The Issue Whether Petitioner, St. Lucie County School Board (Petitioner or School Board) has just cause to discipline Wendy Portillo's employment based on the conduct alleged in the “Statement of Charges and Petition for One Year Suspension Without Pay and Return to Annual Contract” and the appropriate penalties, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in St. Lucie County, Florida. Petitioner has entered into individual contracts and collective bargaining agreements with the teachers it employs and has adopted rules and policies that control the activities of its teaching professionals. At all times relevant to this proceeding, Respondent was a teacher employed by Petitioner pursuant to a professional services contract and assigned to teach kindergarten at Morningside. On May 21, 2008, Respondent was teaching kindergarten in her classroom at Morningside. The door to Respondent’s classroom is across a hall from the door of the school office. Typically, kindergarten students are five or six years old. Student 1, a male, was one of 17 students in Respondent’s class on May 21, 2008. Student 1 was assigned to Respondent’s class in January 2008. Shortly after his placement in her class, Respondent asked Mr. Graff to help her with Student 1 because of Student 1’s behavior. Mr. Graff works in Morningside’s fourth grade alpha class. The alpha program is designed to identify and assist at-risk third grade students who are having difficulties at home or at school. Mr. Graff has the assistance of a full- time counselor and a full-time paraprofessional. Mr. Graff agreed to help with Student 1 as needed. Student 1 came to Mr. Graff’s classroom on approximately 12 occasions between January and May 21, 2008. In mid-February 2008, Respondent requested a Child Study Team for Student 1, which is the first step in determining whether a student meets the eligibility requirements for services from Petitioner’s Exceptional Student Education (ESE) program. This development is part of an on-going process.3 The Child Study Team, of which Respondent was a member, developed strategies designed to redirect Student 1’s behavior. One of the strategies was a reward system utilizing tokens. On May 21, 2008, Respondent’s kindergarten class began at 8:20 a.m. At 9:00 a.m. Respondent’s kindergarten class, including Student 1, went to a performance by the fifth grade that ended at approximately 9:45 a.m. The students returned to Respondent’s classroom at approximately 10:00 a.m. At approximately 10:30 a.m., while she was teaching her class, Respondent observed that Student 1 was off-task and was being disruptive to the other students by flipping crayons at his classmates and crawling under a table. Student 1 pushed up on the table, where other students were trying to work. Respondent attempted to redirect Student 1, but she could not do so. Respondent summoned Officer Black (the school resource officer) to come to her room. Officer Black assisted in getting Student 1 out from under a table and took him to the office. After Officer Black had escorted Student 1 to the school office, Ms. Gascoigne (the assistant principal) counseled Student 1 as to appropriate versus inappropriate behavior. Student 1 told Ms. Gascoigne that he realized what he had done was wrong and that he wanted to say to Respondent that he was sorry. After keeping Student 1 in the office for approximately 15 minutes, Ms. Gascoigne sent Student 1 back to Respondent’s classroom. There was a dispute in the record as to whether Respondent sent a written referral to the office when Officer Black escorted Student 1 to the office at approximately 10:30 a.m. The office did receive a written referral from Respondent on May 21, 2008, pertaining to Student 1’s misbehavior. The inference was that pursuant to School Board Policy 5.33, which pertains to removal of students from a classroom as opposed to a disciplinary referral of a student for misbehaving in class, the office personnel should have detained Student 1 for a longer period of time than 15 minutes if Respondent had sent a written referral with him. The greater weight of the credible evidence established that School Board Policy 5.33 is inapplicable due to Student 1’s level of disruption. Moreover, the greater weight of the evidence established that Ms. Gasciogne did not receive the written referral until the afternoon of May 21, 2008, after the occurrence of the events at issue in this proceeding. When she had Officer Black take Student 1 to the office at approximately 10:30 a.m. on May 21, 2008, Respondent did not ask Ms. Gascoigne or anyone else in the office to detain Student 1 for a particular length of time. When Student 1 returned to her classroom, Respondent was in a meeting area where the students were gathered for group instruction. Respondent asked Student 1 why he had returned to the classroom. Student 1 responded to the effect that Ms. Gascoigne had sent him back. Referring to herself and to the other students in her class, Respondent responded to the effect that, “I don’t know if we are ready to have you back at this time.” After making that statement, Respondent directed Student 1 to join her in front of his classmates. Respondent asked Student 1 why he had done the things he had done earlier that morning. Student 1 shrugged his shoulders. Respondent told Student 1 that shrugging his shoulders was not an answer and that he should use his words. Three or four students began saying things about how Student 1 had behaved. Respondent asked Student 1 to listen to his classmates and asked him how what they were saying made him feel. Referring to herself and to the other students, Respondent stated that she did not think we are ready for you to come back at this time. Respondent then announced that she was going to poll the class as to whether Student 1 could rejoin them. Respondent explained to the class that a poll was like taking a vote. Respondent asked each of Student 1’s classmates to verbally vote yes or no whether Student 1 should remain in the classroom and gave each student the opportunity to explain his or her vote. Respondent tallied the votes on the chalk board. The final vote was 14 for removing Student 1 and two for allowing him to remain.4 Respondent thereafter sent Student 1 back to the office. Respondent made the ultimate decision to exclude Student 1 from her classroom, but in making that decision she considered the votes that had been cast by Student 1’s classmates. The reward system utilizing tokens was in place for Student 1 on May 21, 2008. There was insufficient evidence to establish that Respondent utilized the reward system or any other strategy, including the use of Mr. Graff’s class, that had been developed for Student 1 before sending him to the office on the first occasion or before removing him from her class after the classmates had cast their votes and made statements about his behavior. When Student 1’s mother came to pick Student 1 up from school on the evening of May 21, 2008, she told Respondent that she had embarrassed her son and that he was disabled and autistic. Respondent apologized to Student 1’s mother. Student 1 was with his mother when she made the quoted statement to Respondent and when Respondent apologized. When asked by his mother how he felt, Student 1 said he felt sad. Except for her conduct on the May 21, 2008, incident described above, Respondent has had a positive 12-year career as a teacher at Morningside. Respondent testified that at no time did she intend to harm, embarrass, or do anything negative to the student. Respondent further testified that she did not, at the time think she was hurting anyone. She believed that she could show all of her students that there are consequences to actions and to show that actions may affect others. Respondent testified, credibly, that early childhood education is her “passion” (as she termed it at Transcript, Volume III, page 275, beginning on line 11). Petitioner’s investigative report reflects (beginning on page 13 of Petitioner’s Exhibit B) the following: There is no evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment to Student 1. However, there is a question as to whether Ms. Portillo exercised the best professional judgment during the incident under investigation. . . . Immediately following the incident of May 21, 2008, Petitioner prohibited Respondent from returning to Morningside. Petitioner assigned Respondent to the School Board office with pay while Petitioner investigated the matter. On November 14, 2008, Mr. Lannon made his recommendation to the School Board. The recommendation was that Petitioner suspend Respondent for a period of one year dating from the School Board’s final order and that her contract be changed from a Professional Services Contract to an Annual Contract. At its meeting of November 14, 2008, the School Board suspended without pay Respondent’s employment for a period of one year and voted to change her contract from a Professional Services Contract to an Annual Contract should she return to employment with the School Board.5 The greater weight of the credible evidence overwhelmingly established that Respondent’s conduct on May 21, 2008, described above is properly characterized as misconduct as that term is generally understood. As will be discussed below, Petitioner established that Respondent’s conduct on May 21, 2008, violated the Code of Ethics of the Education Profession in Florida and the Principles of Professional Conduct for the Education Profession in Florida, thereby violating the provisions of subsection (xxix) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner established that Respondent’s misconduct on May 21, 2008, violated subsection (xxxi) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition by exposing Student 1 and the other students in her class to unnecessary embarrassment or disparagement. Petitioner established that Respondent utilized an inappropriate method of discipline in removing Student 1 from her class after the class vote, thereby violating subsection (xxxvii) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner failed to establish that Respondent was abusive or discourteous in violation of subsection (ix) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition. Mr. Lannon, Ms. Ranew, Ms. Gascoigne, and Ms. Cully are experienced educators with supervisory responsibilities. Each opined that Respondent had violated the Code of Conduct for the Education Profession and explained the reasons for those opinions. Petitioner established that Respondent failed to exercise the best professional judgment on May 21, 2008, as alleged in paragraph 19a of the Petition. The alleged violation set forth in paragraph 19b will be discussed below. Petitioner failed to establish that Respondent’s misconduct was unethical and, consequently, failed to establish the violation alleged in paragraph 19c of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety as alleged in paragraph 19d of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from harassment as alleged in paragraph 19(e) of the Petition. Petitioner has charged Respondent with “misconduct in office.” There is a difference between the generally used term “misconduct” and the term “misconduct in office.” The State Board has defined the term “misconduct in office” by Florida Administrative Code Rule 6B-4.009(3), as follows: (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system. While there can be no meaningful debate as to whether Respondent's conduct should be characterized as “misconduct,” there was a dispute as to whether Respondent’s effectiveness in the school system had been impaired, thereby establishing that Respondent was guilty of “misconduct in office” as alleged in the Petition. This incident received extensive coverage by the local, national, and international press. Locally, Petitioner received a high volume of written communications and telephone calls in response to Respondent’s conduct. Some communications supported Respondent’s conduct while others condoned Respondent’s conduct. The communications condoning Respondent’s conduct far outweighed the responses supporting her conduct.6 Petitioner received requests from parents that Respondent not be allowed to teach their students should she return to class. In addition to the negative publicity and negative communications generated by her conduct, Respondent’s principal has lost confidence in her. Ms. McCully testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume III, beginning at page 371, line 17): Q. After the May 21, 2008, incident involving Ms. Portillo, would you recommend that she be hired as a teacher in your school? A. No, I would not. Q. Why is that? A. Personally, I feel that I would not have that rapport, trust, with her and be able to work with her after this. Dr. Lannon testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume I, beginning at page 106, line1): Q. In your opinion, has Ms. Portillo’s actions on May 21, 2008, resulted in a loss of her effectiveness. A. I believe so. Q. How do you reconcile that with your recommendation that she can go back to work after a one-year suspension without pay? A. I came to that with great pain. I believe that the actions that Ms. Portillo undertook actually rose to the issue of termination. But also, in a sense of fairness, Ms. Portillo is a twelve-year employee who has contributed to the lives and the well-being of children in St. Lucie County. My sense on this was that while there is a price to pay – and I believe that the action of not protecting children is literally the most serious thing we can do in a negative way – that her past career would warrant a second chance, but not in the environment in which she had willfully created these series of steps leading to the involvement of a particular child in what I believe to be an embarrassing and disparaging way and the involvement of the class in a way that we may never know. Q. Did you consider terminating Ms. Portillo? A. I did. Q. And is it my understanding that you’re saying the fact that she had twelve positive years mitigated that decision. A. Yes. That’s exactly correct. Q. And that led you to the recommendation that’s at issue? A. That’s exactly right. On cross-examination, Mr. Lannon testified in response to questions by Respondent’s counsel (Transcript, Volume II, beginning on page 149, line 25): Q: And you’re of the opinion as you sit here today, Mr. Lannon, under no circumstances . . . that you would allow [Respondent] to teach elementary school children in St. Lucie County. I would not put her in pre-K through fifth grade. That’s the definition. So that would be correct. In his testimony at the formal hearing and in his letter of November 3, 2008, Mr. Lannon described the mitigating circumstances he considered in contemplating his recommendation to the School Board. The following, taken from Mr. Lannon’s letter, succinctly states those considerations: I have also considered mitigating circumstances. You have had a long (12 years) and positive career in St. Lucie County Public Schools. Your annual evaluations, conducted by five Principals over 12 years are positive. Behavior of young students, in groups such as classrooms, is often difficult and professionally demanding. The official investigation states “there is NO evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment . . . “ [Emphasis in the original.] Except for the conduct at issue in this proceeding, Respondent has been an excellent, dedicated teacher during her 12-year tenure at Morningside. She has spent a considerable amount of her personal time working on an extra-curricular activity named Odyssey of the Mind. Many of the employees at Morningside and parents of former students are supportive of Respondent. As to those employees and parents, Respondent’s reputation remains intact despite the negative publicity regarding the conduct at issue.7 The greater weight of the credible evidence clearly established that Respondent’s conduct on May 21, 2008, has impaired her effectiveness in the system. Petitioner established that Respondent’s conduct on May 21, 2008, constitutes “misconduct in office” within the meaning of Florida Administrative Code Rule 6B-4.009 and, consequently, constitutes grounds for the suspension of her employment pursuant to Section 1012.33(6)(a), Florida Statutes, which provides, in relevant part, that the employment of a teacher with a professional services contract can be terminated or suspended for just cause, which is defined to include “misconduct in office” as defined by State Board rules. Section 1012.33(4)(b), Florida Statutes, provides, in relevant part, as follows: (b) Any . . . member of the instructional staff . . . may be returned to annual contract status for another 3 years in the discretion of the district school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the district school board on or before April 1 of any school year, giving good and sufficient reasons therefore . . .. In explaining the rationale for his recommendations, Mr. Lannon testified as follows in response to questions from counsel for Respondent as to his recommended disposition of this matter (beginning at Transcript, Volume II, page 133, line 15): Q. What would happen in the one year that would allow her, from the year that you’re recommending that she be suspended to the year that she, if your recommendation is accepted, that she would come back to work for the School Board, what would happen in that year that would change the alleged loss of respect and confidence in her colleagues first? A. It might not. Q. Your same answer would be as it relates to students? A. Yes, sir. Q. And the parents. A. That’s correct. I have no knowledge of how they would feel. Q. So in essence, you’re allowing, you’re recommending that a person that you’re not sure would be respectful [sic] or confident [sic] by teachers, students, parents, and members of the community, you’re recommending that that person still work for the St. Lucie County School Board. A. I’m allowing that the 12 years prior to May 21, 2008, mitigated my thinking that said this person is deserving of another chance at some point in time. Q. And this chance that you’re talking about is not a chance of great risk or harm if I follow your logical conclusion; is that correct. A. If you look at it more fully, you’ll see that I would not allow her to teach at that grade level in an elementary school again. And there is a difference in the ability of students to be able to discern the words of adults as they age. And I’m going to bank on the fact that the quality that Ms. Portillo had previously shown, absent her actions on that day, which I believe to be premeditated and well thought out, even though they were quick, would not occur again. There can be little doubt that Respondent has been traumatized by the negative reactions to her misconduct.8 Respondent and her family have suffered economically as a result of her suspension. Respondent apologized to Student 1’s mother and testified that she is remorseful.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order uphold the suspension of Respondent’s employment for a period of one year from November 18, 2008, and provide for the change of her contract status from a Professional Services Contract to an Annual Contract, contingent upon the availability of a position for which Respondent is qualified and certified. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009.
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since August 21, 1998. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, is covered by the collective bargaining agreement between the School Board and TALC, and holds a professional service contract with the School Board At the time of his hiring, Respondent was assigned to the dropout prevention program at Academy High School, where he taught for one year. On August 17, 1999, Respondent began teaching at High Tech Central, a vocational/technical school. High Tech Central's student body includes both high school students and adults seeking to obtain job skills. A large percentage of the adults attending High Tech Central receive assistance from the Pell grant program, a need-based undergraduate financial aid program funded by the federal government. During the 1999-2000 and 2000-2001 school years, Respondent taught the second semester of the personal computer ("PC") support services class, sharing a large classroom with Beth Ames, the teacher who taught the first semester of the same class. During the 2001-2002 school year, Respondent taught a web design class. During the 2002-2003 school year, Respondent taught CET in a co-teaching arrangement with Jeff Ledger, who had taught the CET class for the previous six years. At the end of that school year, Mr. Ledger moved to Ohio. From the 2003-2004 school year until the time of his suspension, Respondent alone taught the CET class. Throughout his period of employment with the School Board, Respondent also taught computer, business, and accounting courses as an adjunct professor at Edison College in Fort Myers. Until the 2003-2004 school year, Respondent received nothing less than satisfactory performance assessments. For the 1998-1999 school year, his performance was graded as satisfactory in each of the twelve criteria listed on the performance assessment form.2 His assessor at Academy High School wrote in the comment section of the assessment that "Mr. Nevins is well versed in technology and vocational skills," and commented favorably on Respondent's flexibility and cooperativeness in meeting the needs of students. For the 1999-2000 school year, Respondent's performance in teaching the PC support services class at High Tech Central was graded as exceeding expectations in five of the twelve criteria listed in the performance assessment form and as meeting expectations in the remaining seven criteria. High Tech Central's assistant director Susan Cooley prepared the assessment and wrote that Respondent "has done an outstanding job with collaboration with teachers and staff here at [High Tech Central]. He is very creative and strives to produce projects and alternative techniques for student achievement." For the 2000-2001 school year, Respondent's performance was graded as exceeding expectations in five of the twelve criteria and as meeting expectations in the remaining seven criteria. Ronald Pentiuk, the director of High Tech Central, prepared the assessment and offered no written comments. For the 2001-2002 school year, when Respondent moved from PC support services to web design, Respondent's performance was graded as exceeding expectations in three of the twelve criteria, and as "meets expectations" in the remaining nine criteria. Mr. Pentiuk commented that "Mr. Nevins has performed in an outstanding manner-- really super job in preparing the new CET lab." For the 2002-2003 school year, when Respondent moved from web design to co-teaching the CET class with Mr. Ledger, Respondent's performance was graded as exceeding expectations in three of the twelve criteria and as meeting expectations in the remaining nine criteria. Mr. Pentiuk performed this assessment and offered no additional written comments. For the 2003-2004 school year, when Respondent began to teach the CET class alone, Respondent received a grade of meeting expectations in eight criteria. In the criteria titled "Planning for Student Achievement" and "Subject Matter," Respondent received a grade of "exceeds expectations." In the criteria titled "Assessment of Student Achievement" and "State, School & District Requirements," Respondent received a grade of "below expectations," meaning that his performance was unsatisfactory. Mr. Pentiuk performed this assessment and offered no additional written comments. The record established at the hearing shows that High Tech Central's administrators expressed concern about Respondent's teaching and record keeping practices as early as May 2002. Ms. Cooley testified that, at the conclusion of the 1999-2000 school year, Ms. Ames had approached her with a request that she be permitted to teach both sections of the PC support services class alone, rather than splitting the course with Respondent. Ms. Ames stated that she was doing all the work anyway and felt it would be better for the students if she handled the class without Respondent. Ms. Cooley left matters as they were for the 2000-2001 school year, but then moved Respondent into the web design class for the 2001-2002 school year. As the 2001-2002 school year progressed, Ms. Cooley became concerned that Respondent was not properly tracking the progress of his students. She recognized that this was the first time that High Tech Central had offered a web design course and there would be a "learning curve" for everyone involved, including the instructor. Thus, the school's administration gave Respondent time over the course of the school year to work out the problems. In particular, Ms. Cooley was concerned that Respondent was not using lesson plans or a "career map" in his class. Each technical program at High Tech Central consists of a progression of competencies. To complete the program, or to pass from one phase of the program to the next, a student must demonstrate mastery of a certain set of competencies. An "occupational completion point" ("OCP") is a cluster of related competencies that a student is able to demonstrate and perform. A career map is a written chart completed by the instructor and used by the student to track the student's progress through the OCPs of a given program. Ms. Cooley testified that during the spring of 2002, three or four students in Respondent's class came to her to complain that there were no lectures or structured class work in the web design class and that the students in the class were left to do whatever they wanted. In early May 2002, a substitute teacher in Respondent's class came to Ms. Cooley to complain that Respondent left no lesson plan, despite the fact that his absence had been scheduled. The substitute teacher told Ms Cooley that the web design students appeared to be doing as they pleased in the class, including playing games on their computers. On May 5, 2002, Ms. Cooley and Mr. McCormick had a meeting with Respondent to discuss the lack of structure, discipline, and record keeping in Respondent's class. Ms. Cooley stated that every time she talked with him, Respondent would say he was going to do things better. Her concern was that she never saw any evidence of Respondent's performance matching his words. When queried as to the positive performance assessment authored by Mr. Pentiuk for the 2001-2002 school year, Ms. Cooley testified that she and Mr. Pentiuk had "agreed to disagree" about Respondent. Mr. Pentiuk was a "very, very accommodating" and "very, very patient" administrator who believed that Respondent was trying to do things the right way.3 Ms. Cooley had many conversations with Mr. Pentiuk about Respondent, but Mr. Pentiuk's philosophy was to give Respondent time, talk to him, and let him try to turn things around. Mr. Pentiuk also believed that Respondent's contacts in the business community were an asset to his students. Mr. Pentiuk testified that, due to lack of enrollment in the web design class, Respondent was moved into the CET class with Mr. Ledger for the 2002-2003 school year. Ms. Cooley testified that the administration believed that Respondent and Mr. Ledger could share each other's expertise in the same class for one year, then the CET program could be expanded by splitting it into two classes. The Department of Education standards state that the purpose of the CET program is to prepare students for employment or advanced training in the computer electronics industry. The Department's curriculum framework set forth the program structure as follows: This program is a planned sequence of instruction consisting of five occupational completion points as follows: (1) End User Support Technician, Level I Support Technician, Help Desk Specialist; (2) PC Electronics Installer; (3) PC Technician, Field Technician, Level II Support Technician; (4) Computer Support Specialist, Level I LAN Technician, Field Service Technician; (5) PC/Network Technician (Digital Electronics Repairer, proposed name change for 2005). When the recommended sequence is followed, the structure will allow students to complete specified portions of the program for employment or to remain for advanced training. A student who completes the applicable competencies at any occupational completion point may either continue with the training or become an occupational completer. The courses [sic] content includes, but is not limited to, installation, programming, operation, maintenance and servicing of computer systems; and diagnosis and correction of operational problems in computers arising from mechanical, electrical or electronics, hardware, and software malfunctions. The course content includes, but is not limited to, communication, leadership skills, human relations, and employability skills; and safe, efficient work practices.4 Respondent testified that things went well with Mr. Ledger because their skills complemented each other. Mr. Pentiuk testified that Respondent told him that Mr. Ledger provided most of the computer training in the CET class, and Respondent mostly taught employability skills, such things as the ability to get and keep a job, communication skills, and getting along with co-workers. Respondent agreed that he taught these employability skills, but emphasized that he also taught operating systems, and other software, whereas Mr. Ledger was a "hardware guru." At the end of the 2002-2003 school year, Mr. Ledger resigned his position and moved to Ohio, leaving Respondent as the sole instructor in the CET program. Upon learning that he would be teaching the class alone, Respondent told Mr. Pentiuk that he would require a new co-teacher or at least an assistant for the class and that he would need help in "getting up to speed with the gap" in his teaching knowledge of computer hardware. Mr. Pentiuk testified that Respondent also expressed insecurity about the returning students. Respondent feared they would be loyal to Mr. Ledger and would not accept Respondent as their sole teacher. In light of Respondent's expressed uncertainty about teaching the CET class alone, Mr. Pentiuk had discussions with Respondent in June 2003 regarding Respondent's teaching alternatives for the upcoming 2003-2004 school year. Mr. Pentiuk was interested in starting a business management and supervision program and moving Respondent into a teaching position in that program. However, this placement would have required Respondent to obtain state certification in business education at his own expense, and Respondent told Mr. Pentiuk he could not afford it because he was paying for a daughter to attend an Ivy League college. Mr. Pentiuk sought the advice of Mr. McCormick regarding Respondent's situation. In an e-mail to Mr. Pentiuk dated July 8, 2003, Mr. McCormick wrote, in relevant part: The tone of what [Respondent] is saying here [in an e-mail exchange with Mr. Pentiuk] indicates to me that giving him the CET class would be a recipe for disaster, especially given its current size. He is apparently looking for a way to continue doing not much of anything. For whatever reason, he does not believe he can handle the class or the curriculum by himself, even though that is what his current certification is in. I'm not sure about hiring him an assistant . . . even though Darryl is a good guy and I am sure he would be great with the students, I don't believe he has the technical background in networking that would be required. Any assistant teamed with Barry is going to end up doing the lion's share of the work, and I think that would be wrong-- especially if the assistant is not certified and qualified in this highly technical field. I think the bottom line is that Barry only wants to teach the soft "business employability skills," and really has no interest in CET. If he wants to teach the business curriculums, he needs to get off the dime and get certified! That is his responsibility, not ours. The fact [that] he feels that "it is really not the right time" and that he "really can't afford it right now" is his concern, not ours. There has been, and continues to be plenty of opportunity for him to do this. It would seem to me that with his future employability in the balance, he would not be fighting us on this issue. I don't know what else we can do to accommodate this teacher. If he is "uncomfortable" with either of the two options you presented to him, then perhaps we should try to find a teacher elsewhere who can meet our needs. I know this sounds cold, but after all, the goal is to provide our students with the best possible instruction . . . not make sure that our teachers don't feel "uncomfortable." This guy needs to get real. We have gone way beyond what is fair in offering him these options. He needs to decide if he wants to work here or not. My suggestion would be to place him in the business class this year, with the understanding that in order to maintain his teaching position, he must get certified in business, or at least be well on the way to getting certified, by next summer. In the meantime, we could advertise for a CET instructor who would be willing to take on the entire curriculum, not just the "employability skills." [ellipses in original] Mr. Pentiuk replied to Mr. McCormick that he shared many of the same feelings. At the hearing, Mr. Pentiuk testified that his reply did not mean that he agreed Respondent was not "doing much of anything," but that he did have concerns about Respondent's ability to pick up the CET class and teach it alone. Mr. Pentiuk ultimately did not follow Mr. McCormick's suggestion that Respondent be placed in the business class for the 2003-2004 school year, in part because the business class had not been advertised and the CET program had an ongoing enrollment. Mr. Pentiuk placed Respondent in the CET class, hoping that the training he had obtained in working with Mr. Ledger, along with formal training at the Cisco Systems Networking Academy program in the fall of 2003, would enable Respondent to handle the program. The School Board paid for Respondent to obtain Cisco training in Tampa and arranged for substitute teachers to take over the CET class on those days Respondent was in Tampa for training. Respondent completed the Cisco Certified Network Associate 1 ("CCNA"), Networking Basics, course of the Cisco Networking Academy Program on October 31, 2003. Respondent completed the CCNA 2, Routers and Routing Basics, course on December 9, 2003. Two more courses were required to obtain CCNA certification. Respondent testified that School Board policy required an instructor to take the first two courses then teach that material for a year before taking the second two courses and that he was never given the opportunity to complete the CCNA program. Mr. Pentiuk testified that problems began in Respondent's class at the outset of the 2003-2004 school year. Several students approached Mr. Pentiuk with complaints about the quality of Respondent's teaching. One irate adult student told Mr. Pentiuk that he intended to leave the CET program because he was not getting his money's worth.5 Late in the fall of 2003, near the Christmas break, Mr. Pentiuk contacted Georgianna McDaniel, the School Board's director of personnel services, to express his concerns that Respondent was not turning in his attendance records in a timely fashion, that Respondent did not have control of the students in his class, and that Respondent was not following the school's standard practices in preparing grades and documentation of his students' progress in the CET program. Ms. McDaniel directed Mr. Pentiuk to follow up on these matters and to note them on Respondent's final performance assessment for the school year. Respondent conceded that during the 2003-2004 school year, he was getting up to speed on the technology that he was supposed to be teaching to the students and often had to write down their questions so that he could research them and come in with answers the next day. In early 2004, the High Tech Central administration began to conduct informal observations of Respondent's class and to meet with him about his procedures, particularly as to taking attendance. Tracking attendance was a critical matter at High Tech Central because of the high percentage of its students who received Pell grants. Pell grants are calculated based on how many hours a student is in class, not merely on the number of days the student is present. Thus, teachers at High Tech Central were required not only to take attendance at the beginning of their classes, but to have students sign in and out of the classrooms in order to track their activities throughout the day.6 On the morning of February 19, 2004, Ms. Cooley was working in the front office when Respondent phoned in to say that he was running late. Ms. Cooley said that she would open Respondent's classroom and substitute until Respondent arrived. In a statement dated November 30, 2004,7 Ms. Cooley described her experience in Respondent's class as follows, in relevant part: While I was subbing in Barry Nevins' class one morning last year, as he was late coming to school, I noticed students were not focused on any assignments. I felt there was very little productive work being accomplished. One student pulled up the Internet and was reading current events; another one was checking the weather. I circulated to every student and simply asked what they were working on. Most students would responded [sic] they were working on projects. I asked if I could see the project information sheet, assignment sheet, project criteria sheet or rubric for the projects. None of the students had any written project direction sheets. I could not find any lesson plans or grade book. Two students walked in after 8 a.m. I asked if they would go to the office for a tardy slip. They responded that Mr. Nevins gives them extra time to start class.[8] I noticed the lab was full of pop bottles, food wrappers, and trash. While circulating, I asked each student if they had a career map or competency sheet. Not one student had a career map, assignment sheet, list of assignments, or any other tracking system. Students were not aware the program was divided into occupational completion points. As I approached two high school students sitting in the back room, I asked what they were working on. I noticed a small book placed inside the large textbook. I asked to see the book, and it was a hackers handbook.[9] One student in particular stood up-- in my face-- and yelled at me. I felt threatened; I felt he was rude and disrespectful. I radioed for the Student Affairs Specialist to discipline the student. Soon after the Student Affairs Specialist and this high school student left the room, Mr. Nevins arrived. I was scheduled to give an Employability Seminar to another group of students across campus, so I was in a hurry to leave Mr. Nevins' room. I thought he would have called me later in the day to find out what happened. He never talked to me until days later. He stated the students were upset and wanted to come talk to me. I told him I would be happy to schedule appointments for each one. He said they wanted to come as a class. I responded I felt it would be better to have a conversation with each student-- one on one; but, I never heard from Mr. Nevins about the students. I never received a copy of the letter until Ms. Garlock allowed me to read it last week.[10] * * * After this visit, I became very concerned about the lack of educational focus in the classroom. I visited his classroom a couple of weeks later, and I saw the same types of things happening. This time I asked Mr. Nevins about my concerns, and his responses made me question classroom management skills, paperwork, curriculum, lesson plans, etc. Every instructor has a student tracking system they use to maintain the data on each student. Whether they use competency lists, career maps, list of class assignments, etc. Every teacher does it a little bit differently. I do become concerned when a teacher does not have a tracking system or it is not consistent for every student in the class . . . . In a memorandum to Respondent dated February 26, 2004, titled "Classroom Management/Record Keeping Concerns," Ms. Cooley wrote as follows, in relevant part: The purpose of this memorandum is to summarize our conference held at 3:00 p.m. on February 20th, 2004 concerning issues related to your classroom management and basic record keeping practices. As you recall, Mr. Ronald Pentiuk, Director, High Tech Central, and Mr. Bill McCormick, Assistant Director, Operation, High Tech Central, also attended this meeting. During the conference, the following conduct was discussed: Improper attendance documentation on student tardies and early releases. Lack of up-to-date and complete career map documentation on each student. Lack of complete and accurate lesson plans. Lack of on task work demonstrated by students. Non-enforcement of school policies evidenced by not beginning class on time and allowing students to arrive late without proper sign-in documentation. I have reviewed your conduct as it relates to the established expectations as provided by our school's faculty handbook, our standard operating policies, and The School District of Lee County student attendance policies. This information was provided to you during new teacher orientation and training, standard in-service session, and at the beginning of each academic year during the pre-school sessions. I informed you that your conduct negatively impacted your students and our school in as much as inaccurate or incomplete recordkeeping and attendance documentation jeopardizes our ability to maintain federal Pell financial aid. This conduct also exposes the school to many unforeseen liabilities when we are unable to produce accurate student attendance records. And finally, non-enforcement of school policies on your part undermines the maintaining of good order and discipline throughout our campus by breeding contempt and noncompliance with school rules. During the conference, I provided you with the following directive(s) and assistance to take effect on or before Monday, February 23rd, 2004 and to continue throughout the remainder of the school year. Use/set up a teacher hard-copy grade book using the materials given to you 3 weeks ago. Keep accurate track of all tardies and early dismissals by documenting exact arrival and departure times. Print out all daily lesson plans. Update and maintain daily career maps for all students. Monitor students for on task behavior and use of proper classroom materials. I also informed you that your failure to comply with any of the above directives will result in another formal counseling meeting and letter, as well as placement on intensive assistance. In March 2004, the school's attendance secretary complained to Mr. McCormick that Respondent was not following the school's prescribed attendance procedure. On March 26, 2004, Mr. McCormick sent Respondent an e-mail reminding him of the correct procedure and directing him to follow it. On March 30, 2004, the attendance secretary complained to Mr. McCormick that Respondent had not turned in his attendance sheets by 9:00 a.m., as required by school procedure. Mr. McCormick sent an e-mail to Respondent, who wrote back to apologize, stating that he "got busy teaching a lesson and dealing with some interesting problems" and forgot to turn in his attendance. On April 14, 2004, Mr. McCormick observed Respondent's class. The CET lab was a large L-shaped room, approximately 800 to 900 square feet. There was a central open area with computer tables and computers and four auxiliary rooms each sectioned off by a solid half-wall from the floor up to about waist-level and a chain link fence from the top of the half-wall to the ceiling. These auxiliary rooms were generally referred to as "cages." The CET class was conducted for five hours each weekday from 8:00 a.m. to 1:30 p.m., with a half-hour lunch break. The students were required to remain in the classroom at all times, except during the lunch recess. There were rest rooms and a water fountain inside the CET classroom, and the school's administration expected that any short breaks from class work should take place inside the classroom. After his observation, Mr. McCormick sent an e-mail to Respondent with the following "feedback": As I arrived at about 8:30, you were obviously involved in taking care of a student issue in your back cage. However, the majority of the remainder of the class did not appear to be actively engaged in much useful learning activity. A group of 5 students were huddled up to the front right of the class visiting with each other. 4 other students were on their computers. At least two of them did appear to be viewing the online Cisco curriculum, the other 2 seemed to be surfing the web. 2 other students were setting up one of the back cages that had been disturbed by the maintenance men who are fixing your counter tops. At about 8:35 you assembled a group of students to the white board and began a discussion presentation on the different types of business models such as sole proprietorships, partnerships, etc. . . . You tried to engage the students in a discussion of the advantages and disadvantages of each. It did not appear to me that the students had any prior background prep on this subject such as a reading assignment. Although it could be argued that some knowledge of this topic might be useful to your students, I question the immediate relevancy of it given the wealth of more concrete and practical technical material available in the CET curriculum. I do commend you on getting the most out of what appeared to me to be a group of disinterested and unengaged students. You did your best to try to keep their focus. While you engaged these students in your discussion, two other students continued to work independently on their computers. I assume on the online curriculum. You also gave instructions to two other students to continue setting up the back cage. The two students in the back cage did not continue to set up the cage as you had instructed, but instead sat down in the back corner by a computer. They positioned a CPU so that it hid the monitor from my view. It was obvious to me that they did not want me to see what they were doing, although mainly what they were doing was visiting. Shortly before I left, I walked back unexpectedly to them, and saw that the one on the keyboard was attempting to log into the computer as an "administrator" but apparently did not know the correct password. They said they were attempting to get the computer connected to a nearby switch or server. Was this correct? I concluded my observation of your class at about 9:15. A few suggestions: Prior to a discussion presentation, make sure to give a prior preparation assignment so that the students can participate more fully in the discussion. If you are going to give a presentation on such a broad-based general knowledge topic such as the different types of business models, involve everyone in your class, regardless of their current place in the curriculum. There is no reason why the four other students should have been excluded from your discussion, even if they were not in the curriculum group you had assembled. Do not allow students to reposition computer equipment so as to mask observation of the monitors. Even if they were not up to anything inappropriate, it sure looked like it. Give desk work requiring a written assignment when you are tied up with a student issue in your office-- or at any other time you want to refocus their attention. Something as simple as completing the questions at the back of chapter xxx in their textbook would at least keep them somewhat focused on something other than visiting with each other. Focus your discussion presentations on the concrete technical material more directly relevant to the CET curriculum. Although what you covered does have some use and interest as background information, your time with the students in actual presentation should be devoted to your core curriculum material. I know it is sometimes difficult and frustrating to have someone come into your class for 45 minutes and make a few critical comments and suggestions based on that brief visit. Please take them in the [spirit] they are intended... as observations and suggestions. Later that day, Respondent sent the following response to Mr. McCormick's e-mail: Thanks for the feedback. I appreciate the time and effort you put into this. The student issue was quite urgent and unexpected. I had the class together and ready to go when [J.] showed up and we had to have the talk right away. It threw us off considerably as did the fact that . . . we weren't sure whether the counter-top guys were coming back today or tomorrow. Obviously the equipment they usually have to work with wasn't available. I purposely had a non-technical topic picked because I didn't know if I would have access to hardware for demonstration or practice. Also, business ownership is part of our curriculum (16.06)[11] and a very important part. I like your idea of a reading assignment to go along with it. I'll have to find something at the right level. The two students in the back were setting up the Cisco equipment (yes-- that involves connecting to the switches and routers) and were having some password issues with the computers (nothing major-- just a bit confusing). They would have been administrators on those computers. By the way, the computers in the cages don't go to the network or the Internet so they are "relatively" low risk. I also purposely wanted those low powered computers for this because they also won't run any popular games. Not much harm they can do in there. Interesting note-- I always tell them that hiding monitors is the quickest way to get me to come over. They sort of have the idea it doesn't work. The five students "visiting" in front would probably have been working with equipment in the cages under normal circumstances but knowing those guys I'm 99% sure they were talking about computers anyway. Lastly, this topic was covered by last year's students so there was no need for them to go through it again. When I do the A+ materials,[12] everybody participates because the advanced students need the review. The Cisco stuff can't be done by the beginners because they aren't ready so I give them something to read, review, research, etc. Quite a juggling act. Thanks again. It's great to have constructive feedback. On May 6, 2004, the day before he signed Respondent's 2003-2004 performance assessment, Mr. Pentiuk wrote a letter to Ms. McDaniel requesting that Respondent be placed on "performance probation." The letter noted that Respondent would receive "below expectations" ratings in "Assessment of Student Achievement" and "State, School and District Requirements," then stated: During this school year, Mr. Nevins has meet [sic] with me, Sue Cooley, Assistant Director for Curriculum, or Bill McCormick, Assistant Director for Operations, on numerous occasions and discussed the concerns relating to the above mentioned Accomplished Practices. The dates of these meetings, as well as observations were, January 13, 2004, February 20, 2004, March 24 and 26, 2004, March 30, 2004, April 15, 2004, April 2, 2004, and May 5, 2004. Administration has offered a myriad of suggestions and support to assist Mr. Nevins in improving his classroom environment, teaching techniques, teacher duties, and student assessment responsibilities. Attached is correspondence that has been conducted to show a flow of conversations reaping no positive changes in performance. In fact, unfortunately, there have been excuses and rebuttals, but performance has not changed. Ms. Cooley testified that Mr. Pentiuk consulted with Mr. McCormick and her when considering the request for performance probation. Ms. Cooley further testified that she and Mr. McCormick concurred with Mr. Pentiuk that Respondent needed to be placed on probation because Respondent continued to get the same things wrong and his performance was not improving. After receiving his performance assessment, Respondent contacted Donna Mutzenard, the president of the Teachers Association of Lee County to act as his union representative in a meeting with Mr. Pentiuk and Ms. Cooley about the assessment. Shortly after this meeting, Respondent learned of Mr. Pentiuk's letter to Ms. McDaniel requesting performance probation, which would include the initiation of the School Board's "intensive assistance program." The intensive assistance program ("IAP") is designed to rehabilitate poorly performing teachers. When the principal of a school determines that a teacher is experiencing difficulty in some area of performance, the principal must inform the teacher of these performance problems and provide assistance in the area of deficiency. Frequent feedback, peer coaching, and opportunities for training and development, such as peer observation and outside training courses, are among the items of assistance the principal is expected to provide and document. If assistance at the school level does not solve the problem, then the superintendent of schools authorizes Ms. McDaniel to appoint an IAP team, which includes the teacher's immediate supervisor and other persons with knowledge of the curriculum and of the teacher's deficiencies. Ms. McDaniel testified that she also tries to appoint one person without personal knowledge of the teacher. The IAP team's first task is to meet with the teacher in order to review: the nature of the program; the teacher's job expectations and performance standards; past performance assessments and other documentation of performance concerns and assistance; and the teacher's experience, certifications, and current assignment. The team also schedules individual diagnostic performance observations and conferences with the teacher followed by meetings of the entire team. At the conclusion of the IAP team's eighth meeting,13 the team makes a recommendation for action to the superintendent of schools, who must decide whether the teacher has raised his performance to standards, requires continued assistance, should be reassigned to a more appropriate position, or be dismissed from employment with the School Board. Ms. Mutzenard discussed the matter with Ms. McDaniel, arguing that there was insufficient documentation to justify appointment of an IAP team for Respondent. Ms. Mutzenard felt that one final performance assessment with two grades of "below expectations" did not meet the criteria for the IAP. Ms. McDaniel consulted with the superintendent of schools, reviewed the record, and ultimately agreed with Ms. Mutzenard. By letter to Mr. Pentiuk dated June 10, 2004, Ms. McDaniel denied the request for performance probation. The letter stated, in relevant part: It is clear by the documentation you presented that there are performance issues regarding Mr. Nevins' deficiencies in Accomplished Practice Indicators 2 and 12 (Assessment of Student Achievement and State, School & District Requirements) as indicated by the Below Expectations ratings he received on this year's Final Performance Assessment. It is also noted that the school could receive audit findings in the accreditation process for the incomplete Career Maps and attendance records. As Mr. Nevins has been put on notice regarding his need for improvement in these areas, it is my recommendation that you give him every opportunity to correct these deficiencies for the first quarter of the 2004-05 school year. Please continue to monitor and document his performance on a regular basis. If there is not a complete turnaround in the fulfillment of professional obligations expected of Barry, he will be placed on performance probation in the second quarter. Despite his belief that Respondent needed the assistance of the IAP immediately, Mr. Pentiuk accepted Ms. McDaniel's decision and set out to help Respondent at the school level during the first semester of the 2004-2005 school year. Mr. Pentiuk discussed matters with Respondent, whom Mr. Pentiuk described as "always [having] an answer for everything," meaning glib excuses for poor performance and a refusal to accept fault in his performance. Mr. Pentiuk advised Respondent to "buckle down and do your job" during the upcoming semester. Mr. Pentiuk assigned Ms. Cooley and Mr. McCormick to advise, assist, and observe Respondent. All three administrators conducted observations of Respondent's class and met with him to share their observations. Ms. Cooley worked with Respondent on his career maps and his overall assessments of student performance. In his observations, Mr. Pentiuk was disturbed by the fact that Respondent's students, though they always appeared to be working on projects, never seemed to know where they were on their career maps. Some students were not even aware that they had career maps. Mr. Pentiuk also observed a student sleeping in Respondent's class. Respondent was not aware of the sleeping student until Mr. Pentiuk pointed him out. Mr. Pentiuk's overall impression was that "not a lot of structured instruction is taking place" in Respondent's class. These incidents and observations further convinced Mr. Pentiuk that Respondent required more help than could be provided at the school level. During the first semester of the 2004-2005 school year, Ms. Cooley continued to work with Respondent to assist his job performance. She lent Respondent an instructional videotape keyed to the Florida Performance Measurement System's "summative observation instrument," a chart used by classroom observers in the Lee County school system to chart instances of positive and negative teacher performance. The tape discussed the document step by step, showing examples of an effective teacher at work in the classroom. Ms. Cooley described it as a "wonderful, wonderful tape" to show a teacher the right way to run a class. Ms. Cooley told Respondent to watch the tape, then to sit down with her and talk about it. Five days later, Ms. Cooley needed the tape to show to a group of beginning teachers. She went to Respondent's classroom to retrieve the tape and asked him if he had watched it. Respondent told her that he "never got to it." On October 6, 2004, Ms. Cooley conducted an observation of Respondent's classroom. She entered the class at 12:15 p.m. and stayed for about 30 minutes. Ms. Cooley's notes of the observation read as follows, in relevant part: Upon entering, I noticed one student reading the "Life Styles" section of the newspaper. Mr. Nevins quickly got up from his lap top and told me he was helping the student find a job. Mr. Nevins stated he was preparing this student's resume. When I questioned why Mr. Nevins was writing the resume, Mr. Nevins stated the student needed a job as he had been in this program a short time. When I approached another student and asked what he was working on, he stated he was waiting until 1:30 p.m. I found out he was not a current student in class without the proper visitor's pass. When asked, none of the students saw their career maps. Some have been in the program for two semesters. Chips, muffins, gatoraide [sic] bottles were at the computer stations and throughout the lab. When I asked students what they were working on, all the responses were the same. They all responded by telling me they were working on projects. I asked Mr. Nevins about the various projects. I asked for a copy of the project assignment sheets, criteria sheets, or rubrics. Mr. Nevins replied that the students were developing their own projects. My observation was the students were doing whatever they wanted and were given no direction or instruction. Checkmarks in grade book were used for attendance, but no tardies or leave earlies were noted . . . I am concerned the students lack direction, instruction, and detailed curriculum assignments. In late October 2004, Ms. Cooley contacted Bob Gent, the CET program teacher at High Tech North, another Lee County school, and asked him to visit and observe Respondent's class. Ms. Cooley thought it would help Respondent to discuss his class with a successful teacher whose program mirrored his own. Arrangements were made for Mr. Gent to visit Respondent's class on November 3, 2004. On November 2, 2004, less than 24 hours before Mr. Gent's scheduled visit, Respondent e-mailed Ms. Cooley with the following message: "I've rethought the situation and I'd rather not go through with this tomorrow. I will let you know if I decide to reschedule." Ms. Cooley testified that Respondent never provided a real explanation for his sudden cancellation of Mr. Gent's visit. On November 3, 2004, Cathy Race, High Tech Central's information technology specialist, sent an informational e-mail to all personnel of the school regarding several computer- related issues. Ms. Race reminded the school's staff that they should not bring in personally owned computers for use on the school's network because of the risk of viruses, nor should they allow non-district computers belonging to contractors, vendors, auditors, or partnering agencies onto the network before Ms. Race verified that the computer has modern, updated anti- virus software and up-to-date patch levels. The next day, November 4, 2004, Respondent allowed a student to connect his personal computer to the district network, resulting in the importation of a virus into the network. Mr. McCormick sent an e-mail to Respondent about the incident that concluded: "This incident reflects poorly on our school and your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy. Please provide an explanation as to why you allowed this to occur and how you intend to prevent it in the future." Later on November 4, 2004, Respondent sent the following answer to Mr. McCormick: I have already talked to Cathy Race about how this has happened. A student brought in a computer of his own to work on and another student was helping him fix it. A part of this problem was that drivers had to be located. The student, against the policy, but with good intentions got online and located the drivers but apparently got more than he bargained for. I talked with Cathy Race about setting up a meeting with [district director of information technology support] Dwayne Alton about the difficulties the computer use policies are causing in running my program. My policy at the beginning of last year was to not allow students to bring in computers to work on. You changed it after a student came to see you and complained. I wouldn't have had this problem if we kept my original policy. "your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy?" Do you really think that every time there is a computer use problem that this is what it means? You were at a meeting last year where Dwayne Alton said that we were not considered a real problem for the district. Put a bunch of computer geeks together and some "challenges" are inevitable. Ask any computer teacher in the district. I find the whole statement-- but especially the "your inability to understand" line very insulting and disrespectful. Expect to be hearing more about that sort of usage and tone very soon. If we were so inclined there were two commands we could have used to release the IP address and you never would have found the computer in here. The students and I took immediate responsibility for what happened. I bring that up because I'm not so sure that taking responsibility for unfortunate events that take place under you is very popular around here. Mr. McCormick testified that he did not know what to make of Respondent's statement that he should expect to hear more about his usage and tone, and that it was not his intent to insult Respondent. Later on November 4, 2004, Mr. McCormick responded to Respondent as follows: Was the student aware of the policy at the time, and is he/her now? If the student was aware of the policy, but choose [sic] to ignore it, I would expect some sort of discipline action or referral. If the student was not aware of the policy, I would want to know why. I understand the unique challenges faced by your class, however I don't know how much clearer the district policy could be with regards to connecting "guest computers" to the network. The resulting manhours and resources needed to remedy these types of problems leave us no choice but to treat them serious [sic]. If you feel that you are unable to [adequately] monitor your students when they are working on their computers they have brought in, I certainy [sic] agree that we should revisit the policy of allowing them to do so. I'll let you make that call and will support you if you decide against it. Respondent did not directly respond to the questions raised by Mr. McCormick's second November 4, 2004, e-mail. However, on November 8, 2004, Respondent filed with the School Board an equity complaint, alleging that he had been discriminated against on the basis of his religion and his sex.14 In the narrative portion of the complaint, Respondent recited his work history at High Tech Central, including the allegation that except for the Cisco training, he had received "no support or encouragement from the administration" upon taking over the CET program after Mr. Ledger's departure. The following excerpt from the complaint set forth Respondent's essential allegations: The problems developed last year when [Ms. Cooley] had to watch my class for thirty minutes one morning and she did not do a very good job (see attachment).[15] I have been an express target of Administration's negative attention since then. They are often very confrontational and negative toward me and completely ignore points I make to show my efforts. My lessons and class work in [CET] fully correlate to the State Standards for my course. Administration has received lesson plans, unit planning documents, and assessment information to support this. My grading and progress reports are up to date. Furthermore, several of my students have been placed in industry related employment which is the ultimate goal and stated mission of the school. This information has not showed up in any documentation I have received from administration. Administration has gone to great lengths to reprimand me for not utilizing career maps (a particular tracking device) on a day to day basis in my class. I update them periodically based on unit completion but do not place a strong day to day focus on them because students are more interested and motivated by Industry Certification requirements which also very strongly relate to the career map's requirements. Students are made aware of the link. The case has been made by Administration that because I do not utilize and emphasize these career maps my teaching is unstructured and of low quality. A particular technique that has been used to evaluate my job performance is for an Administrator to come in to my classroom, seek out a student who may be having a bad day, may have just gotten reprimanded, may be somewhat overwhelmed by a particular section of material, etc. and badgering that student for negative information about me and the class. I don't think the proper way to judge our Administrators would be to go to a Faculty meeting and seek out the teachers who are rolling their eyes and snickering. I have been told that I am being judged on this "measure of satisfaction." Besides being a contract violation the selection and measurement technique used is highly subjective and arbitrary. Again, the case has been made, without logical connection, by Administration that because I do not meet these satisfaction standards my teaching is unstructured and of low quality. In my Department (Business Technology) the Department Chair and two other teachers who are National Board Certified (all three with twenty plus years of experience-- and all female) have not been required to work with the career maps. They have not been using them for at least the last several years and they have not received any type of reprimand. They use "competency sheets" which is quite similar to the system I use (and I also utilize the periodically updated career maps). In addition, these teachers are not subject to the same degree of scrutiny, evaluation, and criticism as has been shown in my case. Students are not encouraged to "snitch" and basically proper procedure is followed. The Administrators have little trouble in treating these other teachers with respect. Therefore I am asserting that Mrs. Cooley has selected me for "attention" based on my being male and Mr. Pentiuk and Mr. McCormick has [sic] been supportive of her. I do not rule out that my being Jewish, a New Yorker, and a Union Rep had an effect on their decision making. Administration has used this as the cornerstone of an overall effort to undermine and discredit my teaching efforts and abilities. The remainder of the complaint catalogued the negative effects "this situation" has had on Respondent, including stress and being treated as "a slacker and unprofessional." Respondent also discussed the "highly insulting and disrespectful" e-mail exchange of November 4, 2004, with Mr. McCormick. At the request of Becky Garlock, a School Board investigator, Mr. Pentiuk, Mr. McCormick, and Ms. Cooley prepared written statements in answer to Respondent's allegations.16 Mr. Pentiuk's statement was as follows, in full: This letter is in reference to the equity complaint filed by Barry Nevins. I regret that Mr. Nevins has these strong feelings about being picked on. The administration at High Tech Central is concerned about the structure of his program and his delivery relating to the competencies and Career Map for the [CET] program. We have recommended that Mr. Nevins be placed in the intensive assistance program and feel that he has the ability to become an effective teacher. We have also asked for a fellow [CET] instructor from High Tech North to come, and Mr. Nevins felt that it was not a good time. We are ready for Mr. Nevins to find the time to become a good teacher. I feel that these allegations are with no credibility and I wish that Mr. Nevins would exert the energy toward his program that he has toward this complaint. Mr. McCormick's statement discussed Respondent's problems in complying with attendance reporting policies, and further discussed the November 4, 2004, e-mail exchange regarding Respondent's student introducing a virus into the computer network. As to Respondent's main point, that his class was being unfairly singled out for administrative attention, Mr. McCormick wrote: As I recall, the administrative team began looking more closely at the CET program during the 2nd semester of the 03/04 school year when an adult student withdrew from the program and made some disturbing statements concerning the quality of the instruction and classroom management practices of the instructor. The student was being given a withdrawal interview by Ms. Soto, one of our guidance counselors. Because of the veracity of the comments made by the student, she referred the student to me. I interviewed the student and determined that he should make his comments known to Mr. Pentiuk, which he immediately did. Mr. Nevins was informed of the statements and given a chance to respond. He immediately dismissed the student as being unreliable and not trustworthy. His comment was "students will say anything." Nonetheless, the student appeared to be credible and this was our first real indication that the CET program may need some monitoring. Further discussions with the guidance department revealed other students had in recent months been dissatisfied in much the same way. On another front, Mr. King, the Student Affairs Specialist had also been indicating problems with attendance not being accurately recorded in CET. For example, he indicated that tardies and absences were not being recorded when necessary. This was confirmed with the attendance secretary. These indicators pointed to the fact that the quality of instruction and classroom management practices warranted some attention on the part of the administration. Upon some cursory reviewing of Mr. Nevins' academic and attendance records, it was apparent that he was in need of some assistance. Any inference that Mr. Nevins is being singled out for unwarranted attention by the administration of this school for any other reason but for legitimate concerns about classroom management practice and the quality of the instruction, is completely false. This administration wants Mr. Nevins to be successful, and we have demonstrated that through our actions. Most of Ms. Cooley's statement was devoted to explaining the events of February 19, 2004. Besides her version of those events, detailed at Finding of Fact 32 above, Ms. Cooley made the following general statements about Respondent and the school's administrators: Administration has supported Mr. Nevins in numerous ways. Thousands of dollars went into his lab for new desks and equipment. It was a state of the art lab. In fact, he even mentioned it was better than Edison College's computer lab. Administration sent Mr. Nevins to Cisco training (in Tampa, I think). This training took weeks and was very expensive. The school paid for his travel, food, lodging (if needed) and his class in order to help support him in his teaching efforts. Mr. Nevins even commented that some of the students would be upset with his teaching methods when the other teacher moved away. Mr. Pentiuk was extremely understanding, patient, and supportive of Mr. Nevins. * * * This is my 29th year in education. I have never had a teacher file a grievance. I feel my role is that of a support system for the instructors in my school. I share with the instructors when they are doing a good job and I remiss [sic] in my duty if I did not share my concerns. I believe Mr. Nevins is a very intelligent man. I believe he is very knowledgeable about computers. My objective is to help him be successful in the classroom, so he can help students be successful in the workforce. At the hearing, Respondent at least implied that the decision to recommend that he be placed in an IAP, and the ultimate decision to recommend his dismissal, was in retaliation for his filing an equity complaint against the three named High Tech Central administrators. The evidence does not support such a suggestion. Mr. Pentiuk, who in any event retired before the completion of the IAP process, had only a vague recollection of the complaint's allegations. Mr. McCormick never saw the equity complaint before he testified in this proceeding and knew none of its details, or even whether he was named in the complaint. His statement, described at Finding of Fact 64, was written at Ms. Garlock's request and was not based on Mr. MCormick's having read the complaint. Ms. Cooley was "shocked" by the equity complaint because she believed that her actions toward Respondent, while sometimes critical, had always been professional. Respondent's allegation of retaliatory intent on the part of anyone in the administration of High Tech Central is not credible. By letter to Ms. McDaniel dated November 15, 2004, Mr. Pentiuk renewed his request that Respondent be placed on performance probation. The letter reviewed the administration's efforts to assist Respondent during the first semester of the 2004-2005 school year, including Respondent's refusal to cooperate in Mr. Gent's visit to his class. By letter dated December 16, 2004, Superintendent James Browder informed Respondent that, pursuant to the recommendation of Mr. Pentiuk and Ms. McDaniel, Respondent would be placed on a plan of assistance. Mr. Browder wrote that he would appoint an assistance team to work with Respondent during the second semester of the 2004-2005 school year. Mr. Browder informed Respondent that the first meeting would take place in early January 2005, and that he could name a representative to attend the meetings on his behalf. On the same date, Ms. McDaniel hand-delivered the superintendent's letter to Respondent in Mr. Pentiuk's office. The superintendent delegated to Ms. McDaniel the task of choosing the members of the IAP team. She selected Mr. McCormick and Ms. Cooley, because they were Respondent's direct supervisors at High Tech Central and were aware of the curriculum and Respondent's deficiencies. Ms. McDaniel testified that she had appointed six IAP teams before this one and that her standard procedure was to appoint both assistant directors of the school. Ms. McDaniel also chose Suzanne Roshon, the School Board's coordinator for technical and career education, as an objective outsider without prior knowledge of Respondent, or his classroom setting. Ms. McDaniel acted as coordinator and facilitator for the IAP team meetings. Ms. Mutzenard was an observer at the IAP team meetings as Respondent's representative.17 The IAP team held its organizational meeting on January 13, 2005. Respondent and Ms. Mutzenard were present. In her role as coordinator, Ms. McDaniel chaired the meeting, explaining the steps in the IAP process. There would be seven weeks of observations in Respondent's class with three observations taking place each week. The observations would be unannounced. Not more than one observation could take place in a single day. The observers were not to talk to Respondent or the students during the observations, and Respondent was to act as though the observer were not present. The observers were not to discuss their observations with each other prior to the weekly team meetings. Respondent was directed to turn in his lesson plans each week so that the observers would know what to expect when they came into the classroom. Ms. McDaniel's role was to determine whether the observers had common concerns about Respondent's classroom methods, and to ensure those common concerns received emphasis at the team meetings. Ms. McDaniel testified that, at this initial meeting, it was clear that Respondent was not happy to be involved in the IAP process. He believed that he could document his program's success and that he should not be there.18 Ms. McDaniel emphasized the need to maintain a "positive attitude in a positive learning environment" because it was clear to her that Respondent did not have a positive attitude about the scrutiny he was receiving. Ms. Cooley conducted the first recorded observation, on January 21, 2005, at 12:30 p.m. As she entered the classroom, Ms. Cooley noted that two students were sitting at picnic tables outside the classroom and that Respondent walked to the door and told them to return to class. One student left the classroom carrying a length of cable then returned for a bowl of water and left again. A second student walked in and took another bowl of water out of the classroom. Ms. Cooley testified that the students had caught a stray dog on campus. They used the cable to tie the dog to a tree until school was out. Respondent knew what was going on with the dog and was not requiring the students to sign in and out of the class. Ten students were watching a video about the founder of Apple computers and events in the industry during the 1980s. Two students were working on a computer in the back of the room and another was working in one of the cages. Later, one of the two students in the back put his head down on the desk. After the video, Respondent asked the students what had changed over the years. Students shouted out answers, and Respondent corrected them for talking all at once. Respondent then asked another question. One student, Keith McNeil, dominated the discussion. One student received a call on his cell phone and walked out of the classroom. Another student was using his Palm Pilot and another was reading a book. Though the class would not be dismissed until 1:30 p.m., Respondent stopped teaching and ordered the students to clean up the classroom at 1:05 p.m. Ms. Cooley was surprised that Respondent had not prepared his class to be on its best behavior given that he knew there would be three observations that week. In her follow-up notations and recommendations to Respondent, Ms. Cooley observed that there were too many distractions in the classroom, that not all the students were focused on the video, that the video itself was too long and too old for meaningful use in the CET program, that a couple of questions were insufficient after spending over 30 minutes watching the video, and that 25 minutes was too much time for classroom clean-up. Ms. Cooley later testified that a computer class is a clean environment that should take only a few minutes to clean up at the end of the class session. Mr. McCormick conducted his first observation on January 24, 2005, at 8:00 a.m. He noted that only ten out of the fifteen students present had signed in on the attendance log. Respondent divided the class into three groups. While Respondent worked with one group, the students in the other two groups had no direction. One student took a phone call during classroom instructional time. While Respondent was reviewing material with one group, some students in that group were surfing the Internet.19 There were vending machines just outside Respondent's classroom door, and students from the class were going out to buy food and drink from the machines. Respondent had complained about the location of the machines, and they were later moved a bit farther away from the classroom door. Mr. McCormick conceded that the machines were too close to the classroom, that they were a temptation to Respondent's students and that they were a distraction to the class when anyone used them. However, Respondent was nonetheless remiss in allowing students to freely go in and out of the classroom except during the lunch break. Ms. Roshon made her first observation at noon on January 26, 2005. Ms. Roshon disclaimed any expertise in the CET program, but testified that she has observed the classes at both the High Tech Central and High Tech North campuses and was familiar with the CET performance standards. When she entered the classroom, Ms. Roshon saw no structured activities taking place. Several students were sitting around talking in the middle of the room and others were in two of the cages. Shortly thereafter, Respondent walked over to the group in the middle of the room and told them they were going to discuss Chapter 13, which caused some grumbling among the students. Respondent began his lecture with ten students, one of whom was reading a book and one of whom was writing. Ms. Roshon observed that no one was taking notes on Respondent's lecture. Respondent asked questions in an effort to engage the class, and there was some give and take among Respondent and two or three of the students. Several times during his lecture and PowerPoint presentation, Respondent told the class, "You won't need to know this" or "This isn't important." Ms. Roshon questioned why Respondent would teach material that was not important. One of the students asked a question. Respondent suggested that the student do some research on the topic. The student got up to go to a computer. Respondent asked him to do the research later, but the student ignored this instruction and went to the computer. He looked up and printed some information, then handed the printout to Respondent, who thanked him. Ms. Roshon observed one student sleeping during the lecture. Respondent made no effort to wake up the student. Several students were wearing hats, which is forbidden by School Board policy. Several students had sodas in the class. High Tech Central has a policy prohibiting food and drink (except for bottled water) in the classroom.20 Students seemed to come and go as they pleased during the lecture, without signing in or out of the classroom. The students in one of the cages were talking, laughing, and walking around throughout Ms. Roshon's observation, leading her to wonder if they were engaged in any sort of educational activity. One of the students in the cage laughed loudly after looking at someone else's computer screen. On February 1, 2005, at 8:30 a.m., Ms. Cooley conducted her next observation. There were fifteen students in the class, one of whom remained in one of the cages throughout the observation. As Ms. Cooley entered, she observed that Respondent was just starting a PowerPoint presentation on "Objectives, Attitude, Generic Troubleshooting," comprising issues such as not overlooking the obvious, performing research, checking simple things, and writing things down. Respondent read the PowerPoint slides to the students and asked questions such as, "Why would you need to write things down?" Respondent was still going through the PowerPoint presentation when Ms. Cooley left the classroom at 9:10 a.m. In her written report, Ms. Cooley noted that one student had his shoes off and another yawned very loudly during Respondent's presentation. Ms. Cooley recommended that Respondent reduce the time he spends on PowerPoint and get the students actively engaged in the class. She expressed a concern that everything she observed in the class was "generic, low level, basic material . . . I have not observed a lesson on A+, Cisco, or any specific networking material." She observed that the PowerPoint material was far below the level of the majority of the class who were returning students and that nothing she witnessed in the class corresponded to the lesson plan filed by Respondent. 85. On February 3, 2005, from 12:50 to 1:30 p.m., Ms. Roshon conducted her next observation. When she entered the classroom, Ms. Roshon noted that the students were sitting in groups talking, but not about anything related to their class work. Respondent was in one of the cages, but came out into the classroom when he saw Ms. Roshon. Respondent directed one group of five students to work on their class work, which they did. Respondent answered some of their questions. Ms. Roshon observed that students in the back cage became very loud. One student walked out of the classroom, bought a candy bar, then walked back in without asking Respondent's permission, or signing the attendance log. Students were eating and drinking at their computer stations. At 1:15 p.m., Respondent told the class to begin cleaning up. The clean-up was finished by 1:20, and the students spent the remaining ten minutes standing around talking about extraneous matters. Ms. Roshon observed that there was very little structure in the classroom, and students did not appear to know what they were supposed to be working on. She suggested that Respondent require the students to keep a daily journal of what they did in the class, and that Respondent should regularly check the journals and provide feedback to the students. Respondent did not implement this suggestion. 88. On February 4, 2005, from 9:20 to 10:00 a.m., Mr. McCormick conducted his next observation. Mr. McCormick initially criticized Respondent's weekly lesson plan as simply a list of topics with no detail as to how Respondent intended to teach those topics. Mr. McCormick noted that thirteen students were present, but that he could not determine whether they had signed in because Respondent had no sign-in sheet posted at the classroom door. For security purposes, High Tech Central required all staff, faculty, and students to wear photo identification badges around their necks or clipped to their clothing. During Mr. McCormick's observation, a school security guard entered the classroom to check the identification badges. Of the thirteen students present, five did not have their badges, leading Mr. McCormick to conclude that Respondent had not checked the students' identification at the beginning of class as required by school policy.21 Mr. McCormick noted that three students were working independently on computers in the main part of the lab, and that each student was on a different web site. One of the students was looking at telephones on Best Buy's web site, which Mr. McCormick believed could have been related to a class assignment. However, another of the students was looking at a "Twilight Zone" web site, clearly unrelated to the CET class. One of the three students left the classroom for ten minutes without signing out or obtaining a pass from Respondent. Another group of three students was working in the right-side cage. Two were on web sites and one was working on a curriculum test program. One of these students left class for twenty minutes without signing out or obtaining a pass. The remainder of the class was in the left-side cage, engaged in a group discussion. Mr. McCormick described it as follows: I was unable to determine the subject of discussion as it was unfocused and was not being led in any discernable or deliberate way. Students wandered in and out of the cage at random during the discussion. Overall impression of this activity was that it was unfocused and random. Students did not appear engaged in any meaningful way. At about 9:40 a.m., Respondent asked the group of students in the lab to "come up with some good scenarios and good stuff for the students in the cage." Mr. McCormick assumed that Respondent wanted to give some direction to the discussion going on in the cage and was relying on other students to supply the scenario. Mr. McCormick testified that he thought it showed poor preparation for Respondent to ask students to make up scenarios on the spot for a class discussion. Mr. McCormick noted that students were still making frequent trips outside to the vending machines and that Respondent allowed food and drink in the classroom. Mr. McCormick testified that the prohibition on food and drink is in the faculty handbook, and that the administration "harp[ed] on it" at every faculty meeting. Besides the potential for spilling food or drink on the computers, food and drink created a sanitation and pest control problem. In his written observation report, Mr. McCormick concluded that Respondent's classroom "presents a very unprofessional appearance." At the hearing, Mr. McCormick called the classroom "a mess." It was disorganized, strewn with snacks and drinks and littered with computer parts. On February 7, 2005, the IAP team met with Respondent, Ms. McDaniel and Ms. Mutzenard to review the observations made by the team members up to that point. The team members shared their observations with Respondent, including positive feedback and suggestions for improvement. Ms. McDaniel summarized the suggestions as follows: Lesson Plans need to be detailed so an observer or substitute can clearly determine who does what when. Classroom Rules need to be addressed and maintained including sign in/sign out, food and drink not allowed, students focused on time on task, cell phone use, students walking in and out of classroom for snacks, etc. in order to assist with classroom management strategies. Organizational tool to be created/maintained for student progress-- career map. Mrs. McDaniel will email Mr. Nevins a template of a lesson plan. Mr. Nevins can take advantage of other options; such options might include Mr. Nevins observing other instructors at other schools teaching similar programs or someone observing Mr. Nevins. At the hearing, Ms. McDaniel testified that Respondent was very defensive about the observations. He was argumentative and disagreed with what the observers said they saw in his classroom. Respondent refused to sign the summary minutes of the IAP team meeting. Rather, he requested an opportunity to respond to the minutes with additional information. Ms. McDaniel could not recall that Respondent ever followed up with any additional information. On February 9, 2005, at 12:55 p.m., Ms. Cooley conducted her next observation. As she entered the classroom, Ms. Cooley saw a student talking on a cell phone. Respondent called out to the students to be seated so that he could go over their test answers. Of the eleven students present, two remained in the back cage area. Respondent read out the first test question and several students called out answers. Respondent asked them not to shout out the answers. He read the next question, and several students called out answers. This time, Respondent did not correct the students, nor did he correct them when they shouted out answers to the next five questions. Finally, Respondent said, "Guys, one at a time." A student yelled out, "Clean up." Respondent continued talking, but students talked over him. Some students began standing around, waiting for class to end. In her comments, Ms. Cooley wrote that Respondent "needs to be consistent with his classroom policies and procedures." She noted that the seven minutes allotted for end-of-class cleanup was more appropriate for a computer class than the fifteen minutes she noted in an earlier observation. On February 10, 2005, from noon to 12:40 p.m., Ms. Roshon conducted her next observation. Respondent called the class to attention to hear a lecture by a fellow student, Keith McNeil, on the Linux operating system.22 Ms. Roshon acknowledged that the student appeared to be very knowledgeable, but she was uncomfortable with his "lording it over" the other students that he knew this material and they did not. She also wondered if all the students were required to give such lectures, or if this student was lecturing for some particular reason. Ms. Roshon noted that Respondent's questions made it apparent that he did not know the software or the material the student was presenting. She was concerned that this made it appear to the class that Respondent knew less about the class subject matter than did the student. She was more concerned that Respondent had not reviewed the software for appropriateness before he allowed the student to teach it to the class. Ms. Roshon noted that the student giving the lecture was drinking from a bottle of soda in front of the group. She commented that if Respondent was going to give students leadership opportunities, he should require them to act as role models. She also noted that students "still get up, move around, use the rest room, etc. at random. Seem to come and go as they please." In her written report of the observation, Ms. Roshon stated to Respondent: "You are very fortunate to have a student with so much knowledge and what appears to be a good rapport with your class. BUT, this student was doing EXACTLY what I have been waiting to see YOU do-- TEACH." Ms. Roshon saw Respondent go around the classroom and speak to individual students, but did not observe Respondent teaching the class as a whole. 104. On February 11, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. When Mr. McCormick arrived in the class, Respondent was grading tests that the students had just taken. Mr. McCormick noted that the students appeared "unengaged" in any activity related to the CET curriculum. One student was talking on the phone to a Staples store, with a sales brochure in front of him, and three other students were playing "Doom 2" on an old Macintosh computer. Respondent returned the tests to one group of students then commenced an oral review of the questions and answers. Mr. McCormick noted that Respondent conducted the review in distracting proximity to another group of students. Mr. McCormick also noted with disapproval that Respondent referred to the multiple choice test as "multiple guess." One student left the class early without signing out. Another student had a two-liter bottle of soda on his desk, which Respondent eventually asked the student to remove. Clean-up activity began at 1:16 p.m., fourteen minutes before the end of class. The clean-up consisted of about one minute of straightening chairs, after which the students were unengaged until 1:30 p.m. Earlier in the day, Mr. McCormick had received a report that someone in Respondent's class had visited a pornographic web site. Mr. McCormick decided to investigate the matter because the school district's firewall filter should have prevented such activity. After the class was dismissed, Mr. McCormick asked a student in Respondent's class to show him the web site. The student did so and arrived at a site displaying what Mr. McCormick described as pornographic photos. Mr. McCormick realized the site was available because the web address did not contain the key words that the district's firewall is set up to block. At the hearing, Mr. McCormick emphasized that he did not believe Respondent would knowingly allow his students to access pornographic web sites. Mr. McCormick's criticism was that Respondent did not know, which was emblematic of Respondent's inability to maintain control of and know what was going on inside his classroom. Mr. McCormick suggested that Respondent position the computer monitors in the class to give himself maximum observation ability from a central position. Mr. McCormick testified that many students would position themselves so that their monitors could not be seen unless an observer was standing directly behind them. On February 16, 2005, the IAP team met with Respondent, Ms. McDaniel, and Ms. Mutzenard. At the outset, Respondent stated that he would submit his written responses from the previous team meeting at the next team meeting on February 28, 2005. As Ms. McDaniel testified, no such written responses were ever supplied by Respondent. Ms. Roshon then gave a summary of her February 10, observation and also stated that she had observed the CET teacher at High Tech North. Based on these observations, she had the following suggestions for Respondent: require students to prepare a notebook based on the chapter notes and software the students use on a daily basis, which could be used as a trouble-shooting reference; require students to sign in and out for bathroom breaks; and require students to keep a daily log of their work, upon which Respondent could check and comment. Respondent defended himself regarding some aspects of Ms. Roshon's observation. Mr. McNeil, the student who gave the Linux lecture, was fighting a sore throat and had asked Respondent for permission to drink a soda during his talk. Respondent also stated that he trusted the student not to do anything inappropriate and, thus, felt no need to preview the software prior to the student's lecture. Mr. McCormick then described his observation of February 11, 2005. He agreed with Ms. Roshon that a daily log would be helpful for Respondent to keep track of his students' progress. Mr. McCormick also agreed with Ms. Roshon's suggestions that students be required to sign in and out for restroom breaks and that they be required to keep trouble-shooting notebooks. Respondent disagreed with requiring students to keep a notebook. Ms. Cooley described her observation of February 9, 2005, and made a particular point of her concern that Respondent was inconsistent on the matter of allowing students to shout out answers. Ms. McDaniel summarized the deficiencies in Respondent's performance as noted by the IAP team, including: lack of consistency with rules and procedures; lack of consistency with students signing in and out; removal of all games from classroom computers; and arranging the classroom computers for maximum viewing capability by Respondent. Mr. McCormick stated that there were students still in the CET program who had completed all their occupational completion points and a lengthy discussion ensued regarding Respondent's tracking of students' progress. Ms. Cooley stated that Respondent had not turned in revisions to a Council on Occupational Education program reports that were due during the previous school year.23 Respondent promised to turn in the revisions on February 22, 2005. Respondent also promised to bring to the next IAP team meeting his grade book and all the career maps, or other tracking devices for his CET class, neither of which the IAP team had seen at this point. He also committed to removing all games from the computers in his classroom. Ms. McDaniel testified that by the time of the February 14, 2005, meeting, she perceived that Respondent was angry about the IAP process. It appeared to Ms. McDaniel that Respondent did not believe that he or his students needed to follow the rules and procedures established by the School Board or High Tech Central. Mr. McCormick testified that by this time he was "astounded" that the IAP team's observations and comments were the same every week. Respondent was not correcting the items noted by the team and was very defensive in the team meetings. 117. On February 22, 2005, from 8:15 to 8:45 a.m., Ms. Cooley conducted her next observation of Respondent's classroom. Respondent was working on computer assembly with five students in one of the back cages. Three students were in the other back cage. One of these students was looking up computer parts prices on the Internet and told Ms. Cooley he was seeing where the market was going. Thirteen students were present in the class, but only eleven had signed in. Two of the eleven had not indicated the time they arrived. No students were wearing identification badges. Six students were in the main computer lab. Two of them were reading the novel Great Expectations for another class and continued reading throughout Ms. Cooley's observation. Ms. Cooley asked them about their career maps. They replied that they knew nothing about career maps. When Ms. Cooley asked them how they knew which competencies they were working on, they told her they went "chapter by chapter." Ms. Cooley tried to redirect the students who were doing outside work. Respondent was so focused on the group he was working with that he did not notice what the other students were doing. Ms. Cooley noted that, based on Respondent's lesson plans, she could not tell one group of students from another. Not one student was working on assignments identified in the lesson plan. She concluded that the students "are not on task, not on track." 121. On February 23, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation. A music video, bearing no apparent relationship to CET class work, played over and over again on a classroom projector throughout the observation period. Three students were on shopping web sites and one was on E-Bay. Respondent had assigned them to learn how to acquire computer parts and build the best computer possible for $1,500. Mr. McCormick noted that this was legitimate CET class work. Respondent was circulating through the room. Mr. McCormick observed that it was still difficult to see the computer monitors in the back cages from the main part of the classroom. One student was reading a booklet that was not related to the CET program. A two-liter bottle of soda was on the classroom floor and an open bottle of soda was on a student's desk. Once more, all work stopped at 1:15 p.m. for clean-up activity that took about one minute. In the follow-up remarks to his written observation report, Mr. McCormick noted the unprofessional appearance and distracting effect of playing music videos in the classroom. He again suggested that Respondent stop wasting the last fifteen minutes of class and plan activities to keep the students busy until the dismissal bell. Mr. McCormick again told Respondent that he must enforce the rules against food and drink in the classroom. 125. On March 2, 2005, from 10:10 to 10:50 a.m., Ms. Roshon conducted her next observation of Respondent's class. When she walked into the classroom, Ms. Roshon noted that Respondent was sitting and talking with a group of four students. The conversation was apparently not related to class work because Respondent jumped up when he saw Ms. Roshon. He told her that half the class was "missing," without explaining where the students were, and that two of his students had placed in the "Skills USA" competition.24 Respondent announced that it was time to go over the test. Some students asked, "What test?" It transpired that not all of the students present had taken the test. Respondent spent eight minutes looking for the test. The group who had been talking with Respondent when Ms. Roshon entered continued their conversation about the relative merits of "a small house" versus "a condo." Three other students were working in the back cage, and Ms. Roshon noted that she still could not see their monitors from the classroom. When she approached the students, one of them turned off his monitor. Ms. Roshon also noted that the sign-in sheet was still not being used. Respondent gathered two students to go over their tests. They discussed the questions and answers aloud although another group of students was still taking the test. Ms. Roshon noted that Respondent told a student who was withdrawing from the class to take the test "for old times sake." Respondent then had this student correct his own test and those of the other students. Ms. Roshon observed that the student made some critical remarks about his classmates' performance on the test. Ms. Roshon positively noted that, when one student was confused about an issue, Respondent had the students go on their computers to find the answer. However, she also noted that one student appeared to become bored with the test review, rolled his chair away from the group, and turned on his MP3 player with earphones. The student even played "air guitar" near the group reviewing the test, and Respondent said nothing. In her written comments to Respondent, Ms. Roshon wrote, in relevant part: One big concern I have with the structure of today's activity is that you have this huge classroom and yet all of your students were packed into one small area at the back of the room. It would have made more sense to me that you would have taken the students you were going over the test with to an area of the classroom that would have been quieter and would have caused less distraction to other students. It was also a VERY relaxed atmosphere and not as conducive to feedback and interaction from students as it could have been. * * * I did have trouble following your lesson plan . . . . Once again, I don't know how the students know what they are to be doing. I didn't see any evidence of log books or checklists. * * * My concerns still are: How do students know what to work on. Class activity seems to start AFTER I walk into the room. Students seem to wander around however they feel like. On March 3, 2005, at 8:15 a.m., Ms. Cooley performed her next observation of Respondent's class. When she arrived, a film on PC navigation and commands was being shown. One student was working on his laptop computer. One student was reading sports web pages on his computer, while another surfed web pages on computer parts. A group of students worked in the back cage. Respondent's lesson plan stated only "lab work," which was so vague that Ms. Cooley could not tell one group from another. Respondent showed the film throughout Ms. Cooley's observation, which prompted her to suggest that Respondent show films in shorter segments and get the class actively engaged sooner. Also on March 3, 2005, at 9:30 a.m., Ms. Cooley attended an "attendance hearing" for one of Respondent's adult students. High Tech Central policy regarding adult attendance provides that after four absences, the student is to be advised that his absences jeopardize his financial aid. After five absences, the teacher is to have a conference with the student. After eight absences, the teacher is to advise the student that two more absences will result in an administrative review and possible withdrawal until the start of the next semester. After ten absences, the teacher is to complete an attendance documentation form and give it to the school's student affairs specialist, who then schedules an administrative review, or "attendance hearing." An adult student with ten accumulated absences may be withdrawn and lose credit for that semester, depending on the outcome of the attendance hearing and the reasons established for the absences. Dan King, the student affairs specialist, convened the hearing with an adult CET student who had 16 absences since January. Respondent was not present at the hearing, but sent to Mr. King the student's career map and an adult attendance documentation form. Mr. King asked the student why he had missed so many days, noting that the student was on kidney dialysis. The student stated that he goes to dialysis before and after school and that Respondent never asked for notes regarding his absences or even asked why he was absent so frequently. Mr. King directed the student to go back and retrace his steps regarding the dates he had missed because many of those absences could have been excused because of illness. Ms. Cooley criticized Respondent for his failure to hold the required conferences with the student, or to make the required referral to Mr. King after the tenth absence. At the attendance hearing, the student told Mr. King that the CET class was completely different when an observer was in the classroom. Mr. King showed the student his career map. The student stated that he had seen the blank career map back in August when he started the CET program and that this was just the second time he had seen it. The student stated that Respondent had never reviewed it with him, although Respondent had checked off many competencies as completed. The student was surprised to see everything he had accomplished. Ms. Cooley noted that the career map is supposed to be a motivator for students to show their accomplishments and track their competency completions and that it was improper for Respondent not to review the career map with the student. 135. On March 4, 2005, from 12:50 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. He saw four students grouped together in the front of the class. One was working on a laptop computer, one was working on class-related questions, one was using a cell phone, and the fourth was playing with a portable CD player in his lap.25 Some students were working in the back cage on projects though it was still difficult to observe their monitors from the classroom. Respondent was circulating around the classroom. Mr. McCormick observed five cups and soda bottles throughout the classroom, including one on Respondent's desk. One student had an entire fast food meal of a sandwich, French fries, and a soft drink spread out at his computer workstation. The student ate and drank throughout Mr. McCormick's observation. Mr. McCormick observed one student get Respondent's attention by calling out, "Nevins!" After discovering they had mistakenly printed a document to another teacher's printer, two students left the CET classroom to "apologize" to the other teacher. These students did not sign out or inform Respondent that they were leaving. Work stopped and "clean up" commenced at 1:00 p.m., a full half-hour before the end of class. Mr. McCormick's written comments on this observation were as follows: Mr. Nevins must design teaching activities so that students are engaged in learning activities throughout the day. No visible order to the way the material is presented. Much too much wandering, visiting and playing has been observed in this classroom. Suggest planning activities that will keep students busy until dismissal bell. Clean- up in this class only takes about 1 minute (as it is now structured), so save this until a few minutes before 1:30. Mr. Nevins must enforce classroom rules about food and drink-- but apparently is unable or unwilling to do so. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. Mr. Nevins must never allow students to address him by his last name only. This shows a complete lack of respect for the status of the teacher in the classroom. At the hearing, Mr. McCormick testified that he was "incredulous" that the problems with food and drink were still going on. The problem was so easily corrected that he had to conclude Respondent could not, or would not enforce the rule. Mr. McCormick believed that such simple classroom management issues were the last thing that should be dominating discussion in the IAP team meetings, but that the IAP team could never get past enforcement of the most basic classroom rules and employment of the most basic classroom management skills in attempting to assist Respondent. The IAP team met on March 7, 2005, to review the team's observations since the last meeting and to offer recommendations to Respondent. Ms. McDaniel and Ms. Mutzenard were present. Mr. McCormick, Ms. Cooley, and Ms. Roshon each gave an oral report of the observations described above. After Mr. McCormick described the playing of music videos in the class, Respondent stated that the music was "something different" for the students in the afternoon and that it was not distracting. He cited "brain based research" to the effect that music helps set the tone for the class and assists in learning. Ms. McDaniel pointed out that there is a difference between music and music videos and that the latter are not to be played in the classroom. Respondent also stated that he felt he was being picked on about the question of sodas in the classroom. Mr. McCormick stated that it was simply a question of school policies that Respondent must enforce, and that Respondent's classroom was so relaxed and uncontrolled that Respondent had difficulty maintaining order and focus. Respondent acknowledged that bending the rules causes problems, but also contended that students sometimes learn more in his relaxed environment. Respondent was once again asked to bring his grade book and career maps, or other student tracking system to the next IAP team meeting. He had been asked to bring these items to the March 7, 2005, meeting but failed to do so. At the hearing, Ms. McDaniel testified that after the March 7, 2005, IAP team meeting, she continued to feel that Respondent did not have a positive outlook on the process. Of greater concern was her growing conviction that Respondent was deliberately not following the instructions and recommendations of the IAP team. She did not share this conviction with the IAP team because she did not wish to influence the objectivity of their observations. Mr. McCormick conducted his next observation on March 10, 2005, between 12:40 and 1:30 p.m. Twelve students were present in the classroom. Five students were working on computers in the main lab, three students were working on projects on the back cage, and two were working with Respondent in a side cage. Two students were asleep in the front of the classroom with their textbooks open and their heads down on their desks. Mr. McCormick testified that the students woke up at some point during his observation. When Respondent saw Mr. McCormick enter the classroom, he left the cage and came out into the main lab and began circulating among the students. Mr. McCormick noted that the monitors in the back cage were still positioned to make observation difficult from the main lab. He also noted that the "Doom 2" game was still loaded on the old Macintosh computer in the classroom. Student Keith McNeil approached Mr. McCormick and was "very forceful" in trying to determine why Respondent was being observed. Mr. McNeil explained at length that MP3 players were integral to the CET program and could be used as data storage devices. Mr. McCormick noted that every student he had observed using an MP3 player in Respondent's class was listening to music. Mr. McCormick also observed that Mr. McNeil was a very bright student and that Respondent seemed to employ him as an informal teacher's aide, helping Respondent to run the CET program. Mr. McCormick's written comments on this observation were as follows: No visible order to the way material is presented. Too much wandering, visiting, and playing going on in this classroom. Students don't seem to ever be on task at anything for more than a few moments. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. On March 11, 2005, at 9:30 a.m., Ms. Cooley attended an attendance hearing for another of Respondent's CET students. This student had 14 absences. Respondent did not attend the meeting, but provided the student's career map and certificates of completion to Mr. King before the meeting. As did the student at the previous attendance hearing, this student told Mr. King that he had not seen his career map since Respondent showed him a blank one at the beginning of the course. The student stated that Respondent never reviewed his progress with him. He had never received any certificates of completion, although the career map submitted by Respondent showed that the student had completed three occupational completion points meaning that he should have had three certificates. The student felt unmotivated. He believed he was wasting his time and not accomplishing anything in Respondent's class. He told Mr. King that he might have felt more motivation had he known his progress in the program. The student told Mr. King that he wanted to make up some of the time he had missed, but that he could never get Respondent to commit to a specific date and time. After a while, the student became discouraged and stopped asking Respondent about making up the time. Ms. Cooley testified that by now she had conducted five observations and attended two attendance hearings, and she was frustrate d because the same things cropped up at every observation: food and drink, name badges for students, the failure to keep career maps, or some other tracking device for student progress. Ms. Cooley performed her next observation of Respondent's class on March 22, 2005, at 8:45 a.m. She noted that while Respondent lectured on how to set up a parts table on Microsoft Access, one student was typing, one student was sleeping, two were looking at a computer board, and one was playing with his cell phone. Students were calling out numbers and items to place in the Access spreadsheet. Food wrappers were on the desks. Respondent was wearing an MP3 player around his neck. He told the students to get started on their assignment, but they walked to the back cages and did not work on the assignment. Mr. McCormick observed Respondent's class on March 23, 2005, between 9:15 and 10:00 a.m. Twelve students were present in the class. Three students were working on projects in the cages. The other nine students were clustered around six computers. Mr. McCormick noted that there were plenty of computers in the classroom and that each student should be assigned his own computer. He observed that when students gather around a few computers some are just watching rather than actively participating in the class activity. In this instance, only two of the nine students appeared to be on task. The others were talking and "wandering around." Mr. McCormick noted that students were leaving the CET classroom to attend other classes, but were not signing out on the classroom attendance log. He checked the log and found that it had not been used since March 14, 2005. Mr. McCormick noted that at 9:30 a.m., a student walked into the classroom with a bag of chips and began eating them while working with another student. Respondent did nothing, although he did later pick up a soda bottle from a workstation and dispose of it. Another student listened to an MP3 player during the entirety of the observation. Mr. McCormick did note that all the old Apple computers had been disconnected thus, disposing of the "Doom 2" game problem. In his written comments to this observation, Mr. McCormick yet again stated that Respondent must enforce School Board policies on food and drink in class, the use of portable music devices in class, and the use of the attendance log. The IAP team convened its next meeting on March 24, 2005.26 Also present were Ms. McDaniel and Ms. Mutzenard. As in the other meetings, the three IAP team members reviewed their observations and made comments and suggestions to Respondent for improving his performance. As in the other meetings, Respondent reacted defensively. When Mr. McCormick commented that there was too much "wandering, visiting, and playing" going on in the classroom, Respondent asked Mr. McCormick not to say that his students did not appear to be learning because there was no data to prove that assertion. The lack of structure in Respondent's classroom was a common criticism. Ms. McDaniel attempted to explain to Respondent the need to draft and use coherent, detailed lesson plans, if only for the eventuality that a substitute would need such a plan in Respondent's absence. Ms. McDaniel told Respondent that a substitute would be "clueless" if forced to use Respondent's lesson plans.27 Using Respondent's method of teaching Microsoft Access as a point of discussion, the team attempted to make Respondent understand the need for some tangible artifact to demonstrate that the students have mastered a given OCP. Respondent answered that the majority of students were pleased with his methods. At the conclusion of the meeting, Ms. McDaniel once again reminded Respondent to bring his grade book, career maps and tracking sheets to the next meeting. Ms. McDaniel testified that at every meeting, Respondent had an excuse for not bringing these materials. He would say that the files were at his home, or back in his classroom. On April 4, 2005, at 12:20 p.m., Ms. Roshon conducted her last observation of Respondent's class. She observed six students in the main lab, one of whom was sleeping. Respondent walked over to the sleeping student and woke him. Three students in the back cage were talking about "witnesses" and "getting caught." Respondent approached Ms. Roshon and explained what each group was doing. She noted several soda bottles, cups, and chips around the room. Ms. Roshon observed a student go to the back cage to get Mr. McNeil to come out and assist him. She thought this remarkable because Respondent was circulating through the classroom and would logically have been the person to approach. Ms. Roshon later concluded that Mr. McNeil's assistance was needed because the question had to do with the Linux system, about which he had lectured during Ms. Roshon's February 10, 2005, observation. Ms. Roshon observed a conversation among several students regarding the capacity of an iPod to download the music on the computer. She noted that a student had his iPod plugged into the computer leading her to conclude the student was downloading music during class. One student did not seem involved in the class. Respondent engaged this student by demonstrating how to share files between computers. Ms. Roshon was favorably impressed by Respondent's method in this instance. Some students knocked at the locked back door of the classroom and were let in by students inside. The students did not sign in, which led Ms. Roshon to wonder whether the attendance log was being used at all. She checked and saw that the sign-in sheet had not been used since March 14, 2005. Mr. McNeil approached Ms. Roshon and attempted to discuss a letter he had sent to the school district's administrators in defense of Respondent. Ms. Roshon told him that she was not at liberty to discuss the matter.28 Mr. McNeil then proceeded to complain about the "new rules and regulations" in the class, by which he meant the long-standing but seldom enforced prohibition on food and drink in the classroom. On April 5, 2005, Mr. McCormick conducted his last observation of Respondent's class. Mr. McNeil approached Mr. McCormick and attempted to question him about his situation with Mr. Wiseman, as described in footnote 28 above. Mr. McCormick told Mr. McNeil that he was there to observe the class and would speak to Mr. McNeil at another time. Though he still noted sodas and a bag of chips in the classroom, Mr. McCormick observed that the activity for the day seemed to be well planned and that the students appeared to be actively engaged and on task. One student was working on an assignment for another class that was related to his high school graduation requirement. Ms. Cooley conducted her last observation on April 6, 2005. She noted soda bottles and drinks in the class and saw one student drinking a soda. Mr. McNeil was teaching the class along with Respondent. On April 6, 2005, at 1:45 p.m., the last IAP team meeting was convened. Ms. McDaniel and Ms. Mutzenard were present. This meeting was held in the CET lab, so that Respondent would have no excuse for failing to produce his grade book and career maps. After the observations were reviewed with Respondent, Ms. McDaniel asked Respondent to show the team his career maps, grade book, and tracking sheets. One member of the team asked Respondent how often he went over the career maps, and he stated that he did so every two weeks. Ms. Cooley asked Respondent why neither student at the two attendance hearings had ever received or reviewed a career map in Respondent's class. Respondent stated that every student had the opportunity to ask him for a copy, but that he did not give them out to everyone. Ms. McDaniel expressed concern that the Council on Occupational Education would review the school in November and would have to be shown these career maps and this grade book. The school's accreditation and its Pell grants would be placed at risk if it could not document what is being taught in the classroom. Ms. McDaniel noted that all the career maps were written in the same color ink. She testified that the maps looked as though they had all been completed at the same time, rather than at different points during the semester as students completed their various OCPs. The minutes of the meeting indicate the concerns raised as the team reviewed Respondent's materials: Mrs. McDaniel made numerous attempts to see if the career map matched and aligned with the gradebook and tracking sheets. Mrs. Roshon and Mr. McCormick would check the gradebook while Mrs. McDaniel would check the career maps. OCP completions were not recorded in gradebook. Quarter grades were missing. No actual dates were written in the career maps. Dates did not aligned [sic] in gradebook with career maps. Yellow attendance sheets were not found.29 Some tests did not have a grade on them. Only chapter test grades were recorded in gradebook. No lab work grades were recorded. No rubrics were used to grade projects. There were numerous questions on the correlation of grades. Mrs. McDaniel stated the career maps should prove the competency completed; but these competencies recorded with a month and year did not align with the gradebook. Some career maps were missing. Mr. Nevins stated he might have left them at home. The gradebook did not reflect what was in the student folders and career maps. . . . Ms. McDaniel testified that it was not possible to look at Respondent's grade book and correlate the numbers therein with any OCP. There were test grades, but no indication of what test was given. The tests in the student folders did not align with anything in the grade book. Ms. McDaniel concluded the meeting and stated that the team would schedule a meeting to make a recommendation to the superintendent as to Respondent's status. In fact, the team met with Ms. McDaniel and the school's new director, Robert Durham, in the administrative offices of High Tech Central immediately after their meeting with Respondent and unanimously recommended that Respondent's employment be terminated. As to her recommendation, Ms. Roshon testified that she told Respondent "that if I were a teacher and I knew I was being observed and that I had an opportunity to make . . . some pretty simple changes to my classroom and what went on in it, that I would have made every effort possible to do that, and that I felt like Mr. Nevins hadn't done that." At the final meeting, Ms. McDaniel presented the option of extending the IAP process, but Ms. Roshon did not believe that more time would make any difference in Respondent's classroom. The IAP process had already lasted for eight weeks, and Ms. Roshon had seen no difference "in classroom management, in teaching style, in anything within the classroom." She believed that Respondent had been given a full and fair opportunity to make significant changes and either chose not to make those changes, or was unable to change. In any event, she believed that Respondent was not an effective teacher. Mr. McCormick testified that Respondent is a very intelligent man, understood the purpose of the IAP process, and further understood the criticisms and advice he was receiving from the observers. However, Respondent did not accept the legitimacy of the criticism, or the need to change his classroom methods. Mr. McCormick recommended termination because he believed that Respondent's classroom shortcomings were very serious, and he did not see any evidence of improvement during the IAP process nor any willingness to make changes in the classroom. Mr. McCormick agreed with Ms. Roshon that extending the IAP process would be extremely unlikely to make any difference in Respondent's job performance. Ms. Cooley recommended termination and testified that she "felt bad about it, because I felt that I honestly tried to help change the situation by the many attempts of telling him what I saw and what I observed." She believed that Respondent is a very intelligent man, but not a teacher. By letter dated April 11, 2005, Mr. Browder notified Respondent that he was being suspended with pay and benefits, effective immediately, pending the outcome of a School Board investigation.30 A predetermination conference was held on April 28, 2005, to give Respondent an opportunity to respond to the IAP team's concerns regarding his competency to teach. Present at the conference were: Respondent and his legal counsel, Robert Coleman; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment administrator; and Paul Carland, then the School Board's attorney. By letter dated May 3, 2005, Mr. Carland notified Mr. Coleman that the School Board had found probable cause to terminate Respondent's employment. In his defense, Respondent raised several issues, both substantive and procedural. Respondent alleged in his equity complaint that he had been "an express target" of negative attention since Ms. Cooley substituted in his class on February 19, 2004. At the hearing in the instant case, Charlotte Rae Nicely, the former financial aid administrator at High Tech Central, testified that Ms. Cooley was "very vengeful" and "had it in" for Respondent. However, Ms. Nicely had been reassigned to a teaching position following the federal audit of the school's Pell grant program and believed she had been made a scapegoat by the High Tech Central administration. Ms. Nicely did not believe that Ms. Cooley was a good administrator and alleged that she carried grudges against other teachers. Though she claimed she had "chosen to forgive" the High Tech Central administration for its treatment of her, Ms. Nicely was a less than credible witness, not only because of her personal feelings about Ms. Cooley, but because of her limited knowledge of Respondent's teaching practices. The evidence did not establish that any administrator at High Tech Central, or the School Board had any personal animus against Respondent for his union activities, his religion, his place of origin, or any other reason. The school's administrators were concerned about Respondent's performance well before Ms. Cooley's experience substituting in Respondent's class, and the evidence was persuasive that Respondent was in no way "singled out" for any reason other than his job performance.31 Respondent contended that the process did not give him adequate notice of the areas of his performance requiring improvement or correction that there were no "uniform scoring criteria" used by the IAP team to evaluate Respondent's performance. This contention is without merit. While the observers used different instruments to record their observations, and their observations varied in some particulars simply because the observers came into the class on different days, there was a remarkable overall consistency in the observations and recommendations. Respondent did not enforce classroom discipline regarding such matters as food and drink and MP3 players. He did not follow proper administrative procedures in monitoring attendance. He did not file proper lesson plans. If he did track his students' progress and performance, he did not do so in an intelligible, coherent fashion, and he did not keep his students aware of their progress in any consistent way. Too often, no teaching appeared to be taking place at all in Respondent's classroom. Students appeared to be doing as they pleased. Any claim that Respondent did not know what was required to improve his performance is disingenuous and cannot be credited.32 Respondent notes that Subsection 1012.34(3)(d), Florida Statutes,33 provides that a teacher holding a professional service contract who is charged with unsatisfactory performance must be notified he is being placed on performance probation for the following 90 calendar days during which he is expected to demonstrate corrective action. School holidays and school vacation periods are expressly excluded from the 90-day period. Throughout the 90-day period, the teacher must be evaluated periodically and apprised of the progress achieved, and provided assistance and in-service training opportunities to help correct the performance deficiencies. Respondent further notes that, at the initial IAP meeting, Ms. McDaniel stated that Respondent would be the subject of observations for seven weeks, that there would be three observations per week, and that the observations would be 30 to 45 minutes in length. She also told Respondent that the IAP team would meet weekly and he would receive a signed copy of the minutes of the meeting. Respondent states that the IAP process lasted only 84 calendar days, from January 13 to April 6, 2005, and that nine of those days were school holidays. The IAP team met only six times, on January 13, February 7, February 16, March 7, March 24, and April 6, 2005. The IAP team failed to conduct three observations each week and at least two of the observations exceeded 45 minutes in length. The IAP team did not meet with Respondent every week of the process, and Respondent did not receive signed minutes of the meetings every week. Respondent claims that the School Board's failure to comply with the legal requirements for termination of a teacher on a professional service contract were not followed and failure to follow its own IAP procedures necessitate dismissal of the Petition. In fact, Respondent was provided notice that he was being placed on performance probation via Dr. Browder's letter dated December 16, 2004. Thus, the period of evaluation lasted a period of 93 calendar days, from December 16, 2004 to April 6, 2005, excluding 18 days for winter break, Martin Luther King Day, Presidents' Day, and spring break. The School Board complied with the express requirements of Subsection 1012.34(3)(d), Florida Statutes. The School Board also substantially complied with the procedures described by Ms. McDaniel at the first IAP meeting and set forth in its written IAP materials. The IAP team members conducted a total of 20 observations (not counting Ms. Cooley's attendance at two student attendance hearings), rather than the 21 observations promised by Ms. McDaniel. This was due to the fact that Ms. Roshon broke her arm and missed one week's observation. The IAP team met only six times because Respondent called in sick on March 16, 2005, forcing the cancellation and rescheduling of one meeting. Neither of these minor deviations from the schedule of events had a substantial impact on the IAP process. Neither Respondent nor his representative, Ms. Mutzenard, lodged a contemporaneous protest regarding these alleged procedural failings. In fact, they agreed to combine two weeks of observations into one IAP meeting in order to make up for the cancelled meeting. Ms. Mutzenard, who has represented union members in at least ten IAPs, testified that, although seven weeks of observations with three observations per week is the officially stated practice, this practice "has not always worked. Because of scheduling conflicts with the teacher and with other members of the team and myself and with meetings and conferences and all of that type of thing, there is [sic] some weeks we just can't schedule something." The process is sometimes extended to accommodate schedules. Ms. Mutzenard testified that the 45-minute limit on observations is simply a time management issue: if one person conducts a two-hour observation, another observer could be hampered from coming into the classroom. Ms. Mutzenard was positive about the flexibility of the process. She testified that scheduling was freely discussed at the meetings and that neither she nor Respondent objected to the dates of the meetings or the number of observations. Ms. Mutzenard testified that the IAP process is usually successful so long as the teacher follows the IAP team's suggestions. She has been involved in other IAPs that resulted in transfers and terminations, but stated that in the case of termination recommendations, the teacher usually resigns. Ms. Mutzenard believed that the IAP process would be extended for another eight weeks after April 6, 2005, to give Respondent more time to work on "a few minor things" such as the food and drink problem and to correct his record keeping. Her view was that, aside from being disorganized as to paperwork, Respondent presented no insurmountable problems and should have been given more time in the IAP process.34 Ms. Mutzenard stated that record keeping is unrelated to a teacher's competence and that Respondent's students were doing well in obtaining jobs. However, she conceded that she had seen no objective data regarding the employment rate of Respondent's students and that Respondent himself was her source of information.35 Ms. Mutzenard also conceded that Respondent did not really believe he should have to stop his students from bringing food and drink into the classroom. She discussed the issue with Respondent and he agreed that he should follow the school policy though the testimony from the IAP team members makes it clear that Respondent never seriously enforced the prohibition on food and drink.36 Respondent presented the testimony of several witnesses besides Ms. Mutzenard and Ms. Nicely. Richard Kennedy, now retired, was a School Board employee for 29 years and ran a special needs exploratory after school program at High Tech Central. This program brought students identified as high drop-out risks to High Tech Central to explore the option of vocational education. The population in the program consisted mostly of middle school special education students ranging from educable mentally handicapped to intellectually above average. Respondent was a paid volunteer in the program for about five years, teaching a web design class. Mr. Kennedy conducted no formal observations of the class, but did drop in on the class frequently. Mr. Kennedy testified that Respondent was a good teacher and was popular with the students. However, Mr. Kennedy conceded that his special needs program was very different from the regular day programs such as CET and that he had very little knowledge of why Respondent was suspended or of the IAP process in which Respondent was involved. Dennette Foy is the district coordinator for business and technology programs at Edison College and is responsible for hiring adjunct instructors such as Respondent. She is Respondent's immediate supervisor at Edison College, in charge of assessing his performance and offering him contracts for successive semesters. She opined that Respondent is a "very adequate teacher." Greg Meisel is a technology teacher for the School Board and runs a computer lab supporting the instructors at Edison College. Mr. Meisel was Respondent's lab assistant at Edison College. Mr. Meisel believed that Respondent was a competent, effective teacher. Respondent's delivery was good and he respected and cared about his students. Mr. Meisel's only knowledge of Respondent was in a college setting. He was not aware of Respondent's classroom management skills at High Tech Central, how Respondent tracked attendance in his classes, or whether Respondent enforced School Board policies in his classroom at High Tech Central. Ms. Foy's and Mr. Meisel's testimony is of limited use because of the differences between teaching at the college and high school level, particularly in a vocational education program such as the CET class. Ms. Cooley pointed out that many of the students at High Tech Central could never meet the academic requirements to be admitted to college, and have in fact been unsuccessful in a traditional high school setting. Students in a college classroom are self-selecting, highly motivated, independent thinkers, whereas students at High Tech Central tend to require greater supervision, discipline, and one-on-one assistance. The same teacher may be highly successful at the college level and be unfit to teach vocational educational classes. Richard Oglesby was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, he worked in the television department at CompUSA and credited Respondent with telling him about the job opening and for giving him the skills necessary to obtain the job. While a student in the CET class, Mr. Oglesby competed in the Skills USA competition and made it past the regional to the state level. He testified that he considered Respondent a friend and had recently attended a movie with Respondent. Mr. Oglesby called Respondent a very good instructor, who followed the textbook, gave tests, kept the students apprised of their academic progress, and managed the class well. Mr. Oglesby testified that Respondent made some attempts to forbid students from listening to MP3 players, or having food or drink in the class. However, he also admitted that students in fact brought MP3 players and food and drink into the class with virtual impunity, and that he never saw Respondent discipline a student for these violations. Mr. Oglesby stated that he always signed in and out of class, but could not say whether other students did. He could not remember seeing anyone sleeping in the class. Keith McNeil, as noted above, was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, Mr. McNeil was the head of the software and video game department at CompUSA. Respondent helped Mr. McNeil obtain his job. Mr. McNeil's loyalty to Respondent was evidenced by the fact that three days after Respondent was suspended, Mr. McNeil received a two-day out-of-school suspension for spinning a glass table 180 degrees and chipping it after Respondent's replacement asked Mr. McNeil to stop sitting on the side of his desk. Mr. McNeil attributed this outburst to the tension and frustration he and the rest of the class felt after Respondent left. During the 2005-2006 school year, Mr. McNeil was officially disciplined twice for insubordinate, disrespectful behavior toward Respondent's successor. Mr. McNeil testified that Respondent was the best teacher he ever had. He described Respondent's technique as nontraditional and "rather lenient." Respondent told the students not to bring food and drink into the class, but the students ignored this admonition and brought the food and drink into the class anyway. Respondent would "chastise" the students, but did not otherwise discipline them. Similarly, Respondent told students not to use cell phones in the class, but students would take calls and walk out of the room to speak. Mr. McNeil testified that students would work on material for other classes in Respondent's class. Some people listened to MP3 players. Students would play computer games during class. Respondent would not discipline these students beyond turning off their computers. Mr. McNeil testified that Respondent "made a big point" of having students sign in and out of the class, which directly contradicts the observations and testimony of every member of the IAP team. Mr. McNeil denied that he ever took on the role of teacher in the class, or that Respondent allowed him to take over the class. People "flocked" to him to ask questions because of his greater knowledge: And so a lot of times I would come up with something, I would realize something; and in the time when, you know, if somebody was done with their work and Barry wasn't giving any form of instruction or anything, then I would say, "Oh, hey, check this out or check this out," and then sometimes like two or three other guys would comment and listen and we'd talk and stuff. * * * It wasn't that frequent. It was just, you know, sometimes like-- sometimes like, you know, we'd finish up and then we'd have like an hour or so or sometimes we might only have a couple minutes or something like that. It wasn't like I would be able to give keynote speeches. (emphasis added) While Mr. McNeil was conducting these sessions, Respondent would be doing "paperwork or something off to himself," or perhaps circulating among the students. In summary, Respondent would forego "an hour or so" of teaching time to allow the students to do as they pleased. This testimony confirms the observations of the IAP team regarding the rudderless appearance of Respondent's classroom. Both Mr. Oglesby and Mr. McNeil appeared to be highly motivated students who succeeded in spite of Respondent's lack of effort in the classroom. They liked the very aspects of the class that the IAP team found most problematic such as the lack of discipline and structure. While such a free-form atmosphere might not prove detrimental to bright, self-motivated students such as Mr. Oglesby and Mr. McNeil, the evidence established that the majority of students in the CET program required a structured classroom that Respondent was unable or unwilling to provide. Respondent testified on his own behalf, recounting his educational experience, employment history, and his certifications. He reviewed his evaluations and described the CET class. However, Respondent was silent as to the IAP process, leaving unrefuted the testimony of Ms. McDaniel, Mr. Pentiuk, Ms. Cooley, Mr. McCormick, and Ms. Roshon. In summary, the School Board established that Respondent was unable or unwilling, when charged with running a classroom unassisted, to maintain student discipline, enforce well-established School Board and High Tech Central rules, teach in a coherent, organized fashion, or perform the administrative duties required of faculty at High Tech Central.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the suspension of Respondent and terminating Respondent from his position as a teacher with the Lee County School District. DONE AND ENTERED this 31th day of August, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of August, 2006.
Findings Of Fact Respondent was a 6th grade student at Mays Middle School in Dade County, Florida, during the 1987-88 school year. On June 14, 1988, another student informed the school's assistant principal that Respondent had in his possession a quantity of marijuana. Respondent was brought to the assistant principal. In the course of interrogating Respondent, the assistant principal momentarily left Respondent in the custody of a security officer. Upon returning to the room, the principal learned that Respondent had attempted to discard a foil packet, behind a filing cabinet. The packet was subsequently analyzed and found to contain one quarter to one half of an ounce of marijuana. Upon further questioning by the assistant principal, Respondent contended that he had found the contraband packet on the way to school and intended to sell the drug since his family needed the money. Thereupon, Respondent was suspended for the remaining two days of the school year and reassigned to the opportunity school program for the 1988-89 school year. In response to a telephone call by school administrators, Respondent's mother came to the school when he was apprehended for the possession of marijuana. Somewhat distraught about the incident, her major concern was what action would be taken in response to this behavior by her son. Previous conversations had been had between school officials and Respondent's mother regarding his attendance record and academic problems during the school year. The entire incident of Respondent's apprehension for possession of a controlled substance was reported to law enforcement officials for further investigation and appropriate legal action. During the course of the school year, Respondent has been absent a total of 36 days. His academic progress has been extremely poor resulting in final grades for the year of "F" in language arts, "D" in mathematics, "D" in French, "F" in reading and "F" in science. During the course of the school year, Respondent was seen by the school counselor a total of 12 times. Several of the counselling sessions were the result of Respondent's referral by his teachers for disruptive behavior. Other sessions resulted from teachers concern about Respondent's academic progress. Possible remedies for Respondent's academic needs and attendance problems are more likely to be realized in the smaller and more structured educational atmosphere of the opportunity school. Petitioner's district code of student conduct contains recommended disciplinary action for students found in possession of illegal mood modifiers. Mood modifiers are defined in the district code to mean all substances capable of producing a change in behavior or altering a state of mind or feeling. The code recommends that such students either be expelled or be suspended with a possible recommendation for administrative assignment to an opportunity school. In the absence of evidence other than Respondent's own admission of his intent to sell the marijuana, school officials elected to suspend Respondent and recommend assignment to an opportunity school. Respondent is presently attending the J.R.E. Lee Opportunity School.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assigning Respondent to the J.R.E. Lee Opportunity School. DONE AND ENTERED this 14th day of November, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 14th day of November, 1988. COPIES FURNISHED: Frank Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Clara Patino 19316 South West 121st Avenue Miami, Florida 33177 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Josesph A. Fernandez Superintendent of Schools Dade County Public School 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The central issue in this cause is whether the Respondent, Jose Antonio Blanco, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year, Respondent attended Palm Springs Junior High School in Dade County, Florida. Respondent (date of birth: 11-13-72) was enrolled in the seventh grade and was administratively assigned to Jan Mann Opportunity School-North on March 9, 1987, due to his alleged disruptive behavior and failure to adjust to the regular school program. Respondent's grades for the 1986-87 school year, the first grading periods, were as follows: COURSE ACADEMIC EFFORT CONDUCT GRADE Mathematics 1st F 3 F 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Industrial 1st F 3 F Arts 2d F 3 F Education Language 1st F 3 F Arts 2d F 3 F Social 1st F 3 F Studies 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "F" UNSATISFACTORY Respondent did not enroll at the opportunity school and did not attend classes. Instead, Respondent's mother enrolled the student in a private school. His conduct has improved but his grades and academic progress are still below level. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Palm Springs Junior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms, and are used to report behavior problems. During the first two grading periods of the 1986-87 school year, Respondent caused 16 Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's Student Case Management Referral Forms is attached and made a part hereof. Eva Alvarado is a science teacher in whose class Respondent was enrolled. While in Ms. Alvarado's class, Respondent was persistently disruptive. Respondent refused to do homework and in-class assignments. Respondent was unprepared 90 percent of the time and would disturb the class with loud talking. During lectures Respondent would attempt to talk to other students and ignore Ms. Alvarado's instructions. Ms. Alvarado tried to correct the situation by sending notices to Respondent's parents, but little improvement was made. Valdez Murray is a social studies teacher in whose class Respondent was enrolled. While in Mrs. Murray's class Respondent was persistently tardy. Respondent refused to complete homework and in-class assignments. Mrs. Murray contacted Respondent's mother, but the student's work and conduct did not improve. Respondent talked in a loud voice to interrupt class. On one occasion, Respondent walked out of the class without permission and on two other occasions Respondent fell asleep at his desk. Respondent made a practice of talking to others who were trying to do their work, and would laugh at Mrs. Murray's efforts to control the situation. Mrs. Murray would instruct the class to ignore Respondent's noise making activities. Mrs. Alicia Robles is an English teacher in whose class Respondent was enrolled. While in Mrs. Robles' class Respondent refused to perform any work assignments, including in-class oral work. Respondent would instead throw paper darts to the ceiling. Respondent tried to keep other students from working and would interrupt lectures. According to Mrs. Robles, Respondent played with the wires on his braces to create a reason he could be excused from class. Barry Jones is a physical education teacher in whose class Respondent was enrolled. Respondent refused to dress out and participate with the class. Despite Mr. Jones' effort to notify both Respondent and his parents of the problem, no change in conduct or performance was made. Mrs. Blanco acknowledged that her son has a behavior problem, but believes if given another chance his conduct would improve. During the time he has attended private school his conduct has improved tremendously. Although Respondent has not caught up academically, Mrs. Blanco believes he is ready to return to the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North. DONE and ORDERED this 8th day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 8th day of October, 1987. SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS DATE INCIDENT DISCIPLINE 10/29/86 disrupting class; parent arguing, talking, conference refusing to work 11/3/86 interrupt class parent refuse to obey conference instruction 11/26/86 tardy, disrupts request be class talking, walking removed changing seats from class- parent contact attempted 12/03/87 tardy, talking to parent contact classmates, showing 3 days out in class in-school suspension 01/13/87 tardy, unprepared 13 days disruptive - noisy, attention defiant parent contact attempted 01/114/87 tardy, refused to additional serve detention detention parent contact 01/15/87 refusal to dress out, 3 days left class area detention without permission 02/014/87 tardy, talks, walks parent contact around disrupting attempted class 02/05/87 refused to do parent contact assignment or test attempted 02/06/87 refused to work, parent contact shouting in class, attempted moving from one seat to another 02/10/87 disrupts class, parent contact running, shouting, unprepared, tardy 02/11/87 tardy, unprepared parent contact for class, failing grades 02/11/87 habitual misbehavior, parent contact lack of respect - refusal to cooperate 02/12/87 refusal to sit in seat; requested threats to other parent to student and teacher get counseling for student 02/25/87 highly disruptive requested during indoor outdoor suspension suspension 02/27/87 disruptive in requested indoor suspension opportunity school APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1453 Rulings on Petitioner's Proposed Findings of Fact: Paragraph 1 is accepted in Findings of Fact paragraphs 1 and 2. Paragraph 2 is accepted in Finding of Fact paragraph 3. The only "D" Respondent received, however, was an exam grade. The grading period was "F." Paragraphs 3 and 4 are accepted in relevant part in Finding of Fact paragraph 6. Paragraph 5 is accepted in relevant part in Finding of Fact paragraph 9 and the Synopsis attached. Paragraphs 6 and 7 are accepted. See Finding of Fact paragraph 7. Paragraph 8 is accepted. See Finding of Fact paragraph 8. Paragraph 9 is rejected as unnecessary, argumentative. Paragraph 10 is accepted. See Finding of Fact paragraph 5 and the Synopsis. Paragraph 11 is accepted. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 3313 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building 11450 Northeast Second Avenue Miami, Florida 33132 Mrs. Bertha Blanco 14535 West 114 Lane Hialeah, Florida 33012 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 11450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, as the Commissioner of Education, on behalf of the Education Practices Commission, is the state agency charged with the responsibility of disciplining teachers certified by the State of Florida. At all times material to the allegations of this case, Respondent held a Florida Educator’s Certificate, number 615411, covering the areas of physical education and health education which is valid through June 30, 2003. The juvenile justice system operates a facility for incarcerated minor males located in Okeechobee County, Florida. The facility, named the Eckerd Youth Detention Center (Eckerd), contracts with the Washington County School Program to provide educational services for the minor males. At all times pertinent to the allegations of this case, Respondent was employed by Washington County at Eckerd to teach physical education. On or about April 21, 1994, Respondent used inappropriate language toward an employee at Eckerd. Specifically, Respondent called a disciplinary dean a "nigger." During this heated encounter, which was provoked by Respondent, the dean also used inappropriate language toward Respondent and he was subsequently reprimanded for such conduct. Respondent told another employee at Eckerd that the dean "had a body odor that don’t stop." On another occasion, Respondent was unnecessarily loud in accusing an instructor in the Diversified Career Training (DCT) program of providing contraband to one of the students. This incident occurred in the office of the DCT administrator and, despite efforts to get the Respondent to be quiet, resulted in an inappropriate, public accusation of the painting instructor. During the 1993/94 school year, students complained that Respondent called them inappropriate names such as "crack babies." Two Eckerd employees overheard Respondent’s language and confirmed the allegations made by the students. It is not, however, confirmed that all student allegations were accurate. The students at Eckerd were there due to their serious behavioral problems. Many were aggressive. Some were violent. All were deemed less than credible on occasion. Had they been model students, they would not have been placed at Eckerd. Nevertheless, these students were entitled to the same considerations given to all students governed by state rules. That is, they should not be subject to disparaging remarks. Prior to the 1993/94 school year, Respondent was advised that she needed to improve areas of her performance at Eckerd. Specifically, Respondent was told of a need to maintain appropriate interpersonal relationships and to improve in the evaluation of students. Respondent was also advised that her abrasive and inappropriate vocabulary needed improvement. On March 29, 1994, the administrative staff of the Washington County School Board decided to not re-employ Respondent for the following school year. Notification of this decision was provided to Respondent on March 30, 1994. On May 10, 1994, Respondent was suspended from her duties for the remainder of the school year. Respondent argues that the actions of the school to terminate her employment (and inferentially this action) were in retaliation for Respondent’s claims of violations of various requirements concerning exceptional education students. Respondent suggested that various records were not maintained as required by law. Such argument has not been deemed credible or persuasive. Moreover, Respondent’s complaint with regard to these allegations was resolved in favor of the school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the violations set forth above, requiring Respondent to take appropriate remedial courses to improve her interpersonal skills, and imposing an administrative fine in the amount of $1000.00. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1999. COPIES FURNISHED: 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 Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 131 701 Mirror Lake Drive Apartment 109 St. Petersburg, Florida 33731-0131 Sallie M. Smith 2605 Chesterfield Drive Fort Pierce, Florida 34982
Findings Of Fact Richard L. Gryte holds Florida Teacher's Certificate Number 323641, issued on January 4, 1983, covering the areas of elementary education, early childhood education, emotionally disturbed education and Junior College. Until his resignation on March 13, 1984, Gryte was employed by the Seminole County School Board as a teacher of emotionally handicapped students at the Milwee Middle School located in Longwood, Seminole County, Florida. Gryte was initially hired by Douglas Smith, assistant principal at Milwee, in the summer of 1981, to serve as an emotionally handicapped (herein referred to as EH) resource teacher. This was based on Gryte's prior work history, as well as his educational background; including a master's degree in exceptional education. As a resource teacher, Gryte did not have academic responsibilities, but was used as a counselor who would work with students for a period during the day. These students would be assigned to the resource room by their regular classroom teachers, primarily if they had problems regarding behavior. As a teacher involved with emotionally handicapped students, it was necessary for Gryte to prepare forms known as Individual Educational Plans (hereinafter referred to as IEP's). The IEP's were required by Federal and State law and were necessary in order for the school district to obtain funding. From the beginning of his employment and assignment at Milwee Middle School, Gryte had difficulty performing administrative duties regarding documentation and other paperwork. Gryte recognizes that correct documentation is the responsibility of a good teacher, but also acknowledges his weakness in that area. When this problem was brought to the attention of Douglas Smith, assistant principal, he immediately sent memos and spoke with Gryte regarding the problem. During the 1981-82 year, out of the 22 IEP's necessary for Gryte to complete, at least 12 were incomplete or not done. The IEP's that were done were incomplete in that they lacked objectives, goals and other qualitative methods by which to determine the progress of the child. Even as a resource teacher, Gryte failed to prepare lesson plans which were required of all teachers. In fact, Respondent failed to prepare lesson plans for the entire 1981-82 school term, despite being counseled and informed about the necessity of preparing and submitting lesson plans. Overall, Gryte's teaching performance for the 1981-82 school term was not in keeping with minimum standards required of his profession. In addition to the paperwork and other administrative tasks, Gryte had a problem maintaining classroom discipline and control and would violate school rules by leaving the class unattended. During the 1982-83 school term, Mr. Willie G. Holt became the principal at the school. He first became concerned regarding Gryte's performance because of safety concerns he had for student's in Gryte's resource class. Due to the nature of these children and their behavioral problems, it was a policy of the school that children would not be left alone and unattended. Gryte knew of this policy. During the 1982-83 school year, Gryte would periodically leave his class unattended. On two occasions in the spring of 1983, a female student was involved with and performed sexual acts including masturbation and oral sex in the presence of two male students. These acts occurred when Gryte left his class unattended. Gryte recognized that it was wrong to leave the class unattended, but felt he could trust the boys involved and was only gone for a brief period of time. Due to concern for the safety and welfare of the students entrusted to Gryte and because of a need to relieve the previous self-contained teacher, Mr. Holt, school principal, and Mr. Smith, assistant principal in charge of the exceptional education program, decided to place Gryte in the self-contained EH class for the 1983-84 school year. This was thought to be appropriate since the self-contained class had a full-time aide, Betty Manly, who would always be present in the event Gryte would leave the class unattended. Gryte objected to this assignment, but based on his certification and education, he was qualified to be in the self- contained classroom and he was so assigned. Gryte's teaching performance in the self-contained classroom during the 1983-1984 school term was extremely unsatisfactory in all aspects. As in previous years, Gryte was required to submit weekly lesson plans. This was a requirement of all teachers. As in prior years, Gryte was derelict in preparing his lesson plans. From the beginning of the school term until January, 1984, he submitted lesson plans for the first five weeks, but failed to submit any lesson plans thereafter. He next submitted lesson plans for two weeks during the weeks of January 20 and 27, 1984. Thereafter, he did not submit any additional lesson plans until the date of his resignation in March, 1984. The assistant principals, Gordon Hathaway and Douglas Smith, repeatedly instructed Gryte to submit lesson plans timely, but he failed to do so. Even the lesson plans which were submitted were not proper in that they were too generalized and did not serve the proper function. In addition, for the 1983-84 school term, Gryte still had problems completing his IEP's timely and in a proper manner. It was a concern of the school officials that if they were ever audited, they would lose funding. Gryte was counseled by Dr. Daniel Scinto and Dr. Robert Carlton regarding the preparation of IEP's, as well as class management, but little improvement occurred. Gryte's classroom was extremely noisy, unruly and out of control. Dr. Carlton worked with Gryte on several occasions regarding implementation of behavioral management techniques. However, no improvement was noted. The excessive noise from Gryte's classroom was disturbing to the adjoining classes. Mr. Holt started receiving complaints from other teachers. Mrs. Poole indicated that students in her classroom actually complained about the noise from Respondent's class, as did she. The teacher's aide, Betty Manly, observed that Gryte did not assert control. He allowed the students to do as they pleased and demonstrated an apparent lack of classroom control. Gryte himself recognized that there was an excessive amount of noise in his class which was disturbing to other teachers. Some of the noise was due to Gryte's policy of allowing students to use curse words and engage in verbal altercations, which at times led to physical violence. He would permit the students to use "damn", "hell", and other similar curse words. On occasion, fights would break out among the students because Gryte would allow an argument to become too heated and would not assert control. He thought it was necessary for the children to have the freedom to release their anger in this manner. He ultimately hoped to be able to work with the students and this was part of his counseling therapy. Gryte often imposed corporal punishment as a means of discipline with the students. However, he frequently imposed the punishment in violation of State law and School Board policy. The School Board policy, as set forth in the student disciplinary code, requires that all corporal punishment be administered in the presence of another adult and not administered in the presence of other students. On numerous occasions, Gryte paddled a student in the classroom without the presence of another teacher or administrator as a witness and also while in the presence of other students. This practice was against direct orders of the principal. In addition, students were embarrassed by punishment being administered in front of other children. Further, the practice is not appropriate when dealing with any student, but even less so when dealing with emotionally handicapped students. On one occasion, Gryte lined the entire class up for "licks." The noise of the paddling and the student's yelling brought an adjoining teacher to see what had occurred. When she arrived, a student was lying on the floor and his leg was shaking and the student was grimacing and in pain. The teacher advised Gryte not to administer any more punishment, because it was in violation of the school policy. During the first nine weeks of the 1983-84 school year, Gryte failed to provide grades for the students in his class. He was unable to give grades because students had not performed a sufficient amount of work in order for Gryte to evaluate their progress and to assign a competent grade. This was in violation of the school policy as well as the State law, and was upsetting to the administration. The school was required to send blank report cards, with the exception of P.E. grades. Gryte was told to produce his grade book and test papers which had been performed by the students. A review of the grade book showed tests and work had not been required or performed or recorded in order to evaluate the students. What papers were produced by Gryte were not of sufficient quality or quantity to effectively grade the students. The policy of the school was to assign enough work each week to allow the students to receive periodic grades. Gryte recognizes his duty to maintain paperwork and other documentation. He understands this is part of being a competent and effective teacher, even though he would place greater emphasis on the students. Jeanette Burgess was a female student in Gryte's self- contained classroom his last year at Milwee. Gryte had a propensity to touch Jeanette in an inappropriate and unprofessional manner. He would periodically touch her on her face, ears and buttocks. This was embarrassing to Jeanette. On one evening, Gryte called Jeanette's home to speak with her. Her mother, Diana Oliver, answered the phone and inquired as to the nature of the call. Gryte indicated it was a private matter and he needed to speak with Jeanette personally. This offended the mother and she refused to allow him to speak with her daughter and advised him that any matters pertaining to Jeanette in school should be discussed with her. In addition, in the mother's opinion, Gryte had been drinking. She formed this opinion based on slurred speech and other mannerisms. On another occasion, Betty Manly entered the classroom and discovered Gryte standing extremely close to Jeanette and, in Ms. Manly's opinion, touching Jeanette inappropriately. Jeanette was forced back against Ms. Manly's desk and was obviously embarrassed by the situation. Gryte had dismissed the other students to attend P.E. class and was left in the room alone with Jeanette. The situation was upsetting to Jeanette, because she dropped her head and started crying when she was questioned about what had occurred between Gryte and her. Following the telephone incident, Gryte, the principal, and Jeanette's mother had a conference and Gryte was directed not to administer corporal punishment or otherwise touch Jeanette for any reason. Gryte violated this direct order in that he did subsequently administer corporal punishment to Jeanette. Another student in Gryte's self-contained class was a child by the name of Kelly Owens who had self-destructive tendencies and frequently would injure herself. On one occasion, Gryte sent her to the office alone and on the way, she took a piece of glass and cut her wrist and neck, not severely enough to cause death, but enough to result in extensive bleeding. Gryte had been specifically advised not to leave this child unattended. On one occasion, he gave her a pass to leave the school and go to an area known as the "swamp". This is an area off campus where students gather to smoke marijuana and allegedly participate in other similar activities. This occurred after a conference with the child's parents which Gryte attended and in which it was emphasized that the child needed close supervision. On another occasion, Gryte actually left the child in the classroom asleep. This was at the end of the school day. Another teacher came by and found the child sleeping in the class by herself. Gryte indicated he was unaware that Kelly was still in the classroom. In addition to the incident involving the telephone conversation with Jeanette Burgess' mother, Gryte appeared at an open house held on the school campus in the beginning of the 1983-84 school term. It was apparent that Gryte had been drinking. Those teachers present were definitely under the·impression that he had been drinking too much due to his slurred speech and demeanor. When confronted by Mr. Holt, Gryte admitted he had been drinking, but stated he only had one drink prior to the meeting. Based on Gryte's conduct and performance at Milwee, the principal and assistant principal felt he was neither effective nor competent and would not employ Respondent in a teaching position. Respondent recognizes he is not qualified and competent to teach certain areas of his certification. He basically desires to be a counselor and not a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order revoking the teaching certificate of Richard L. Gryte for a period of three years, subject to reinstatement thereafter pursuant to Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 11th day of April, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: L.Haldane Taylor, Esquire 331 East Union Street Jacksonville, Florida 32202 Richard L. Gryte 7703 Meadowglen Drive Orlando, Florida 32810 Karen B. Wilde Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 Ms. Marlene Greenfield, Administrator Professional Practice Service 319 West Madison Street, Room 3 Tallahassee, Florida 32301 APPENDIX The following constitutes any specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Petitioner's Proposed Findings of Fact 1-31 are all adopted in substance. Rulings on Proposed Findings of Fact of Respondent Respondent filed no Proposed Findings of Fact.
The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to these proceedings, Respondent has been licensed in the fields of elementary education and exceptional student education. Her Florida education certificate number is 840291. Her certificate expires on June 30, 2010. Respondent was employed by the Bradford County School District from 1994 to 1996, from 1998 to 2001, and finally from 2004 to 2007. She has worked as a substitute teacher, a parent specialist, and a teacher of varying exceptionalities. At the time of the events alleged in the Administrative Complaint, Respondent was the principal and teacher at Believer's School of Learning (Believer's School) in Bradford County School District. Believer's School was a charter school, for grades K-3, meant to give alternatives to traditional public school. Charter schools fulfill various purposes such as improving student learning and increasing learning opportunities. With respect to the Believer's School, a special emphasis was placed on low- performing students and reading. An "exceptional student" is defined by Section 1003.01(3)(a), Florida Statutes, as: ny student who has been determined eligible for a special program in accordance with rules of the State Board of Education. The term includes students who are gifted and students with disabilities who have an intellectual disability; autism spectrum disorder; a speech impairment; a language impairment; an orthopedic impairment; an other health impairment; traumatic brain injury; a visual impairment; an emotional or behavioral disability; or a specific learning disability, including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; students who are deaf or hard of hearing or dual sensory impaired; students who are hospitalized or homebound; children with developmental delays ages birth through 5 years, or children, ages birth through 2 years, with established conditions that are identified in State Board of Education rules pursuant to s. 1003.21(1)(e). Respondent had Exceptional Student Education (ESE) students in her school. Believer’s School was required to follow federal and state guidelines with respect to ESE students. Those requirements include keeping complete, current and accurate records with respect to exceptional education students. These recordkeeping requirements are required by federal and state law and are necessary for the school system of Bradford County, of which Believer's School was a part, to remain eligible for federal and state funds allocated to pay costs associated with educating exceptional students. In accordance with Florida Administrative Code Rule 6A- 6.03028(3), Respondent was required to prepare an Individual Education Plan (IEP) for each ESE student attending Believer's school. Rule 6A-6.03028(3) states: (3) IEP Requirements. An IEP or individual family support plan (IFSP) must be developed, reviewed, and revised for each eligible student or child with a disability served by a school district, or other state agency that provides special education and related services either directly, by contract, or through other arrangements, in accordance with this rule. Parents are partners with schools and school district personnel in developing, reviewing, and revising the IEP for their student. An IEP is necessary to evaluate the student's educational level, to establish short and long-term educational objectives, to develop alternative ways to accomplish those objectives, and to record the progress of the plan and establish a means for review of the student's educational progress. The proper preparation and maintenance of an IEP is a basic responsibility of the Respondent for exceptional education students at Believer's School. An improperly prepared IEP is potentially harmful to the learning of an ESE student because services and accommodations must be listed on the student's IEP before they can be provided. IEP’s are created by an IEP Team during a meeting involving the parties as set out in Florida Administrative Code Rule 6A-6.03028(3)(c) as follows: (c) IEP Team participants. The IEP Team, with a reasonable number of participants, shall include: The parents of the student; Not less than one (1) regular education teacher of a student with a disability... Not less than one (1) special education teacher of the student, or where appropriate, not less than one special education provider of the student; A representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the school district. . . An individual who can interpret the instructional implications of evaluation results who may be a member of the IEP Team as described in subparagraphs (3)(c)3., or (3)(c)4., of this rule;. . . Upon completion, the IEP is signed by the regular education teacher, the ESE teacher, the local education agency (LEA), and the parent or guardian of the student. The LEA is ultimately responsible for what goes into the IEP. If something is in the IEP it is because the LEA determined that it was feasible to carry out. The ESE teacher examines the psycho-educational reports and the specialized needs of the student. He or she often provides strategies to the regular education teacher to use with the ESE student. The regular education teacher is the most familiar with the curriculum being used for the student’s grade level. He or she provides insight as to how that curriculum can be adapted for the ESE student. Members of the IEP Team for an ESE student are supposed to be teachers and individuals associated with the student’s current grade level and involved in the student's education, in order to provide accurate curriculum and services for the student. The IEP Team is supposed to review the child’s test scores or have access to the child, know about the curriculum being used, and what types of accommodations an ESE student of the particular grade level would need. By signing the IEP, the individual team members are stating they met to discuss the ESE student, to develop goals and objectives and services for the student, and that they will follow up on making sure those goals and objectives are met. IEP's are updated on an annual basis. The annual IEP conference is mandatory, and failure to provide such a conference is a violation of federal, state, and School Board rules and policies. Failure to hold such a conference deprives the parents of the exceptional student any meaningful participation in determining the student's educational goals and may deprive the child of the assistance to which he or she is entitled. It also jeopardizes continued state and federal funding of the School Board's exceptional education program. Respondent was instructed, as were other teachers of exceptional students in the school district, that every IEP must be reviewed at least once a year through an annual IEP conference. Respondent was trained in how to prepare IEPs by the Bradford County School District on July 19, 20, and 21, 2005. Florida Administrative Code Rule 6A-6.03028(3)(b) requires that the school notify parents of an ESE student that an IEP meeting is scheduled prior to the IEP Team Meeting taking place. This notification is more than a formality; it is meant to insure meaningful participation by parents or guardians in the IEP process. Rule 6A-6.03028(3)(b) states as follows: (b) Parental participation in meetings. Each school district shall establish procedures that provide the opportunity for one or both of the student’s parents to participate in meetings and decisions concerning the IEP for the student. Parents of each student with a disability must be members of any group that makes decisions on the educational placement of their student. Procedures to ensure participation in meetings shall include the following: Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and Scheduling the meeting at a mutually agreed on time and place. A written notice of the meeting must be provided to the parents and must indicate the purpose, time, and location of the meeting, and who, by title or position, will be attending. . . . * * * A meeting may be conducted without a parent in attendance if the school district is unable to obtain the attendance of the parents. In this case, the district must have a record of its attempts to arrange a mutually agreed on time and place, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to the parents and any responses received; and Detailed records of visits made to the parents’ home or place of employment and the results of those visits. To comply with Rule 6A-6.03028(3)(b), it is Bradford County School District’s policy to send out a Parent Notification Form 10 days prior to an IEP team meeting. A few days after the first notification was sent, a second notification is sent to the parent. After the two written notifications are sent, a phone call is made to the parent of the ESE student. Student S.B. began school in the Bradford County School District when she was in pre-K. She was identified as a student with developmental disabilities. In 2005, she was living in Richmond, Virginia, and found to be eligible for exceptional education services as a student with a developmental disability. Upon return to Florida, S.B. was enrolled in Southside Elementary on March 17, 2005. In May 2005, an IEP team met, determined that S.B. was a student with specific learning disabilities, and developed an IEP outlining the services required for S.B. Without those services, S.B. would not receive a free appropriate public education as contemplated under the Individuals with Disabilities Education Act (IDEA), or Florida law regarding the provision of exceptional education. IEPs for exceptional education students are required to be completed every year before the prior year’s IEP expires. S.B.’s next IEP was due on May 17, 2006. On February 13, 2006, S.B. enrolled in Respondent’s charter school, Believer's School of Learning, approximately three months before S.B.’s next IEP was due. There was apparently some delay in providing S.B.'s May 2005 IEP to Respondent, but the length of the delay is unclear. In order for a school district to receive the extra funding for its ESE students all the ESE students’ IEP’s must be current by "FTE week." FTE week is when the schools determine a final head count of all the students that are in attendance. The FTE week for Bradford County School District in 2006 was October 13, 2006. All the ESE students within the school district had to have their IEPs in by that date or the schools would not receive the extra funding associated with that student. If S.B.’s IEP was not turned in before October 13, 2006, Believer's School would have only received its normal funding only instead of the additional ESE funding. As of the last week of September 2006, Respondent had not completed the IEP for S.B. In late September, Respondent called Verdell Long, and asked for some assistance in preparing an IEP for a third grader. On September 28, 2006, Respondent met with Verdell Long, at Bradford County High School, during Ms. Long’s lunch break, for assistance with preparing an IEP for a third grader at her charter school. Verdell Long was a high school teacher at Bradford County High School who had worked with ESE students, with a focus on mental retardation from grades K-12. She had assisted Respondent with IEPs in the past. She understood that she was assisting with a “sample” IEP to be used as a model. However, it was Respondent’s intention to use the product created as an IEP for the student S.B. The day of the meeting Verdell Long’s computer was not working so she could not access the IEPs she had on file. She asked another high school teacher, Dr. Vivian Haynes to assist in the meeting. Dr. Haynes was an ESE teacher at Bradford County High School in September 2006. She was very experienced with preparing and writing IEPs, having just completed a doctoral dissertation which included copies of third and fifth grade IEPs. Dr. Haynes had not previously met Respondent. Dr. Haynes brought several blank “dummy” IEPs with her to the meeting in order to have examples to show Respondent. The IEP prepared at the meeting included the various components of an IEP, such as the measurable goals and objectives for a third grader, but did not include the demographic information on any student. The document prepared at the meeting did not have a student’s name or test scores on it anywhere. Respondent did not bring the student S.B. or her test scores with her to the meeting. However, neither Ms. Long nor Dr. Haynes expected to see individualized information because they did not understand that an IEP for an actual child was being prepared. Verdell Long signed the IEP as the ESE teacher, Dr. Vivian Haynes signed as the LEA, and Respondent signed as the regular education teacher. Neither Verdell Long nor Dr. Vivian Haynes was contracted with Believer's School by the Bradford County School District to provide services as an LEA representative or an ESE teacher. Both Verdell Long and Dr. Vivian Haynes believed the purpose of the meeting was to construct a model IEP in order to assist Respondent with properly preparing an IEP for an ESE student. Neither expected the document created at their meeting to be submitted as an actual IEP for S.B., or any other student, and neither considered the meeting to be an IEP team meeting. Neither Verdell Long nor Dr. Vivian Haynes was shown a Parent Notification Form indicating that their meeting was to be an IEP team meeting. Neither would have signed the IEP if they had seen such a form because they did not believe that an IEP team meeting was being conducted. After the meeting on September 28, 2006, Respondent took the IEP form prepared with the help of Ms. Long and Dr. Haynes, and inserted information specific to S.B. She then submitted the form as S.B.’s IEP and turned in to the Bradford County School District. Submitted with the IEP form was a document which purported to be the Notification of Meeting Form for the IEP team meeting. Only one notification is referenced. The form was dated September 15, 2006, and identified Dr. Vivian Haynes and Verdell Long as participants in the meeting, notwithstanding Respondent's acknowledgement that she did not meet Dr. Haynes until September 28, 2006, and did not know until that time that Dr. Haynes would be participating in the meeting. The form also indicated that the IEP meeting would take place at the Believer's School, as opposed to the Bradford County High School, where the meeting between Respondent, Ms. Long and Dr. Haynes took place. There is no other indication of other attempts of notification. The signature line reserved for a parent or legal guardian is signed by a Rudolph Williams and dated September 29, 2006, the day after the meeting took place. Respondent claims that Mr. Williams is S.B.'s stepfather. However, there is nothing in the Bradford County School District's records to indicate that Mr. Williams is a parent or legal guardian of S.B., and school district officials were not aware of anyone by that name living in the home. By her own admission, Respondent did not keep "official records" for any of her students, including ESE students. She was not particularly concerned with who signed the IEP, because she apparently considered it to be simply a matter of paperwork to be filed with the School District. In her view, the person responsible for ensuring that a child is receiving the appropriate education is her teacher, regardless of the directives in the IEP. She felt that some of the things identified as required simply could not be done at a school her size. She did not consider the role of the LEA and the ESE teacher on the IEP to be all that important. To her, the real responsibility for the child's education lay with the teacher who worked with her on a daily basis. S.B. was later withdrawn from Believer's School and now attends Starke Elementary School. Believer's School has since closed and is no longer operating as a charter school.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts Two through Seven and dismissing Count One of the Administrative Complaint; imposing a fine of $500; suspending her certificate for one year and placing Respondent on probation for a period of three years. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 22nd day of October, 2009.
The Issue The issue is whether Petitioner, Manatee County School Board, had just cause to terminate Respondent's employment as a teacher.
Findings Of Fact The Parties Respondent has been employed as a teacher by the School Board since August 15, 1995. As a member of the School Board's instructional staff, Respondent's employment is subject to Section 1012.33, Florida Statutes (2008),1 which provides that her employment will not be terminated except for just cause. The School Board is a constitutional entity charged with the duty to operate, control, and supervise the public schools within the School District. Exceptional Student Education Exceptional Student Education covers a range of students who have individual needs that must be addressed by a specific plan for education, called an Individual Education Plan. The drafting and maintenance of IEPs is governed by federal and state law. The government may complete audits of district ESE records from time to time, although audits are not completed every year. However, the School District self-reports ESE compliance issues to the government. IEPs are valid for one year and must be rewritten annually, although not necessarily coinciding with the beginning of each school year. Generally, a draft form of the IEP is prepared and taken to an IEP meeting to be reviewed by individuals who are involved with the student's education ("IEP team"), including ESE teachers, regular education teachers, guidance counselors, and parents. Although everyone who is directly involved with the student's education is invited to the IEP meeting, it is not necessary that each individual attend for the IEP to be valid. For instance, if parents or service providers do not attend, the IEP is not invalid. All members of the IEP team attending the IEP meeting are required to sign a signature page indicating their attendance. The parents of the students are legally entitled to two notices of the IEP meeting, the first being at least ten days prior to the meeting. The notice can be written or verbal, but should be documented in the ESE file. Parents may waive their right to ten days' notice of the hearing. One person is assigned as the school's Local Education Agency (LEA). An LEA must be present at all IEP meetings which are required to ensure that ESE guidelines are followed. Students are required to be evaluated by service providers, such as speech-language pathologists, psychologists, social workers, and occupational therapists and to be re-evaluated every three years. The re-evaluation must be completed within three years from the calendar date of the earliest testing completed in the previous evaluation or re-evaluation. Each service provider is expected to review the file and to complete a re-evaluation. However, a re-evaluation is not required if the student's IEP team determines that such re-evaluation is not needed. Furthermore, re-evaluations are not required to draft an IEP. Prior to any testing, evaluation or re-evaluation of a student, the consent of the parent must be obtained. The consent forms are valid for one year after the parent's signature is obtained. Each student receiving ESE services should have a file which includes documentation, such as his/her IEP. Students who have more than one exceptionality (such as speech-language) will often have more than one file housed in the ESE office. Also, students who have been receiving ESE services for a long period of time often require more than one file folder to contain all of the documents. The School District obtains funds from the government based upon the ESE status of the students in the district. Students who receive ESE services are given more funding than students in regular classes. The funding is allocated on a per-student basis, and ESE students receive different levels of funding depending on the classification of their disabilities. In order to qualify for the funds, IEP and other relevant documents must be in compliance with certain guidelines referred to as FTE or "full time equivalent." There are two FTE periods during each school year wherein the ESE files must be compliant in order to obtain funds; the first one is in October and the second one is February. Respondent's Employment at Haile Middle School Respondent has been employed by the School Board as a teacher for 13 years. For the past several years, and at all times relevant to this proceeding, Respondent was an ESE teacher at Haile. In 2005-2006, after the preceding ESE department chair was transferred to another school, Janet Kerley, principal at Haile, asked Respondent if she would serve as the ESE department chair. Respondent accepted the job and had served continuously as ESE department chair until early February 2008. While serving as ESE chair, Respondent continued to work as an ESE teacher, and her position was designated as such by the School Board. As ESE department chair at Haile, Respondent received a stipend.2 In 2005-2006, when Respondent first became the ESE department chair, her work day was divided evenly between teaching her scheduled ESE classes and ESE department chair duties. Training for ESE Chair Position No special training was provided for Respondent to serve as ESE department chair. The School District assigned an ESE specialist to each secondary school, including Haile. The ESE specialist's role was to provide support to the ESE department chair. However, ESE specialists had no supervisory responsibilities for the ESE department chair. In the 2006-2007 school year, Emma Mileham, the ESE specialist assigned to Haile that year, gave Respondent a checklist titled, "ESE Department Chair Responsibilities." She also distributed "monthly mind joggers," titled, "ESE Teacher Activities." The checklist of the department chair's responsibilities included reviewing ESE files. During the 2007-2008 school year, Amy Lloyd, the ESE specialist assigned to Haile, interacted with Respondent once a week as part of the school's Child Study Team. However, Lloyd did not provide any list of job responsibilities to Respondent. Kerley evaluated Respondent's work performance in the past and found her work to be satisfactory. Prior to the allegations that gave rise to this action, Kerley never perceived deficiencies in Respondent's ability to maintain the ESE files. During Respondent's 13-year tenure as a teacher in the School District, she has consistently received satisfactory evaluations and has never been the subject of a disciplinary matter. Changes Impacting ESE Department in 2007-2008 Jerry Hernandez was appointed as the assistant principal at Haile for the 2007-2008 school year. Kerley designated Hernandez as the school's ESE administrator. As ESE administrator, Hernandez was responsible for ensuring compliance with FTE requirements, implementation of IEPs, and monitoring the ESE department chair. In the 2007-2008 school year, two changes were implemented which impacted the ESE Department at Haile and those working in that area. First, as part of an overall change implemented by the School District, ESE teachers at Haile were required to use a new computer system for creating ESE documents (i.e., IEPs, notices, consent forms, etc.). Second, there were significant changes in job responsibilities of the ESE department chair at Haile implemented at the school level. Computer System Changes Prior to the 2007-2008 school year, Haile was using a software program called Dynamo to assist in the maintenance of ESE files. Dynamo was primarily based upon the use of "hard copies" of relevant documents and was limited to each user's computer. At the end of the 2006-2007 school year, Haile switched from the Dynamo software to a web-based program called the A3 system ("A3"). The main difference between Dynamo and A3 was that A3, as a web-based program, allowed individuals to view relevant documents from any computer by logging into the system. After Haile switched from Dynamo to A3, the teachers and service providers were encouraged to input all previous IEPs drafted in Dynamo into the A3 system. In fact, after the School District switched to the A3 system, there was a "push" by administrators to have all IEPs inputted into A3. To accomplish this, Respondent typed IEPs drafted in Dynamo and those received from other states into the A3 system verbatim, so that teachers and other individuals would have access to the information from their computers. Also, other Haile employees, including ESE teachers Athena Jantzen and Alice Moreland, and speech-language pathologist, Marie Bryant-Jones, input Dynamo IEPs into the A3 system. At the end of the 2006-2007 school year, the speech- language pathologist then assigned to Haile, Bryant-Jones, input goals for each student who received speech services into the A3 system. The next speech-language pathologist was free to revise the goals as she saw fit. The fact that Respondent and ESE teachers were inputting IEPs originally drafted in Dynamo into the A3 system was common knowledge at Haile. The School District provided training in the A3 system for ESE teachers at or near the end of the 2006-2007 school year. Additionally, on March 20, 2007, a district-sponsored one-on-one training was offered to the staff of Haile. Respondent attended that session and the training staff spent that day reviewing and/or explaining the A3 system. The training staff also worked with and helped Respondent input the current IEPs in the A3 system in order "to speed up the process." To start a new IEP in A3, the user is required to click on "Copy IEP" on the computer page. Clicking "Copy IEP" makes an identical copy of the last IEP in the system, including goals and objectives for other information about the student. The dates for the previous IEP remains the same until the user manually changes the date. This copy is a "draft" which becomes the new IEP when the modified or updated information is input into the A3 system. ESE Department Chair Changes in Responsibilities in October 2007 Prior to October 2007, ESE teachers at Haile were responsible for the ESE files of the students they taught, and each ESE teacher drafted the IEPs for their students. In October 2007, Hernandez told Respondent that as the department chair, she was now to assume responsibility for all of the ESE files at Haile. Hernandez explained to Respondent that this change was being made because the ESE teachers had complained to him that they could not, or no longer wanted to, take care of the ESE files and to teach their classes. When Hernandez told Respondent that she was now responsible for maintaining all of the ESE files, Respondent informed Hernandez that she was not happy about that added responsibility. In response, Hernandez told Respondent not to worry about the files, indicating that they (the files) would "take care of themselves." Hernandez than told Respondent that she should concentrate on giving as much support to the teachers as possible. In October 2007, when Hernandez assigned Respondent the responsibility for maintenance of all ESE files, there were approximately 170 ESE files that needed to be maintained in compliance with FTE guidelines. Except for the foregoing, Hernandez never specifically informed Respondent of what her new duties were as ESE department chair. In October 2007, after being given the responsibility for all ESE files, Respondent drafted IEPs into the A3 system for students she did not have in class by getting feedback from the students' teachers and reviewing the students' progress reports. One ESE teacher at Haile, Athena Jantzen, continued to draft some of her own students' IEPs, as Respondent was overloaded with work. Service providers, such as speech-language pathologists and psychologists, were still expected to draft and enter their own goals into the A3 system. If a student received only speech services, the speech-language pathologist was responsible for drafting the student's IEP and maintaining the file. After being assigned the responsibility for all the ESE files, Respondent asked the ESE clerk to print copies of various active IEPs from A3. Respondent requested the copies so that a copy of the student's IEP could be included in each file related to that student. The IEPs and related documents were printed from the A3 system, not photocopied, and reflected a print date of October 17, 2007, on the top of each page. The executed signature pages of the IEP which could not be printed from A3, were not photocopied by the ESE clerk and were not included in each file. After being assigned the responsibility for all the ESE files, Respondent continued to teach her assigned ESE class and perform cafeteria duty on a daily basis. Respondent was also pulled almost weekly from her department chair responsibilities to cover additional classes. Responsibilities Related to ESE Compliance Issues As chairperson for the ESE Department, Respondent was charged with the maintenance and oversight of IEPs. At Haile, the guidance counselor is designated as the school's LEA. At Haile, the registrar was designated by the school administration to set up IEP and revision meetings. The ESE clerk, who worked at Haile one day a week, was assigned to mail out the notices of meetings to the parents. When students enrolled at Haile from another school, the registrar or guidance counselor would inform Respondent if the child required ESE services. Error Reports Respondent received an "error report" from the school's registrar almost weekly. The error report identified potential compliance issues with the ESE files, but did not represent a completely accurate accounting of the files. For example, it would not identify compliance issues, such as a missing signature page for an otherwise valid IEP. Respondent used the error report to ensure that IEPs were timely updated and reviews for re-evaluations were timely initiated. Hernandez, as ESE administrator, received an "error report" about three times a year. Error reports were available to service providers who requested them. These error reports were obtained and used by some service providers to determine when the re-evaluations for which they were responsible were due. Systems to Notify Service Providers of Re-Evaluation Dates While ESE department chair, Respondent used the following three different systems to notify and/or remind service providers when students needed to be re-evaluated: (1) the "white board" system; (2) the "file drawer" system; and (3) the "binder" system. At some point prior to the 2007-2008 school year, Respondent used the "white board" system. Under that system, Respondent listed the names of students whose re-evaluation date was approaching and the due date of the re-evaluation on a "white board" that was located in the ESE office. Respondent updated the "white board" monthly. In the 2007-2008 school year, Respondent used the "file drawer" and "binder" systems to notify service providers of upcoming re-evaluation dates. The "file drawer" system consisted of placing all files that needed to be reviewed and/or files of students who were ready for testing in a file drawer designated and labeled for that specific category. In the case of a file review, Respondent would initiate the file review and then put the ESE file in a drawer labeled, "File Review." The service providers would simply go to the drawer and pull out student files to complete their review. Once the file review was completed and the student was ready for testing, the ESE file would be placed in the re-evaluation and/or evaluation drawer. At the beginning of the 2007-2008 school year, Respondent informed all of the service providers assigned to Haile of the "file drawer" system. Among the service providers Respondent informed about the "file drawer" system were Krista Cournoyer, a school psychologist, and Julia Caldwell, a speech- language pathologist. Respondent specifically explained the use of the file drawers to them, because this was their first year working at Haile. The "file drawer" system is a typical system used by schools in the School District, but schools are not required to use that system. Instead, schools have the option of developing and using any system they choose. Early in the 2007-2008 school year and at all times relevant to this proceeding, the "binder" system was initiated at Haile.3 Under that system, the names of students who required testing and re-evaluations were placed in a binder (notebook) in the ESE office. Respondent and Karen Ciemniecki, the ESE evaluator assigned to Haile, updated the information in the binder. The various service providers could utilize the information in the binder to determine which students they needed to test and/or re-evaluate. Service providers were free to use either the "file drawer" or "binder" system to determine when they were to review a file and re-evaluate a student. In addition to utilizing those systems, the service providers could also obtain an error report which would provide information concerning re-evaluations which were due the following month. Both the "file drawer" and the "binder" systems provided the service providers the means to determine when a review and re-evaluation was due, without the direct assistance of Respondent. During the 2007-2008 school year, several service providers, including Ciemniecki and Caldwell, used the "file drawer" and/or "binder" systems to determine when student file reviews, testing and re-evaluations were to be done. In addition to using the established systems, both Ciemniecki and Caldwell obtained error reports from either Respondent or Haile's registrar. Cournoyer, like the other service providers, was aware of the "file drawer" and "binder" systems and knew how to use them. Nonetheless, Cournoyer believed that the systems were inadequate and did not ensure that she would consistently know when the re-evaluations for which she was responsible were due. Although the systems in place were not perfect, if utilized, they provided a reasonable means to determine when reviews and re-evaluations were due. Moreover, the error reports, if obtained and used, provided an additional source by which service providers could determine about a month in advance when re-evaluations were due. There were times when there were files in the designated file drawer that Cournoyer needed to review. In those instances, Respondent removed those files from the drawer and handed them to Cournoyer, indicating that they needed to be reviewed. Events Leading to Investigation In January 2008, Cournoyer believed that it appeared that she was not completing re-evaluations in a timely manner. Cournoyer also believed that the reason for any delays in completing the re-evaluations was that she did not get all the requisite forms for those re-evaluations until they were overdue. On or about January 31, 2008, Cournoyer was conducting a file review for Student E.A. While reviewing the file, she noticed that an IEP meeting was conducted for this student on January 8, 2008. Upon reviewing the file, Cournoyer had two concerns. First, she had not been invited to that IEP meeting. Second, the documentation in the file indicated that the meeting occurred three weeks before Cournoyer was notified of the need to conduct a file review for this particular student. While reviewing the file of E.A., Cournoyer noticed that the student was receiving services from Caldwell, the speech-language pathologist. She then gave the file to Caldwell who, upon review of the file, noticed that the speech goals were already written on the student's active IEP. Caldwell was concerned that she had not written those goals, as it had been her intent to dismiss the student from speech-language services, and that she had not been invited to the IEP meeting. Caldwell discussed her concerns about the speech goals for E.A. with Respondent, who instructed her to set up a meeting to revise the IEP. Cournoyer shared her concerns about "overdue" re-evaluations in an email to Respondent, but disagreed that there was a system in place that addressed her concerns. Dissatisfied with Respondent's response to her email, Cournoyer then sent an email to members of Haile's Child Study Team, including Lloyd, the ESE specialist. After receiving a response from Lloyd, Cournoyer sent an email about her concerns to the Haile administrators, including Hernandez, and ESE staff on or about February 1, 2008. After receiving Cournoyer's email, Hernandez requested that she provide additional information about her allegations and concerns. In response to that request, Cournoyer provided Hernandez with a list of students and dates of re-evaluations that were overdue. On Sunday, February 3, 2008, Hernandez and Cournoyer met at Haile and reviewed the ESE files. During that review, they found some files that were missing signature pages and that one IEP appeared to have an altered date on a consent form. After conducting a preliminary investigation, Hernandez reported his findings to Principal Kerley who, in turn, contacted the School District's Office of Professional Standards ("OPS"). OPS then initiated an investigation of Respondent and the maintenance and formulation of the ESE files at Haile. Respondent was placed on administrative leave on February 5, 2008, before the February 2008 FTE cut-off date. During that leave, Respondent was prohibited from communicating with School District employees or entering the premises of Haile. Prior to being placed on administrative leave, Respondent was not informed of the allegations against her. The matter was assigned to Debra Horne, a specialist with OPS. After reviewing an email about the case from Hernandez, Horne decided to allow the ESE department to review the ESE files at Haile.4 On February 6, 2008, the ESE team, consisting of all the secondary ESE specialists and the ESE coordinator, Joe Roberts, conducted a preliminary review of the ESE files at Haile for compliance issues. That same day, Roberts memorialized the review team's preliminary findings in an email to the ESE director, Ron Russell. According to the email, the ESE team conducted a two-hour review of the ESE files and found about ten files with problems (i.e., missing signature pages, what appeared to be an altered consent form, and IEPs which appeared to be copied from previous year's IEPs). The email memorializing the findings noted that the ESE office was not organized and that "many folders and confidential information were spread out in varying locations of the office, not in a secured fashion." The email also noted that the team looked for "numerous folders [files] and could not locate them in the filing system."5 On February 29, 2009, Horne met with Roberts and Lloyd to review the ESE files and the ESE team's preliminary findings. Based on the review of the files, the OPS determined that 15 ESE files were non-compliant for FTE (funding) purposes and that another five ESE files had compliance issues that did not affect funding. On March 13, 2008, Horne interviewed Respondent about the findings of the ESE review team. The purpose of the interview, which lasted most of the day, was to allow Dozier the opportunity to offer an explanation of the alleged compliance issues concerning specific ESE files.6 Prior to the March 13, 2008, interview, school officials did not notify Respondent of the allegations or allow her to respond to those changes. After completing the investigation and interviewing Respondent, Horne published her findings in an investigative report. The findings in the OPS investigative report and which are the bases of the charges against Respondent in this case involve the non-compliant ESE files referenced above. Specifically, the investigative report found and determined that: (1) 15 ESE files were non-compliant for FTE or funding purposes; and (2) five ESE files had compliance issues that did not affect funding. As a result of the 15 non-compliant ESE files, the affected students were returned to basic funding, causing a decrease in the overall funds available to the School District. Nevertheless, those identified students were provided with services in accordance with their IEPs. Non-Compliant ESE Files Resulting in Loss of Funds Student A.C. The investigative report found that there was no signature page in the ESE file of A.C. for the April 10, 2007, IEP. Without a properly-executed signature page, the IEP is invalid. Respondent testified credibly that she did not know if she conducted the IEP meeting when the April 10, 2007, IEP was developed, but believed that A.C. may have had more than one file. This belief was based on the fact that A.C.'s primary disability was "language impairment," and A.C. received speech services. Typically, such students had two ESE files, one of which was kept by the speech-language pathologist. The April 10, 2007, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Respondent further testified credibly that she could have and intended to locate the signature page before the FTE window closed. Student J.B. The investigative report found that the ESE file of J.B. did not contain a signature page for the November 6, 2006, IEP. Without a properly executed signature page, the IEP is invalid. The November 6, 2006, IEP meeting was conducted during the previous school year and before Respondent was responsible for the maintenance of all ESE files at Haile. Moreover, there is no evidence that Respondent conducted or was present at this IEP meeting. Respondent testified credibly that she could have and intended to locate the signature page for the November 6, 2006, IEP before the FTE window closed. The investigative report found that a second IEP for J.B. indicated that it was drafted on January 25, 2008, but the registrar was informed it was drafted on October 23, 2007. However, there is nothing in the record to establish that the registrar made such a statement. Student Z.L. The investigative report found that the ESE file of Z.L. did not contain a signature page for the March 19, 2007, IEP. The IEP for Z.L. dated March 19, 2007, was drafted while Z.L. was attending Freedom Elementary School ("Freedom"), and, thus, was drafted by employees of Freedom. This IEP was valid through March 18, 2008. Freedom is a school in the School District, and the IEP developed at that school was apparently put in the A3 system. The March 19, 2007, IEP was printed on October 19, 2007, and was a copy of the IEP from Freedom dated March 19, 2007. Because the IEP printed in October 2007 was a copy of a valid IEP, no signature page was required. No determination was made as to whether the original March 19, 2007, IEP, with the fully executed signature page, was ever sent by Freedom to Haile. The signature page could not be printed from the A3 system. Therefore, unless the original or a photocopy of the fully executed signature page of the March 19, 2007, IEP had been sent to Haile, the school would not have the signature page. Student A.L. The investigative report found that there was no temporary IEP written for A.L. after the student transferred to the School District in September 4, 2007, from an out-of-state school. In September 2007, when A.L. enrolled at Haile, the student had a valid IEP from the out-of-state school district. The out-of-state IEP was for the period March 7, 2007, through March 6, 2008, if the student had remained in that state. Once the student was enrolled, the School District had six months from the student's enrollment date to develop a temporary IEP. Accordingly, a temporary IEP should have been developed on or before March 4, 2008. A temporary IEP was not developed for A.L. prior to or by March 4, 2008, or as of March 13, 2008, when Respondent was interviewed by Ms. Horne. Although the temporary IEP had not been developed prior to Respondent's being placed on leave, steps were being taken to develop the IEP prior to Respondent's being placed on leave. For example, Ciemniecki administered achievement tests to A.L. in late September 2007. Also, Cournoyer was reviewing the student's file and also testing the student. Respondent was placed on leave February 5, 2008, about one month before the temporary IEP was required to be developed. Thus, no conclusion can be reached as to whether Respondent would have taken the necessary steps to ensure that the temporary IEP was developed by March 4, 2008. On the other hand, it is equally apparent that after being placed on leave, Respondent was prevented from and could not take any steps to ensure that a temporary IEP was developed for A.L. Therefore, it can not be concluded that Respondent is responsible for the failure to timely develop a temporary IEP. The credible testimony of Respondent was that she intended to take steps to ensure that an IEP was drafted within six months of A.L.'s enrolling in the School District. An issue was raised regarding what appeared to be inconsistent dates on the Informed Notice and Consent for Evaluation/Re-evaluation ("Informed Notice and Consent") form. That form included spaces in which the following was to be provided: (1) the referral date; (2) the parent's signature, either giving or denying consent for the evaluation; and (3) the date of the signature. The referral date printed or typed on the form is February 26, 2006. The parent's signature, giving consent for the evaluation, was dated September 24, 2007. The concern expressed was that the date of the referral, February 26, 2006, was more than a year and a half prior to A.L. enrolling in the School District. This discrepancy was explained by the credible testimony of Respondent. According to that testimony, the above-referenced consent form was from the Dynamo computer system and had been used to make copies of blank forms to be used. However, the "referral date," February 26, 2006, had been printed or typed on the original form, and that date had been inadvertently left on the form prior to copies of the form being made. Student S.H. The investigative report concluded that S.H.'s IEP dated April 26, 2007, was invalid because it was created at Haile four or five months prior to the student's enrolling in the School District on September 5, 2007.7 The ESE file of S.H. contained a valid IEP dated April 26, 2007, that was drafted while the student was living out-of-state and enrolled in an out-of-state school. That IEP would have been valid through April 25, 2008, had the student remained in the out-of-state school district. In addition to the out-of-state IEP, the ESE file of S.H. also contained another IEP dated April 26, 2007, which indicated that, as of that date, the student was attending Haile. There was also a fully executed signature page for this April 26, 2007, IEP, which had been signed by the parent, Respondent, and six other individuals. In addition to the parent and Respondent, six others signed the signature page of that IEP. Contrary to the allegations, the IEP for S.H. created at Haile was not created on April 26, 2007, four months before the student enrolled in the School District. Respondent testified credibly that she input the data from the out-of-state IEP into the A3 system. However, while inputting information in A3 for the student's new IEP, she neglected to change the IEP plan date from April 26, 2007, to the new IEP plan date. The testimony of Respondent is supported by a careful review of contents of the IEP. For example, the IEP clearly indicates that the student is now enrolled at Haile as a "transfer [student] from out of state."8 The signature page of the Haile IEP also mistakenly shows that the IEP was developed on April 26, 2007. However, the upper right corner of that signature page indicates that the signature page form for S.H.'s Haile IEP was printed from the A3 system at 7:18 a.m., on October 29, 2007, almost two months after S.H. enrolled in the School District. As noted above, only blank signature page forms can be printed from A3. Therefore, the signatures had to be placed on the signature page some time after the form was printed. Respondent's failure to change the plan date of the student's out-of-state IEP to the plan date of the new IEP created at Haile, was due to human error. Student S.R. The investigative report found that S.R.'s ESE file did not contain an IEP, a notice of IEP meeting, or signature page. S.R.'s ESE file contained a valid IEP dated February 8, 2007, drafted while the student was at Gene Witt Elementary ("Witt"), a school in the School District. The IEP was drafted by employees at Witt and was valid through February 7, 2008. The file also contained an IEP with a plan date of February 7, 2008 (the same as the Witt IEP), indicating that the student was attending Haile at the time of the IEP. Respondent testified credibly that she typed the data contained in the Witt IEP, which was in the Dynamo System, into the A3 system so that the data would be available to other teachers. Respondent testified credibly that she had no intent to make it appear that S.R. was attending Haile in February 2007. Respondent further testified credibly that when an individual inputs data into the A3 system, the school that the individual is assigned to automatically "pop[s] up" in A3 as the student's school. The document included in the investigative report that is the basis for discipline against Respondent is a copy of S.R.'s IEP that was created at Witt dated February 8, 2007. That IEP was printed from A3 on October 19, 2007. Because the IEP is a copy of a valid IEP, no signature page was required. Likewise, no notice of the IEP meeting was required. No evidence was presented to establish that the notice and fully executed signature page of the subject IEP were ever received by Haile. Student E.M. The investigative report found that the ESE file of E.M. did not contain a signature page for the April 11, 2007, IEP, and, thus, the IEP was invalid. E.M.'s April 11, 2007, IEP notes that the student's primary exceptionality is "language impaired." During the March 2008 interview, Respondent informed the OPS investigator that she believed E.M., as a language-impaired student, had two ESE files, one of which was maintained by the speech-language pathologist.9 Respondent testified credibly that she could have and intended to locate the signature page or schedule another IEP meeting before the FTE window closed. The April 11, 2007, IEP was drafted during the previous school year and prior to Respondent becoming responsible for the maintenance of all ESE files at Haile. Student M.D. The investigative report found that the ESE file of M.D. did not contain a valid IEP. According to the report, Respondent gave a plan date of November 2, 2007, to the registrar, but failed to create an IEP on that date. On November 2, 2007, a parent conference was called and conducted by Ms. Moreland, a teacher at Haile. Respondent did not attend the parent conference, but about mid-meeting, Moreland went to Respondent's office. Moreland then told Respondent that the team originally intended to remove M.D. from mainstream classes, but during the parent conference decided against it. The November 2, 2007, date may have been incorrectly given to the registrar as the IEP plan date.10 However, the meeting conducted on that date was a parent conference, and unlike IEP plan dates, are not reported to the registrar. It is alleged that the report of the conference and IEP revision sheets were incomplete. However, as a result of the team's decision that M.D. services remain the same (he would remain in mainstream classes), there was no need for the partially completed revision form to be included in M.D.'s ESE file. Thus, Moreland should have discarded that form. M.D.'s ESE file included a valid IEP dated February 8, 2007. This IEP was valid through February 7, 2008. The short-term objectives from M.D.'s 2007 and 2008 IEPs were identical. The latter IEP was dated March 6, 2008, after Respondent was on administrative leave and Jantzen was interim department chair. Student E.R. The investigation found that E.R.'s sixth-grade IEP appeared to be copied "exactly" from the student's fifth-grade IEP. The concern was that the information copied from the fifth-grade IEP to the sixth-grade IEP did not accurately reflect an appropriate measurable annual goal in the area of math. The annual measurable goal on E.R.'s fifth-grade IEP and copied on the student's sixth-grade IEP was that the student "will satisfy fifth grade math requirements." However, during the investigation, it was established that the student was performing above the fifth-grade level in math at Haile. Thus, that previous math goal should have been changed.11 The fifth-grade IEP was developed on December 7, 2006, when E.R. was enrolled at Freedom Elementary School ("Freedom") and remained effective through December 6, 2007. E.R. was enrolled as a sixth-grader at Haile in the 2007-2008 school year. Therefore, the fifth-grade IEP was effective the first few months of E.R.'s sixth-grade year at Haile. Pursuant to the administration's instructions, after E.R. enrolled at Haile, Respondent input the information from the December 2006 IEP into A3.12 Although E.R. was in the sixth grade, the IEP was effective until December 6, 2007. The December 7, 2006, IEP, upon which the OPS refers, was printed on October 19, 2007, and is a copy of the IEP developed at Freedom, except that E.R.'s school and grade had been changed. The student's school was changed from "Freedom" to "Haile" and the current grade was changed from fifth to sixth.13 Respondent testified credibly that she did not know who changed the grade and school on E.R.'s December 2006 IEP. Moreover, no evidence was presented as to who made those changes. However, undoubtedly, on October 19, 2007, E.R. was enrolled at Haile and was in the sixth grade. Respondent testified credibly that in inputting E.R.'s December 7, 2006, IEP, developed at Freedom, into the A3 system, she did not intend to make it appear that E.R.'s December 7, 2006, IEP was developed at Haile. Student C.D. The investigative report found that Respondent gave the registrar an IEP plan date on January 30, 2008, but A3 indicated the meeting was held the following day. Having the IEP meeting on the following day would not necessarily be a violation.14 However, C.D.'s ESE file did not contain a notice of a January 30 or 31, 2008, IEP meeting, an IEP, or a signature page for either of those dates. If a meeting were held on either of those days, a notice of the meeting and a signature page should be in the file. C.D.'s ESE file contained a valid IEP dated February 5, 2007, that was valid through February 4, 2008. Respondent testified that she intended to draft another IEP and hold a meeting before the deadline, which would have brought the file into compliance with the FTE requirements. Notwithstanding Respondent's testimony, there was no indication that an IEP plan meeting had been scheduled on or before February 4, 2008, and that notices of such meeting had been sent to parents and other appropriate individuals. Unless an IEP plan meeting had been scheduled and properly noticed, regardless of Respondent's intent, an IEP could not have been developed on or before the February 5, 2007, IEP expired. Student J.D. The investigative report found that the goals from J.D.'s 2008 IEP are identical to the student's 2007 IEP, which was effective from January 26, 2007, through January 25, 2008, unless and until a new IEP was developed. A new IEP ("2008 IEP") was developed for J.D. on January 14, 2008, and was effective from that date until January 13, 2009. During her March 2008 interview with OPS, Respondent informed Horne that she was taught that the goals of a student who was not meeting with success could be carried over to the next year. Other district employees confirmed that it was common practice to carry over goals from one year to the next. J.D.'s 2007 IEP indicates that Jantzen was the contact person for the IEP and that Respondent was not invited to the IEP meeting. J.D.'s 2008 IEP indicates that Respondent was not invited to the IEP meeting. Jantzen signed the signature page of this IEP as the ESE teacher, and Nosal, Moreland, Edmonson, and J.D.'s parent also signed the page. Jantzen, the current ESE department chair at Haile, testified credibly that a student's goals could be carried over to the next year, if deemed appropriate. According to Jantzen, it would be proper to include a note on the IEP regarding the reason(s) why the goals were carried over. However, there is no indication that Jantzen did so in J.D.'s file. Student M.M. The investigative report found that M.M.'s IEP dated April 4, 2007, did not include an LEA signature. Respondent informed OPS that it was probably an oversight that the LEA failed to sign the signature page. Respondent testified credibly that she would not have held a meeting if an LEA was not present, and it was likely that she anticipated an LEA coming or that the LEA was in attendance, but failed to sign the sheet. Typically, in the School District, the ESE department chair is the designated LEA at his/her respective school. However, at Haile, the school's guidance counselor, not the ESE department chair, is the designated LEA. If and when the guidance counselor at Haile is unavailable to serve as LEA, other individuals at the school, including Respondent, as the ESE department chair, were authorized to act as LEA. The failure to obtain the signature of an LEA at the April 4, 2007, IEP meeting was an oversight. Respondent was at that meeting and signed the signature page as the ESE teacher/evaluator. In the absence of the guidance counselor or another person designated as LEA, Respondent could have signed as LEA in addition to signing as ESE teacher/evaluator. Respondent was not aware that the LEA had not signed the form until she (Respondent) was interviewed by OPS. If Respondent had become aware of the problem prior to being placed on administrative leave, she could have taken one of two steps to correct the situation before the FTE window closed. To correct the omission of the LEA signature, Respondent could have scheduled another IEP meeting if no LEA was present. According to Hernandez, corrective action could have been taken by having the LEA sign off after the meeting, if that person had attended the meeting, but forgot to sign.15 Due to her oversight, Respondent took no corrective action to obtain the signature of an LEA on M.M.'s IEP dated April 4, 2007. As a result of this oversight, the IEP was not compliant for the October 2007 or the February 2008 cut-off date. Student B.R.H. The investigative report found that B.R.H.'s IEP dated March 6, 2007, did not include an LEA signature. The effective period of that IEP was March 6, 2007, through March 5, 2008. Respondent signed the signature page of the March 6, 2007, IEP as the ESE teacher/evaluator. In addition to signing the signature page as the ESE teacher/evaluator, Respondent, as ESE department chair, also could have signed as LEA if the primary LEA representative was not at the meeting. The corrective action discussed in paragraph 148 could also have been taken if the LEA representative attended the meeting, but left without signing the signature page. Respondent was not aware of the omission of the LEA signature until it was called to her attention during the March 13, 2008, OPS interview. Had Respondent been aware of that omission prior to that time, she could have taken appropriate corrective action. Because Respondent was unaware of the situation prior to that time, no corrective action was taken prior to the October 2007 FTE cut-off date. Student J.G. The investigative report determined that the ESE file of J.G. could not be found. Despite that determination, it was not established when this student enrolled at Haile and/or if that student's ESE file was ever delivered to Haile. Moreover, at this proceeding no testimony or evidence was presented as to whether the ESE file was found after Respondent was placed on administrative leave. As ESE department chair, Respondent was responsible for maintaining the ESE files. However, in this instance, it is unknown when, and if, J.G. enrolled in Haile and/or if the student's file was ever delivered to the school. Assuming, though not finding it, that J.G's ESE file was at Haile, no evidence was presented that Respondent intentionally or otherwise concealed the file.16 The credible testimony of Respondent was that she did not conceal J.G.'s ESE file. Student B.M. The investigative report found that B.M.'s ESE file could not be found. It was not established that B.M. was a student at Haile, whether the student enrolled at Haile, or if B.M.'s ESE file was ever delivered to Haile. Also, no evidence was presented at the hearing as to whether the file was found since Respondent was placed on administrative leave. During the March 13, 2008, OPS interview, Respondent informed Horne that she did not know B.M. Also, Respondent testified credibly that she did not know B.M. and never saw B.M.'s ESE file. There was no evidence presented at the hearing that Respondent intentionally concealed the ESE file of B.M. or that the file was ever at Haile. Alleged Deficiencies Not Resulting in Loss of Funds Student E.A. The investigative report found that Respondent falsified an Informed Notice and Consent form for E.A. This finding was based on a comparison of two Informed Notice and Consent forms for E.A. Informed Notice and Consent forms: (1) advise parents that their child has been recommended for an evaluation, re-evaluation and/or file review; (2) indicate the types of assessments that may be used; (3) provide parents the option to either give or deny consent for the evaluation; and (4) provide a signature and date line for parents to complete. Informed Notice and Consent forms also provide spaces for information, such as the student's name, address, school, grade, and teacher's name ("identifying information"). On both of the Informed Notice and Consent forms for E.A., the identifying information had been written in the appropriate spaces, and the parent had signed and indicated that consent was given for the proposed evaluation. The two Informed Notice and Consent forms were different in several ways as set forth below. On the first Informed Notice and Consent form, someone had written in the student's grade as "6." The middle portion of the form, which describes the student's proposal for evaluation, was not completed. Finally, the parent's signature was on the form, but the "date" line next to his/her signature was not completed. On the second Informed Notice and Consent form: in the space for the student's grade, the number "8" was written over what appeared to be a "6," indicating that the student was in eighth grade, not sixth grade; (2) the middle portion relating to the proposal for evaluation had been completed; and (3) the date, April 23, 2007, previously not on the form, was written next to the parent's signature. The finding in the investigative report assumes that the first Informed Notice and Consent form (which was incomplete) was prepared and signed by the parent when E.A. was in the sixth grade, and the form was copied and modified when the student was in eighth grade. Those alleged modifications included changing the student's grade and inserting a date next to the parent's signature. Respondent testified that she may have changed the grade from "6" to "8" on the second form and did not know if she had added the date next to the parent's signature. While Respondent is not sure how the foregoing occurred or who did it, she explained that, with respect to the grade, it was possible that she wrote the "8" over the "6," because the grade had been initially entered incorrectly.17 According to the OPS report, during the March interview, Respondent advised the investigator that the file she (Respondent) was given to review was E.A.'s speech file and not the student's ESE file. Respondent told Horne during that interview that she was "almost certain that there was another consent form." At hearing, Respondent testified credibly that she believed that there was another consent form elsewhere.18 Based on the record, no determination can be made as to when the date next to the parent's signature was written on the Informed Notice and Consent form or who wrote that date.19 Based on the record, no determination can be made as to who or when E.A.'s grade level was changed from "6" to "8" or whether that change was made to correct an error.20 Student L.H. The investigative report found that the Informed Notice and Consent form for L.H. was falsified by Respondent. On the student's Informed Notice of Consent form, the date next to the parent's signature was January 25, 2008. The date of the parents' signature on that form appeared to have been changed to January 25, 2007. The investigative report found that the "8" in the year 2008 appeared to have been written over what seemed to have been a "7" in the year 2007. No evidence was presented to establish who wrote an "8" on the form, indicating that the form was signed by the parents on January 25, 2008. No evidence was presented as to when the parents actually signed the Informed Notice and Consent form. The credible testimony of Respondent was that she did not change the date on the consent form and did not know who had done so. Student B.H. It is alleged that the ESE file of B.H. did not contain a notice of an IEP meeting and should have since the student's current IEP was to expire on February 6, 2008. No evidence was presented to establish that Respondent directed or instructed the ESE assistant or registrar to send out notices of an IEP meeting for B.H. or that the notices were sent out. Respondent testified that she intended to make the file compliant by sending a notice to the parents before the deadline. Despite Respondent's intentions, unless a notice had been sent out prior to February 5, 2008, and unless she took extraordinary measures, the IEP plan meeting could not be convened and no IEP was developed for B.H. on or before February 6, 2008, when the student's IEP expired.21 Student A.T. The investigative report determined that the IEP for A.T. dated October 4, 2007, did not include a signature page. According to the investigative report, during the March 2008, interview with Respondent, the investigator "reviewed the concern for A.T." (no signature page for the October 2007 IEP). The investigator then advised Respondent that the School District could have lost funding, but the problem was caught in time, and an IEP meeting was held to obtain the signatures. Finally, the investigator told Respondent, "Please explain." Respondent answered by telling the investigator that she could not remember. The investigative report makes no mention of Horne providing any file of A.T.'s to Respondent during the above- described discussion. After the allegation related to the missing signature page was made and Respondent was placed on leave, a signature page for A.T.'s October 4, 2007, IEP, which included Respondent's signature, was found.22 Apparently, before the signature page for the October 4, 2007, IEP referenced in paragraph 189 was located and after Respondent was placed on leave, school officials completed two signature pages for that IEP. These signature pages were backdated to correct the "missing signature page" issue. Ultimate Findings The School Board lost funding due to 15 ESE files being non-compliant with applicable statutes and regulations. However, those non-compliant issues were the result of human errors, mistakes, omissions and oversights of those responsible for the files, including, but not limited to, Respondent. The record is void of any evidence that the ESE files' non-compliance issues were the result of Respondent’s committing intentional acts to falsify the ESE records and/or to misrepresent the facts relative to the ESE students. Finally, there is no evidence that the errors, mistakes, and omissions attributed to Respondent resulted from her intentionally or deliberately neglecting her duties and/or refusing to adhere to the directives of supervisors and/or applicable laws, regulations, and School Board policies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order: Finding Respondent, Annette D. Dozier, not guilty of the charges alleged in the Amended Administrative Complaint; and Reinstating Respondent with back pay and benefits. DONE AND ENTERED this 23rd day of December, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2009.
