. He has never heard of any action this severe for lesson plans, so he feels there must be another reason. There is a clear pattern of resistance and disobedience demonstrated, however, by the above-cited evidence and Respondent's reaction throughout the year. For example, he states he turned in two weeks of plans in October, 1982, and until the remainder were turned in on May 12, 1983, no more, regardless of how many times he was reminded of the requirement. He got all the notices and memos except that of March 18, 1983, and was aware of the technical requirement to turn the plans in. Still, he did not, nor did he take any of the memos until May 6 as an order to turn them in. When, on that date, he got what he perceives as the first direction to turn the plans in, he did comply, although not on time even then, nor did he evidence any concern about not doing so. He contends that on the weekend of May 7 and 8, 1983, he worked 14 hours on the plans, but also admits he spent a reasonable portion of that weekend pursuing his off-campus swimming pool business. He interpreted the April 11 memo as an either/or proposition, either turn in the lesson plans, or say why you did not. He chose to write the letter and was willing to receive an unsatisfactory rating because he did not consider that had any effect on him -- a tenured teacher. It was not until the May 6 meeting with Scott that the administration was serious and that he had better turn the lesson plans in. Prior to that day, he did not know what gross insubordination meant. Scott told him he might be returned to annual contract status, but did not tell him he would be dismissed. From the beginning to now, he does not know why so much fuss is being made of lesson plans in light of the fact that as late as May 10, 1983, some teachers were delinquent in their lesson plans. Respondent contends that he does lesson plans his way. He writes out what he plans to cover on a yellow sheet and spends his time teaching rather than filling out forms. However, teachers are given at least one period out of each school day for planning. During this planning period, no students are there to be taught. Though some books have lesson plans prepared for the teacher in the instructor's workbook, those being used by Respondent this year did not have those plans included. Even if they had, the mere photocopy of book plans was deemed by this administration to be inadequate. Respondent, having first said he did plan his way, also says he has worked as a teacher for years without lesson plans. Lesson plans, even when submitted, are merely placed in a file and not used. Consequently, he could see no need for lesson plans. Though, by his own testimony, he knew of the requirement in the law and that it had been there for years, he felt it was a choice item, and he did not have the obligation to follow it. He contends that other than the requirements of scope and sequence and what is in the teachers' handbook, there is no direction as to what is a sufficient lesson plan. Numerous teachers who were employed at OHS during the 1982-83 school year confirmed Respondent's testimony as to the prior laxity in enforcing the requirement for lesson plans up until that year. There was also evidence from these teachers of an authoritarian atmosphere at OHS during the 1982-83 school year. Testimony revealed rumors being spread that Mr. Scott had a list of teachers he wanted to get rid of that included Respondent, among others. Yet, not one individual, except Respondent, including several who moved voluntarily to St. Cloud High School this year, testified that any threats were made to them or suggestions that they move by Mr. Scott or anyone in the administration of OHS. Those who moved voluntarily because they were "advised" they were on the "hit list" and should move testified they did so not at the instigation of the administration, but upon the advice of the teachers' union representative. The incidence of rumor and innuendo on the part of one side, attempting to paint the principal and the administration in a bad light, while ignoring the defiance of legitimate authority by Respondent, is clearly shown in the testimony of one teacher that the attitude among the faculty that year was "Hitler was alive and well at OHS." Yet, she admits she had no problem personally with Mr. Scott. He was very supportive of her. Even another teacher who was questioned by Mr. Scott regarding a leak of information to the press during the year and who transferred at the end of the school year, stated she had received no pressure from Mr. Scott, had been thinking of transferring anyway, and was also advised to do so by the teachers' union. One other teacher who was also interviewed by Mr. Scott regarding the press leak was approached afterwards by a union representative and asked if he wanted to meet with other teachers about this. The union representative told them it would be unhealthy for them to remain at OHS, and they should request to transfer out. This particular teacher, however, though he testified on behalf of Respondent, nonetheless desired to remain at OHS. Several teachers testified that Mr. Scott had said that the 1982-83 school year was going to be Mr. Markley's last year at OHS. Scott categorically denied ever having made that threat. The comment in question was made to him by someone else in the context that Respondent was leaving voluntarily to go into another business. Respondent is, in fact, engaged in the conduct of his own swimming pool business, which he started after being relieved as athletic director.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Jay S. Markley be found not guilty of misconduct in office, but guilty of gross insubordination; that his suspension effective May 9, 1983, be sustained; that he be dismissed from employment with the Osceola County School Board; and that he be denied pay from May 9, 1983. RECOMMENDED this 20th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983.
