The Issue Whether the School Board should have non-renewed the Respondent's professional service contract and terminated her employment as a member of the Petitioner's instructional staff for unsatisfactory performance effective June 1998.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board of Palm Beach County, Florida, is the entity authorized to operate the public schools in Palm Beach County and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997). This includes the power to terminate the contract of instructional staff for unsatisfactory performance. Section 231.36(e) and (f), Florida Statutes. At all times material to this proceeding, Joan Tochner was employed by the School Board and assigned as a media specialist to Allamanda Elementary School ("Allamanda Elementary"). Mrs. Tochner was first employed by the School Board in 1974, and she was placed on a continuing contract at the beginning of the 1977-78 school year. Mrs. Tochner remained employed under a continuing contract until she requested in April 1997 that she be changed to a professional service contract beginning in the 1997-98 school year. Mrs. Tochner has a Master's degree in Library Science and has taught for over thirty years. She has served as a media specialist all but one of the years she has worked for the School Board, and, except for two years, she has worked in Palm Beach County elementary schools. She served as the media specialist at Westgate Elementary School for seventeen years and at Washington Elementary School for the five years immediately preceding her assignment to Allamanda Elementary at the beginning of the 1996-97 school year. Prior to the 1996-97 school year, Mrs. Tochner had never received an evaluation in which her performance was identified as unsatisfactory in any performance area in which she was evaluated. Beginning in the 1996-97 school year, under the administration of the newly-assigned principal of Allamanda Elementary, Mrs. Tochner received a mid-year evaluation in December 1996 in which three areas of concern were noted; she was put on a School Site Assistance Plan beginning in January 1997; she received an annual evaluation in March 1997 in which six areas of concern were noted; she was put on a Professional Development Plan for the 1997-98 school year; she received a mid-year evaluation in December 1997 in which seven areas of concern were noted; and she received an annual evaluation in March 1998 in which seven areas of concern were noted. Her principal recommended in a letter dated March 10, 1998, to the Palm Beach County Superintendent of Schools that Mrs. Tochner's employment be terminated, and this recommendation was forwarded to the School Board by the Superintendent in a letter dated April 1, 1998. Mrs. Tochner was advised in this letter that her employment with the Palm Beach County School Board would terminate on June 11, 1998. She has not been employed by the School Board since that time. PERFORMANCE ASSESSMENT CRITERIA AND PROCEDURES FOR INSTRUCTIONAL PERSONNEL The School Board uses the Florida Department of Education's Florida Performance Measurement System ("FPMS") as its instructional personnel assessment system. This system measures the instructional performance of all instructional personnel, including teachers and media specialists. Each member of the School Board's instructional staff is observed during formal "observations" of classroom performance, during which the observer identifies teaching behaviors which he or she rates as more or less effective. The results of the observation are reported on the Screening/Summative Observation Instrument ("Summative Instrument"), which contains four categories, or "domains of effective teaching," which are identified as follows: Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; and Management of Student Conduct. These domains are divided into twenty-one sections, each section containing an effective teaching behavior in the left column and a corresponding less effective teaching behavior in the right column. The person conducting the observation identifies particular teaching behaviors and marks the Summative Instrument with tally marks next to either the left-hand column of effective behaviors or the right-hand column of ineffective behaviors. The Summative Instrument is intended to provide an objective measurement of a teacher's instructional competence; it is governed by strict rules defining the way in which the instrument is to be completed, and it represents the formal method by which data is collected regarding a teacher's performance in instructional processes. Each person conducting formal observations in the Palm Beach County public schools receives intensive training in the proper use of the Summative Instrument to ensure some degree of uniformity in rating teaching behaviors. Each member of the instructional staff is evaluated each March, and this annual evaluation is based on the formal observations reported in the Summative Instrument, together with anecdotal reports of informal observations and reports of post- observation meetings. The evaluations are prepared by the school principal, or the assistant principal if the principal delegates this responsibility. At the principal's discretion, a teacher may be given a mid-year evaluation, which is completed in December of each year. An approved School Board form is used to record the evaluations. Media specialists are evaluated using the Media Specialist Evaluation Form, which is one of two special evaluation forms required by the State of Florida, the other being for guidance counselors. The Media Specialist Evaluation Form contains a section covering media center management skills, in addition to the instructional processes and professional responsibility sections that are included in the evaluation form used for classroom teachers. The Media Specialist Evaluation form includes the following evaluation criteria: MEDIA CENTER MANAGEMENT CAPABILITIES Establishment and maintenance of program plans Organization of the media program Administration of program assessment Development and maintenance of the collection Provides assistance to educators and students INSTRUCTIONAL PROCESSES Management of student conduct Instructional organization and development Presentation of subject matter Communication: verbal and nonverbal Establishment of an appropriate learning climate PROFESSIONAL RESPONSIBILITIES Demonstrates a commitment to professional growth Demonstrates self control Demonstrates effective working relationships with coworkers Demonstrates effective working relationships with parents Adheres to and enforces school polices [sic] Performs duties as assigned by the school administration Each evaluation criterion is followed by two columns, one identified as "Acceptable," for which the media specialist is assigned two points, and one identified as "Concern," for which the media specialist is assigned one point. A satisfactory evaluation requires a total score of 28 points; in other words, five or more "Concerns" render an evaluation unsatisfactory. The evidence contains no definition of the term "Concern," as that term is used in the evaluation form, but the context in which the term is used, as well as the statutory assessment procedures applicable to school instructional personnel, supports the inference that a formal "Concern" noted on the Media Specialist Evaluation Form identifies an area of deficiency. Because the evaluation form for a media specialist includes management responsibilities as well as instructional processes and professional responsibilities specific to a media specialist, the School Board publishes a "Guide for the Media Specialist Evaluation Form" ("Guide"). The Guide provides a description of the duties assigned to a media specialist and provides the evaluator with guidance in preparing the evaluation. For example, under the Media Center Management Capabilities section, the evaluator is to determine whether the media specialist's performance is acceptable with respect to the category of Establishment and Maintenance of Program Plans in accordance with the following factors: The library media specialist: works with educators, parents, and when appropriate students to provide direction for the library media program develops statements of long range desired outcomes and supporting measurable results to provide direction for the library media program identifies those program activities that will be given primary attention during a specified time span and develops plans for implementation develops general statements of how a given practice is to be carried out in the library media center and the specific actions, sequences and rules to observe in carrying out a policy formulates and submits funding requests with written justification based on specific program needs and keeps on-going record of expenditures manages the integration of technology into the media program The Guide also includes specific factors that must be considered in evaluating the media specialist's performance in the five categories of the Instructional Processes section of the Media Specialist Evaluation Form and the six categories of the Professional Responsibilities section of the Media Specialist Evaluation Form. The specific factors to be used in evaluating the competence of a media specialist in the Instructional Processes section correspond roughly to the areas identified in the four categories, or domains, of the Summative Instrument. The Summative Instrument does not, however, include any categories relating to the management of the media center or the professional responsibilities of a media specialist. These items are subject to anecdotal review: An informal observation is done and a report is generated consisting of a narrative of the activities observed in the media center and the discussions with the media specialist in meetings that take place after the observation. The summary of the meetings includes identification of areas in which the media specialist could improve and recommended strategies for improvement. PROCEDURES FOR IDENTIFYING A MEMBER OF THE INSTRUCTIONAL STAFF WHOSE PERFORMANCE IS UNSATISFACTORY, FOR ASSISTING THE STAFF MEMBER IN IMPROVING PERFORMANCE, AND FOR TERMINATING A STAFF MEMBER WHOSE PERFORMANCE REMAINS UNSATISFACTORY The process by which a school district terminates a member of its instructional staff for unsatisfactory performance is known in Palm Beach County as the "231 process," referring to Chapter 231, Florida Statutes, in which the various procedures and criteria for termination are set forth. In Palm Beach County, if a member of the instructional staff, which includes media specialists, receives an unsatisfactory mid-year evaluation during what is known as the "identification year," that person is flagged as someone who might need assistance in improving his or her performance. Assistance is initially provided to a media specialist who has received an unsatisfactory evaluation through a school site assistance plan prepared and administered at the school level by the principal and assistant principal. Administrative and instructional personnel in the school to which the media specialist is assigned provide guidance and assistance at this stage of the "231 process." If, after receiving on-site assistance, a media specialist receives an unsatisfactory annual evaluation, the media specialist enters the formal remediation portion of the "231 process." The principal notifies the Superintendent that the media specialist has received an unsatisfactory evaluation, and the Superintendent responds with a letter requiring that the media specialist remediate the deficiencies noted in the evaluation. For a media specialist under a professional service contract on July 1, 1997, the media specialist is given one year to remediate his or her unsatisfactory performance, and that year extends from March to March. During what is known as the "remediation year," the media specialist is provided assistance in improving his or her performance in the form of a professional development plan that is prepared and administered at the district level. The media specialist first receives a "mini-plan," which covers the time period from March to June of the remediation year. The basic prescription in the mini-plan is for the media specialist to meet with the district's Manager of Library Media Services and go over the performance criteria for the media specialist. The mini-plan can also involve prescriptions for the media specialists to follow, including the use of tapes, videos, and workbooks. In June, the media specialist receives a formal professional development plan that begins in August of the remediation year and extends through the first half of the following school year. If the media specialist receives an unsatisfactory mid-year evaluation in December of the remediation year, he or she receives the second part of the professional development plan, which extends from January through March of the remediation year, the time at which annual evaluations are prepared. If the media specialist receives a satisfactory annual evaluation in March of the remediation year, he or she is taken off the professional development plan; if the media specialist receives an unsatisfactory evaluation in March of the remediation year, he or she can be terminated at the end of the school year. However, the remediation plan extends to the end of the school year, and if a principal observes improvement in the areas of deficiency to a satisfactory level, the principal can withdraw the recommendation of termination. AUGUST THROUGH DECEMBER 1996 Mrs. Tochner was assigned to Allamanda Elementary in July 1996, as its media specialist. The media center at Allamanda Elementary consisted of a central area and several rooms opening off of the central area. Book stacks were located in several of these rooms, as was the reading well, while the circulation desk was located in the central area. There had been no certified media specialist at Allamanda Elementary since March 1994, and Mrs. Tochner found the media center in disarray and in serious need of attention. Equipment had not been inventoried and was strewn around a storage room; much of the equipment was outdated and needed to be replaced. Six shelves of paperback books had not been processed for the Sirsi system, the electronic catalog in use in the Palm Beach County schools, and the reference collection needed to have bar codes physically affixed to each book. 1/ The collection had many outdated materials that needed to be removed from the shelves. Computer software was not organized and had not been inventoried or checked to see that the school still had computers that could run the different programs. None of the audiovisual materials had been entered on the Sirsi system. Many new materials ordered and received by the media center were still in the shipping boxes. As the media specialist, Mrs. Tochner was part of Allamanda Elementary's fine arts faculty, which also included the music director, the visual arts teacher, the guidance counselor, and the instructional technical support assistant ("ITSA"), a clerical employee who, at Allamanda Elementary, was in charge of the IBM computer laboratory. During the school years at issue herein, the fine arts faculty was scheduled to teach each class in the school for one hour each week, except that guidance and computers were scheduled on alternate weeks. The computer class was taught by the ITSA, and it was in this class that the children were taught how to use computers and were allowed to work on remediation skills in reading, writing, and mathematics using the computers. During the 1996-97 school year, the first class at Allamanda Elementary began at 8:15 a.m., and the last class ended at 1:55 p.m.; class periods lasted approximately forty- five minutes, and the teachers and media specialist were given a one-hour combined lunch and planning period each day. Teachers and the media specialist were expected to arrive on campus at 7:30 a.m. and to conclude their work and leave the campus by 3:00 p.m. If the principal approved overtime work, the teacher or media specialist would receive credit in the form of compensatory time. Under the revised fine arts schedule effective October 15, 1996, Mrs. Tochner was scheduled to teach six classes on Mondays and Thursdays, from 8:15 a.m. through 1:55 p.m., with no planning period except for the combined one-hour lunch and planning period; she was scheduled to teach five classes on Tuesdays, Wednesdays, and Fridays, with a one-hour planning period on those days in addition to the combined lunch and planning period. Media specialists rely on media aides and media clerks to assist in keeping the media center organized, in checking out books, and in keeping the students in order. During the 1996-97 school year at Allamanda Elementary, Mrs. Tochner had no full- time assistance in the media center. A gentleman named Mr. Brown was assigned to assist her part time, but his duties also included assisting the administration whenever any student in the school exhibited behavior problems. As a result, Mrs. Tochner was not able to depend on Mr. Brown's being available on a regular schedule, and she was most often the only adult supervising the students in the media center. Dr. Janice S. Cover was appointed principal of Allamanda Elementary in July 1996. She received her doctorate in education from Nova Southeastern University in 1996, and her appointment as principal of Allamanda Elementary was her first appointment as a school principal. Dr. Cover was first employed by the School Board in 1988; she taught at Allamanda Elementary from 1988 through 1993 and served as assistant principal at Timber Trace Elementary School during the 1993-94 and 1994-95 school years and at John F. Kennedy Middle School during the 1995-96 school year. Dr. Cover was trained in 1994 in the use of the Florida Performance Measurement System. Dr. Cover first met Mrs. Tochner in August 1996, in a "getting-to-know-you" session with Mrs. Tochner and another member of the fine arts faculty. During that meeting, Dr. Cover shared her vision for the children at Allamanda Elementary; she especially wanted the media specialist to help the children at Allamanda Elementary develop a love for reading, and she wanted the media center to be the hub of activity in the school. Dr. Cover asked Mrs. Tochner to describe her vision for the media center. Dr. Cover was not pleased with Mrs. Tochner's response, which Dr. Cover described only as a "non-response." Anne M. Wark was assistant principal at Allamanda Elementary during the 1996-97 and 1997-98 school years. Ms. Wark decided "from the start" that Mrs. Tochner was not comfortable teaching classes, that she was more comfortable running a media center. The basis for this determination was Ms. Wark's observation of the way Mrs. Tochner managed the students, and she testified that she first realized "that things were not as they should be" when Dr. Cover received a complaint that Mrs. Tochner had grabbed a student by the neck and thrown her down on the floor in the media center. Incident - October 21, 1996 The incident to which Ms. Wark referred occurred early in Mrs. Tochner’s first year at Allamanda Elementary. On October 21, 1996, Mrs. Tochner was accused by two second grade students of grabbing them and pushing them to the floor in the media center during the time their class was in the media center attending the Book Fair. The alleged incident was brought to Dr. Cover's attention when she received a telephone call from a parent alleging that his daughter was "grabbed by the media specialist and pushed to the ground" and advising Dr. Cover that the incident was observed by another student. Dr. Cover talked with this other student, who said that Mrs. Tochner also grabbed her neck and pushed her to the floor. Dr. Cover undertook to investigate the incident, and she spoke with an intern who had been in and out of the media center at the time of the alleged incident and with a teacher who had also been in the media center at the time. Neither witnessed any such incident in the media center at the time alleged or at any other time. 2/ Dr. Cover notified the district of the accusations against Mrs. Tochner and turned the matter over to district personnel for investigation on or about October 22, 1996. Although Dr. Cover testified at the hearing that she had hoped that Mrs. Tochner would talk to the parents and resolve the matter, Dr. Cover included the following in the notes of her on- site investigation of the alleged incident: Joan Tochner came to my office to find out if I had heard from the parents [of the children who had accused Mrs. Tochner of throwing them to the floor]. I told her that the matter was now in the hands of the investigators and that she should not talk to the students about the incident. She felt that she should meet with the parents. She wanted to find out if this was usual practice. I told her I had never experienced this before. She wanted to get advice on whether she should call CTA [Classroom Teachers Association]. I told her it was up to her. She asked me if I was hiding anything. I said no. She asked what I would do if I were in her shoes. I told her I really don't know. She left and said she would call CTA. Mrs. Tochner was advised in a letter dated February 21, 1997, that the district investigation had been concluded with a finding that there was no probable cause to take disciplinary action against her. Notwithstanding this finding, Dr. Cover believed in October 1996 that Mrs. Tochner had committed the acts alleged, and she continues to believe that Mrs. Tochner is guilty of having committed those acts. 3/ Meeting - October 29, 1996 Dr. Cover met with Mrs. Tochner on October 29, 1996, a week after the accusations of misconduct were made against her. During this meeting, Dr. Cover discussed the following concerns she had about Mrs. Tochner's performance: Books being used as consequence-- students not getting to check out books if their behavior was inappropriate. Your negative attitude toward students-- (shouting, not warm and receptive). Grade level report that stated you scream at the students, refer to them as "hey you" not by name, publicly reprimand a student when the teacher came to get the class. 4/ Meeting - November 6, 1996 On November 6, 1996, Dr. Cover met with Mrs. Tochner in the media center, at which time Mrs. Tochner shared with her the problems she was having controlling the behavior of students in a particular class. Dr. Cover suggested that it was probably a problem "that you may be having with the management of student conduct." In order to remedy the discipline problems, Mrs. Tochner met with the teacher of the class several times, and Mrs. Tochner and the teacher developed a discipline plan to address the problems Mrs. Tochner was having. Observation - November 7, 1996 Dr. Cover conducted an informal observation of Mrs. Tochner on November 7, 1996, which she memorialized in a memorandum to Mrs. Tochner dated November 27, 1996. Dr. Cover noted that Mrs. Tochner reprimanded one boy who misbehaved and did not permit him to check out a book. In addition, Dr. Cover noted that Mrs. Tochner stopped three boys who decided to use one of the computers in the media center during the time the students were to check out books. In the notes of her November 7, 1996, observation, Dr. Cover commented that some students appeared bored while Mrs. Tochner was explaining the discipline rules for the media center and while Mrs. Tochner was taking attendance. Dr. Cover did not prepare a Summative Instrument for this observation. Observation - November 14, 1996. Ms. Wark conducted two observations of Mrs. Tochner on November 14, 1996, while Mrs. Tochner taught a kindergarten class consisting of twenty-five students and a fifth grade class consisting of twenty-six students. 5/ The narratives Ms. Wark prepared of her observations consist of a chronology of the activities engaged in by the class, together with observations of the students' responses. There is virtually nothing in the narratives that can be categorized as reflecting negatively on Mrs. Tochner's performance. In the narratives, Ms. Wark did not attribute to Mrs. Tochner any behavior toward students that could be described as harsh, impatient, or sarcastic, and she did not expressly criticize any of Mrs. Tochner's teaching behaviors. With respect to Mrs. Tochner's managing student conduct, Ms. Wark noted that, after Mrs. Tochner dismissed the fifth grade class to check out books, several students were playing in the reading area and were not looking for books to check out. Mrs. Tochner did not stop this misbehavior because she was in another room in the media center, helping individual students and small groups select books. Ms. Wark noted that Mrs. Tochner stopped other student misbehavior, and she also noted that Mrs. Tochner was instructing the fifth grade students in using a computer. Dr. Cover's November 6, 1996, observation and Ms. Wark's November 14, 1996, observations were discussed with Mrs. Tochner during a meeting with Ms. Wark and Dr. Cover on November 15, 1996. The notes of the meeting indicate that the following topics were discussed at this meeting: Was there any assessment of students' prior knowledge? This would probably minimize boredom. Hands on opportunities should be provided. Train students to help in the check-out process. Attendance process is too lengthy-- students losing interest far too early in the lesson. Complaint about Mrs. Tochner's negative attitude toward students. 6/ What opportunities are students (K-5) given to respond to the literature presented? Kindergarten students not checking out books (teachers' agreement). Could students look at (manipulate) books provided by Mrs. Tochner? Need more positive feedback to students. In the November 15, 1996, meeting, Dr. Cover and Ms. Wark did not give Mrs. Tochner any suggestions for management of student conduct. Observation - December 2, 1996 On December 2, 1996, Dr. Cover conducted a formal observation of Mrs. Tochner's performance teaching a class consisting of ten exceptional education students. 7/ Dr. Cover completed a Summative Instrument for the December 2, 1996, observation and a narrative describing the observation. In the Instructional Organization and Development category of the Summative Instrument, Dr. Cover noted that Mrs. Tochner asked twenty-nine "single factual" questions and two questions requiring analysis and reasoning; that Mrs. Tochner allowed a unison response once, that Mrs. Tochner posed a multiple question asked as one five times; and that Mrs. Tochner used general nonspecific praise three times. In the Management of Student Conduct category, Dr. Cover noted three instances in which Mrs. Tochner either delayed stopping misconduct, failed to stop misconduct, or stopped misconduct punitively. Dr. Cover noted no ineffective teaching behaviors in the categories of Presentation of Subject Matter and Communication: Verbal and Nonverbal. Dr. Cover stated in the narrative of the December 2, 1996, observation that the students in the class appeared bored by the lesson, although she noted in the Summative Instrument that only three students were "not engaged" in class activity during the twenty-five minutes of her observation. Although Dr. Cover considered the use of single factual questions to be unsatisfactory teaching behavior, the use of such questions is included on the Summative Instrument as an acceptable behavior, although teachers are encouraged to ask analytical questions, or higher order questions, as well. Although Dr. Cover noted no instances during her formal observation on December 2, 1996, of Mrs. Tochner's ignoring a student response or expressing sarcasm, disgust, or harshness toward the students, Dr. Cover noted in the attached narrative that "[a]t times the teacher responded to students in a sarcastic tone." She also noted in the narrative that "[o]ne male student in a yellow shirt remained off task (talking or playing) for a large portion of the class and was never stopped." Finally, Dr. Cover noted in the narrative that "[t]here was no physical evidence of theme planning, student work demonstrating understanding or response to literature." Mid-year evaluation - December 1996 Dr. Cover ordinarily does not prepare mid-year evaluations of experienced teachers. However, Dr. Cover decided to do a mid-year evaluation of Mrs. Tochner, notwithstanding Mrs. Tochner's 30 years of teaching experience. Dr. Cover completed the mid-year evaluation of Mrs. Tochner's performance on December 2, 1996, and noted that she based the evaluation on informal observations of Mrs. Tochner's classroom performance conducted on November 7, 1996, and on November 14, 1996, and on the formal observation she conducted on December 2, 1996. In the section on Instructional Processes in the December 2, 1996, mid-year evaluation of Mrs. Tochner, Dr. Cover rated Mrs. Tochner as unsatisfactory 8/ in the categories of Management of Student Conduct, 9/ Instructional Organization and Development, 10/ and Establishment of an Appropriate Learning Climate. 11/ Dr. Cover rated Mrs. Tochner satisfactory in the sections of Media Center Management Capabilities and Professional Responsibilities. Mrs. Tochner's total score on this evaluation was 29 points, which constitutes an overall satisfactory evaluation. As an explanation of her December 2, 1996, evaluation, Dr. Cover included the following comments on the evaluation form: There are some concerns about: The climate in the Media Center and how Mrs. Tochner stops student misconduct. Students are not given specific academic praise. More analytic questions should be asked. Students should participate in hands-on activities and projects for display. Although the three "Concerns" marked by Dr. Cover in Mrs. Tochner's evaluation amounted to a finding that Mrs. Tochner's performance in these categories was deficient, Dr. Cover testified that she marked those areas of concern because, on the basis of the observations of Mrs. Tochner, she "needed to offer some assistance to Mrs. Tochner in these particular areas." Dr. Cover found Mrs. Tochner deficient in the category of Management of Student Conduct because she was not comfortable with the tone of voice Mrs. Tochner used with the children. She described Mrs. Tochner's tone as "harsh, quite impatient-like." Mrs. Tochner's failure to ask more analytical questions formed the basis for her rating Mrs. Tochner deficient in the category of Instructional Organization and Development. Although there is a category on the Media Specialist Evaluation Form identified as Establishment of an Appropriate Learning Climate, there is no corresponding category on the Summative Instrument used for the formal observations of Mrs. Tochner, and there is no explanation in the record of Dr. Cover's finding Mrs. Tochner deficient in this area. School Site Assistance Plan As a result of the December 2, 1996, mid-year evaluation, Dr. Cover placed Mrs. Tochner on a School Site Assistance Plan to provide her assistance in improving in the three areas of concern noted in the December 2, 1996, mid-year evaluation. Dr. Cover ostensibly did so as part of the "231 process," which requires that a teacher be given a chance to remediate unsatisfactory performance prior to being recommended for non-renewal of the teacher's professional service contract. Under the "231 process" used in the Palm Beach County school system, however, only those teachers who receive an unsatisfactory mid-year evaluation, that is, an evaluation with five or more areas of "Concern," are identified as teachers who might need to come under a Professional Development Plan. Because Dr. Cover identified only three areas of "Concern" on her mid-year evaluation, Mrs. Tochner's overall performance was not considered unsatisfactory. In the School Site Assistance Plan, Dr. Cover listed as deficiencies the following two items: "During time when you did correct students, you used rough, angry, and punitive language"; and "You did not use effective questioning techniques." Dr. Cover directed Mrs. Tochner to read a booklet on managing student conduct and a learning package on effective questioning techniques; to observe another media specialist; and to attend a discipline workshop and workshops on January 10, 20, 29, 31, 1997. Mrs. Tochner did each of the prescribed activities. Dr. Cover also advised Mrs. Tochner in the plan that she would be observed and assisted by the District Media Specialist during the week January 13 - 17, 1997, and that her performance would be observed on January 17, February 26, and March 3, 1997. JANUARY THROUGH JUNE 1997 Janet Kempel is employed by the School Board as an instructional technical support assistant ("ITSA"). She works at Allamanda Elementary, where she has been assigned for five years; during one of her years at Allamanda Elementary, she worked as a media clerk. Her duties as an ITSA include maintaining the computers in the IBM lab and in the Instructional Integrative Learning System ("ILS") lab at Allamanda Elementary, and she works with students on computer keyboard skills and with remediation skills in reading, writing, and mathematics. Ms. Kempel worked in the media center with Mrs. Tochner during the 1996-97 and 1997-98 school years, but, even though they were housed in the media center, the computer labs were not part of the media center, and Mrs. Tochner was not Ms. Kempel's supervisor. In January 1997, Ms. Kempel reported directly to Dr. Cover 12/ that Mrs. Tochner had thrown her cane 13/ across the media center. According to Ms. Kempel, she and Mrs. Tochner had a disagreement in the media center, and Mrs. Tochner became upset, turned her back on Ms. Kempel, walked a few steps, and threw her cane about five feet across the media center's central area. Mrs. Tochner admitted to being frustrated, not at Ms. Kempel, but because both of them had forgotten to videotape an activity as requested. According to Mrs. Tochner, she turned her back to Ms. Kempel and tossed her cane in the air next to her body and let the cane fall to the floor. A witness who was standing very close to Mrs. Tochner and Ms. Kempel during the incident did not observe Mrs. Tochner throw her cane across the room, nor did he observe any children in the media center at the time. 14/ Meeting - January 17, 1997 As part of the "231 process" and apparently as part of the School Site Assistance Plan, Dr. Cover planned to have several meetings with Mrs. Tochner and Ms. Wark, with others participating from time to time, to discuss Mrs. Tochner's progress under the School Site Assistance Plan. A meeting was held on January 17, 1997, in which Dr. Cover, Ms. Wark, and Mrs. Tochner discussed Mrs. Tochner's progress, and Dr. Cover and Ms. Wark answered Mrs. Tochner's questions. Mrs. Tochner advised Dr. Cover and Ms. Wark during this meeting that she was trying to organize the media center and that Allamanda Elementary's in-house Sirsi system would be hooked up soon. Mrs. Tochner explained that "if there is a tense climate in the Learning Center it is because she has so much she is trying to do." Mrs. Tochner reported at the January 17, 1997, meeting that she had reviewed materials on the use of specific praise, had attended "sessions" on this technique, and was using more specific praise in her lessons. Mrs. Tochner also advised Dr. Cover and Ms. Wark that she was working with the school's guidance counselor on techniques for conflict resolution to use in her class. Mrs. Tochner asked for specific ideas on improving her questioning techniques, asking Dr. Cover for examples of "higher level" questions. It was noted on the memorandum that a follow-up meeting would be held on February 26, 1997. There is no evidence in the record that another meeting was held between January 1997 and March 1997 in which Dr. Cover and Ms. Wark reviewed Mrs. Tochner's performance or provided assistance. Media Center Program Review Jane C. Terwillegar, the "District Media Specialist" referred to in Dr. Cover's School Site Assistance Plan, was asked by Dr. Cover in early 1997 to assess the media center program at Allamanda Elementary. Ms. Terwillegar's formal title is Manager of Library Media Services for the Palm Beach County school system. She has a Master's degree in Library Science and an EDS, 15/ and she completed her coursework for a doctorate in education in 1981. Ms. Terwillegar served as media specialist at the H.L. Johnson School from 1983-1993, and, immediately prior to assuming her current position, Ms. Terwillegar was media specialist at Allamanda Elementary for a period of nine months during the 1993-94 school year. As requested by Dr. Cover and in accordance with the School Site Assistance Plan, Ms. Terwillegar visited the media center at Allamanda Elementary on January 15, 1997, in preparation for submitting a full program review of the media center. Under the School Site Assistance Plan, Ms. Terwillegar was to focus only on Mrs. Tochner's management of the media center program. Ms. Terwillegar was not aware of the cited deficiencies in instructional processes in Mrs. Tochner's December 2, 1996, evaluation, nor was she aware of the deficiencies identified in the School site Assistance Plan designed by Dr. Cover. Ms. Terwillegar summarized her initial observations regarding the state of the media center and her recommendations for improvement in a memorandum to Dr. Cover dated January 28, 1997. Ms. Terwillegar observed that Mrs. Tochner was an experienced media specialist; that the 1996-97 school year was Mrs. Tochner's first year at Allamanda Elementary; that Mrs. Tochner had no full-time assistance in the media center; that the media center appeared to be running efficiently; that many out-dated and unusable materials needed to be removed from the collection; that Mrs. Tochner provided her with a number of documents documenting management activities in the media center; and that Mrs. Tochner demonstrated a commitment to professional growth. 16/ In her memo of January 28, 1997, Ms. Terwillegar made the following recommendations: The major difficulty observed is a reluctance and resistance on the part of the media specialist to promote the media program in a positive light. This atmosphere of negativity is pervasive, and prevents the active, existing, functioning program elements to provide a positive focus for faculty and staff. An active public relations campaign cannot function in a negative atmosphere. The main thrust and focus for the next few weeks needs to be positive thinking, positive responses, and a positive spirit of cooperation with others on the school's staff. For the time being, the focus of activity in the media center needs to move from organization and cataloging of materials, to building bridges with faculty for collaborative instruction and programming. Teamwork with the Instructional Technology Support Assistant (ITSA), clerical assistants, teachers and others needs promotion, so the full capabilities of the school's technology can be utilized as the media program: from in-house television to the circulating Macintosh computers. An integrated approach is required, with the media specialist providing leadership and support. Ms. Terwillegar was advised during her visit on January 15, 1997, that there had been no certified media specialist at Allamanda Elementary since she left the position in March 1994. Ms. Terwillegar also observed that there were no activity centers set up in the media center when she visited on January 15, 1997, but she attributed this in part to the fact that Mrs. Tochner was teaching classes virtually all day, every school day, so that there were no children or groups of children coming into the media center from the various classrooms to work on projects. In a memorandum dated February 10, 1997, Ms. Terwillegar summarized a meeting she had on February 7, 1997, with Dr. Cover, Ms. Wark, and Mrs. Tochner for the purpose of discussing improvements for Allamanda Elementary's media program. In addition to suggesting that Mrs. Tochner read additional materials relating to media program planning, that Mrs. Tochner visit other district schools with a single media specialist to see how those media programs are implemented, and that Mrs. Tochner visit classrooms to observe the manner in which children rotate through learning centers, Ms. Terwillegar suggested that: The media specialist devote more time to working directly with teachers in integrating the media program with classroom instruction. This includes attending grade level meetings. Since the ITSA's desk is located in the media center, and other staff is assigned to the center for part-time assistance, the school [should] consider a plan for integrating these staff members into a media/technology team working cooperatively in the media center, particularly for student supervision. The media specialist prepare a time/function plan, outlining the steps to be instituted, and the time frame for the coming semester, February through June. The example of a time/function plan provided to Mrs. Tochner by Ms. Terwillegar included a statement of the issue to be addressed, a breakdown of each task needed to address the issue, and a time frame within which the issue was to be resolved. Observation - March 6, 1997 On March 6, 1997, Dr. Cover observed Mrs. Tochner teach a fifth grade class. She did not prepare a Summative Instrument recording her observation, although she prepared a memorandum summarizing her observation. Dr. Cover noted that the lesson, which involved the use of the encyclopedia and a worksheet, was "teacher-directed" and that several students appeared bored by the lesson and were off task. Dr. Cover did not include any criticisms of Mrs. Tochner's management of student behavior, but she noted "two occasions when you tried to redirect student behavior. You said to a group of boys, 'Boys, if you are not watching, you're going to have a hard time.' You also placed a gently hand on a girl's shoulder to get her attention." Dr. Cover summarized her concerns and suggestions resulting from the March 6, 1997, observation as follows: Concerns You did not use any specific academic praise. The activity lacked motivation and did not lend itself to generating excitement. Students who were ahead could have continued independent work. There were no analytical questions asked. Suggestions Implement strategies you learned at the workshops on: Presentation of Subject Matter Instructional Organization and Development Management of Student Conduct Utilizing a Variety of Instructional Strategies for Lesson Delivery Dr. Cover also felt that there was a certain amount of disorganization in the lesson because some students completed the assigned activity while other students were struggling with the assignment. Observation - March 17, 1997 On March 17, 1997, Dr. Cover conducted a formal observation of Mrs. Tochner's performance teaching a fifth grade class consisting of twenty students. In the Instructional Organization and Development category of the Summative Instrument, Dr. Cover noted three instances in which Mrs. Tochner allowed a unison response to a question and one instance when Mrs. Tochner used general non-specific praise. In the Management of Student Conduct category, Dr. Cover noted one instance in which Mrs. Tochner did not stop misconduct timely; Dr. Cover noted that the misconduct involved a student's pounding on the table with his pencil. Dr. Cover did not note any behaviors, effective or ineffective, in the categories of Presentation of Subject Matter and Communication: Verbal and Nonverbal. Dr. Cover noted that, during the forty minutes of her observation, her first scan revealed two students who were not engaged, her second scan revealed three students who were not engaged, and her third and fourth scans, respectively, revealed four students who were not engaged. On the Summative Instrument, Dr. Cover included notes in which she questioned the nature of the lesson, which she categorized as a "paper/pencil task," and questioned whether there could be a tie-in with technology. In the narrative Dr. Cover prepared of her observation on March 17, 1997, she commented that the students were seated in groups of five at tables, working with encyclopedias, and that Mrs. Tochner circulated to the various tables answering individual questions. Dr. Cover did not notice any specific academic praise while Mrs. Tochner was working with the groups of children. Dr. Cover noted that, in the second part of the lesson, Mrs. Tochner initiated a class discussion in which she asked the students questions. Dr. Cover did not observe any "expression of enthusiasm or educational challenges," and she noted that Mrs. Tochner gave only "one specific academic praise." Finally, Dr. Cover observed that, while Mrs. Tochner was helping individual students, "several students out of her view were engaged in off-task talking and playing. Two boys were up from their seats and moving (playfully) around the room. Another boy pounded loudly on his table with his pencil." Dr. Cover completed her narrative description of the March 17, 1997, observation by noting several concerns and unanswered questions: Students were not oriented to the day's lesson. There was no beginning and ending review. There was no concept development. This unit lended [sic] itself to projects, sharing of information, lively discussions. There was no evidence of this. Could there be a link to technology with this unit? Why was the female student working by herself in another room while there were available seats? This was the end of this unit--students did not get the opportunity to share information. What modifications did you make for the ESE student who sat idly for quite sometime? 17/ Annual evaluation - March 1997 On March 25, 1997, Dr. Cover prepared Mrs. Tochner's annual evaluation using the Media Specialist Evaluation Form. 18/ Dr. Cover noted on the form that the evaluation was based on the observations of November 7, 1996, November 14, 1996, and December 2, 1996, which formed the basis for her mid-year evaluation, and on observations conducted on March 12, 1997, 19/ March 17, 1997, and "walk though visits during Jan. & Feb." 20/ In the March 25, 1997, annual evaluation, Dr. Cover found Mrs. Tochner's performance deficient in the following categories: In the Media Center Management Capabilities section, Mrs. Tochner was found deficient in the categories of Establishment and Maintenance of Program Plans 21/ and Administration of Program Assessment 22/ ; in the Instructional Processes section, Mrs. Tochner was found deficient in the categories of Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, 23/ and Establishment of an Appropriate Learning Climate. In the section of the form entitled "Commendations," Dr. Cover noted: "Mrs. Tochner worked diligently with the STIA 24/ team to develop the FY 98 STIA proposal. Her input and visit to FETC 25/ are commendable. There are concerns about Mrs. Tochner's development and implementation of a total media program." No further explanation of the basis for the evaluation was provided by Dr. Cover. In a letter dated March 25, 1997, Dr. Cover advised the Superintendent of the Palm Beach County school system of the six deficiencies noted on Mrs. Tochner's March 1997 annual evaluation. Dr. Cover asserted that, although she had provided assistance to Mrs. Tochner in correcting the deficiencies, Mrs. Tochner had failed to do so. Dr. Cover further requested that the Superintendent provide Mrs. Tochner with notice that she would be given one year in which to correct the deficiencies. The Superintendent provided the requested notice in a letter to Mrs. Tochner dated April 16, 1997, in which Mrs. Tochner was also advised that she would be placed on a professional development plan for the upcoming school year and that, if the deficiencies were not corrected by the end of the school year, "a change in your employment status may be recommended." In a letter dated "April, 1997," Mrs. Tochner requested a transfer for the 1997-98 school year to another appropriate position, with a different supervising administrator. Mrs. Tochner was advised by the School Board's chief personnel officer in a letter dated July 2, 1997, that a meeting had been held to consider her request for a transfer and that the request was denied: "Appropriate support can be provided in your current assignment." Another fine arts teacher at Allamanda Elementary who had received an unsatisfactory evaluation from Dr. Cover was allowed to transfer to another school. District Level I Professional Development Plan After giving Mrs. Tochner the unsatisfactory annual evaluation in March 1997, Dr. Cover referred Mrs. Tochner to Barbara Jeanne Burdsall as a teacher needing assistance. Dr. Burdsall is employed by the Palm Beach County school system and is the Manager of Professional Standards, a job she has held for the past fourteen years. Dr. Burdsall has a doctorate in educational administration and supervision, and she is certified by the Florida Department of Education in elementary education, guidance, and educational leadership. As part of her duties, Dr. Burdsall prepared the document entitled "Guide for the Media Specialist Evaluation Form," and she managed Mrs. Tochner's professional development plan, preparing the plans for Mrs. Tochner, monitoring Mrs. Tochner's progress, and conducting formal observations of Mrs. Tochner's performance as a media specialist. Dr. Burdsall first prepared for Mrs. Tochner a CTAS 26/ District Level I Professional Development Plan, which Dr. Burdsall refers to as a mini-plan. She transmitted the mini-plan to Dr. Cover with a memorandum dated March 27, 1997, and provided a copy to Mrs. Tochner. Dr. Burdsall listed in the mini-plan the areas of concern that Dr. Cover identified in the March 27, 1997 evaluation. The improvement strategies identified in the mini-plan specified that Mrs. Tochner should "[w]ork with the designated district specialist Jane Terwillegar . . . to design a plan to implement a new strategy in your classroom addressing targeted areas of concern. Turn plan into a site administrator for review prior to implementation. Evaluate results at completion of project." Mrs. Tochner was also told to attend district workshops and seminars and to view videos suggested for each area of concern, and she was also expected to meet with Ms. Terwillegar to discuss the duties and responsibilities of a media specialist. Meeting - April 16, 1997 Pursuant to the mini-plan, Ms. Terwillegar met with Mrs. Tochner on April 16, 1997. Ms. Terwillegar summarized this meeting in a memorandum to Dr. Cover dated April 24, 1997. Ms. Terwillegar noted in the memorandum that she made several suggestions to Mrs. Tochner, including the suggestions that Mrs. Tochner document all of her activities in the media center, such as contacts with teachers and parents, all telephone calls related to the business of the media center, and her activities developing student-centered activities; that Mrs. Tochner investigate ways in which to enliven the media center program; and that Mrs. Tochner plan and implement a school-wide media activity in the early fall of the 1997-98 school years. During this meeting, Mrs. Tochner told Ms. Terwillegar that she had implemented Ms. Terwillegar's suggestions from the February 7, 1997, meeting, a contention that Ms. Terwillegar did not dispute. Meeting - June 2, 1997 Dr. Cover had a meeting with Mrs. Tochner and Ms. Wark on June 2, 1997, 27/ in response to two letters Dr. Cover had received, one from Ms. Wark and one from Janet Kempel, regarding an incident that occurred on May 24, 1997. Mrs. Tochner had asked Dr. Cover to allow her to close the media center for two days so that she could set up the Book Fair, an event which Mrs. Tochner planned and implemented each fall and spring. Dr. Cover agreed to allow her to close the media center for only one day. In order to ensure that the children received media services during the time Mrs. Tochner set up the Book Fair, Dr. Cover told Ms. Wark to work with Ms. Kempel, the ITSA, or Mr. Brown, who assisted Mrs. Tochner part time in the media center, to organize media activities for the children. Mrs. Tochner had already made arrangements with Mr. Brown to show videos to the classes scheduled for the media center during the Book Fair, but, consistent with Dr. Cover's instructions, Ms. Wark arranged for Ms. Kempel to cover Mrs. Tochner's classes. In preparation for the classes, Ms. Kempel set up puzzles and other activities in the central area of the media center, which is the area in which Mrs. Tochner planned to set up the Book Fair. Mrs. Tochner did not learn of any of these arrangements until she arrived at school, ready to set up the Book Fair. Mrs. Tochner was upset, and Ms. Kempel reported this to Ms. Wark, who intervened and apparently wanted Mrs. Tochner to yield the central area to Ms. Kempel; Mrs. Tochner refused. Mrs. Tochner explained at the June 2, 1997, meeting that she had a plan for setting up the Book Fair and had spent a great deal of time preparing to set up in the area Ms. Kempel had occupied. Mrs. Tochner stated at the meeting that she was upset because Ms. Wark raised her voice to her. Dr. Cover told Mrs. Tochner that the conflict could have been avoided if she had shown a little flexibility. Ms. Wark indicated that the reason she wrote the letter to Dr. Cover about the incident was "to point out [Mrs. Tochner's] uncompromising attitude and [her] unwillingness to assist when changes are necessary." According to the memorandum summarizing the June 2, 1997, meeting, Dr. Cover took the opportunity to review with Mrs. Tochner other instances in which Mrs. Tochner was perceived to have behaved in an uncooperative manner. For example, a teacher wanted Mrs. Tochner to leave the media center and take the teacher's class to the cafeteria while Mrs. Tochner was supervising the Book Fair; when Mrs. Tochner resisted because of her responsibilities in the media center, Dr. Cover intervened and directed Mrs. Tochner to do as the teacher asked. Another example cited by Dr. Cover was Mrs. Tochner's reluctance to close down the Book Fair on Literacy Night when Dr. Cover told her to do so. Finally, Dr. Cover noted that she had overheard "a negative interaction" between Mrs. Tochner and a student in the media center and that Mrs. Tochner changed her tone of voice when she saw Dr. Cover. SEPTEMBER THROUGH DECEMBER 1997 During the 1997-98 school year, Mrs. Tochner taught five classes on Mondays, Tuesdays, and Thursdays, with one planning period in addition to her forty-minute lunch period; she taught six classes on Wednesdays and Fridays, with no planning period except her forty-minute lunch period. Among the classes taught by Mrs. Tochner were two exceptional student education classes on Mondays, one exceptional student education class on Thursdays, and four exceptional student education classes on Fridays. Mrs. Tochner taught from 8:30 a.m., the first period of the day, until 1:55 p.m., the last period of the day. The length of Mrs. Tochner's class periods varied from thirty minutes to fifty minutes; the standard class period at Allamanda Elementary was fifty-five minutes. The grade levels of the classes Mrs. Tochner taught changed from period to period; for example, on Mondays, Mrs. Tochner first taught an exceptional student education class, followed by a third grade class, a second grade class, a fourth grade class, and a second exceptional student education class. Part I of Mrs. Tochner's Professional Development Plan As part of the remediation process, Dr. Burdsall prepared for Mrs. Tochner a CTAS District Professional Development Plan, which is the formal plan designed to assist Mrs. Tochner to remedy the six deficiencies identified by Dr. Cover in the March 1997 evaluation. The first part of the plan covered the period from September through Midyear 1997. 28/ The plan provided that, during specified weeks, Phil Sorenson, Jane Terwillegar, Donna McCaffrey, and Dr. Burdsall would conduct formal observations of Mrs. Tochner's performance, follow up the observations with assistance conferences with Mrs. Tochner, and submit written reports and recommendations to Mrs. Tochner. The plan also provided that school-site administrators, consisting of Dr. Cover and Ms. Wark, would observe Mrs. Tochner and offer their assistance and that a colleague of Mrs. Tochner's would also provide assistance with respect to the areas of concern. Assistance Review Meeting - September 2, 1997 As part of Mrs. Tochner's Professional Development Plan, Dr. Burdsall monitored Mrs. Tochner's progress and held meetings throughout the 1997-98 school year attended by herself, Dr. Cover, Ms. Wark, Mrs. Tochner, and Mrs. Tochner's union representative. At the meetings, the participants went over the observations completed to date to make sure Mrs. Tochner understood the comments and recommendations. They reviewed Mrs. Tochner's progress and identified additional areas in which Mrs. Tochner needed to improve her performance as a media specialist. Dr. Burdsall held five such meetings and reported the main points of the meetings in memoranda which were distributed to all those attending. The meetings with Mrs. Tochner generally lasted two or three hours, compared to an hour or an hour-and-a-half for the typical assistance review meeting. Dr. Burdsall attributed the long meetings to Dr. Cover's discussions with Mrs. Tochner, during which Dr. Cover "spent a lot of time explaining to Mrs. Tochner exactly what she wanted her to do. There would be a lot of just detailed explaining . . . ." Dr. Burdsall noted that Dr. Cover's main emphasis was on the integration of classroom themes into the lessons on media skills, which was the mean by which Dr. Cover hoped Mrs. Tochner would carry out her vision of the media center as the hub of school activity. The first Assistance Review Meeting was held on September 2, 1997, to review Mrs. Tochner's professional development plan and to follow up on the remediation activities in which Mrs. Tochner had participated during the summer. Mrs. Tochner advised the group that she had watched all of the recommended videos and worked through the materials suggested in the plan. Mrs. Tochner also advised that she had signed up for the workshops recommended in the plan, which were to be held on September 17, September 24, October 1, October 8, and November 5, 1997, which were all Wednesdays. As a result of this schedule, Mrs. Tochner requested that she not be observed on Wednesdays, if possible. 29/ Mrs. Tochner's work schedule was discussed, and Dr. Cover explained that Mrs. Tochner could do media center work from 8:00 a.m. until 8:30 a.m. and from 2:00 p.m. until 3:00 p.m. each day, in addition to her planning periods. Dr. Cover confirmed that the budget did not include a media clerk to assist Mrs. Tochner, but she noted that they were trying to get a media clerk through the Parent Teachers Organization. The second Assistance Review Meeting was scheduled for October 6, 1997, and Mrs. Tochner was advised that Dr. Cover wanted to see student work exhibited in the media center and more student involvement in media center activities. Meeting - September 12, 1997 Dr. Cover and Ms. Wark met with Mrs. Tochner on September 12, 1997, to discuss an incident which Ms. Wark observed on September 10, 1997. Shortly before classes began on the morning of September 10, 1997, Ms. Wark overheard Mrs. Tochner tell two fourth grade students who wanted to check out books for a book report that it was not a good time to check out books; Mrs. Tochner did so because she was scheduled to teach a class within the next three or four minutes and did not have time to check the books out when the students asked. Mrs. Tochner suggested they check books out from their classroom or visit the public library. Ms. Wark intervened and told Mrs. Tochner, apparently in front of the students, that "we" want to have children coming into the media center and checking out books; Mrs. Tochner checked the books out to the students at that time. When Ms. Wark intervened, Mrs. Tochner had been about to offer to hold the books for the students until her lunch hour or planning period, when she would have time to check the books out. 30/ Ms. Wark observed in her memorandum to Dr. Cover that her main concern was that students were not a priority with Mrs. Tochner. Workshop - September 17, 1997 Donna McCaffrey was asked by Dr. Burdsall's office to conduct a workshop for Mrs. Tochner as part of Mrs. Tochner's professional development plan. Ms. McCaffrey is currently the principal of Florida Atlantic University's laboratory school, the A.D. Henderson School, where she had previously served as media specialist for fourteen years. When she returned to the A.D. Henderson School in 1990 as a part-time assistant principal, Ms. Ms. McCaffrey also worked part-time in the media center assisting the media specialist. Ms. McCaffrey has worked for the School Board as a consultant but has never been employed as part of its instructional personnel. One of the services she provides as a consultant to the School Board is providing workshops for teachers with a professional development plan. Ms. McCaffrey first met Mrs. Tochner on September 17, 1997, when she gave a workshop for her entitled "Media Magic." In the workshop, Ms. McCaffrey discussed with Mrs. Tochner the nature of the media center and its role in the school, and they discussed the knowledge base expected of a media specialist in Florida, using the duties and responsibilities set out in the Guide for the Media Specialist Evaluation Form as an outline. Observation - September 18, 1997 Phillip Sorensen was asked by Dr. Burdsall's office to conduct formal observations as part of Mrs. Tochner's Professional Development Plan. Mr. Sorenson has been employed in the Palm Beach County school system since 1968 and served as a classroom teacher at Allamanda Elementary, as an assistant principal, and as an elementary school principal. He also worked for the School Board's Department of Human Resources. At the time he participated in Mrs. Tochner's Professional Development Plan, he was a member of the instructional support team for Area 5 of the Palm Beach County school system. Mr. Sorensen is knowledgeable about effective teaching behaviors and the use of the Summative Instrument. Mr. Sorensen scheduled a formal observation of Mrs. Tochner's performance for the week of September 15, 1997, and he arrived for his first formal observation of Mrs. Tochner on September 18, 1997, expecting the class to begin shortly after his arrival. However, at the request of the classroom teacher, Mrs. Tochner had started the class early, so, in order to be fair, Mr. Sorensen wrote up the notes of his observation with Mrs. Tochner and discussed his observations with her but did not submit a Summative Instrument. Mr. Sorensen noted that, on September 18, 1997, Mrs. Tochner's class was responsive and their behavior was good. He described Mrs. Tochner as "smiling and being positive with students" and noted that the students went to the reference shelves in good order. Mr. Sorensen felt that some decorations and displays should be included in the media center. Observation - September 19, 1997 On September 19, 1997, Ms. Wark made an informal observation of Mrs. Tochner as she taught a third grade class consisting of twenty-six students. Ms. Wark completed a narrative that described the activities taking place at various times during the class, and she included three recommendations for improvement; Ms. Wark did not complete a Summative Instrument for this observation. In her narrative, Ms. Wark noted that Mrs. Tochner engaged in a number of positive teaching behaviors: Mrs. Tochner praised students who gave correct responses to questions; she challenged the students by asking a "hard" question; she engaged the children in an activity which they appeared to enjoy, although some of the students lost interest and began to talk or play with each other. Ms. Wark mentioned several instances when Mrs. Tochner redirected students who were talking or distracting others. She also noted an instance in which Mrs. Tochner sent a child away from the group for continuing misbehavior. The first two children to check out books were allowed to use the Earthcare computer, while the others did a puzzle or read. In the recommendations included in the narrative of the September 19, 1997, observation, Ms. Wark criticized Mrs. Tochner for using the entire instructional period to review vocabulary terms; she recommended that Mrs. Tochner integrate classroom themes and meaningful activities into the lesson. Ms. Wark also criticized Mrs. Tochner for focusing the lesson around "What" questions and recommended that she include more questions requiring critical thinking and analysis. Finally, Ms. Wark suggested that Mrs. Tochner identify the students who could use the computer after checking out books, so that the students would not rush through selecting books to check out. Assistance Review Meeting - October 6, 1997 The second Assistance Review Meeting required under the professional development plan was held on October 6, 1997, at which time Mrs. Tochner was credited with having attended three workshops and with having attended seminars on her own time. Dr. Cover noted that Mrs. Tochner had displayed student work in the media center and that Mrs. Tochner was trying to improve. Dr. Cover urged Mrs. Tochner to continue involving students in the media center. The focus of the discussion was the use of groups to teach computer skills; Dr. Cover wanted Mrs. Tochner to teach media skills with a "hands-on" approach. Mrs. Tochner indicated that she understood and would try the technique described. Observation - October 7, 1997 On October 7, 1997, Dr. Cover conducted a formal observation of Mrs. Tochner, and she prepared a Summative Instrument and a narrative summarizing her observation. In the Summative Instrument, Dr. Cover identified the following ineffective behaviors in the Instructional Organization and Development category of the Summative Instrument: Mrs. Tochner allowed a unison response to a question twice and she gave general, nonspecific praise twice. Dr. Cover noted that Mrs. Tochner asked a number of single factual questions, which Dr. Cover considered ineffective although they are not identified as such on the Summative Instrument. In the Presentation of Subject Matter category, Dr. Cover noted four instances in which Mrs. Tochner dealt effectively with concepts and noted no instances of ineffective teaching behavior. In the Communication: Verbal and Nonverbal section, Dr. Cover noted one instance in which Mrs. Tochner smiled and gestured and generally used body language to convey interest; Dr. Cover noted no ineffective behaviors in this section. Finally, in the Management of Student Conduct section, Dr. Cover noted one instance in which Mrs. Tochner maintained instructional momentum and no instances of ineffective behavior. In the narrative she prepared, Dr. Cover made a number of recommendations. First, in the Instructional Organization and Development category, Dr. Cover recommended that Mrs. Tochner interact more with the students by asking higher order questions, that "each table could have had a variety of reference and nonfiction books and through discovery identify the differences and similarities," that she improve her use of specific praise, and that she could have used cooperative groups in teaching the lesson. In the Presentation of Subject Matter category, Dr. Cover's main concern was that Mrs. Tochner controlled the learning environment, and Dr. Cover recommended that Mrs. Tochner "[g]et the students involved through hands-on activities" during the lessons, such as letting the students handle a variety of books and allowing them to go to the shelves on their own to find books and use the Sirsi electronic check out system. In the Communication: Verbal and Nonverbal category, Dr. Cover recommended that Mrs. Tochner rephrase her question if she is met by blank stares from the children and that, after she gives a direction, she ask the students if they understand. For Management of Student Conduct, Dr. Cover noted that the students at one table were often off task, apparently because they were unclear of the assignment, and she recommended that Mrs. Tochner review the materials she had already studied regarding the management of student conduct. Dr. Cover included handwritten notes on the narrative of the October 7, 1997, observation in which she expressed her frustration with Mrs. Tochner; these notes were not on the narrative at the time Mrs. Tochner signed it. Dr. Cover stated in her notes that she felt as though she were observing an inexperienced teacher who was unsure of herself and her subject. She noted that Mrs. Tochner had "limited withitness" 31/ and that Mrs. Tochner had low motivation and excitement for the lesson. Dr. Cover saw the lesson she observed as a "lost opportunity" and noted that the only technology Mrs. Tochner used during the lesson was an overhead projector on which she displayed a Venn diagram, which the children really did not use during the lesson. Finally, Dr. Cover noted that student surveys had shown that the main reason the students liked to go to the media center was to check out books, and she observed that a school did not need a media specialist to check out books. Observation - October 14, 1997 Mr. Sorensen returned to Allamanda Elementary and conducted a formal observation of Mrs. Tochner on October 14, 1997. He observed her teach a fourth grade class of twenty-four students, and he completed a Summative Instrument evaluating Mrs. Tochner's teaching presentation and behaviors. In the Summative Instrument, Mr. Sorensen identified only one teaching behavior as ineffective; specifically, he found one instance in which Mrs. Tochner allowed talk or activity unrelated to the subject being discussed. Mr. Sorensen discussed the results of the October 14, 1997, observation with Mrs. Tochner following the observation, and he wrote a memorandum to Dr. Cover in which he provided a narrative of his observation of and subsequent discussion with Mrs. Tochner. Because Dr. Cover had noted it as a deficiency included on Dr. Cover's March 1997 evaluation, he and Mrs. Tochner discussed different strategies for managing student conduct while they were moving around in the media center. Mr. Sorensen did not, however, observe any significant problems with the students' behavior during his observation on October 14, 1997, or with Mrs. Tochner's ability to manage the students. He observed a few minor disruptions, but, in his experience, such minor problems with student discipline in the media center is not unusual when students are selecting and checking out books or otherwise engaging in activities which involve their moving around rather than sitting in a classroom- like setting. Mr. Sorensen noted that, because of the physical layout of the media center, Mrs. Tochner could not see all of the children while they were searching for books to check out. In his opinion, Mrs. Tochner could monitor the children's behavior as they looked in the stacks for books and materials to check out only if she restricted the areas in which the students could circulate or if she pre-selected books and materials that the students could check out. Mr. Sorensen also suggested in the November 3, 1997, memorandum to Dr. Cover, that Mrs. Tochner "work with the principal and readdress the media schedule to include controlled 'open media' time." 32/ Mr. Sorensen recalled that Mrs. Tochner expressed her interest in using an open media schedule and told him she had broached the subject with teachers but met with resistance. In his experience, open media scheduling puts more responsibility on the classroom teachers, and they tend to resist the change. Mr. Sorensen believes that a principal should assert leadership to change the attitude of the teachers. Mr. Sorensen declined to rate Mrs. Tochner's effectiveness as a media specialist during the October 14, 1997, observation because he focused on her teaching skills; he noted, however, that he and Mrs. Tochner discussed the need to include in the media center displays featuring student work and bulletin board displays and displays of books and other materials featuring a particular theme. Observation - October 16, 1997 Jane Terwillegar, the District Media Specialist, was asked by Dr. Burdsall's office to conduct formal observations as part of Mrs. Tochner's professional development plan. Unlike her role in the school site assistance plan and in the mini-plan developed by Dr. Burdsall, Ms. Terwillegar was to observe Mrs. Tochner and determine if she perceived any deficiencies in her performance as a media specialist. Ms. Terwillegar's first observation of Mrs. Tochner under the professional development plan took place on October 16, 1997, when Ms. Terwillegar observed Mrs. Tochner teach a kindergarten class. She provided the notes of the observation in a memorandum to Dr. Cover dated October 20, 1997; Ms. Terwillegar did not prepare a Summative Instrument for this observation. In the memorandum, Ms. Terwillegar first noted that Mrs. Tochner's use of the overhead projector was not appropriate for use with kindergarten students and that many of the students could not see the screen because Mrs. Tochner placed the overhead projector and cart between the children and the screen. The subject of the class was "Fall," and Ms. Terwillegar found that the lesson was carefully planned but that Mrs. Tochner's presentation lacked energy and evoked little response from the children. Ms. Terwillegar found that the "sense of wonder I would like to see working with children was not there." Ms. Terwillegar did not observe Mrs. Tochner using any props for the lesson except book illustrations, 34/ nor did Mrs. Tochner question individual students or single out two or three of the children for special attention. Ms. Terwillegar also noted in the memorandum that, as a general matter, Mrs. Tochner spent too much time organizing the media center collection. Ms. Terwillegar noticed that, at the time of her visit, Mrs. Tochner was working with the shelf list card catalog. Ms. Terwillegar contacted one of the vendors from whom Mrs. Tochner purchased books and told the vendor not to send Mrs. Tochner shelf list cards with her books as Mrs. Tochner had requested. Ms. Terwillegar did this because, in her opinion, these cards were not necessary with the new Sirsi automated system. Ms. Terwillegar also commented in the October 20, 1997, memorandum that the computer lab was being moved back into the media center and that, with staff cooperation, this move could make the media center into a "unified instructional technology center"; Ms. Terwillegar noted that she did not yet seen such cooperation. In her memorandum of October 20, 1997, Ms. Terwillegar stated that she continue[s] to suggest Mrs. Tochner find ways and means to enliven the media program through creative ideas encouraging student involvement, student sharing, and student team/group cooperative activities. The media center continues to lack a sense of spirited activity. Students are visiting a "classroom" rather than an active center for exploration and learning. One of the ways in which Mrs. Tochner could enliven the media center, in Ms. Terwillegar's view, would be through "all school" activities planned and implemented by Mrs. Tochner, such as a reading day, a hat day, or some other such school-wide event. Ms. Terwillegar recognized that Mrs. Tochner planned and implemented a book fair for the school twice each year, which Ms. Terwillegar described as a "pretty difficult" endeavor, but Ms. Terwillegar wanted to see "all school" activities such as the ones described above. Ms. Terwillegar also noted that, although Mrs. Tochner is "making a determined effort to consult faculty about lesson topics, and to merge her lessons with classroom instruction," Mrs. Tochner had not taken over the role as technology leader for Allamanda Elementary. Ms. Terwillegar did not see a "whole" media program at the time of her October 16, 1997, observation, and she noted that "[t]his team work needs attention from all those involved." Ms. Terwillegar believed that Mrs. Tochner should take the lead in integrating the instructional technology systems with the computer lab run by the ITSA and with the in-house television capability at Allamanda Elementary, and make the media program integral to the whole school's instructional plan. Finally, Ms. Terwillegar recommended in her memorandum of October 20, 1997, that Mrs. Tochner give less attention to technical processes and organizing the media center's collection because "the total media program needs planning and direction to bring it into instructional focus for the school." Ms. Terwillegar felt that Mrs. Tochner should also spend more time working on her instructional processes and working with children rather than working to keep the collection organized. In Ms. Terwillegar's opinion, Mrs. Tochner should develop activity centers for each of her classes rather than stand in front of the class teaching a lesson. Observation - October 21, 1997 In addition to conducting the September 1997 workshop with Mrs. Tochner and as part of Mrs. Tochner's Professional Development Plan, Ms. McCaffrey made a site visit to Allamanda Elementary to observe Mrs. Tochner on October 21, 1997. At that time, she observed Mrs. Tochner teach a group of twenty-nine second grade students for approximately thirty-five minutes. Ms. McCaffrey prepared a Summative Instrument, a narrative describing her observation, and a prescription for Mrs. Tochner to follow in improving her performance. Ms. McCaffrey described the results of her evaluation of Mrs. Tochner with respect to the October 21, 1997, formal observation as "overall . . . not an ineffective summative." According to Ms. McCaffrey, Mrs. Tochner's use of general praise rather than specific praise for a second grade class was not inappropriate. She also concluded that Mrs. Tochner had no problems with her lesson preparation, her lesson was good, and the classroom activity was well-planned and executed. Ms. McCaffrey did note that Mrs. Tochner inappropriately touched a student by lowering his arm, which he had been waving about; Ms. McCaffrey and Mrs. Tochner discussed various techniques for managing student misconduct at the post-observation meeting. On the basis of her October 21, 1997, observation of Mrs. Tochner, Ms. McCaffrey concluded that Mrs. Tochner demonstrated effective teaching skills the majority of the time. Observation - November 12, 1997 In addition to preparing Mrs. Tochner's professional development plan and conducting assistance review meetings, Dr. Burdsall conducted formal observations of Mrs. Tochner's performance, discussed Mrs. Tochner's performance with her after the observation, and provided written reports and recommendations for improvement after each observation. Dr. Burdsall's first formal observation took place on November 12, 1997, when she observed Mrs. Tochner teaching two classes. Dr. Burdsall first observed Mrs. Tochner teaching twenty-four students in a first grade class, and Dr. Burdsall prepared a Summative Instrument for this observation in which she found that Mrs. Tochner engaged in nine ineffective teaching behaviors: In the Instructional Organization and Development category, Dr. Burdsall noted that Mrs. Tochner posed multiple questions asked as one three times and that she gave general, nonspecific praise six times. Dr. Burdsall observed Mrs. Tochner engage in many effective teaching behaviors in each of the four categories in the Summative Instrument, and the comments Dr. Burdsall included on the Summative Instrument regarding Mrs. Tochner's performance with this class were positive, as were the comments in the narrative included in Dr. Burdsall's memorandum to Dr. Cover describing the November 12, 1997, observation. In the memorandum, which is dated November 24, 1997, Dr. Burdsall commended Mrs. Tochner on effectively using a variety of materials with the first grade class, of using an effective procedure for returning and checking out books, and of using both high and low order (factual and analytical) questions with the students. She remarked that the students were attentive and responsive and that Mrs. Tochner read the class a story with expression. Dr. Burdsall's only criticism of Mrs. Tochner's performance with the first grade class was of her failure to allot enough time for the students to complete their last assignment, which involved drawing a picture. Mrs. Tochner told the students to take the pictures back to the classroom to finish and to ask their teacher to select the best ones to be put on display in the media center. Dr. Burdsall found particularly effective the method for checking out books that Mrs. Tochner used with the first grade class. This method restricted the movements of the students in the media center and limited the books from which they could choose. Mrs. Tochner gathered up the books the students were returning and, at the appropriate time, allowed small groups of students to select books to checkout of the media center from a group of books dealing with folk tales that Mrs. Tochner had selected before class and displayed on a table. Dr. Burdsall also observed Mrs. Tochner teach twenty- three students in a third grade class on November 12, 1997. In contrast to her positive impression of Mrs. Tochner's performance with the first grade class, Dr. Burdsall had virtually no positive comments about Mrs. Tochner's performance teaching the third grade class. Dr. Burdsall prepared a Summative Instrument in which she found that Mrs. Tochner engaged in a number of ineffective teaching behaviors: In the Instructional Organization and Development category, Mrs. Tochner allowed one unison response; she posed three multiple questions asked as one; she gave general, nonspecific praise five times; and she gave inadequate directions once. Notwithstanding these ineffective behaviors, Dr. Burdsall noted significantly more effective than ineffective teaching behaviors in the category of Instructional Organization and Development. In the Presentation of Subject Matter category, Dr. Burdsall noted two instances in which Mrs. Tochner treated concepts effectively, and she noted no ineffective teaching behaviors in this area. In the section on Communication: Verbal and Nonverbal, Dr. Burdsall found that Mrs. Tochner twice used vague and scrambled discourse and that she frowned twice. The majority of the ineffective teaching behaviors noted on the Summative Instrument involved management of student conduct, in which Dr. Burdsall found that Mrs. Tochner corrected misconduct in a harsh and punitive manner a total of ten times. Dr. Burdsall described Mrs. Tochner's general demeanor during this class as "very agitated." In the memorandum describing the November 12, 1997, observation of the third grade class, Dr. Burdsall provided a narrative of her observation in which she focused on the misbehavior of the students. Dr. Burdsall did not commend Mrs. Tochner on any of her behaviors with the third grade class, and all of the recommendations contained in her memorandum to Dr. Cover were focused on this class. Dr. Burdsall's first recommendation, under Management of Student Conduct, was that Mrs. Tochner "needs to avoid harsh reprimands"; Dr. Burdsall's second recommendation, also under Management of Student Conduct, was that Mrs. Tochner "needs to utilize a procedure for checking books in and out that does not involve standing in line"; Dr. Burdsall's third recommendation, under Instructional Organization and Development, was that Mrs. Tochner "needs to give clear directions to her cooperative learning groups"; Dr. Burdsall's fourth recommendation, under Establishment of an Appropriate Learning Climate, was that Mrs. Tochner "needs to consistently provide a positive learning environment for her students"; 35/ Dr. Burdsall's fifth recommendation, under Communication: Verbal and Nonverbal, was that Mrs. Tochner "should complete one activity before going on to another one to avoid scrambled discourse"; Dr. Burdsall's sixth and final recommendation, under Demonstrates Effective Working Relationships with Colleagues, was that Mrs. Tochner "needs to pace her lessons more carefully so that she does not need to have her colleagues complete her assignments with the students." With respect to Dr. Burdsall's recommendation that she avoid scrambled discourse by completing one subject before moving on to another, Mrs. Tochner added a note on the bottom of Dr. Burdsall's memorandum explaining that the "lesson was disjointed because it was actually a combination of two lessons." Mrs. Tochner had attended a workshop the previous week and the substitute teacher who had taught her classes did not finish the lesson planned for the third grade class. Mrs. Tochner needed to complete both this previous lesson and the lesson planned for November 12, 1997, so she was trying to teach two lessons during one class period. Dr. Burdsall did not observe the students using technology as an aid to learning in her November 12, 1997, observation of the first and third grade classes, nor did she observe displays relating to persuasive paragraphs for the third grade. Dr. Burdsall also did not observe Mrs. Tochner using "theme integration" in the media center. Assistance Review Meeting - November 24, 1997 The third and last Assistance Review Meeting for the period from September through December 1997 was held on November 24, 1997. Mrs. Tochner reported that the first, second, and third grades were all using computers and that the third, fourth, and fifth grades would be using the Sirsi system by January. It was noted that Mrs. Tochner would be assisted by the ITSA in teaching the students how to use computers. Dr. Cover congratulated Mrs. Tochner on "her initiative and follow through and enthusiasm" on the Book Fair and urged Mrs. Tochner to carry this through the entire media program. Dr. Cover also noted that she saw improvement in Mrs. Tochner's performance but still wanted her to take control of the media program. As a result, Dr. Cover told Mrs. Tochner that Mrs. Tochner was in charge of the technology committee and that Mrs. Tochner was to work with the group to prepare the STIA proposal. Media Center Program Review In a memorandum to Dr. Cover dated December 1, 1997, Ms. Terwillegar presented a Media Center Program Review based on her several visits to Allamanda Elementary, the last on October 23, 1997, in which she described the state of the media center at that time. Ms. Terwillegar advised Dr. Cover that there was still no full-time media clerk to assist Mrs. Tochner, but noted that Mrs. Tochner had some assistance from teaching assistants and volunteers. Ms. Terwillegar noted that part of the media center was used for the computer lab and for the ITSA's office. Ms. Terwillegar also observed that Allamanda Elementary had no television studio and that a closet was used as the television studio for broadcast of the morning announcement program, which was not produced by Mrs. Tochner. With respect to the collection of the Allamanda Elementary media center, Ms. Terwillegar noted that, although the collection met the applicable accreditation standards, the collection needed extensive weeding, including the audiovisual collection. Ms. Terwillegar also commented: Utilization and Program Planning The media center is fully scheduled, with four to six classes daily for forty-five minute periods. Since there is only one full time adult in the center, this schedule does interfer [sic] with the use of the center's resources for individual and small group activities. The center is well equipped with computers, both IBM and Macintosh, and there are a variety of excellent software programs, including CD- ROM encyclopedias. However, with the full media schedule, these resources are under utilized. In the "Comments" section of her memorandum, Ms. Terwillegar commented that Mrs. Tochner's instruction with individual classes had improved, that Mrs. Tochner's lessons are most carefully prepared, that student projects and art work were displayed in the media center, and that Mrs. Tochner "is careful to approach teachers and grade levels with a concern for developing lesson plans related to classroom activities." Ms. Terwillegar further advised Dr. Cover in the December 1, 1997, memorandum that the "media center needs more visibility as an integral, vital component of the school's instructional program," and noted that she had not observed an overall written plan for managing the media center to accomplish this goal for the 1997-98 school year. At the same time, she faulted Mrs. Tochner for focusing on the details of planning rather than focusing on "the desired results for student learning and outcomes of student enthusiasm for reading and inquiry." Ms. Terwillegar noted again in her December 1, 1997, memorandum that "[a]ction on recommendations for cooperative staff effort and development of a unified approach to technology in the center and in the school is still not evident." Finally, Ms. Terwillegar observed that the "school-wide media activity" she had suggested to Mrs. Tochner in the spring of 1997 had not materialized. Although recognizing that Mrs. Tochner had made improvements and was "working very hard on instruction and on lesson plans, Ms. Terwillegar summarized her impression of the progress Mrs. Tochner had made with the media center with the comment that "the outcome was less--less than what I had hoped it would be." Mid-year evaluation - December 1997 Dr. Cover completed the mid-year evaluation of Mrs. Tochner's performance on December 6, 1997, and noted that she based the evaluation on observations of Mrs. Tochner's classroom performance conducted on September 18, September 19, October 7, October 16, October 21, October 23, November 3, 36/ November 12 and November 24, 1997. Dr. Cover found seven areas of "Concern" in her December 1997 midyear evaluation of Mrs. Tochner's performance: In the section of Media Center Management Capabilities, Dr. Cover found Mrs. Tochner deficient in the Establishment and Maintenance of Program Plans and Administration of Program Assessment categories; in the section of Instructional Processes, Dr. Cover found Mrs. Tochner deficient in the Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, and Establishment of an Appropriate Learning Climate categories. In the section of Professional Responsibilities, Dr. Cover found Mrs. Tochner deficient in the Demonstrates Self Control category. Dr. Cover's only comments on the evaluation form were that Mrs. Tochner had attended several workshops and that she had organized the Fall Book Fair. Dr. Cover felt that she could commend Mrs. Tochner only on these two things. Dr. Cover noted that Mrs. Tochner's initiative and personality were so different during the time she was doing the Book Fair that "we would not have gotten to this point if I had seen that" initiative and enthusiasm all year long. Dr. Cover still had concerns about Mrs. Tochner's development and implementation of a total media program. Mrs. Tochner received a total of twenty-five points on her December 1997, mid-year evaluation, which constitutes an unsatisfactory evaluation. Had Mrs. Tochner received a satisfactory mid-year evaluation, she would have been removed from the professional development plan and would no longer have been in jeopardy of losing her teaching position with the School Board. JANUARY 1998 THROUGH MARCH 1998 Part II of the Professional Development Plan Because of Mrs. Tochner's unsatisfactory mid-year evaluation, Dr. Burdsall prepared a CTAS District Level II Professional Development Plan, which is the second half of the formal plan and which covered the period from January through March 1998. Like the plan for the period extending from September through December 1997, this plan provided that, during specified weeks, Phil Sorenson, Jane Terwillegar, Donna McCaffrey, and Dr. Burdsall were to conduct observations of Mrs. Tochner's performance to see what improvements had been made in light of the recommendations each had made during the first part of the plan. Each of these observers was to follow up the observations with assistance conferences with Mrs. Tochner, and submit written reports and recommendations to Mrs. Tochner. As did the first half of the plan, this plan also provided that of Dr. Cover and Ms. Wark, as school-site administrators, were to observe Mrs. Tochner and offer their assistance and that a colleague of Mrs. Tochner's would also provide assistance with respect to the areas of concern. Assistance Review Meeting - February 9, 1998 The fourth Assistance Review Meeting under Mrs. Tochner's professional development plan was held on February 9, 1998. This meeting included a review of Mrs. Tochner's December 5, 1997, mid-year evaluation. Dr. Cover explained the reasons she noted a "Concern" on the evaluation in the category of Administration of Program Assessment: Dr. Cover had to initiate surveys even though Mrs. Tochner was responsible for doing so according to the School Improvement Plan for 1997/98; Mrs. Tochner needed to present Dr. Cover with a plan for addressing the needs expressed in the survey; Mrs. Tochner needed to take more initiative in training staff on the software in the media center; and Mrs. Tochner needed to provide leadership for the Technology Committee and work with the committee in a positive way. Dr. Cover told Mrs. Tochner she wanted the media center open one day a month or one day a week so parents could visit the media center. With respect to staff training, Mrs. Tochner explained that she was working with teachers on a one-on-one basis. Dr. Cover explained that she noted a "Concern" on Mrs. Tochner's mid-year evaluation in the category of Presentation of Subject Matter because Mrs. Tochner lectured too much and needed to involve the children in developing concepts. Dr. Cover explained that she noted a "Concern" on Mrs. Tochner's mid-year evaluation in the category of Establishment of an Appropriate Learning Climate because, although she saw some improvement in Mrs. Tochner's attitude, she did not see consistency in Mrs. Tochner's management of student conduct. Dr. Cover also encouraged Mrs. Tochner to concentrate her lessons on more student activity, observing that the activities were too "teacher directed." Dr. Cover stated that she had noted a "Concern" in Mrs. Tochner's mid-year evaluation in the category of Demonstrates Self Control because she had "documented evidence that Mrs. Tochner lost her temper in front of the children." The notes of the meeting did not contain any more specific information regarding this alleged incident, and there is nothing in the record to indicate the nature of the incident to which Dr. Cover referred. During the assistance review portion of the February 9, 1998, meeting, Dr. Cover advised Mrs. Tochner that she wanted to see consistency. As summarized in the notes of the meeting, "Dr. Cover wishes to see all concerns noted consistently remediated regardless of who is in the room. The key word is consistency. Dr. Cover needs to see the excitement that kids can exhibit when they want to learn." Mrs. Tochner was told that she was to plan an activity for the media center to show her initiative and to provide a whole plan to Dr. Cover for the "Sunshine Books" activity that Mrs. Tochner was developing. Mrs. Tochner was told that she was to become involved in the in-school television production; Mrs. Tochner was told that she needed to act as backup for the ITSA in an emergency; Mrs. Tochner was told that Dr. Cover "simply expects Mrs. Tochner to take the initiative to ensure that the [in- service] training is done"; Mrs. Tochner was told that she needed to show initiative in "taking leadership regarding the media center." Mrs. Tochner requested that Dr. Cover include her in discussions of all technology issues if Dr. Cover expects her to know about all things under the "media" umbrella; Dr. Cover responded that "she had not done so as Mrs. Tochner had not expressed the initiative." Observation - February 19, 1998 Mr. Sorensen conducted an observation on February 19, 1998, of Mrs. Tochner teaching a first grade class. Mr. Sorensen did not prepare a Summative Instrument reflecting his observations but, at the request of Dr. Burdsall, conducted an anecdotal observation which he memorialized in a narrative. Mrs. Tochner's lesson involved reading a story to the class of about twenty-four students while they sat in the reading well, 37/ followed by the use of a storyboard to continue the lesson. Mr. Sorensen included in his narrative comments that were complimentary of Mrs. Tochner's performance, noting that she demonstrated good questioning techniques, that student behavior was very good, and that Mrs. Tochner's enthusiasm was evident. Mr. Sorensen recommended, however, that Mrs. Tochner work on smoothing out the transition between reading the story and using the storyboard, that she use more visible lettering on the storyboard, and that she give more emphasis to review of the story written with the storyboard. In Mr. Sorensen's opinion, Mrs. Tochner was an effective teacher and had no problem with her classroom performance. Mr. Sorensen did not offer an opinion about Mrs. Tochner's effectiveness as a media specialist, observing only that she needed to work on interacting with staff and parents in order to make the media center a "viable place for children." He had no criticism of the media center facility itself. Observation - February 25, 1998 On February 25, 1998, Dr. Burdsall conducted an observation of Mrs. Tochner's performance teaching twenty-five students in a first grade class, and she prepared a Summative Instrument in which she noted Mrs. Tochner's teaching behaviors. In the Instructional Organization and Development category, Dr. Burdsall noted two instances in which Mrs. Tochner used general, nonspecific praise; she noted numerous instances in which Mrs. Tochner engaged in effective teaching behaviors in this category. In the Presentation of Subject Matter category, Dr. Burdsall noted that Mrs. Tochner gave only a definition or example of a concept, identified as an ineffective behavior; Dr. Burdsall noted two instances in which Mrs. Tochner engaged in effective behaviors in this category. In the Communication: Verbal and Nonverbal category, Dr. Burdsall noted one instance in which Mrs. Tochner used vague or scrambled discourse and two instances in which Mrs. Tochner expressed enthusiasm and challenged the students. The category in which Dr. Burdsall observed numerous instances of ineffective behavior was in Mrs. Tochner's management of student conduct. In the narrative of the February 25, 1998, observation, Dr. Burdsall was complimentary of Mrs. Tochner's teaching performance, noting that she moved the children from their tables to the reading well in an organized manner, that she held the children's attention with her story, that she asked thought-provoking questions, that the children were involved and actively participated in the discussion of the story, and that she praised the students for their appropriate responses. Dr. Burdsall then noted that Mrs. Tochner went over the rules for checking out books with the children and dismissed the class so that the students could select books to check out. According to Dr. Burdsall's description, the children "immediately became disorganized and disruptive"; when Mrs. Tochner moved to one group of students to correct their behavior, children began fighting in another section of the media center. Dr. Burdsall noted that, although Mrs. Tochner tried to get the children under control and seated at the tables, "the majority of the class continued to mill around." In the narrative of the February 25, 1998, observation, Dr. Burdsall commended Mrs. Tochner on using questioning techniques "that promoted higher order thinking skills" and on displaying student art work around the media center. She included several recommendations in the narrative: Dr. Burdsall's first recommendation, under Management of Student Conduct, was that "Mrs. Tochner needs to structure the procedure for checking books in and out"; Dr. Burdsall noted that "it might be helpful to have pulled some appropriate fairy tales before the class began and designated a particular section for the students," thereby limiting the students' movements around the media center. Dr. Burdsall's second recommendation, under Instructional Organization and Development, was that "Mrs. Tochner needs to develop her lesson and ask comprehension questions before beginning to read a story"; Dr. Burdsall noted that Mrs. Tochner did not refer to the characteristics of fairy tales which were displayed on a transparency in the overhead projector and that she needed to move on because she had been working with fairy tales during the November 12, 1997, observation.1 Dr. Burdsall's third recommendation, under Establishment of an Appropriate Learning Climate, was that "Mrs. Tochner needs to consistently provide a positive learning environment for her students"; this was based on Dr. Burdsall's observation that Mrs. Tochner was smiling when she read the story to the class but became harsh and irritable when the children became disruptive after being dismissed to check out books. Dr. Burdsall's final recommendation, under Presentation of Subject Matter, was that "Mrs. Tochner needs to treat important concepts with a definition example and nonexample"; Dr. Burdsall noted that Mrs. Tochner gave complete treatment to the concept of main characters, giving an example and a nonexample, but that she did not give what Dr. Burdsall considered an accurate definition of fairy tale. Dr. Burdsall testified that, during the February 25, 1998, observation, she did not observe Mrs. Tochner using technology other than the overhead projector, nor did she observe the children using computers. Observation - February 25, 1998 Ms. Terwillegar also conducted an informal observation of Mrs. Tochner on February 25, 1998, when she observed Mrs. Tochner teach, first, a combined first and second grade class and, second, a fourth grade class; her observation was summarized in a memorandum to Dr. Cover and Mrs. Tochner. With respect to the combined first and second grade class, Ms. Terwillegar noted that Mrs. Tochner planned to review with the children the Caldecott Award for book illustration. Ms. Terwillegar observed that she could see little connection between the illustrated Caldecott books and the seated-work activity Mrs. Tochner had planned for the students. In Ms. Terwillegar's opinion, the lesson was dominated by the small-group instruction Mrs. Tochner gave to the class, which involved using student name cards to check out books. Mrs. Tochner took groups of two or three students to the "Easy Book" section of the media center and assisted the students in using their name cards and choosing books to check out, after which they returned to their seats with their new books. Ms. Terwillegar observed that the seated-work activity planned by Mrs. Tochner did not take up the entire time Mrs. Tochner was working with the small groups, with the result that the children at the tables were "noisy, bored, and restless." With respect to her observation of the fourth grade class, Ms. Terwillegar noted in her memorandum of February 25, 1998, that the class arrived a little bit late and that she left before the end of the class period. She provided a brief description of the lesson plan and the class activity. Ms. Terwillegar noted that Mrs. Tochner was integrating computers with her lessons, and she included in her memorandum the observation that, "[a]s a follow-up activity [to this lesson], the students are expected to visit the computer lab next week and use a word processing program to print up a final report" on the research project they began on the date of Ms. Terwillegar's observation. Ms. Terwillegar observed some students from another fourth grade class working on their reports at the computers in the media center. This was the type of technology integration that Ms. Terwillegar was looking for in the media center program. Ms. Terwillegar included several criticisms of Mrs. Tochner's teaching performance in her February 25, 1998, memorandum. Ms. Terwillegar observed that the goals stated in Mrs. Tochner's lesson plans were not always carried out in her presentation and planned class activities; class activities required the students to spend an inordinate amount of time on "seat work"; the instructions Mrs. Tochner gave for completing the "seat work" activities took too much time and were focused on procedural steps for completing the activity rather than on the objectives of the lesson; and Mrs. Tochner's use of the overhead projector was not effective. Ms. Terwillegar went on to include specific details regarding the manner in which she thought the lessons should have been taught. Finally, Ms. Terwillegar noted that "[t]he time devoted to planning instruction by Mrs. Tochner is evident. However, the execution of her stated goals and objectives for learning and the act of teaching are not congruent." Ms. Terwillegar also included comments and criticisms of the media center program in her memorandum summarizing her February 25, 1998, observation. Although she was aware that there was a lot of work to be done preparing the paperbacks and class sets in the media collection for automation, Ms. Terwillegar noted that "[i]n the Learning Center Goals for 1997/98 prepared by Mrs. Tochner . . . [she] continues to emphasize inventory and collection management." Ms. Terwillegar emphasized that a media specialist must balance the need to do "backroom" work such as organization and cataloging and the need to devote time to carrying out the school's instructional program. Ms. Terwillegar observed that, although Mrs. Tochner had planned and implemented both the "book fairs and the Sunshine Book Awards participation, both were expected as part of any normal elementary school media center operation." Ms. Terwillegar again faulted Mrs. Tochner for not planning and implementing "special all-school activities promoting the mission of the media center." Ms. Terwillegar was also concerned that the students' access to the media center was being limited, and she included the following in the February 25, 1998, memorandum: #1 As I have observed before, the media center continues to be organized for the convenience of adults, rather than child centered. While other media centers may also use shelf markers, it is not an accepted practice by those who wish to instill a love for browsing shelves and selecting the "special" book. Freely exploring the shelves is a right children need, and this exploratory freedom should be respected by those managing media centers. #2. The media center experience should be planned so it is similar to any library experience. Students need to go to the circulation desk, handle the process of returning books, and give their name (or name card) to the clerk as part of their responsibility for checking out books. This is the preferred routine to be practiced from the first days of visiting any media center. Likewise, for first and second graders, February is late in the year to begin browsing the shelves. The practice of limiting student selection to pre-selected books is to be avoided for all grade levels, even the youngest students. The price paid for student freedom in selection is the difficulty of keeping shelves neat, making additional work for those managing the center. This is a problem to be managed without limiting student exploration or the opportunity to use all the learning resources provided in the media center. Observation - February 26, 1998 Ms. McCaffrey observed Mrs. Tochner on February 26, 1998, and the observation was, at the request of Dr. Burdsall, an informal, anecdotal observation. Ms. McCaffrey did not prepare a Summative Instrument for this observation, but prepared a narrative of the activities she observed and a summary of the topics discussed during the meeting she had with Mrs. Tochner immediately following the observation. On the basis of this observation, which consisted of a fifteen-minute observation of Mrs. Tochner teaching a class of exceptional students, and on the basis of the fifty-five-minute meeting she held with Mrs. Tochner after the observation, Ms. McCaffrey concluded that Mrs. Tochner was "not [an] effective media specialist." When specifically asked to describe the ways in which Mrs. Tochner could improve her performance as a media specialist, Ms. McCaffrey generally recited the items included in the Guide to the Media Specialist Evaluation Form as the duties and responsibilities of a media specialist but did not identify any items that reflected specifically on Mrs. Tochner's competence as a media specialist. In Ms. McCaffrey's opinion, an effective media specialist would establish a program plan for operating the media center, including budgeting, identification of the materials which should be available to the students, and procedures for keeping the media center collection current, and he or she would have an effective mechanism for evaluating the program plan. Although Ms. McCaffrey believes that good teaching is still a very important part of every media center program, she expects that a media specialist will also function "as a facilitator and a researcher and a manager and an assistant and a resource leader in the school." With respect to Mrs. Tochner, Ms. McCaffrey's overall opinion, "with regards to establishing an overall program in the media center," was that Mrs. Tochner was not effective, but Ms. McCaffrey could not recall if she and Mrs. Tochner had discussed program goals after the February 26, 1998, observation. Mrs. Tochner provided Ms. McCaffrey with a copy of the media center budget, and Ms. McCaffrey's only comment was that Mrs. Tochner needed to find a source of funds to buy posters and other objects to brighten up the media center. Ms. McCaffrey noted that a theme chart was hanging on the wall of the media center but that it was not filled out. Ms. McCaffrey did not know whether Mrs. Tochner failed to integrate classroom themes into her lessons or whether she did so and simply failed to fill out the theme chart. Ms. McCaffrey was, however, aware that Mrs. Tochner was meeting with classroom teachers in order to integrate classroom themes into the media center activities for each grade level and that she was planning to implement a sports theme as a media center theme. Mrs. Tochner also provided Ms. McCaffrey with the results of a student survey she had done regarding the students' perceptions of the media center and with the form she sent to teachers seeking their input on materials and programs they would like to see in the media center. Ms. McCaffrey commented that Mrs. Tochner should present the results to the learning committee and that she should include eight or ten questions in the surveys rather than four questions. During the meeting held after the February 26, 1998, observation, Ms. McCaffrey encouraged Mrs. Tochner to continue providing in-service training for school personnel in using the equipment in the media center, to continue integrating technology into the media center program, and to continue displaying student work in the media center. Observation - March 4, 1998 Dr. Cover conducted an observation of Mrs. Tochner on March 4, 1998, teaching a kindergarten class consisting of twenty-two students. Dr. Cover prepared both a Summative Instrument and a narrative of the observation. In the Summative Instrument, Dr. Cover noted only one ineffective teaching behavior; in the Instructional Organization and Development category, Dr. Cover noted that Mrs. Tochner twice posed a multiple question asked as one. Dr. Cover noted numerous effective teaching behaviors in the areas covered by the Summative Instrument. Dr. Cover's narrative of the observation is generally favorable. However, she noted that, in the Instructional Organization and Development category, Mrs. Tochner left library books on the tables for the children and that these books were a distraction for the students, requiring that Mrs. Tochner stop on three occasions to redirect students who were playing with the books. Dr. Cover also noted that Mrs. Tochner did not notice some off-task behavior. In the Instructional Organization and Development category, Dr. Cover also noted that Mrs. Tochner's lesson was teacher-directed; Dr. Cover commented that more "involvement by the students would build greater understanding and memory of the concept" Mrs. Tochner was teaching and that Mrs. Tochner needed to continue to work on questioning techniques and giving specific praise as "a natural development of student's [sic] responses." In the Presentation of Subject Matter category, Dr. Cover noted that Mrs. Tochner smiled as she read a story to the kindergarten class but that she did not observe "enthusiasm or excitement in the students." Dr. Cover recommended that Mrs. Tochner get the students more actively involved in the lesson. In the Communication: Verbal and Nonverbal category, Dr. Cover noted that Mrs. Tochner smiled and read the story with expression. In the Management of Student Conduct category, Dr. Cover noted that the distraction provided by the books on the tables could have been avoided if the books had not been placed on the tables. Annual Evaluation of March 1998 Dr. Cover completed the annual evaluation of Mrs. Tochner's performance on March 10, 1998 and noted that she based the evaluation on observations of Mrs. Tochner's classroom performance conducted on September 18, September 19, October 7, October 16, October 21, October 23, November 3,2 November 12 and November 24, 1997, and those conducted on February 19, February 25 (2), February 26, and March 4, 1998. Dr. Cover identified the same seven areas of "Concern" in her March 1998 annual evaluation of Mrs. Tochner's performance as in the mid-year evaluation in December 1997: In the section of Media Center Management Capabilities, Dr. Cover found Mrs. Tochner deficient in the categories of Establishment and Maintenance of Program Plans and Administration of Program Assessment; in the section of Instructional Processes, Dr. Cover found Mrs. Tochner deficient in the categories of Management of Student Conduct, Instructional Organization and Development, Presentation of Subject Matter, and Establishment of an Appropriate Learning Climate. In the section of Professional Responsibilities, Dr. Cover found Mrs. Tochner deficient in the category of Demonstrates Self Control. Dr. Cover included the following comments on the evaluation form: Mrs. Tochner attended all the suggested workshops given by the Department of Professional Development & School Improvement Services. She has chaired the STIA and Learning Center Committees. She has organized the Fall Book Fair. Mrs. Tochner is on her second year of a Professional Development Plan. There were seven (7) concerns noted on the mid year evaluation. There are seven (7) concerns noted on this annual evaluation. There are still concerns about the consistency in the development and implementation of a total media program. Attached you will find a letter to the Superintendent recommending non-reappointment. Mrs. Tochner received a total of twenty-five points on her March 1998 annual evaluation, which constitutes an unsatisfactory evaluation and is grounds for non-reappointment and termination of employment. Dr. Cover sent a letter to the Superintendent dated March 10, 1998, in which she stated that, because Mrs. Tochner had not corrected her performance deficiencies during the 1997-98 school year, she was not recommending Mrs. Tochner for reappointment for the "FY 99 school year." I. Conference - March 11, 1998 On March 11, 1998, Dr. Cover called a conference with Mrs. Tochner to go over her annual evaluation. Dr. Cover's secretary was present and took notes of the discussion. Mrs. Tochner initially told Dr. Cover that they were scheduled to have two meetings to address her progress and that she had prepared documentation to show that she had responded to the recommendations which had been made to her. Mrs. Tochner pointed out that these two meetings had been cancelled and that she had not had an opportunity to discuss her progress. Dr. Cover "stated that she has been present and ready for each meeting and did not cancel any of them herself. She has not seen the documentation Mrs. Tochner prepared and based her recommendations on all the previous meetings and observations." Dr. Cover explained to Mrs. Tochner that "she needs to see consistency in developing and implementing the media center that is truly a reflection of being the hub of the school." When Mrs. Tochner replied that she had been working with all of the teachers and grade levels and was integrating classroom themes into her lessons, that she was responding to the students and faculty, and that the media center was a resource for the school, Dr. Cover "stated that she needs to see more. She is not seeing what she feels is necessary for a media center to be the hub of the school." When Mrs. Tochner told Dr. Cover that she had provided all of the things she had been asked to provide, Dr. Cover responded that "she does not want to get into an argumentative mode. She remembers saying that she needs consistency, and that is not happening. The leadership is not there. The initiative is not there." When Mrs. Tochner observed that the people who had observed her class in general thought her lessons were "very good," Dr. Cover replied: "Not everybody." The Superintendent of Schools sent Mrs. Tochner a letter dated April 1, 1998, in which she notified her that her performance as a classroom teacher was unsatisfactory, that she would not be reappointed for the 1998-99 school year, and that her employment would end on June 11, 1998. APRIL 1998 THROUGH JUNE 1998 Assistance Review Meeting - March 18, 1998 The fifth Assistance Review Meeting held with Mrs. Tochner under the Professional Development Plan took place on March 18, 1998, after Dr. Cover's unsatisfactory annual evaluation of Mrs. Tochner. Mrs. Tochner was advised at this meeting that, if her improvement reached a satisfactory level, Dr. Cover could withdraw her letter recommending termination. This meeting focused on discussions with Mrs. Tochner about incorporating themes into her lessons on media skills. Several themes were suggested, among them a sports theme. Mrs. Tochner said she thought sports would be a good theme. Observation - May 20, 1998 Dr. Cover conducted an observation of Mrs. Tochner May 20, 1998. When Dr. Cover entered the media center, a kindergarten class had just been dismissed. The actual observation was of Mrs. Tochner teaching a third grade class, and the lesson dealt with swimming. Mrs. Tochner read a book on swimming and demonstrated swimming strokes mentioned in the book. Dr. Cover prepared a narrative of the observation, and she presented it to Mrs. Tochner for her signature. Dr. Cover was in a hurry, and she just wanted Mrs. Tochner to sign the narrative, but she perceived that "once again, it looked as if were about to embark on an hour long or two-hour long meeting. And Mrs. Tochner wanted to go through each item to add her comments." Accordingly, Dr. Cover allowed Mrs. Tochner to submit a copy of the narrative with her written comments even though Mrs. Tochner was not entitled to do so under the teachers' contract. In the narrative of the observation, Dr. Cover commended Mrs. Tochner on having selected books that were age and grade appropriate and on having encouraged class discussion. Then Dr. Cover's included her recommendations: Mrs. Tochner needed to integrate technology into the lesson by using a CD- ROMs available in the media center; Mrs. Tochner responded that there was no software available on swimming for the first grade level. Mrs. Tochner needed to adjust her instruction based on the students' needs and responses because some of the students did not participate in the discussion. Mrs. Tochner needed consistency in her dismissal policy because the first grade class was dismissed in an organized fashion but the kindergarten class was in disarray; Mrs. Tochner responded that the substitute teacher for the kindergarten class preempted an orderly dismissal by "collecting" the students before Mrs. Tochner had a chance to dismiss them. Mrs. Tochner needed to avoid prolonged discussion which took the children off task, such as the discussion of the Titanic; Mrs. Tochner responded that the book she featured referred to diving for ship wrecks and that the students had initiated the "two minute discussion" on the Titanic. Mrs. Tochner needed to clearly develop her lesson and to provide constructive feedback to the students. Mrs. Tochner needed to use examples in presenting concepts. Mrs. Tochner needed to welcome the students to the media center in a positive way rather than by placing her finger over her lips and signaling to the students that they should be quiet. Mrs. Tochner needed to use the physical space in the media center more effectively because Mrs. Tochner used tables when the environment would have been "cozy" if she had read the story with the students in the reading well. Mrs. Tochner needed to effectively communicate with the media clerk regarding procedures and schedules at the check out desk. Mrs. Tochner needed to avoid using a harsh tone with the students. Observation - May 21, 1998 Ms. Terwillegar observed Mrs. Tochner May 21, 1998, while she taught a third grade class. Ms. Terwillegar noted that Mrs. Tochner had planned a media center theme focusing on sports. Ms. Terwillegar observed: Both display windows, the display case and the media center were decorated according to this theme. Many children brought in sports trophies and other related sports objects, and these were carefully displayed with cards noting the names of the donors. Mottoes such as "Be a super star - READ" and "Reading is our Sport" were used throughout the center. This is the first theme approach observed in two years and the effect successfully energized the appearance of the media center. Nonetheless, Ms. Terwillegar criticized Mrs. Tochner for introducing the game "Jingo" as a class activity after the students finished checking out their books. Ms. Terwillegar also noted that "[t]he Book Fair was successful, and the sports theme well done." Even so, Ms. Terwillegar criticized Mrs. Tochner as follows: [I]n closing [the media center] for a day to set up the fair, books were re-shelved by price. I do not recommend taking time from students to do this, when a book fair is already displayed for appeal by the company. Re-shelving by price is convenient for adults giving direction to children. However, one of the learning experiences for students is finding and reading the price of items, and judging if there is enough money to cover the cost of books selected. For every media center activity, the learning outcomes need to be defined and planned effectively. Further, it is important to keep the media center open for students at all times. When asked to state her opinion regarding whether Mrs. Tochner tried to improve her skills as a media specialist, Ms. Terwillegar testified: I think Mrs. Tochner made the effort to try in certain areas, particularly in relation to going to classrooms and finding out from teachers what they were doing. The execution of that never quite came out to be what we were looking for, in terms of that integration of the program. As an example, I remember one class was learning about snow and winter. And what I saw in the media center were children coloring pictures of snowmen. And although the topic was the same, it wasn't that instructional integration that I was looking for. Assistance Review Meeting - May 21, 1998 The sixth and final Assistance Review Meeting was held on May 21, 1998. It was noted during the meeting that Mrs. Tochner had been working on her sports theme. She wore costumes to school, used contests to promote the theme, and planned to have a drawing for a bicycle using the coupons the students were given for each book they read. Mrs. Tochner had incorporated the theme into her lessons and showed the group pictures of her bulletin board and sports theme activities. Dr. Cover criticized Mrs. Tochner for doing an insufficient in-service training to teach the teachers how to use the new camcorder the Technology Committee had obtained for the media center; Mrs. Tochner stated that there was not enough time to do the full presentation. Mrs. Tochner reported that the students were using the camcorder to record presentations in Mrs. Tochner's class; Dr. Cover said she was pleased to hear this. Dr. Cover discussed her observation of May 20, 1998, and noted that there was no order in the class dismissal; that the kindergarten class should have been in the reading well when Mrs. Tochner read a book about swimming; that Mrs. Tochner should have given a longer introduction to the lesson; and that she heard Mrs. Tochner speak harshly to an exceptional education student. Dr. Cover criticized Mrs. Tochner for failing to place information on the media center in the school newsletter. Mrs. Tochner noted that she had put two items in the newsletter, one about the Book Fair and the other about the Sunshine Books reading results; that she had sent a flier to parents about the "Read and Ride" contest; and that she had sent a brochure to the parents about the Book Fair. Dr. Cover responded that the Book Fair and the Sunshine Books program were "asides," that the parents needed to know what their children were learning. Meetings - June 4, 1998 Dr. Cover and Mrs. Tochner met on June 4, 1998, to discuss Dr. Cover's May 20, 1998, observation. The minutes of the meeting indicate that the meeting was confrontational, with both Dr. Cover and Mrs. Tochner making accusations and disagreeing with one other's recollection of the events of June 2, 1998, when Dr. Cover maintained she and Mrs. Tochner discussed the evaluation. The only point of substance reflected in the minutes of the meeting was Mrs. Tochner's explanation that she did not use a CD-ROM during the lesson on swimming, first, because there was nothing available in the media center collection on that topic, and, second, because she had found the students worked better at the computer in groups of two rather than working at the computer as a class. A meeting was held with Ms. Terwillegar, Dr. Cover, Ms. Wark and Mrs. Tochner on June 4, 1998, to discuss Ms. Terwillegar's May 21, 1998, observation. This meeting was held just prior to the meeting between Dr. Cover and Mrs. Tochner in which they discussed Dr. Cover's May 20, 1998, observation. Again, the minutes of the meeting do not reflect that much of substance was accomplished. Dr. Cover and Ms. Terwillegar criticized Mrs. Tochner's use of the game "Jingo" to teach a sports theme and both stated they would have taught the lesson differently. Dr. Cover and Ms. Terwillegar criticized Mrs. Tochner because she reorganized the Book Fair materials and closed the media center for one day to do so. Mrs. Tochner responded that the Book Fair was organized by book- sellers and that she rearranged the materials because the parents and students appreciated the materials being arranged by price and by reading level. Finally, Mrs. Tochner mentioned that she had accrued a lot of compensatory time, and Dr. Cover advised her that she had not given Mrs. Tochner permission to work overtime and that she was not entitled to compensatory time. Dr. Cover observed that she had told Mrs. Tochner many times that she spent too much time at the school, that she needed to go home. MRS. TOCHNER'S ACTIVITIES AND EFFORTS TO IMPROVE HER PERFORMANCE When Mrs. Tochner began working at Allamanda Elementary, she found a media center that had suffered from neglect for the previous two years. There was much technical processing of materials to be done to organize and inventory the media center collection and equipment at Allamanda Elementary. At the same time that she was familiarizing herself with a new media center, a new school, and a new faculty, Mrs. Tochner was assigned to teach a full class schedule. Dr. Cover decided at the beginning of the 1996-97 school year that the fine arts wheel would operate under a fixed-block class schedule. Such a class schedule required Mrs. Tochner to teach media skills during a set class period to all of the classes at Allamanda Elementary, meeting with each class once each week as part of the fine arts wheel and teaching five or six classes each day. The classroom teachers had a planning period during the time their classes were in the media center, so the teachers took the students to the media center and left them in Mrs. Tochner's care. Much of Mrs. Tochner's time during her first year at Allamanda Elementary was devoted to organizing the media center and up-dating the entries in the Sirsi system. She had no full- time assistance in the media center, and she was responsible for completing all of the processing and clerical tasks in addition to carrying out her duties as a full-time teacher. During pre-school in August 1996, Mrs. Tochner met with the various grade levels and with some teachers to discuss how she could correlate the activities and lessons in media skills to the topics which were to be studied in the classrooms. She continued to meet with teachers every few weeks. Mrs. Tochner sent out questionnaires to the teachers in which she requested input regarding the programs and skills they wished her to focus on in the media center and the support services they wanted her to provide. The responses revealed that, for the most part, the teachers of the primary grades, kindergarten through second grade, wanted her to read stories to their classes, while the teachers of the intermediate grades, third through fifth grades, wanted her to teach research skills. Mrs. Tochner was conscientious in providing materials requested by teachers the day after the request, which often required her to create an entry for the item or items in the Sirsi system before checking them out to the teacher. Mrs. Tochner also offered one-day service to students who wished to check out materials that had not been entered on the Sirsi system. Dr. Cover noted two areas of deficiency in the School Site Assistance Plan that she completed for Mrs. Tochner in December 1996, that Mrs. Tochner used rough, angry language when correcting students and that she did not use effective questioning techniques. Mrs. Tochner studied the materials suggested to her in the School Site Assistance Plan and worked on asking analytical questions, giving specific praise, and controlling the behavior of the students in the media center. She also worked with the school's Guidance Counselor to work out a conflict-resolution process to use with the students in the media center. In addition, as part of the School Site Assistance Plan, Mrs. Tochner observed Marlene Greeble, the media specialist at Timber Trace Elementary School, on January 19, 1997.3 Mrs. Tochner prepared a report of her observation for Dr. Cover. Mrs. Tochner noted two aspects of the media program at Timber Trace that distinguished it from that at Allamanda Elementary. First, Ms. Greeble had a full-time media clerk who assisted with various clerical tasks in the media center and who handled the circulation desk when the media center was open for students to check out books, which was from 8:30 a.m. until 1:30 p.m. Second, the media center operated under an open, flexible schedule pursuant to which Ms. Greeble was not assigned to teach scheduled classes. Rather, teachers could ask Ms. Greeble to teach their classes a particular skill lesson; Ms. Greeble would schedule the classes, with the length of time she spent with any one class determined by the skills to be taught. Otherwise, the students at Timber Trace could come into the media center, either individually or in small groups, with a pass from the teacher for a specified length of time. Students in the third to fifth grades could come in unaccompanied to check out books or work on projects, and the students in kindergarten to second grade could come into the media center with a parent volunteer or in small groups. Learning centers were set up in the media center for the use of the students. When Ms. Greeble was not teaching a class, she was available to assist students and teachers using the media center. Mrs. Tochner realized that the only way she could fulfill Dr. Cover's vision for the media center was to institute an open, flexible schedule which would give her time to work with the media center program and to fully integrate the program into the school curriculum.4 During their first meeting in August 1996, Mrs. Tochner had suggested that Dr. Cover consider putting the media center on an open, flexible schedule, but Dr. Cover rejected the idea in favor of the fixed-block schedule because of the preferences of the classroom teachers. In the memorandum Mrs. Tochner submitted to Dr. Cover in January 1997 relating her observations at Timber Trace, Mrs. Tochner pointed out the benefits of an open, flexible schedule to Dr. Cover and recommended that Allamanda Elementary try a modified open, flexible schedule by alternating the guidance and the media center classes on the fine arts wheel, so that she would teach each class only once every two weeks. Dr. Cover did not specifically respond to the proposal but told Mrs. Tochner that it would be Mrs. Tochner's responsibility to convince the teachers at Allamanda Elementary that an open, flexible schedule was preferable to the fixed-block schedule Dr. Cover had implemented. Although Mrs. Tochner spoke to a number of teachers about this, she met with resistance because the teachers did not want to give up their planning period. Dr. Cover did not provide Mrs. Tochner any assistance or encouragement with respect to implementing an open, flexible schedule in the media center. During the 1997-98 school year, Mrs. Tochner attempted to respond to the multitude of comments, criticisms, and recommendations presented to her during the Assistance Review Meetings and during the meetings that were held after each observation. Mrs. Tochner kept the log of all contacts she had with teachers, parents, and others that was suggested by Ms. Terwillegar in the spring of 1997, but no one asked to see this or any other of the materials Mrs. Tochner had prepared to document her efforts to comply with the recommendations. Many of the recommendations and criticisms were directed to specific behaviors that could not be, and were not, characterized as unsatisfactory but, instead, reflected the observers' opinions that Mrs. Tochner could have taught a particular part of the lesson in a different way or that Mrs. Tochner could have handled a particular situation differently or that Mrs. Tochner did not exhibit the expected level of enthusiasm as she taught the lesson. Often, the narrative of an observation was critical of Mrs. Tochner while the tally marks on the Summative Instrument indicated that she had engaged in many more effective teaching behaviors than ineffective ones; or, the narrative of an informal observation would reflect good teaching behaviors while the recommendations contained criticisms of particular behaviors which did not seem evident from the narrative. In her assessments of the media center program at Allamanda Elementary, Ms. Terwillegar several times emphasized the need to have teamwork between the ITSA, Ms. Kempel, and Mrs. Tochner with respect to integrating the school's instructional technology, with Mrs. Tochner providing leadership in the area of technology. Dr. Cover did not encourage such teamwork or assist in bringing about any cooperative arrangement between Mrs. Tochner and Ms. Kempel and, in fact, contributed to the tension between Ms. Kempel and Mrs. Tochner. Ms. Kempel watched Mrs. Tochner and reported to the administration any conduct on Mrs. Tochner's part that Ms. Kempel thought was significant, such as the purported "cane-throwing" incident in January 1997. In addition, Dr. Cover did not include Mrs. Tochner in discussions with Ms. Kempel regarding planning for the computer laboratories or the relocation of the IILS computer laboratory to the media center. Ms. Kempel found that working with Mrs. Tochner was difficult because, in her view, Mrs. Tochner always wanted things done "her way." In the absence of any leadership from Dr. Cover, the breach between them widened and prevented the cooperative endeavor envisioned by Ms. Terwillegar. One of the on-going criticisms of Mrs. Tochner's ability to manage student conduct was her failure to institute an orderly procedure for the students to follow when they were dismissed from their lessons in the media center and allowed to select books to check out of the media center. The physical layout of the media center made it impossible for Mrs. Tochner to view all of the students searching the stacks at any one time. The shelves of books were located in three separate rooms opening off of the central area of the media center where the circulation desk was located. When Mrs. Tochner assisted students in one area of the media center, students in the other areas could misbehave without her being able to observe their conduct. In addition, during the 1996-97 school year, Mrs. Tochner had no consistent assistance in the media center, so it was necessary for her to stay at the circulation desk checking out books to the children, making it difficult for her to monitor and correct student behavior. Mr. Sorensen and Dr. Burdsall both recommended that Mrs. Tochner solve the problem of student misbehavior during the time the students selected and checked out books by limiting the areas in media center in which they were permitted to look for books or by selecting books for the children and putting them into a separate display from which the children could choose their books. These recommendations for limiting student access to certain areas of them media center were totally opposite the recommendations of Ms. Terwillegar that the media center be completely open to the students and that the students be allowed to browse the stacks at will and check out books at any time. Although Mrs. Tochner tried several methods for minimizing confusion and student misbehavior during book-check-out time, she was not able to consistently avoid the problem. Mrs. Tochner was consistently criticized by Dr. Cover for failing to give sufficient specific praise during her lessons. Dr. Cover did not take into account, however, the grade level of the class she was observing and the type of praise appropriate to the specific grade levels. In one of the workshops she attended, Mrs. Tochner learned that general praise was categorized as a "more positive" teacher response for the primary grades, kindergarten through third grade, while specific academic praise was more positive for the fourth and fifth grades. Mrs. Tochner engaged in a number of activities with respect to procuring instructional technology for Allamanda Elementary. She chaired the committee that surveyed the needs of the teachers and students, and Mrs. Tochner wrote proposals for funding from the STIA committee to purchase equipment for the media center and for the school in general. Mrs. Tochner inventoried all of the equipment in the school, surveyed the teachers regarding their needs, and submitted to the district a list of equipment needed at Allamanda Elementary. When funding for equipment was not provided, Mrs. Tochner found money in the media center budget to purchase the equipment which had highest priority. As the ITSA, Ms. Kempel taught the students at Allamanda Elementary how to use computers. Mrs. Tochner trained the students in the use of particular programs; if a computer program were particularly difficult to operate, Mrs. Tochner would demonstrate it during class so that the children could use it on their own. Mrs. Tochner also trained the students in the third, fourth, and fifth grades how to use the Sirsi electronic catalog as a research tool, to search for books and other materials. Even though Dr. Cover criticized Mrs. Tochner for not allowing students to check out books themselves using the Sirsi system, Mrs. Tochner did not allow this because the electronic check-out system was usually used only by trained staff. Mrs. Tochner contacted other media specialists and learned that students were not allowed to use the Sirsi system to check out books in other schools, and she specifically observed that either the media clerk or Ms. Greeble checked out books at Timber Trace Elementary School. During the 1997-98 school year, Mrs. Tochner set up learning centers for the students coming into the media center singly and in small groups to follow up on a lesson she had taught in the media center or to support a classroom activity. She set up computers with CD-ROMs for the students to use while working on specific research projects or with software containing general learning materials; she set up cassette books with headsets for the children to use; she had film strips and videos set up for the children to use; and she had various games and puzzles set up throughout the media center. Mrs. Tochner did not use learning centers during media classes because she found that it was more effective for the students to use the equipment in small groups. By the end of the 1997-98 school year, Mrs. Tochner had reached the goal set out in the School Improvement Plan to make the media center twenty-five percent more user-friendly than it was at the beginning of the school year. The chairman of the Innovative Instructional Technology committee advised Mrs. Tochner that the goal had been met according to the surveys completed by students and teachers. During the 1997-98 school year, observers noted that Mrs. Tochner was integrating classroom themes into her media center lessons, that her lessons were well-planned, and that she was integrating technology into these lessons as well. She was displaying student work in the media center, and, at the end of the 1997-98 school year, she planned and implemented a school- wide sports theme. Three teachers at Allamanda Elementary found Mrs. Tochner very easy to work with, responsive to their requests for assistance both for themselves and their students, and interested in improving the media center. Mrs. Tochner consulted with these teachers about the themes their students were studying in the classroom, and she integrated these themes into her media lessons. None of the three teachers testifying at the final hearing ever observed Mrs. Tochner speaking harshly or sarcastically to students, being rude to students, or correcting students' behavior in an inappropriate manner, and the children in their classes never complained about Mrs. Tochner's behavior. One second grade teacher testified that she would regularly give her students passes to the media center, where they would work with different computer programs, such as the writing program, the encyclopedia program, and the Living Books program. One of Allamanda Elementary's exceptional student education teachers testified that Mrs. Tochner made it a habit to discuss with her the activities she proposed for the exceptional student education classes to ensure that her lessons were appropriate for the students' level of functioning and understanding. This teacher observed that Mrs. Tochner worked very well with the students in her class.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order rejecting the Superintendent of School's recommendation that Joan Tochner's professional service contract not be renewed for the 1998-99 school year and awarding her back pay and benefits in the amount to which she is entitled. DONE AND ENTERED this day of January, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 day of January, 2000.
Findings Of Fact On February 10, 1989, respondent, Department of Insurance and Treasurer (Department), issued Invitation To Bid No. DIT-88/89-112 (ITB) to prospective bidders inviting bids for the provision of the following service: The Florida Treasurer & Insurance Commissioner's Office, hereinafter referred to as "State," requires a wire service to ensure the timely distribution of the State's news releases. The State, therefore, invites all interested wire services to submit bids for a 2-year, fixed-rate contract. The ITB provided further that bids were due by 2:00 p.m. on February 21, 1989, they would be opened at that time, and the posting of bid tabulations would occur the following day. Also, the ITB provided that the bid award would "be made to the lowest responsive bidder using the fixed rate for the first 400 words of each press release." There was no provision for a prebid conference but the Department advised prospective bidders that questions would be answered by telephone up to the time the bids were due. Whether any prospective bidder availed itself of this opportunity is not of record. Petitioner, PR Newswire, and intervenor, Business Wire, are newswire services who, among other things, transmit client information by computer and printer to various media points (e.g., newspapers, television and radio stations) throughout the state. If the media point has the capability of receiving transmissions by computer, the newswire service utilizes a satellite, or computer link, to transmit the information to the media point. Some media points either do not have computer capability or choose not to use satellite service and thus receive a hard copy of the transmission via TELEX and other similar machines. PR Newswire has had a contract with the Department for the last two years to provide this service. It will continue to do so pending the outcome of this bid dispute. Bid proposals in response to the ITB were timely filed by petitioner and intervenor. Both firms submitted bids with a $40 charge for the first 400 words of each press release and a charge of $10 for each additional 100 words. This was not surprising since Business Wire offers a discounted government rate for its service and PR Newswire knew it had to submit a comparable rate to be competitive. Since the dollar amounts were identical, the Department relied upon advice from its legal counsel for a procedure to break the tie. Under this procedure, the two proposals were evaluated to determine which was the most "responsive." The evaluation process consisted of determining which firm had the greater capacity for "transmitting via computer links to the most Florida media markets listed in Exhibit A" of the ITB. Exhibit A is a three page listing of newspapers, wire services, and television and radio stations throughout the state. After this evaluation was made, the Department selected Business Wire as the lowest and most responsive bidder. This information was conveyed to PR Newswire by letter dated March 9, 1989. Upon receiving the letter, PR Newswire filed its formal protest alleging that the agency had misinterpreted certain information and relied on erroneous information in awarding the contract to Business Wire. The filing of the protest prompted this proceeding. The Department issues press releases approximately three times per month. It desires such releases to be in the hands of the editor or news director within thirty minutes after the wire service receives the Department's release for dissemination. To operate within this time constraint, the wire service must transmit the information to the media point via computer. At the same time, the Department considers a hard copy coming off a teleprinter to be "unsatisfactory" and less likely to be used by, an editor or news director. This is because a hard copy is more likely to be lost or misplaced while a release sent via computer is generally retained on the media point's computer for at least twenty-four hours. For these reasons, the Department placed the following provision in the Special Conditions of the ITB: b. The bidder must be capable of transmitting via computer links to the most Florida media markets listed in Exhibit A. Other distribution methods such as telecopiers (fascimile), telex messenger, etc., are unacceptable. (Emphasis in original) The General Conditions of the ITB also contained the following relevant provision: 7. As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof, to reject any and all bids or waive any minor irregularity or technicality in bids received. After the bids were opened and the tie was noted, the bids were sent to the Department's public information director, Kathleen Snoeblen, for further evaluation consistent with legal counsel's advice. Based upon two conversations with a Business Wire representative and one with a representative of PR Newswire, but without making an independent check to verify the accuracy of their responses, Snoeblen concluded that Business Wire served 33 media points via computer link while PR Newswire served only 29. Using this as the yardstick for breaking the tie, Snoeblen recommended that Business Wire be given the contract. This advice was conveyed to the Department's Division of Administration by memorandum dated March 7, 1989. A proposed award of the contract to Business Wire followed. After proposed agency action was issued, there was no informal conference with the bidders in an attempt to informally resolve the matter. After further review of the proposals, Snoeblen acknowledged at hearing that her original evaluation was incorrect and that Business Wire could only serve 31 media points via computer link rather than 33. However, this meant it still served two more points than PR Newswire. At hearing, PR Newswire established that the Department's evaluation of media points was flawed. This was because a press release might be sent via computer to a primary media point which in turn distributed the same release to other media points in the area. In evaluating the bid proposals for purposes of breaking the tie, the Department counted as computer link points not only the original media point but also any secondary points listed by the bidder that received the release from the original point. For example, a feed sent by Business Wire to the Stuart News was then conveyed by that newspaper to the Port St. Lucie News, Stuart Mirror, and Hobe Sound/Port Salerno Mirror, all being smaller newspapers or "shoppers" ostensibly owned or controlled by the primary media point. However, the secondary points (including "shoppers") were considered computer link points within the meaning of the ITB even though the wire service had sent only one release to a single media point. Neither bidder was aware of the procedure that would be used in the event of a tie. In addition, both petitioner and intervenor complained that there were definitional problems with the term "computer link" as used by the Department. Had petitioner known of these matters prior to its bid submission, it would have structured its proposal differently. More specifically, it would have concentrated on listing primary computer link points as well as secondary points so as to reflect a larger number of points that it served. In its proposal, PR Newswire did not list secondary points since it was under the impression that only primary points could be used. By not being given the opportunity to submit a responsive proposal, PR Newswire was placed at a competitive disadvantage in the bidding process.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered rejecting both bids and releting Invitation To Bid No. DIT-88/89-112. DONE AND ORDERED this 23rd day of May, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1989.
The Issue The issue in this case is whether Petitioner has just cause to suspend Respondent for 15 days without pay and return her to an annual contract.
Findings Of Fact Ms. Gabriele has been employed by the School Board since October 13, 1997. As a member of the School Board's instructional staff, Ms. Gabriele's employment was subject to section 1012.33, which provides that her employment will not be suspended or terminated except for just cause. During the 2010-2011 school year, Ms. Gabriele was a teacher at Bashaw Elementary School (Bashaw). As a teacher, Ms. Gabriele was required to abide by all Florida Statutes which pertain to teachers, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida, and the Policies and Procedures Manual of the School Board. On February 17, 2011, an Office of Professional Standards (OPS) file was opened regarding Ms. Gabriele based upon allegations that, on February 9, 2011, Ms. Gabriele asked a teacher's aide, Brenda Twinem (Ms. Twinem), in the presence of students, "Can I kill a kid today?", and, on February 16, 2011, Ms. Gabriele called a female student to the front of the classroom and yelled at her in the presence of other students and a parent. On April 18, 2011, another OPS file was opened regarding Ms. Gabriele based upon an allegation that she made intentional contact with a witness (Ms. Twinem) who was involved in a recent OPS investigation into the alleged misconduct of Ms. Gabriele. On April 19, 2011, the School Board notified Ms. Gabriele of its intent to place her on paid administrative leave pending the OPS investigation. On June 3, 2011, the superintendent notified Ms. Gabriele of his intent to recommend the suspension of her employment for 15 days without pay, the dates of which to be determined by her principal, and a return to annual contract status. The June 2011 AC notified Ms. Gabriele of the School Board's intent to suspend her employment and set forth the basis of the superintendent's recommendation for suspension. In the AC, the School Board charged that Ms. Gabriele had engaged in actions which constituted just cause under Section 6.11 of the Policies and Procedures Manual of the School Board. These actions included: immorality, misconduct in office, corporal punishment, excessive force, and violation of Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e). Joshua Bennett (Principal Bennett) became the principal of Bashaw in September 2010. Among his many other duties during the 2010-2011 school year, Principal Bennett was responsible for the supervision of the Bashaw teachers, including Ms. Gabriele, who was a fifth-grade teacher. Ms. Gabriele's class size fluctuated from 18 to 22 students during the 2010-2011 school year. It was noted that, during the math instruction period, there were changes in the number of students in her classroom, and it changed when Principal Bennett moved a student out of her class. Principal Bennett received some parent complaints and concerns regarding Ms. Gabriele shortly after he became Bashaw's principal. Based on these complaints, Principal Bennett collected information from the parents and decided to have an informal conversation with Ms. Gabriele. He also determined to walk through her classroom more frequently during the school year. Further, Principal Bennett recommended to Ms. Gabriele that she take some behavior management classes. Ms. Gabriele had the services of a paraprofessional (a/k/a a teacher's aide), Ms. Twinem, for a specific amount of time (40 to 50 minutes) during a particular day each week. While working for Ms. Gabriele as a paraprofessional, Ms. Twinem would check off homework, sort papers, grade papers, or work with groups of students as she was directed. In February 2011, Ms. Twinem approached Ms. Gabriele to provide her information. There were several students engaged in conversations in close proximity to Ms. Gabriele as she sat at her desk. According to Ms. Twinem, Ms. Twinem was standing beside Ms. Gabriele's desk when Ms. Gabriele looked at her and, in a frustrated tone, stated, "Can I kill a kid?" (Gabriele's Statement). Ms. Twinem was speechless because she thought it was inappropriate for Ms. Gabriele to make that statement in front of students. Ms. Twinem told Principal Bennett of Gabriele's Statement shortly thereafter. Ms. Twinem wrote her own account of Gabriele's Statement. Ms. Twinem's account contained her thought that Ms. Gabriele was joking, but she (Ms. Twinem) did not "know how it [Gabriele's Statement] was interpreted by the students." Clearly, at that time, Ms. Twinem had concerns about what the students thought of Gabriele's Statement. Ms. Gabriele admitted to making Gabriele's Statement. At hearing, she testified that, at the time she made the statement, the students were working with their partners, and it was loud in the classroom. After a student had asked her the same question several times, Ms. Gabriele made Gabriele's Statement. Although Ms. Gabriele testified that she was not frustrated, mad or upset when she made the statement, that she just made the statement "off-the-cuff kind of thing," this is not credible. According to Ms. Gabriele, the student's question involved a long-standing classroom practice of the students placing their completed assignments in a pink bin. If the student was indeed asking or questioning this long-standing practice, it would be natural for some type of frustration or exasperation to be expected. Ms. Gabriele conceded that, even if Gabriele's Statement had been made in jest or in a joking manner, it was inappropriate. Also in February 2011, Principal Bennett had a specific complaint involving a parent's (E.B.) observation during a visit to Ms. Gabriele's classroom. With Ms. Gabriele's knowledge that she was in the classroom, E.B. had come to pick up her student and to search for some misplaced homework in the classroom. E.B. observed a female student (later identified by the initials N.A.) go to the front of the classroom where Ms. Gabriele was yelling at her. E.B. described Ms. Gabriele's actions as ". . . really reaming the kid, . . . And she just didn't seem like she was letting up, and the child was just very distraught." E.B. observed N.A. to be "really teary eyed . . . Not in a full cry, but looked like she would break down." E.B. thought Ms. Gabriele's behavior was "pretty harsh," loud in a real demanding way, and fierce. E.B testified that, had Ms. Gabriele been yelling at E.B.'s student, she "probably would have yanked her in the hall and had a few words." E.B. was appalled at Ms. Gabriele's behavior and reported her observation to Principal Bennett. As a result of her conversation with Principal Bennett, E.B. followed up with a letter to the principal detailing what she had witnessed in Ms. Gabriele's classroom, as well as other observations she had while chaperoning a school field trip with Ms. Gabriele's class. E.B. requested to be kept informed of what action was being taken and volunteered to be in the classroom when her scheduled permitted. Shortly thereafter, an OPS investigation was opened regarding Ms. Gabriele. Debra Horne (Ms. Horne) is a specialist in the OPS. Ms. Horne conducted an investigation of E.B.'s classroom observation and Gabriele's Statement by interviewing Ms. Twinem; 11 students from Ms. Gabriele's class, including N.A.; and Ms. Gabriele. Ms. Twinem and the students' statements were taken on February 18, 2011, making them almost contemporaneous with the events. During the OPS interviews with the 11 students, all 11 stated that Ms. Gabriele yells at the students, and one student said her yelling was "extreme." Five of the students stated Ms. Gabriele embarrassed them or other students by her actions; four stated Ms. Gabriele called students different names, such as "toads," "toadettes," "hillbilly," or "baby"; and three said she made them cry or other students cry. During her OPS interview, N.A. stated that Ms. Gabriele had made her cry and that it embarrassed her a lot. N.A. further stated that Ms. Gabriele yelled at her and other students a lot.2/ During Ms. Twinem's OPS interview regarding Gabriele's Statement, she described Ms. Gabriele as being frustrated and using a frustrated tone when it was spoken. At the hearing Ms. Twinem also testified that she thought Gabriele's Statement was made "out of frustration," but that it was "inappropriate" nonetheless. Ms. Gabriele's OPS interview occurred on March 17, 2011. Ms. Horne conducted the OPS interview and followed her standard procedures in telling Ms. Gabriele the substance of the investigation. Aside from being told what her rights and duties were regarding the investigation, Ms. Gabriele was also reminded of the School Board policy regarding her cooperation with the investigation and her responsibility to not interfere with it or communicate with any witnesses to the investigation. Ms. Gabriele's interview included questions about E.B.'s letter, including E.B.'s classroom observations, and Gabriele's Statement. Ms. Gabriele confirmed she was aware that E.B.'s letter was sent "downtown." Ms. Gabriele maintained that she thought the only issue in the initial investigation was E.B.'s letter. This position is thwarted when one reviews her OPS interview wherein Ms. Gabriele was questioned about both E.B.'s letter and Gabriele's Statement. Although during the OPS interview Ms. Gabriele stated she did not remember the incident with N.A. crying, she did admit that if E.B.'s recollection of the incident with N.A. was correct that she, Ms. Gabriele, could "have handled it differently" by calling the student off to the side to discuss the issue. Also, during the OPS interview, Ms. Gabriele admitted that Gabriele's Statement was inappropriate when made to a coworker in the presence of students. Ms. Gabriele received a copy of the School Board's initial OPS investigative report in April 2011. Within that report, and through Ms. Gabriele's testimony, she acknowledged receipt of that investigative file,3/ which included all the information obtained during the initial OPS investigation, including her own interview regarding E.B.'s letter and Gabriele's Statement. In Section III of the initial OPS investigative report (for E.B.'s letter and Gabriele's Statement) and through her hearing testimony, Ms. Horne detailed her standard routine with respect to the description given to each witness at the start of his/her interview. Further, Ms. Horne advised School Board employees of their obligation to cooperate with the investigation as well as the School Board's Policy 6.13.4/ Ms. Gabriele testified that she was aware of the policies. On Monday morning, April 18, 2011, when Ms. Twinem reported to Ms. Gabriele's classroom to sort papers and check homework, she was subjected to questions by Ms. Gabriele regarding whether or not Ms. Twinem had, in fact, reported Gabriele's Statement to Principal Bennett. Ms. Gabriele testified she found out that Ms. Twinem was upset or bothered by Gabriele's Statement during one of her meetings with Principal Bennett. However, neither her testimony nor Principal Bennett's testimony reflected upon any meeting between those two on that Monday morning or the week prior for Ms. Gabriele to make that connection. Further, as Ms. Gabriele testified, she "obviously" knew that Ms. Twinem was the person who reported Gabriele's Statement, as she was the only other adult in the classroom at the time it was uttered. Ms. Twinem testified that she felt like "a deer in the headlights" when Ms. Gabriele asked her about reporting Gabriele's Statement. Ms. Twinem admitted to Ms. Gabriele that she had reported Gabriele's Statement to the principal "a long time ago." Ms. Twinem testified she was "anxious and nervous and like just didn't feel good" when Ms. Gabriele confronted her. Ms. Twinem reported this first encounter to Principal Bennett because she thought it should not have occurred. Later that same morning, Ms. Gabriele came into Ms. Twinem's office and told Ms. Twinem that she shouldn't tell anyone about their prior conversation because Ms. Gabriele could get in trouble. Ms. Twinem reported this second encounter to Principal Bennett. Still, later that same day when Ms. Twinem was in her office, Ms. Gabriele stood at the door and said that Ms. Twinem had gotten her (Ms. Gabriele) in trouble, because she had reported the second contact to the principal. Ms. Twinem reported this third contact to Principal Bennett. Principal Bennett testified that, after Ms. Twinem reported the first contact by Ms. Gabriele, he conferred with the OPS personnel as to what he should do. Based on direction from OPS, Principal Bennett hastily attempted to arrange a meeting with Ms. Gabriele to give her a verbal directive about contacting any witnesses involved with the investigation. Before the meeting could occur, Ms. Twinem reported that Ms. Gabriele had contacted her again. Prior to the third encounter, Principal Bennett issued a verbal directive to Ms. Gabriele about contacting any witnesses involved in the investigation. His directive included an admonishment "to cease and desist talking to the other employees about the OPS matter." Principal Bennett recounted that he told Ms. Gabriele that she was "not to talk to any other employees about the open investigation." Ms. Gabriele admitted she spoke with Ms. Twinem three times on April 18, 2011. Ms. Gabriele claimed that she did not understand who she could or could not talk to with respect to the investigation and that she only wanted to apologize for making Ms. Twinem upset about Gabriele's Statement. Ms. Gabriele admitted she knew it was Ms. Twinem who reported Gabriele's Statement to the principal. In the event Ms. Gabriele had questions about who she could or could not talk to, she had the opportunity to ask either Principal Bennett or Ms. Horne. Such dialogue apparently did not occur.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Manatee County School Board enter a final order suspending Ms. Gabriele for 15 days without pay and returning her to an annual contract. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 8th day of December, 2011.
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of Charles Willis (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a drama teacher employed by the Petitioner to work at BRHS pursuant to a professional services contract. During 2010, the Respondent had an account on Facebook, a social networking internet website. Facebook allows an individual user to create and maintain a personal "page" including text and photographs, which can be viewed by other users. Users can also provide links to content posted elsewhere on the internet, and viewers can access the linked information. Facebook allows users to establish privacy settings that restrict access to various types of content. Such privacy options include the identification of other Facebook users as "friends." Privacy settings can be established that prevent users from posting comments to content posted by a user, or from viewing comments posted by other users. Social networking websites are used by some teachers to communicate classroom assignments or other educational information to students. Social networking websites are widely used by students and, at least based on the testimony presented at the hearing, by parents and other adults as well. Prior to the allegations underlying this dispute, the Respondent's privacy settings permitted his Facebook "friends" to view all content posted by the Respondent. The Respondent had in excess of 100 BRHS students identified as friends on his Facebook account. At all times material to this case, the Petitioner had no policy, written or otherwise, that restricted an employee from having an account on a social networking website, or regulated the use of any social networking website by an employee. At various times during 2010, the Respondent posted remarks on his Facebook page that included certain acronyms. Such acronyms, and their commonly understood meaning, included the following: WTF (What the Fuck) OMFG (Oh My Fucking God) F'n (Fucking) LMAO (Laughing My Ass Off) ROTFLMFAO (Rolling On The Floor Laughing My Fucking Ass Off) At the hearing, the Respondent asserted that he intended the "F" in the above acronyms to be understood as "fricking." There was no credible evidence that any student or parent who read the Respondent's Facebook remarks understood the "F" to mean anything other than "fucking." On his Facebook page dated July 31, 2010, the Respondent posted a remark that stated "[I]t's not who you know, it's who you blow," in an apparently derogatory reference to the judging of a student competition. On his Facebook page dated March 30, 2010, the Respondent posted a photograph of a bumper sticker that read "[F]uck the man, become the man" that was taken by a student on a trip to New York. The Respondent explained his posting of the photo by claiming that the people on the trip had agreed that all photos taken on the trip would be posted without censorship and that he had posted several hundred trip photos onto Facebook. On his Facebook page dated August 7, 2010, the Respondent posted a photograph (titled "Accidental Porn") that he obtained from another Facebook user's page. The photograph displayed a television weatherman standing in front of a map showing an elongated weather system. Based on the location of the weatherman and the weather system, the image was perceived by some viewers as depicting the broadcaster holding his penis in a sexually-suggestive position. Comments on the Respondent's Facebook page made it apparent that his viewers were aware of the perception. On his Facebook page dated August 20, 2010, the Respondent posted a link to content titled "[I]t's a great day to whoop somebody's ass." On his Facebook page dated June 26, 2010, the Respondent, apparently intoxicated, posted remarks indicating that he'd consumed excessive alcohol one evening and then posted remarks on the next day indicating that he had a headache related to the consumption. Although the Respondent asserted that some of the posts referenced herein occurred during summer months when he was not "on contract" as a teacher, his students, past and future, were able to freely access the Respondent's Facebook pages during the summer. The Respondent also had an account on Formspring, another social networking internet website. Formspring presents user content in a "questions and answer" format. In an undated post to the Respondent's Formspring page, a student commented "[T]hanks for letting me skip your class today." The Respondent wrote in response, "[Y]ou're welcome, but now you owe me....LOL....just do an amazing job at the encore show." The Respondent acknowledged that he allowed the student to miss his class in order to attend a rehearsal. While the Respondent may have failed to comply with school attendance policy by permitting the student to miss class, the Petitioner's assertion that the posting created the impression of an inappropriate arrangement between a teacher and a student was not supported by credible evidence. In another undated post to the Respondent's Formspring page, an unidentified Formspring user asked "what happened with the whole UP dvd thing," apparently in reference to an incident wherein the Respondent played a movie in class. The Respondent replied, "I got areprimand [sic] for showing an unauthorized video and not following the counties [sic] video policy." The Petitioner's assertion that the Respondent's response was an inappropriate discussion of an employer/employee disciplinary matter with a student was not supported by credible evidence. The reprimand was public record. The identity of the person posting the question was unknown. Upon the initiation of this disciplinary action, the Respondent altered his privacy settings on the social networking sites to limit access of personal content to adults. There was no evidence that social networking internet websites cannot be used for appropriate educational purposes. On more than a few occasions, the Respondent was known in the classroom to use "spoonerisms" in speech, wherein letters in various words were deliberately switched to alter a verbalization of a phrase. While in class and in the presence of students, the Respondent used phrases such as "nucking futs" or "doggammit." The school received a complaint about the practice. On one occasion in the classroom, the Respondent referred to his former wife as a "bitch." On at least one occasion, the Respondent used a hand gesture in the presence of students to signify the word "bullshit." On April 30, 2010, the BRHS principal directed the Respondent to refrain from making such statements and gestures. There was no credible evidence that the Respondent continued to engage in such verbal or physical communication after the April 30, 2010, directive. At the start of the 2009-2010 school year, the Respondent approached the BRHS principal to inquire about organizing a theatre trip to New York for some of his drama students. The principal declined to authorize the travel as a school-sponsored event. The Respondent thereafter organized the trip on a private basis. Eight students expressed interest in going on the trip, and the trip ultimately occurred with a number of parents traveling as chaperones. At times, the Respondent discussed the proposed trip in his classes. The announcement of an organizational meeting occurred during class. The meeting was conducted on the school grounds at a time and place where play rehearsals were occurring, which had been previously arranged by the Respondent. There was no evidence that the Respondent mislead any participant to incorrectly presume that the trip was sponsored by the school. The participants in the trip were aware that the travel was not a school-sponsored event. There was no credible evidence that any participant or parent believed that the trip was a school-sanctioned event. The Respondent failed to comply with the school procedure for private use of the facility, which requires application and approval by school administration. Although execution of a facility lease may be required for larger groups, there was no evidence that such a lease would have been required for this meeting. There was no evidence that there was any adverse consequence to the Respondent's failure to seek permission to hold the organizational meeting in the previously-approved play rehearsal space. The time and location of the organizational meeting was not unreasonable, given the nature of the trip and the expected participants. Teachers who need to leave BRHS grounds during the workday are directed to obtain permission from a school administrator and then document the early departure in a log book maintained in the school office. The school administrators are the principal and the assistant principals, who are identified as such during formal meetings at the beginning of the school year. On September 2, 2010, the Respondent needed to go home on his lunch break and switch cars with his wife. The Respondent testified that he could not locate an administrator and that he thereafter went to the office of Bob McCabe, the BHRS "administrative parent liaison" and advised Mr. McCabe that the Respondent was leaving campus early. Mr. McCabe is not a school administrator and has no authority to approve a request to leave school grounds. Mr. McCabe works with parents and on student disciplinary matters. Mr. McCabe told the Respondent that he would tell the administrators, and the Respondent left the school. Mr. McCabe testified that shortly after the Respondent left, an assistant principal inquired as to whether the Respondent had left the grounds. Mr. McCabe also testified that the assistant principal had told him that she was present in her office at the time the Respondent claimed to be unable to find her, but the hearsay testimony was not otherwise corroborated. The evidence establishes that, had the Respondent requested to leave campus, the request would have most likely been granted, as such authorization, absent use of leave, was routinely granted by school administrators. There was no credible evidence that other teachers who have left school grounds without prior administrative approval have been subjected to discipline for the infraction. The Petitioner presented the expert testimony of Terry Osborn, dean of the University of South Florida College of Education, Sarasota-Manatee campus, who opined that some of the Respondent's social networking interactions could have had negative effects on the learning environment, could cause anxiety for some students, and potentially result in a loss of credibility by the educator. Mr. Osborne essentially based his opinion on very limited literature. There was no credible evidence that any of the adverse impacts identified by the witness has occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, dismissing the Administrative Complaint filed against Charles E. Willis. DONE AND ENTERED this 31st day of March, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of March, 2011. COPIES FURNISHED: Scott A. Martin, Esquire Manatee County School Board 215 Manatee Avenue West, Second Floor Bradenton, Florida 34205 Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Tim McGonegal, Superintendent Manatee County School Board 215 Manatee Avenue, West Bradenton, Florida 34206-9069
The Issue The issue for consideration in this hearing is whether Petitioner, Larsen Communications and Professional Services, Inc., should be certified and designated as a Minority Business Enterprise.
Findings Of Fact At all times pertinent to the issues herein, the Commission on Minority Economic and Business Development was one of the agencies in Florida responsible for the certification of women and minority owned businesses in Florida as Minority Business Enterprises. Larsen Communications and Professional Services, Inc. was operating a video production and public relations company in Tampa. Petitioner, as a part of its business operation, sought and performed contracts with various agencies of the State of Florida. Valerie D. Larsen, current President and 75 percent owner of the Petitioner corporation, is a graduate of high school in Hillsborough County. After graduation, she went to work as a legal secretary and worked in that field for several years. She is currently a financial analyst with GTE Data Services. From 1991 through 1993 she was a student at the Tampa Academy of Performing Arts from which she claims to have graduated, though she has no diploma to so indicate. While there, she took training in on-camera acting, camera handling, voice over, and other facets of video production. She also acted in and produced plays, directed plays, and was active in all aspects of theatre production, both from the artistic and the business sides. In March, 1990, Ms. Larsen married her husband, a 1973 graduate of Florida State University with a bachelor's degree in Broadcast Communications. Mr. Larsen was, for many years, a television reporter in the Tampa area as well as elsewhere. He has considerable experience in the on-camera presentation of news stories and has written many of the pieces he delivered on air. From the very beginning, Mrs. Larsen wanted to own her own business, and over the years, as she worked as a legal secretary and with GTE, she maintained this ambition. Several years ago, when her husband was put out of work, she got the idea of starting her own production company, not only to give herself an opportunity to do that which she most enjoyed doing, but also to give her husband something to do as well. Ms. Larsen admits that she made a big mistake in not hiring an attorney to help her draft the business organization papers. Instead, she went to Office Depot and purchased an incorporation kit which she filled out without any professional advice and submitted to the Florida Secretary of State's office for registration. In doing so, she made her husband the President of the company even though she was in charge and actually made the business decisions. She did this in order to help her husband maintain his self respect. This officer designation was corrected sometime thereafter. When Ms. Larsen graduated from the Tampa Academy of Performing Arts she knew she wanted to start her own company and what she liked to do. Video production seemed to fit the bill, and on September 4, 1992, because she no longer could act due to her pregnancy, she started the company. The initial funding for the company came from a $2,500 withdrawal from funds owned jointly by the parties and to which she had contributed over the years. At the time the company was started, Mr. Larsen had his severance pay of $3,200 per month for two or three months. This money was used for the family's living expenses. The money which was invested in the company, and which had been in the joint account, came, Ms.Larsen avers, from her salary from GTE Data Services. Ms. Larsen is currently President of the company. She professes to make all business decisions. She consistently researches jobs to bid on and is a subscriber to the Florida Administrative Weekly, which lists bid opportunities. If she find something she feels the company can handle, she contacts the agency and asks for a proposal package. Then, she claims, she prepares and submits the company's bid. Ms. Larsen on the one hand claims to handle all the company accounting, but on the other hand states she hires a CPA to do the payroll. She claims also to make all the arrangements for financing and borrowing for the company, the hiring and firing of personnel, and the solicitation of work for the company. There are no full time employees, however, besides the Larsens. Usually, people with the particular skills needed for a specific job are contracted with on a tempor ary basis. She decides who she wants to use on a particular job, determines the costs as to how much each element will cost, and comes up with a final bid price. She might have Mr. Larsen do some of the research and plug details into the computerized bid shell, but she does the majority of the bid process and makes the ultimate decision as to whether a bid will be submitted. She also pays all the bills. Mrs. Larsen claims she must do a lot of research for the business which she does in her spare time at work, during her lunch periods and in the evenings. She also calls Mr. Larsen at home and gives him things to look up. For her research, she uses the University of South Florida library, two newspapers and other research sources dealing with the subject matter of the pending bid, so that she can effectively evaluate the project and submit an appropriate bid. Bid prices are based on what it will cost her to hire the required people and lease the required equipment. Since the company is small, she hires most artists, such as writers, photographers, editors and graphic artists, on a per job basis. If Larsen is successful and is awarded a bid for a particular production, Ms. Larsen has the initial job of preparing the script for the production, the blueprint to present to the photographer. A script is prepared for each production designed around the requirements of that particular subject. Most scripts are written on the basis of her research and that of her husband, and the skills needed to prepare a script include an ability to do research, writing skills, formatting skills, experience and creativity. Once the script is prepared, it is presented to the client for review and suggestions. Upon final approval, Ms. Larsen hires the photographer who will do the shooting. Often the photographer works alone, but sometimes either Ms. or Mr. Larsen accompanies him. Mr. Larsen does some of the research and the typing and purchases some supplies, but major purchases are approved and determined by Ms. Larsen. He also is responsible for answering the phone. Mr. Larsen is often the narrator on their productions, which is appropriate because of his on-air experience and his voice. In Mr. Larsen's prior career as a news journalist he wrote some of his material and appeared on camera. The nature of news broadcasting, however, is different from the productions of Larsen Communications. Whereas news reporting is primarily a recitation of facts which have occurred, Larsen's productions are far more creative, designed to tell a story or sell a particular product or point of view. Therefore, his prior experience, while good for on camera work, is not necessarily translatable to the management of the work the company does. In fact, Ms. Larsen is of the opinion that he does not have any skills she does not have, and is convinced that if he were not with the company, his absence would not have much effect on its operation. She is quite confident that she could do what he does or could easily hire someone to do what he does. Larsen Communications is a small company. To date, not more than 10 contracts have been awarded to it, and in each case, the solicitation process described above was used. Earnings from the company are split. Ms. Larsen receives an intermittent draw, depending on the company income. Mr. Larsen receives a set salary of $1,000 per month. There are no bonuses paid because this is all Ms. Larsen feels can be afforded, and even Mr. Larsen's salary is based on the company's money flow. He has been a salaried employee for several years, but only recently has he been paid by check. Aside from Ms. Larsen's 75 percent of the stock and Mr. Larsen's 25 percent, there are no other owners of the company and no one else shares any risk of loss. If the business fails, Ms. Larsen will bear the biggest loss, and Mr. Larsen would have to find a job elsewhere. The original application for MBE certification submitted by Larsen in 1994 sought certification in three areas: video production, public relations and media relations. This has been amended and now the only certification sought is that in video production. Ms. Larsen believes that all three areas are interrelated. Mr. Larsen confirms the testimony of Ms. Larsen regarding the responsibility for accomplishment of duties within the corporation. When the company was formed, he was unemployed and he agreed to support Ms. Larsen in the operation of her business; the company was her brainchild. She is the one who secured and filled out the incorporation forms that were submitted to the Secretary of State's office, and he did not know what the papers intended or what they said he was to do. He knows he was the original President of the company and a Director, but he also recognizes that those designations have been changed in the interim. Based on his education and experience, he believes he is qualified in video production, public relations and media relations. However, he was in news broadcasting by experience and throughout his career, and the business of Larsen Communications is totally different - more like entertainment. Mr. Larsen indicated he probably could be called the Marketing Director of the company, but it is a small company and in reality he has no title. He is authorized to make decisions on minor matters, but the ultimate decisions are made by Ms. Larsen. The company is her baby, her brainchild and her business, and he agrees that if he were to walk away from the company, while she might have trouble running the business alone while maintaining a full time job elsewhere, she has the skills, the experience and the ability to do so. He could be replaced easily. At no time, according to Mr. Larsen, did he ever run the company. He has researched and written scripts but Ms. Larsen has always had a major idea or input into whatever he has done and he works, he claims, at her direction. When Larsen's application was forwarded to the Commission, it was evaluated by Mr. Ringgold who conducted a telephone interview with Mr. and Ms. Larsen on August 29, 1994. At this point, the Commission now agrees there is now no issue as to the ownership of the corporation and that Larsen Communications in owned by Ms. Larsen. Nonetheless, Mr. Ringgold recommended that Larsen's application be denied under the provisions of Rule 60A-2.005, F.A.C. because he believed that Ms. Larsen does not assume the majority share of risk; that she does not have the authority to control and the experience to exercise dominant control over the corporation; that she does not have sufficient technical capability to run the corporation; that her control is not real, substantial and continuing; that she does not control the purchase of equipment and supplies; that she does not have independence in seeking business and that she does not have direction and control over all aspects of the business. Because he now accepts the fact that Ms. Larsen has knowledge and control of the company's financial affairs, the preexisting objection on that grounds is withdrawn, but taken together, as of the date of the hearing, Mr. Ringgold still recommended denial. No evidence was presented by the Commission, other than the testimony of Mr. Larsen which tended to support Petitioner's position, which would show with particularity any basis for disbelieving Petitioner's assertions. When Mr. Ringgold made his recommendation for denial, his decision was based on the matters submitted by the applicant and the information gained in the telephone interview. He did not make an on-site inspection of Larsen's facility. By the same token, he did not know of Ms. Larsen's schooling at the Tampa Academy of performing Arts at the time he made his recommendation. He does not recall ever having changed his mind regarding a recommendation in the nine years he has been doing this work. Mr. Ringgold has his educational credentials in speech and has some knowledge of video production having worked in that area for his uncle while in school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Larsen Communications and Professional Services, Inc., be granted certification as a Minority Business Enterprise. RECOMMENDED this 29th day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-5839 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Not a Finding of Fact but a Conclusion of Law. - 4. Accepted and incorporated herein. Accepted and incorporated herein except for references to F.A.C. which are Conclusions of law. - 8. Accepted and incorporated herein. FOR THE RESPONDENT: None Submitted. COPIES FURNISHED: Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 218 Tampa, Florida 33607 Joseph L. Shields, Esquire Commission on Minority Economic and Business Development 201 Collins Building 107 West Gaines Street Tallahassee, Florida 32399-2000 Crandall Jones Executive Administrator Commission on Minority Economic and Business Development Collins Building - Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000
The Issue Whether Respondent should be placed in the school system's alternative education program at J. R. E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Evelyn R. Brown, Margaret Cullins, and Jacqelene Koptowsky, and had admitted into evidence four exhibits. There was no appearance on behalf of Respondent. No transcript was filed; no proposed findings of fact and conclusions of law were filed.
Findings Of Fact Respondent Gabriel Vieira, Student I.D. No. 7961148, was at all times material hereto, a student at Rockaway Junior High School in Dade County, Florida. During the 1985-1986 school year, Respondent was in the seventh grade. During the 1986-1987 school year, he was in both the seventh and eighth grades due to a mixed class schedule. On April 11, 1986, Margaret Cullins had Respondent in her seventh grade English class. On that date, she had to step between Respondent and another student who were about to fight and she sent Respondent to the principal's office. After his parents were contacted, Respondent was assigned three days of School Center Special Instruction (SCSI). This is the equivalent of an indoor suspension. On November 26, 1986, while he was assigned to her eighth grade English class, Ms. Cullins again referred Respondent for administrative management. The previous Friday, he had disrupted class. At that time, he also had no required materials, would not stay seated, and had not turned in any homework. That day Ms. Cullins had asked him for his telephone number; he gave her a false one. The request and false response were repeated Monday. It may be inferred that Respondent's false answers were intended by Respondent to prohibit Ms. Cullins from reaching Respondent's parents. On Tuesday, November 25, 1986, Ms. Cullins succeeded in contacting Respondent's parents on her own initiative, despite the false telephone numbers given her by Respondent. Respondent's misbehavior on November 26 apparently arose out of his anger at Ms. Cullins for having called his parents on November 25. That day he twice yelled at her, refusing to obey her instructions to work at assigned tasks and otherwise was loud, rude, belligerent, and surly to her in front of the other students, saying that he did not have to do anything she asked and would not do anything she asked. The disciplinary result of Ms. Cullins's November 26, 1986 referral is somewhat confused because Respondent was already on indoor suspension for someone else at the time. During the 1986-1987 school year, Evelyn Brown, mathematics teacher, had cause to refer Respondent to the office on five occasions. On September 23, 1986, she referred Respondent for not doing his homework, consistently disrupting class, walking around the classroom, failing to follow class work directions, and failing to follow previous instructions to bring necessary materials to class. The student management referral form on this incident reflects that either the teacher or the administrator made contact with Respondent's parents concerning the situation and that Respondent was assigned three days of SCSI. On November 13, 1986, Respondent was again referred by Ms. Brown for wasting time, failing to do any class work, failing to turn in any homework assignments, and for continued refusal to stay in his assigned seat. His behavior disrupted the class and disturbed other students' concentration. Although contact with Respondent's parents was attempted by the teacher and school administrators, it was not consummated on this occasion, and Respondent served detention for the teacher. On December 16, 1986, Ms. Brown told Respondent to change seats. He replied, " I will sit anywhere I want. You cannot tell me where to sit." This incident, together with other rude talk and walking around the room so as to disrupt the students who were trying to concentrate on the assigned work, resulted in the teacher contacting the Respondent's grandfather, since his parents were unavailable. Respondent was ultimately assigned four days of SCSI. On January 15, 1987 and February 10, 1987, Ms. Brown referred Respondent for the same type of inappropriate, disruptive, and nonproductive classroom behavior as she had reported on September 23, 1986. After each incident, Respondent's parents were contacted and on the last date, three days of SCSI were assigned. Jacqelne Koptowsky is assistant principal at Rockaway Junior High School. Her presentation of 20 pages of Student Case Management Referral Forms (P-3) reveal numerous incidents similar to those reported and testified to by Ms. Cull ins and Ms. Brown. Additionally, Respondent has been returned to the school by the security guard for truancy on one occasion. For this and other truancies, he has been referred by the school administration to the Department of Health and Rehabilitative Services and to the Dade County visiting teacher for correction of the truancy problem. Respondent also has failed to dress-out in physical education class thirteen times and has been reported to the administration on two occasions for use of provocative language in either Spanish or English to students or teachers. At various times; Respondent has been counseled reprimanded assigned teacher and administrative detentions, received two strokes of corporeal punishment, and been given indoor suspensions. It is a policy of the administration at Rockaway Junior High School not to assign an outdoor suspension to any individual with a truancy problem. In the 1986-1987 school year, Respondent was absent 13 times; several times were as a result of refusals to serve detentions and his attempts to transfer to other schools so as to avoid serving assigned detentions. In the 1985-1986 school year, Respondent failed four subjects and got D's in three others. At the conclusion of the first half of the 1986-1987 school year, Respondent had failing grades in all of his subjects. Respondent has met with the school guidance counselor at least 20 times, primarily with a view toward dropout prevention. Ms. Koptowsky has worked with a Metro-Dade Social Worker to rethink the benefits and drawbacks of assignment of Respondent to an opportunity school. Having determined from psychological and intelligent quotient (I.Q.) test scores, that Respondent is normal and therefore not eligible for any special programs for low I.Q., hyperactive, or learning disabled students, Ms. Koptowsky recommended his assignment to an alternative education program at J. R. E. Lee Opportunity School.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the School Board of Dade County enter a Final Order assigning, Respondent to the alternative education program at J. R. E. Lee Opportunity School, until a competent evaluation determines that it is appropriate for him to be returned to the regular school system. DONE and RECOMMENDED this 26th day of August, 1987, at Tallahassee, Florida. ELLA JANE P. 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 26th day of August, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis 0. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 Mr. and Mrs. Gabriel Vieira 3649 Southwest 99th Avenue Apartment #6 Miami, Florida 33165
The Issue The issue in these cases is whether, as the district school board alleges, a teacher and a paraprofessional physically abused, mistreated, or otherwise behaved inappropriately towards one of their special-needs students.
Findings Of Fact The Miami-Dade County School Board ("School Board" or the "district"), Petitioner in these cases, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. At all times relevant to these cases, Respondent Kamla C. Bhagwandin ("Dr. B.") was employed as an exceptional student education ("ESE") teacher in the Miami-Dade County public schools, a position which she had held for approximately 17 years. Dr. B. has earned a bachelor's degree in special education, a master's degree in English as a second language ("ESOL"), and a doctoral degree in educational leadership and organization. When the 2017-2018 school year started, Dr. B. was a special education teacher at South Dade Middle School ("SDMS"), where she taught a self-contained class containing 19 ESE students. At the beginning of the 2017-2018 school year, Respondent Darlene Taylor ("Taylor"), a paraprofessional, was assigned to Dr. B.'s classroom. Because Dr. B. had a relatively large class with nearly three times the number of students in other ESE classes at SDMS, substitute teachers were routinely assigned Dr. B.'s classroom to provide assistance. Thus, three adults typically were present in Dr. B.'s classroom during school hours. Tony Bermudez ("Bermudez") was one of the substitute teachers assigned to work in Dr. B.'s classroom during the 2017- 2018 school year. He was assigned to Dr. B.'s classroom about five times, his last day with her being August 31, 2017. That is the date of the event at issue, to which Bermudez, who has accused Dr. B. and Taylor of child abuse, is the district's only witness. Before turning to the disputed event, which occurred at the start of the school day, it will be useful to look at what happened immediately before and after the incident in question. At SDMS that year, the first bell summoning the students to class rang at 8:30 a.m., and the last bell at 8:35 a.m. Dr. B.'s regular practice was to escort her students from the cafeteria to the classroom between 8:30 a.m. and 8:35 a.m. It is undisputed that this is what she did on August 31, 2017, and that, by 8:35 a.m., Dr. B. and her students, including a 12-year-old autistic student named D., were in the classroom. Therefore, if anything unusual happened to D. that morning, as alleged, it happened no earlier than 8:30 a.m., and most likely after 8:35 a.m. It is undisputed that, on the morning of August 31, 2017, Bermudez informed Dr. B. (untruthfully) that he needed to go to the bathroom because his stomach was upset. He then left the classroom and proceeded directly to the office of Elizabeth Rodriguez, who he mistakenly thought was an assistant principal, but who was actually the school's test chairperson and ESOL chairperson. Ms. Rodriguez testified credibly at hearing that she had just returned to her office, to which she usually repaired after the last bell rang at 8:35 a.m., when Bermudez arrived. Bermudez came to her, she explained, "in the morning right after we had let the students into the classrooms." Later that same day, after Bermudez had accused Dr. B. and Taylor of wrongdoing, Ms. Rodriguez wrote and signed a statement describing her encounter with Bermudez. This contemporaneous statement is consistent with her final hearing testimony, but since it was written before any dispute about the time of Bermudez's visit had arisen, Ms. Rodriguez's initial account is particularly probative on that point. When the matter was fresh in her mind and she had no reason to hedge on the time, Ms. Rodriguez recorded the following: At approximately 8:30 a.m., Mr. Bermudez asked to speak to me in my office. (He was under the impression I was one of the Assistant Principals). He stated he wanted to inform the [person who assigns substitute teachers that] he no longer wanted to be assigned to the [special education] unit because of the aggressiveness. I asked him if the students were aggressive and he stated, "No, it's the adults". He elaborated by stating he had witnessed some things that were very upsetting and he had discussed it with his wife, who is also a teacher at another school and she advised him to speak to the principal. I assured him I would speak to the principal and to the ESE Program Specialist . . . on his behalf. I advised him to go back to the classroom and we would address his concern. By the time of the hearing, Ms. Rodriguez must have known that her contemporaneously recorded recollection of Bermudez's having approached her at "approximately 8:30 a.m." was not helpful to her employer's case against Dr. B. and Taylor because it leaves little or no time for anything untoward to have occurred in Dr. B.'s classroom that morning. Under questioning by the district's counsel, Ms. Rodriguez did her best to stretch the "approximately 8:30 a.m." time frame as wide as it would go, first to 8:40 a.m., and finally to "possibly" 9:00 a.m. Given her unqualified testimony about encountering Bermudez right after the students had gone to class (between 8:30 and 8:35 a.m.), however, and the contemporaneous statement that he had shown up in her office at "approximately 8:30 a.m.," the undersigned finds that Bermudez met with Ms. Rodriguez no later than 8:40 a.m. on August 31, 2017. This means that if Dr. B. and Taylor abused D., as Bermudez claims, then they did so in a hurry, for the students were not let into Dr. B.'s classroom until around 8:35 a.m., and Bermudez needed a minute or two to get from the classroom to Ms. Rodriguez's office. Ms. Rodriguez brought Bermudez to the principal, John Galardi, according to the latter, whose testimony on this point is credible, albeit inconsistent with Ms. Rodriguez's written statement. After Bermudez told Mr. Galardi that he had witnessed Dr. B. and Taylor abuse a student, Mr. Galardi called the school police department, which dispatched officers and detectives. Meantime, Mr. Galardi asked Bermudez to write a statement describing the incident he claimed to have observed. Bermudez wrote a statement, the first of several he would draft that day. When the detectives arrived, they asked Mr. Galardi if there were any surveillance videos that might have captured the incident. Mr. Galardi directed a custodian to retrieve the video from the closed-circuit TV camera in the hallway near Dr. B.'s classroom. The custodian brought out a video, which the detectives watched with Mr. Galardi. One of the detectives made a video recording on his cellphone of the monitor to which the surveillance video was being transmitted. This cellphone video, which runs about 67 seconds, is the footage that the district offered into evidence at hearing. The actual surveillance video was not offered. No information concerning its whereabouts was provided. Neither the custodian nor the detective testified at hearing about the circumstances surrounding the making of the cellphone video.1/ Putting aside the obvious chain of custody issues with the video, the quality of the derivative image is very poor. (Imagine using your cellphone to film the movie you're watching on TV, and then viewing the movie on your phone, and you'll get the picture.) Crucially, the detective cropped the image so as to eliminate the date and time stamp that, according to Mr. Galardi, the original surveillance video displayed. The thing that jumps out at the fact-finder when he watches this dubious video is that it not only fails to corroborate Bermudez's initial written statement, it actually contradicts him (if we assume, as the district contends, that the video depicts some portion of the event he claims to have witnessed). Although the record is silent as to when Bermudez first saw the video, there is little doubt (and the undersigned finds) that he had not viewed the recording before writing his initial statement. As the video begins, two figures (identified as Dr. B. and D.) emerge into the hallway, having exited the classroom, whose door——in a recessed entryway——is out of view. There is no indication of distress or discomfort in either individual's movements or posture, nothing consistent with a commotion or struggle. Although the video does not have an audio track, D.'s body language gives no suggestion that she is screaming or crying; rather, she appears to be composed, compliant, and unharmed. The pair does not remain outside the door to the classroom. Their faces are not visible. Dr. B. and D. immediately turn away from the camera, and walk calmly but purposefully down the hallway, towards glass doors at the far end. The two are walking side by side, and their body language suggests that Dr. B. is escorting D. The teacher might have her hand on the student's back, but that is not clear. What is clear is that Dr. B. is not pushing, pulling, or forcing D. to move. Before reaching the glass doors, Dr. B. and D. turn left, and it looks like they are about to enter a classroom. At this point, they are far from the camera, and the image quality is so poor that it is not possible to make out in detail what happens next. We can see, however, that Dr. B. and D. do not go into a classroom. Instead, they back up and return to the hallway, where they face each other for a few moments. There seems to have been a disturbance of some sort——perhaps D. has become uncooperative. Due to the graininess of the image and the distance of the subjects from the camera, the figures on the screen are practically silhouettes; they have their arms outstretched towards one another and might be holding hands. The image resembles that of a parent in a grocery store explaining to her pleading child that she cannot have a bag of cookies. There is nothing happening on screen that looks like physical abuse or violence of any kind. While this is going on, a third person appears, entering the hallway through the glass doors that are behind Dr. B. and D. in relation to the video surveillance camera. This person has been identified as Taylor. The arrival of Taylor prompts D. to hurry back to Dr. B.'s classroom, nearly breaking into a run. Dr. B. and Taylor follow, but at a normal walking speed. D. beats them to the classroom, obviously, and dashes into the recessed entryway, which takes her out of our view for more than ten seconds, as Dr. B. and Taylor make their way to the room. When the adults turn to enter the classroom, we lose sight of them as well, but for a split second we can tell that all three individuals are in the recessed entryway, probably because the door is locked. Suddenly, D. walks backwards into the hallway, as if to leave, and one of the adults (it is impossible to see which, as they are both off camera) promptly reaches out and takes hold of D. around the shoulder area. The district argues that the video shows Dr. B. grabbing D. by the head and jerking the student into the room. The undersigned rejects the district's interpretation of the blurry image because (a) the teacher appears more likely to have found purchase for her grip in D.'s collar and (b) D.'s head does not react as though she were being pulled by, e.g., the hair. The district further argues that, on the film, D. can be seen bending sharply at the waist, forming a 90-degree angle with her upper and lower body, proving that she was jerked with considerable force. Again, however, the undersigned rejects the district's interpretation of the ambiguous image. It must be stressed that this happens very fast and the video quality is very poor. As a result, people will see what they want to see. No doubt, therefore, some who see the video will agree with the district that someone yanked D. by the head. But the image does not persuade the undersigned that such is more likely than not what happened. Furthermore, Bermudez's hearing testimony, which for the first time included the detail that D. was bent over at a 90-degree angle, is unreliable, and not only because (as will be seen) Bermudez could not keep his story straight. It is highly unlikely that Bermudez could have seen this particular transaction, because he was in the classroom when it occurred, while D. and the adults were outside, in the entryway and hallway; indeed, the classroom door (although unseen in the video) was probably still closed. The undersigned infers that one (but not the only) reason Bermudez has given so many different versions of the disputed event is that he has been trying to tailor his testimony to the video. At any rate, based on the video, which is low-quality evidence, to be sure, but is at least more credible than Bermudez, the undersigned finds it to be as likely as not that D. instinctively bent forward under her own power, as opposed to someone else's forceful tug, because doing so probably would have improved her ability to resist, if she were inclined to struggle. Bending quickly towards the teacher would keep D.'s weight in front of her and her body lower to the ground, likely improving her balance, and also might loosen the teacher's grip. The main point, however, is that the video, with all of its limitations, is nowhere close to the knockout punch the district thinks it is. What it shows, at the end, is a teacher making a reasonable effort to stop a student from escaping, which could lead to a dangerous situation. This is what teachers are supposed to do. The district argues that this brief contact with D. constituted a manual physical restraint, which Dr. B. failed to report in accordance with district policy and state law. This argument is rejected. If the term "manual physical restraint" were interpreted so liberally as to include such incidental contact as this, which (for all that can be seen in the video) was reasonably intended to prevent a student from bolting, and which restricted the student's movement for about a second, the reporting burden would be unjustifiably heavy, and (worse) would create a perverse disincentive to reasonable protective intervention. Having reviewed what happened before and after the incident in question, and having looked at the video, the time has come to focus on Bermudez's many accounts of what he claims to have seen. As mentioned, Bermudez prepared three written statements on August 31, 2017. The first, though dated, does not reflect the time that it was drafted. Presumably, however, this initial statement was written in the morning, only a short time after the events described therein. The second states that it was signed by Bermudez at 12:50 p.m., less than four hours later. The third statement is typewritten and (as relevant to this case) is substantially similar to the second statement. On December 27, 2017, nearly four months after the disputed incident, Bermudez gave a deposition in the criminal case that the state brought against Dr. B. and Taylor. He also testified at their trial, but the transcript was unavailable for use in the instant hearing.2/ Finally, Bermudez testified at the final hearing of this matter. The following table summarizes the material portions of Bermudez's ever-changing testimony: Fist Written Statement 08/31/17 Second and Third Written Statements 08/31/17 Deposition 12/27/17 Final Hearing Testimony 02/19/18 No mention of D. screaming for 20-30 minutes about headphones. No mention of D. screaming for 20-30 minutes about headphones. For about a minute after the students entered the classroom, from the cafeteria, nothing unusual happened; it was a regular day. Then Dr. B. saw D. with headphones, walked up to D., and yanked the headphones away, which made D. act up and scream, for 20 to 30 minutes. "It had to be more than twenty, thirty minutes, around that time frame." T.B. had just gotten to the classroom. Dr. B. and Taylor were coming back from the cafeteria with the students. D. was complaining, and screaming intensely, "Headphones, headphones," over and over, for 20 to 30 minutes. D. was sitting down and never stood up. [Later, T.B. changes this to "she was maybe, like——kinda like in between, like between sitting and standing, kinda like."] Taylor wasn't in the classroom. Dr. B. and Taylor grabbed D. by the neck and threw her into a closed door with extreme force. No mention of D. being dragged out of the classroom. No mention of Dr. B. dragging D. by the ear. "This [is what] occurred today at approximately 9 a.m."] D. refused to sit down, so Dr. B. pulled D. by the hair and slammed her into the door. Dr. B. dragged D. out of the classroom. No mention of Dr. B. dragging D. by the ear. Taylor left with one of the kids. She returned with the child at the time Dr. B. picked up D. by the shirt. Taylor slammed or "bumped" the other child she was with (not D.) against the door. Dr. B. pulled D. by the shirt and slammed her face against the door. Then she dragged D. by the ear out the door. Taylor, who had reentered the classroom, remained inside, just sitting in her chair, waiting for Dr. B. to return. After 20-30 minutes, Dr. B. approached D. and told her to get up. Dr. B. grabbed D. by the sleeve and hair, pulled her out of the chair, and dragged her towards the door. Dr. B. slammed D.'s face against the door. Then, Dr. B. grabbed D. by her ear, and pulled D. outside by the ear. No mention of Dr. B., Taylor, or D. being out of the classroom. Dr. B. closed the classroom door, and T.B. couldn't see them, but he could hear D. screaming and crying outside. T.B. could hear D. screaming from the other side of the door. Dr. B. and D. were out of the classroom, in hallway, and T.B. couldn't see them, but he could hear D. screaming, for a few minutes. [Later, T.B. defines a "few minutes" as meaning "two to seven minutes."] Dr. B. and Taylor dragged D. by the hair and threw her into a desk with great force. After a couple of minutes, Dr. B. opened the door, dragged D. into the classroom by her hair, and threw her onto the desk in a rough, abusive way. Taylor was in the room with T.B., texting on her phone. When Dr. B. reentered with D., after being out of the class for a minute or two, Dr. B. had D. by the back of D.'s shirt, not pulling but holding onto her. Dr. B. guided D. to her chair, and D. sat down. After a few minutes, they reentered the room. Dr. B. had D. by the hair, and D. was bent at the waist at a 90 degree angle. Taylor came in behind them. Dr. B. pulled D towards the chair. Then Dr. B. threw or slammed D. into her chair, and D. was crying. Taylor hit D. on the back of the head, hard. Taylor walked into the classroom and hit D. in the back of the head, in a rough and very violent manner. No mention of this in the deposition. T.B. testifies at hearing that he couldn't remember it then. While D. was at her desk, Taylor walked behind D., told her to shut up, and smacked her in the back of the head. The material discrepancies are plain to see. The undersigned will discuss a few. Starting with the first statement, notice that Bermudez's original account is very straightforward and has just three salient details: (i) Dr. B. and Taylor threw D. into the door; (ii) together, they threw D. into her desk; and (iii) Taylor, by herself, hit D. in the head. Notice, as well, that this statement, prepared right after the event supposedly occurred, places Dr. B. and Taylor together in the room for the entire relevant time, and they never leave the classroom with D. The video shows something else completely. Contrary to Bermudez's statement, Taylor was not, and could not possibly have been, present in the classroom before Dr. B. and D. emerged into the hallway, as shown at the beginning of the short clip. We know for certain that Taylor was not there because she shows up later in the video, entering through a door at the other end of the hallway. Yet, in his most contemporaneous statement, Bermudez gets this critical detail badly, undeniably wrong, saying that Taylor was not only there, but was an active participant to boot. Conversely, the only scene in the video that could possibly raise an eyebrow——when someone grabs D.'s collar to prevent her from escaping——is not mentioned in Bermudez's first statement. Given the striking irreconcilability of Bermudez's first statement and the video, the undersigned wonders how anyone looking at the video on the morning of August 31, 2017, could not have questioned Bermudez's veracity or inquired further as to whether the custodian had retrieved the correct video footage. By 12:50 p.m., however, Bermudez had begun to back and fill. The undersigned suspects that before writing the second statement, Bermudez had watched the video, or been told of its contents. Yet, the changes to his story are so ham-fisted, how could no one have noticed? In the revised statement, without explanation, Taylor is not present when Dr. B., alone, flings D. into the door and, later, onto her desk. Now, conveniently, Bermudez tells us that Dr. B. dragged D. out of the classroom, and that they were gone for a couple of minutes (approximately the length of the video clip). Taylor appears in time to hit D. on the back of the head, but she must return to the classroom to do so, as the video requires. Bermudez's story became richer with (inconsistent) details during the December 27, 2017, deposition, while omitting key elements of his original version(s). At hearing, forced to acknowledge the inconsistencies, Bermudez made excuses: he was nervous, was on vacation, wasn't prepared, and didn't have an attorney. These are not persuasive. Think about it. Bermudez was the only witness in a criminal trial that might have put two people behind bars, and he was too nervous and unprepared to testify truthfully? At the final hearing, Bermudez struggled to harmonize all of his prior statements, but the result was a hot mess. The undersigned finds him, ultimately, to be an unreliable and incredible witness, and his testimony is rejected as unbelievable. This leaves the district with the video, which, for reasons already discussed, fails to prove the charges against Dr. B. and Taylor. Moreover, Dr. B. testified that the video actually depicts events of the preceding day, which she described at hearing. The undersigned is inclined to believe her.3/ The fault for the video's ambiguity with regard to the date and time of its making belongs solely to the district. It was the district's unilateral choice to rely on a low-quality, derivative "home movie" in lieu of the original surveillance video——a shabby copy that just happens to omit the date/time stamp, which, incidentally, would likely belie Bermudez's most recent testimony (assuming the video was truly made on the morning of August 31, 2017). This is because there was not enough time after 8:30 a.m. for the so-called "headphones incident" (see the table above) to occur and allow for Bermudez to make it to Ms. Rodriguez's office by 8:40 a.m. It is not necessary to make exculpatory findings of fact based on Dr. B.'s testimony because neither she nor Taylor was obligated to prove her innocence. Determinations of Ultimate Fact The district has failed to prove its allegations against Dr. B. by a preponderance of the evidence. The district has failed to prove its allegations against Taylor by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order exonerating Darlene G. Taylor and Kamla C. Bhagwandin of all charges brought against them in this proceeding, reinstating them to their pre-dismissal positions, and awarding them back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 28th day of June, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 28th day of June, 2018.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Eric R. Hartman has been licensed by the State of Florida as a real estate salesperson, having been issued license number 0455304. Mr. Hartman was originally licensed on August 12, 1985. The last status of Mr. Hartman's license was involuntarily inactive. On or about June 26, 1995, Mr. Hartman forwarded his real estate salesperson license renewal notice to the Department of Business and Professional Regulation, Division of Real Estate (Division of Real Estate). His license had expired on March 31, 1995. Mr. Hartman submitted the license renewal notice to the Division of Real Estate for the purpose of renewing his real estate salesperson license. On the license renewal notice, Mr. Hartman signed an affirmation that he had completed all of the requirements for renewal of his license. As a prerequisite for the renewal of his license, Mr. Hartman was required to successfully complete a minimum of 14 hours of real estate continuing education. At all times material hereto, Mr. Hartman knew of this requirement. Prior to submitting his signed license renewal notice, in order to comply with the required continuing education, Mr. Hartman had obtained a correspondence course for 14 hours of continuing education from the Bert Rodgers Schools of Real Estate, Incorporated (Bert Rodgers). The correspondence course included a course book and test booklet. At the end of each chapter in the course book was a progressive quiz, and the answers for the quiz were provided at the end of the course book. Mr. Hartman took the progressive quiz after completing each chapter and, for the total book, had only two incorrect answers. The test for the continuing education course was open book. After completing the test, Mr. Hartman forwarded the test booklet to Bert Rodgers for grading. Based upon his performance on the progressive quiz after each chapter, there was no reason for Mr. Hartman to believe that he had not passed the test and, therefore, successfully completed the course. Confident that he had passed the continuing education course, Mr. Hartman submitted his license renewal notice to the Division of Real Estate. At all times material hereto, Mr. Hartman knew that he was required to maintain and submit to the Division of Real Estate, upon request, a course report certificate for the continuing education. The certificate indicates that he had timely and successfully completed the continuing education course. At the time that Mr. Hartman submitted his signed license renewal notice, he had not received a course report certificate from Bert Rodgers. On July 10, 1995, relying upon Mr. Hartman's representation that he had successfully completed the requirements for renewal of his license, the Division of Real Estate renewed Mr. Hartman's license and issued him a real estate salesperson license. His license had an effective date of June 23, 1995, and an expiration date of March 31, 1997. Subsequently, Mr. Hartman received notification from Bert Rodgers that the course material, including the test booklet, had expired and was no longer valid. Simultaneously, Bert Rodgers provided Mr. Hartman with a new and valid course book and test booklet. He completed the new test booklet and forwarded it to Bert Rodgers for grading. At the time that Mr. Hartman signed his license renewal notice and forwarded it to the Division of Real Estate, he had no intent to deceive or mislead or to make a material misrepresentation for the purpose of inducing the Division of Real Estate to renew his license. On his own initiative, by letter dated August 28, 1995, Mr. Hartman notified the Division of Real Estate of the situation regarding the Bert Rodgers continuing education course. After having forwarded the new and valid test booklet to Bert Rodgers, Mr. Hartman, subsequently, received a course report certificate from Bert Rodgers. The certificate indicated, among other things, that Mr. Hartman had taken a 14-hour continuing education correspondence course, which was completed on August 25, 1995, and that he had received a grade of 93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order imposing a $1,000.00 administrative fine against Eric R. Hartman. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1997.
Findings Of Fact The Petitioner has standing to challenge the proposed rules. He is a licensed Hearing Aid Specialist holding license number 34804-69 issued by the Respondent. On December 28, 1984, the Board of Hearing Aid Specialists noticed its intent to adopt Rules 21JJ-1.11 and 21JJ-1.12 by providing notice in Volume 10, Number 52 of the Florida Administrative Weekly. These Rules as proposed read as follows: 21JJ-1.11 Designation of Official Reporter. Council designates PSC Professional Services, Inc. Publishers of the Florida Administrative Law Reports (FALR) , as its official reporter for the purposes of publishing and indexing by subject matter all orders rendered after a proceeding which affects substantial interests has been held. 21JJ-1.12 Conducting Meetings, Hearings, and Workshops by Communications Media Technology. The Council will follow and apply Rule Chapter 28-8, Florida Administrative Code, for conducting meetings, hearings, and work- shops by means of communications media tech- nology except when otherwise explicitly pro- vided by rule. One exception shall be that the time frame for notice of such meetings, hearings, and workshops shall be seven (7) days in advance. An economic impact statement was filed pursuant to 120.54(2)(a), Florida Statutes. No evidence was presented to demonstrate that this economic impact statement was inaccurate or that the fairness of this hearing was impaired thereby.
