The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 to suspend Respondent from his employment as a teacher for ten days without pay. 1 All references to chapter 120 are to the 2019 version. 2 All references to chapter 1012 are to the 2018 version, which was in effect at the time of the alleged misconduct at issue in this proceeding.
Findings Of Fact Based on the credible and persuasive competent substantial evidence in the record, the following Findings of Fact are made: The Parties Petitioner, Miami-Dade County School Board, is charged with the duty to operate, control, and supervise free public schools in Miami-Dade County pursuant to section 1001.32, Florida Statutes (2018), and article IX, section 4(b) of the Florida Constitution. Respondent has been employed by Petitioner as a teacher since 2000. He has been employed as an art teacher at E.W.F. Stirrup Elementary School ("Stirrup") for the last 18 years, including when he is alleged to have engaged in the conduct that has given rise to this proceeding. Respondent is certified in art, graphic design, and vocational education. Notice of Specific Charges The Notice of Specific Charges ("NSC"), which constitutes the administrative complaint in this proceeding, alleges two instances of conduct on Respondent's part as the grounds for the proposed disciplinary action. Specifically, the NSC alleges that on or about September 27, 2018, Respondent told a female 5th grade student words to the effect of "get out here; I do not want you here," and forcibly pushed her away with his hand. The NSC also alleges that Respondent used profanity, spoken in Spanish— specifically, the words "mierda"3 and "pinga"4?while covering a class of kindergarten students. The complaint alleges that two adults witnessed Respondent's use of these words.5 This incident is alleged to have occurred on or about December 5, 2018. Based on this alleged conduct, the NSC charges Respondent with misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Evidence Adduced at the Final Hearing The September 27, 2018 Incident 3 Translated into English, "mierda" means "shit." 4 Translated into English, "pinga," as used in the context pertinent to this proceeding, means "fuck." 5 As more fully discussed below, the NSC does not allege that Respondent's use of these words was directed at any students, or that any students saw or heard Respondent use these words. On September 27, 2018, S.D., a minor, was a student in Respondent's 5th grade art class. S.D. testified, credibly, that on that day, Respondent told her to "get out of his way," then pushed her away by placing his hands on her shoulders. She testified that Respondent's words and actions made her feel "embarrassed, or, like, weird." S.D. acknowledged that she had gone up to Respondent and tried to talk to him while he was talking to the president of the Parent Teacher Association ("PTA"). She tried to get hand sanitizer and Respondent said to her "not now, go away" because he was talking to the PTA president at that time. Respondent characterized S.D. as a child who "has a reputation for basically not obeying anything." He testified that when S.D. approached his desk, he was in a discussion with the PTA president, and he told S.D. to "get out of here" and "sit down." He did not recall touching her. He stated that from where he was standing, he doubted that he could have reached her to push her away, and that had he pushed her, she likely would have fallen. No other witnesses testified at the final hearing regarding this incident. The December 5, 2018 Incident On Wednesday, December 5, 2018, Respondent was assigned to cover another teacher's kindergarten class starting at 9:00 a.m., so that the teacher who regularly taught that class, Ms. Rivero, could attend an exceptional student education ("ESE") meeting regarding one of her students. For the 2018-2019 school year, Respondent was assigned a full day of planning each Wednesday. In addition, Respondent was assigned one hour of planning every other day of the school week, per the Miami-Dade School District ("District") policy of providing teachers a minimum of one hour of planning per day.6 6 Respondent was assigned a full day of planning on Wednesdays in the 2018-2019 school year. This was not a function of his having an extraordinary workload; rather, it was because on Wednesdays, the language arts classes were scheduled back-to-back and students were dismissed early, so that it was infeasible to schedule art classes on Wednesdays. As a result of this scheduling, Respondent enjoyed nearly four more hours of planning per week than the minimum planning time to which he was entitled under the District's planning policy. According to Smith-Moise, if a teacher's schedule provides more than an hour of planning per day, that teacher may be requested, from time to time, to use that additional planning time for involvement in other school activities, including covering other teachers' classes as necessary. The administration at Stirrup generally attempts to schedule substitute teachers to cover classes when a teacher is called away from his or her class; however, on December 5, 2018, another teacher's class already was being covered by a substitute teacher. Because Respondent had planning that entire day, he did not have classes, so was available to cover Rivero's class. The length of ESE meetings varies, depending on the type of ESE service being delivered and whether the students' parents agree with the school district regarding the ESE services proposed to be provided. This particular meeting was an initial ESE team staffing meeting; these types of meetings often are relatively long compared to other types of ESE meetings. Respondent covered Rivero's class on December 5, 2018, from approximately 8:35 a.m. until shortly after 1:00 p.m., when a substitute teacher was called to cover the class for the remainder of the ESE meeting. During the time he was covering Rivero's class, Respondent called the Stirrup administration office multiple times, and also called and sent text messages to a fellow teacher, Yvette Mestre, asking how long the ESE meeting would take and when it would be over. In response to Respondent's calls, Smith-Moise twice left the ESE meeting to speak to Respondent in Rivero's classroom. Both times, when she entered the classroom, she observed Respondent disengaged from the students and talking very loudly on his phone. Respondent made clear to Smith-Moise that he was very frustrated at having his planning time taken to cover Rivero's class when he had other responsibilities to attend to.7 7 Respondent testified that he had a great deal of work to do on a large mural project for his own classes that needed to be completed under a tight deadline. Shortly after the beginning of the school day on December 5, 2018, Smith- Moise had taken a student from Rivero's class to Mestre's classroom because the student was misbehaving in Rivero's classroom. A short time thereafter, Respondent began sending text messages to Mestre, asking when the ESE meeting was going to be over. Mestre, who was occupied with teaching her own class, responded that she did not know, and suggested that Respondent contact the administration office. Around 10:30 or 11:00 a.m., Respondent began calling Mestre, again asking about the length of the ESE meeting. Mestre testified that "he seemed upset because he had stuff that he wanted to plan." Mestre again responded that she did not know and suggested that Respondent contact the administration office. At some point, Mestre went to Rivero's classroom to retrieve a lunchbox for the student from Rivero's class whom she was supervising. When she entered the classroom, she observed Respondent on his phone. Respondent told Mestre that he was on the phone with his United Teachers of Dade ("UTD") representative and that he was upset at having to cover Rivero's class because it was his planning day. Mestre went to the administrative office and reported to Smith-Moise that Respondent was upset and needed assistance in Rivero's classroom. Smith-Moise directed Mestre to take Acevedo Molina, an office assistant, to the classroom so that she (Acevedo Molina) could assist Respondent. According to Mestre, when they entered the classroom, Respondent initially thought Acevedo Molina was going to take over supervision of the class; however, when Mestre informed him that Acevedo Molina was there to assist him but would not be taking over supervision of the class, Respondent became very irate, raised his voice, and used the words "mierda" and "pinga" in speaking to them.8 Acevedo Molina confirmed that Respondent used these words when he spoke to her and Mestre. Mestre and Acevedo Molina were, respectively, "shocked" and "surprised" at Respondent's use of these words. 8 Mestre testified that Respondent said, translated into English, "[t]he school doesn't understand the shit that I do," and "they don't give a fuck what I do in this school." Respondent testified that he does not recall having said those words when he spoke to Mestre and Acevedo Molina that day. There is conflicting evidence whether Respondent used those words inside the classroom, such that they were said within earshot of the students, or outside of the classroom, where the students would not be able to hear or see him use the words. Mestre and Acevedo Molina both testified that they had entered Rivero's classroom and were inside the classroom with Respondent when he used the words. Respondent claims that he had to have stepped outside of the classroom into the corridor to speak to Mestre and Acevedo Molina, because the door was locked and they would have been unable to open it and enter the classroom on their own. In any event, it is unnecessary to determine whether Respondent used these words in the classroom within the students' earshot, because the NSC only charges Respondent with having said "mierda" and "pinga" while "covering a class of kindergarten students for another teacher," and that Respondent's use of these words was "overheard by two adult witnesses." The NSC does not allege that Respondent directed the words toward any students or that any students saw or heard him use these words.9 No direct or persuasive circumstantial evidence was presented showing that any students saw or overheard Respondent use those words. Although Mestre and Acevedo Molina testified that Respondent was inside the classroom when he said the words, both testified that the words were not directed toward the students, and neither testified that any students heard or saw Respondent say those words. Thus, even if the evidence conclusively established that Respondent was inside the classroom when he said those words—which it does not—that does not prove that any students saw or heard Respondent use those words. To that point, Smith-Moise 9 Trevisani v. Dep't of Health, 908 So. 2d 1008, 1009 (Fla. 1st DCA 2005)(a respondent cannot be disciplined for offenses not factually alleged in the administrative complaint); Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla 1st DCA 1996)(predicating disciplinary action on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act). See Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984)(administrative complaint seeking to impose discipline must state, with specificity, the acts giving rise to the complaint). testified that the school had not received any complaints about Respondent's use of those words from any of the students or their parents. The UTD Contract establishes a policy of imposing progressive discipline ("Progressive Discipline Policy") when "the Board deems it appropriate, and . . . the degree of discipline shall be reasonably related to the seriousness of the offense." Neither the Progressive Discipline Policy nor Petitioner's adopted policies articulate a disciplinary "scale" or penalty categories applicable to specific types of conduct. There is no competent substantial evidence in the record showing that Respondent previously has been subjected to disciplinary action by Petitioner. Petitioner did not present any competent substantial evidence establishing the factual basis for its proposal to suspend Respondent for ten days for the offenses charged in the NSC. Findings of Ultimate Fact As noted above, Petitioner has charged Respondent with misconduct in office under rule 6A-5.056(2) for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Whether an offense constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but is instead an ultimate fact). Charged Conduct and Rule Violations The September 27, 2018 Incident Based on the foregoing, it is determined, as a matter of ultimate fact, that Respondent pushed S.D. on September 27, 2018. There was no justification for Respondent to place his hands on and push S.D., even if she interrupted him while he was speaking with another person. Respondent's conduct in pushing S.D. constituted misconduct in office, as defined in rule 6A-5.056(2). Specifically, Respondent's conduct did not comport with rule 6A-10.081(1)(a), which provides that his primary professional concern must be for the student, and requires him to exercise best professional judgment. In pushing S.D., he did not treat her as his primary professional concern, and he did not exercise best professional judgment. Additionally, Respondent's conduct did not comply with rule 6A-10.081(2)(a)1. or School Board Policies 3210 and 3210.01. Specifically, in pushing S.D., Respondent did not make a reasonable effort to protect her from conditions harmful to her mental and physical health and safety. Although S.D. was not physically injured, she was embarrassed by Respondent's conduct in pushing her. Respondent's conduct also did not comply with rule 6A-10.081(2)(a)5. or School Board Policies 3210 and 3210.01. Respondent's conduct in pushing S.D. was intentional and it exposed her to embarrassment. Because Respondent's conduct in pushing S.D. violated rules 6A- 10.081(1)(a)1. and (2)(a)1. and 5., and School Board Policies 3210 and 3210.01, it is found, as a matter of ultimate fact, that Respondent committed misconduct in office, pursuant to rule 6A-5.056(2). Pursuant to the UTD Progressive Discipline Policy, it is determined that Respondent's conduct in pushing S.D. was sufficiently serious to warrant suspending him without pay for five days. There was no justification for him having pushed her. Although S.D. was not physically injured as a result of Respondent's conduct, the potential existed for her to have been injured had she fallen, and, in any event, Respondent's intentional action subjected her to embarrassment. The December 5, 2018 Incident Based on the foregoing findings, it is determined, as a matter of ultimate fact, that Respondent used the words "mierda" and "pinga," which are profane words, when speaking to Mestre and Acevedo Molina on December 5, 2018. However, for the reasons discussed above, it is determined, as a matter of ultimate fact, that Respondent did not direct those words toward the students or that any students heard or saw him use those words.10 Respondent's use of profanity in speaking to Mestre and Acevedo Molina did not comport with rule 6A-10.081(1)(c). In using profanity toward his colleagues, Respondent did not strive to achieve and sustain the highest degree of ethical conduct. Mestre and Acevedo Molina both testified to the effect that they viewed his conduct as inappropriate in that professional setting. Respondent's use of those words when speaking to Mestre and Acevedo Molina did not comply with the requirement in School Board Policy 3210 to refrain from the use of profane or abusive language in the workplace. Respondent's use of those words when speaking with Mestre and Acevedo Molina also did not comply with the standard set forth in School Board Policy 3210.01, which requires the employee to show respect for other people. In sum, Respondent's conduct in saying "mierda" and "pinga" while speaking to Mestre and Acevedo Molina violated rules 6A-10.081(1)(c) and School Board policies 3210 and 3210.01. Accordingly, Respondent's conduct constituted misconduct in office under rule 6A-5.056(2). As discussed above, there is no competent substantial evidence establishing that Respondent has ever been subjected to discipline by Petitioner prior to this proceeding. Although Respondent's conduct in using profanity when speaking to two adult colleagues violates certain policies, in light of the UTD Progressive Discipline Policy, such violation is not sufficiently serious to warrant suspension without pay. Therefore, it is determined that, consistent with the concept of progressive 10 Further, as discussed above, the administrative complaint does not charge Respondent with using those words toward students or charge that any students saw or heard him use those words. discipline, Petitioner should issue a verbal reprimand to Respondent for his conduct in using profanity when speaking to his colleagues. Because Respondent was not charged with, and the evidence did not prove, that he directed profanity toward any students or that any students saw or heard him use profanity, Petitioner may not impose discipline on Respondent on that basis. Just Cause Based on the foregoing, it is determined, as a matter of ultimate fact, that just cause exists to suspend Respondent. Recommended Penalty Based on the foregoing, it is determined that Respondent should be suspended for five days without pay for having pushed S.D. Based on the foregoing, it is determined that Respondent should be issued a verbal reprimand for using profanity when speaking to Mestre and Acevedo Molina and Respondent should receive five days of back pay for the balance of the ten-day period for which Petitioner proposed to suspend him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, consistent with the foregoing, Petitioner enter a final order suspending Respondent from his employment as a teacher for five days without pay, issuing a verbal reprimand to Respondent, and awarding Respondent back pay for five days. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 1st day of June, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Cristina Rivera, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Carlos M. Sanjurjo Apartment 214 14907 Southwest 80th Street Miami, Florida 33193 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues in this dispute are promoted by a~ administrative disciplinary action brought via a charging letter, through Herb A. Sang, Superintendent of Schools of Duval County, Florida, against Alfred Denson, an employee of the Duval County School Board. These allegations are under the authority of the Duval County Teacher Tenure Act. The Respondent is alleged to have violated Section 4(c) of the Duval County Teacher Tenure Act related to a claim of excessive or unreasonable absences from the performance of duty or refusal or inexcusable failure to discharge the duties of his employment.
Findings Of Fact Alfred Denson is a tenured employee with the Duval County, Florida, School Board. At all times relevant to this inquiry he has been the beneficiary of such tenure. Respondent's position with the Duval County School Board is that of P. E. resource teacher. In the school year 1984-1985, and in particular October 1984 through the end of the school year in June 1985, Respondent served as P. E. resource teacher in several elementary schools within the Duval County School System. Those schools were J. Allen Axson, Beulah Beal and Arlington Heights. On October 12, 1984, the principal of Beulah Beal Elementary School, Olivia W. Bryant, wrote to the Respondent by way of confirmation of a conference held between the principal and the Respondent on the subject of what Ms. Bryant considered to be a violation of school procedures. In this instance, Bryant claimed that the Respondent had violated the Duval County School Board procedures by signing in later than 8:05 a.m. and signing out earlier than 3:25 p.m. on October 5 and October 12, 1984. These were dates when the Respondent was assigned to perform his duties as a resource teacher at Beulah Beal Elementary School. In October 1984 Respondent's duty assignment required him to offer instruction at Beulah Beal on Friday within each school week. A copy of the conference letter may be found as Petitioner's Exhibit 3 admitted into evidence. Jerry Disch, a director of athletics for the Duval County school system, was also made aware of this correspondence. In the school year 1984-1985 Disch was the Respondent's supervisor. On October 12, 1984, Respondent took half a day of personal leave, and on the ensuing Fridays of October 19, October 26, November 2, and November 9, 1984, all Fridays on which his duty assignment would have been to offer instruction as Beulah Beal Elementary School, Respondent did not attend his duties at that school. In those latter instances he took either personal or sick leave. Again on November 16, 1984, a Friday when he was due at Beal, Respondent took sick leave indicating that he was suffering from a virus. Taking into account the pattern of non-attendance at Beulah Beal School, the principal, Ms. Bryant, wrote to Disch as athletic director and supervisor of the Respondent. A copy of that correspondence will be found as Petitioner's Exhibit 4 admitted into evidence. The date of the correspondence is November 20, 1984. By this correspondence, Bryant complains to Disch on the subject of Respondent's non-attendance at Beulah Beal Elementary School and the need for the students to receive sequential physical education as a part of the curriculum. This correspondence requests that Disch take action to provide for the physical education needs of the students at Benlah Beal. November 23, 1984, a Friday, was a holiday. However, on November 30, 1984, and December 7, 1984, dates upon which the Respondent was assigned to the Beulah Beal Elementary School to provide instruction, Respondent again failed to attend. Respondent took sick leave on November 30, 1984, indicating that he was suffering from a virus. Respondent took sick leave on December 7, 1984, indicating that he was suffering from a cold. In view of this pattern, Disch wrote to the Respondent on December 7, 1984. A copy of this correspondence may be found as Petitioner's Exhibit 5 admitted into evidence. In the correspondence Disch relates the pattern of eight consecutive Fridays in which Respondent had not offered instruction at Beulah Beal and points out the fact that the children had not received physical education instruction for two months. On December 14, 1984, and again on January 2, 1985, Respondent took sick leave based upon an indication that his father was sick. Both of these were dates on which Respondent was due to attend his duties at Bealah Beal School. Respondent was due at Benlah Beal School on January 11, 1985, and January 18, 1985. On the first date Respondent took sick leave indicating that he had a toothache, and on the second date Respondent took sick leave indicating that his father was sick. Again on January 26, 1985, when the Respondent was supposed to attend his duties at Benlah Beal Elementary School, he took sick leave based upon an indication that his father was sick. On January 28, 1985, Ms. Bryant wrote to Dalton D. Epting, director of certificated personnel within the Duval County school system, setting out the pattern of absences by the Respondent as it relates to the Bealah Beal School. A copy of this correspondence may be seen as Petitioner's Exhibit 6 admitted into evidence. Disch was made aware of this correspondence. On January 29, 1985, Disch wrote to Dr. Larry Paulk, assistant superintendent for personnel in the Duval County school system, and described the fact that the Respondent had not appeared for his assignment as P.E. resource teacher for a period of 13 consecutive weeks. In this correspondence Disch asked for guidance from the assistant superintendent on the question of what steps should be taken in the matter. A copy of this memorandum may be found as Petitioner's Exhibit 7. As a result, a conference was held between Disch, Paulk and the Respondent sometime in January or February 1985 to discuss Respondent's non-attendance at Beulah Beal. In that conference Respondent was made aware that continued excessive absences might lead to some form of action being taken against him for such non-attendance. In the conference the Respondent appeared apathetic and did not seem to be too concerned about his non- attendance or the fact that the students were not receiving an organized physical education program, which was part of the curriculum and thereby an integral part of their education. Respondent made comment that he was good, an all-pro football player, which latter comment was true. He indicated it was beneath his dignity to deal with elementary students in a P.E. program as opposed to more sophisticated activity. As a result of the meeting between Paulk, Disch and the Respondent, a change was made in the Respondent's work schedule. That change was effective March 4, 1985, and required the Respondent to attend his duties at Beulah Beal on Wednesday instead of Friday. Between October 12, 1984, and March 4, 1985, Respondent had missed every intervening Friday on which he was scheduled to offer instruction at Beulah Beal. That would include the dates February 1, 8, 16, 22 and March 1, 1985. In those instances, he took leave, relating that his father was sick. Following the change in schedule, on March 6, 13, 20 and 27, 1985, and on April 3, 1985, dates on which the Respondent was scheduled to appear at Beulah Beal to offer instruction, he did not attend. Respondent took leave on those dates indicating that his father was sick. In view of the fact that the Respondent had not attended his duties at Beulah Beal on any of the weeks from October 12, 1984, through April 3, 1985, an additional change was made to his schedule at Beulah Beal. Beginning April 15, 1985, he was to offer his services to Beulah Beal on Tuesday. He missed the first Tuesday, April 16, 1985. He missed the next Tuesday, April 13, 1985, and the following Tuesday, April 30, 1985. On May 7, 14, 21 and 28, 1985, Tuesdays for which he was assigned to conduct duties at Beolah Beal, he did not attend. Again on Tuesday, June 4 and Tuesday, June 11, 1985, he did not attend Beulah Beal School where he was assigned. The reasons for non-attendance in the time frame referenced within the paragraph are based upon Respondent's indication that his father was ill, that he was personally ill and for reasons that he was taking a personal day. Following the initial change of his work schedule from Friday to Wednesday pertaining to duties at Beulah Beal, Respondent was absent for the next five Wednesdays, having been absent only one other Wednesday since October 12, 1984. Within that same five-week period he was absent on Friday only once, whereas he had been absent seventeen consecutive working Fridays before the schedule change. When the second change of schedule was made on April 15, 1985, making his required appearance at Beulah Beal on Tuesday and not Wednesday, he was absent every Tuesday from that time to the end of the school year. Before the second change, he had been absent on Tuesday only once since October 12, 1984, and after April 15, 1985, he was absent twice on Wednesday from that date to the end of the school year. Respondent's absenteeism during the 153 working days for teachers in the school year 1984-1985 was 56.5 days or roughly forty per cent of all days. By contrast, other persons within the Duval County school system who were in a similar job classification to that of Respondent were absent no more than ten days. The leave slips which Respondent had submitted regarding his illness and that of his father were not informative in terms of specific descriptions of illnesses except as it relates to an indication of toothache, viruses or colds. When confronted with the allegations of this complaint, upon taking the stand in his own behalf at the final hearing, the Respondent was evasive upon questioning by counsel for the Petitioner as to the nature of his illness and that of his father during the occasions on which he failed to attend his duties at Bealah Beal School. Having considered the circumstances of this matter, this pattern of absenteeism is excessive, unreasonable and inexcusable. It is clearly contrived to avoid attendance to duties at Beulah Beal School. Even allowing that some of these absences were legitimate, the pattern of non-attendance at the Beulah Beal School that has emerged is not found to be a matter of mere coincidence. It is a deliberate attempt by the Respondent to avoid attending his duties at Beulah Beal School. While an adjustment was made at Beulah Beal School to bring in a substitute P.E. resource teacher, that did not occur without penalizing the administration of the Duval County school system, the administrator of Beulah Beal School and, most importantly, the children who attend that school. Respondent's contentions that he was entitled to take sick leave in his own behalf and for the benefit of his father and his entitlement to personal leave pertain only when legitimate use is made of those contractual rights. That legitimacy cannot be and is not found in this case. Respondent has urged, in his testimony, that in addition to his entitlement to take sick leave and personal leave, he had been prejudiced by a change in schedule at Beulah Beal School which was contrary to the terms of his rights as a tenured employee of the Duval County school system. The more likely explanation is that the Respondent "fell out" with Ms. Bryant, the principal, when she admonished him to sign the attendance roster in a proper fashion as indicated on October 12, 1984; however, even if Respondent is correct in his assertion that the schedule at Beulah Beal was not within contractual terms, the future pattern of arbitrary non- attendance at that school was not an appropriate method to alleviate the problem.
The Issue Whether Respondent should have been suspended and should he be dismissed from his employment with the Dade County Public Schools.
Findings Of Fact Respondent, Anthony White (White) began his employment with Petitioner, the School Board of Dade County, Florida (School Board) in August 1988 as a security monitor. At all material times to this proceeding White was employed by the School Board in that position and was assigned to Hialeah Senior High School. The responsibilities of a security monitor are to provide a safe environment for students and to assist in the orderly operation of the school by keeping trespassers from the school grounds and getting the students to class on time. From February 14, 1994 to June 17, 1994, Sebrina Richards was employed by the School Board at Hialeah Senior High School as a security monitor. During the course of her employment at Hialeah Senior High School, Ms. Richards worked with White and interacted with him during the course of the day. On or about March 7, 1994, White made the following explicit sexual comments and advances toward Ms. Richards: he told her that "I have some condoms in my pocket, let's go find an empty room so I can get some ass." he told her that if she engaged in sexual intercourse with him that she would be giving him her paychecks. he accused her of having sexual relations with a male co-worker. he accused her and another female security monitor of engaging in sexual relations and asked if he could watch them and join in. Ms. Richards reported White's conduct to the administration at Hialeah Senior High School shortly after the incidents occurred. Between February and March, 1994, White, in the presence of Ms. Richards, on at least four occasions, verbally harassed female students enrolled at Hialeah Senior High School, while on School Board property, by using foul and inappropriate language and making explicit sexual comments and advances. During the 1993-94 school year, in the presence of Ms. Richards, White offered to pay a female student $50 if she would engage in oral sex with him. On or about March 16, 1994, White was socializing with a female student in his personal vehicle on School Board property during school hours. On June 13, 1994, Mr. Frank Wargo, the principal at Hialeah Senior High School, made a recommendation that White be dismissed from his employment with the School Board based on White's use of foul and inappropriate language and the making of sexual comments and advances toward female students and a female Security Monitor. On July 13, 1994, a Conference-for-the-Record was held to address White's conduct. At the conference, White told the school administrators that after this was over they would not like it. The school administrators took that statement as a threat. White had been reprimanded in December, 1990 for the use of offensive and sexually-oriented language toward female students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the suspension of Anthony White as a Security Monitor with the Petitioner be upheld and that Anthony White be dismissed from his employment with the Petitioner. DONE AND ENTERED this 5th day of May, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6620 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted in substance. Paragraph 5: Accepted in substance except as to the date that she was hired. The evidence established that she was hired in February, 1994. Paragraph 6: Accepted. Paragraph 7: Accepted except as to the dates. The evidence established that the dates were February, 1994 and March, 1994. Paragraphs 8-13: Accepted in substance. Paragraph 14: Rejected that White verbally threatened the administrators. Paragraph 15: Accepted. COPIES FURNISHED: Anthony L. White 725 Northwest 129th Street Miami, Florida 33168 Gerald A. Williams, Esquire Dade County School Board 1450 Northeast 2nd Avenue, Suite 562 Miami, Florida 33132 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue, #403 Mimai, Florida 33132-1308
The Issue Whether the employment of Petitioner, Cornelius B. Frankliln, was improperly terminated by Respondent, The School Board of Seminole County, in the summer of 1988.
Findings Of Fact Petitioner, C.B. Franklin, began service with the School Board of Seminole County in the position of teacher in the 1951-52 academic year. In 1955, Petitioner was awarded a continuing contract of employment by Respondent in the position of teacher. Said continuing contract was in effect at all times relevant hereto. Petitioner was last employed by the School Board of Seminole County, Florida, as an Assistant Principal II at Sanford Middle School on an annual contract of employment, which terminated of June 10, 1989. During his employment at Sanford Middle School as an assistant principal from 1980 through 1988, Petitioner received satisfactory annual evaluations. In March, 1988, Owen McCarron, Assistant Superintendent, applied a "staffing formula" for each school in Seminole County. The staffing formula is not a school board rule but is a formula that the school board approves based upon student population to determine the number of teachers, secretaries, assistant principals, and others needed at each specific school. Mr. McCarron is responsible for the application of the formula. The application of the formula is not submitted to the school board for approval. Mr. McCarron made a mistake in the preparation of the staffing formula for 1988/89. The mistake made was that the number of assistant principals for Sanford Middle School would be reduced from two to one. Having been informed of a reduction, Dan Pelham, Principal, Sanford Middle School, determined that he would have to choose among the Assistant Principal II's employed and decided not to recommend the continued employment of Petitioner. Owen McCarron discovered the mistake and notified Dan Pelham, sometime in late March, 1989. However, Dan Pelham chose not to recommend the continued employment of Petitioner but rather to advertise the position as being vacant. When Mr. Pelham was notified the position was reinstated he considered it to be an "opportunity" to consider alternative persons for the position. Mr. Pelham's decision was based on Petitioner's performance as reflected by his annual evaluations and faculty input. Mr. Pelham held a conference with Petitioner on April 8, 1988, and Petitioner was advised that his contract as an assistant principal at Sanford Middle School would not be renewed for the school year 1988-89, because the School Board had reduced the number of assistant principal positions at Sanford Middle School from two (2) positions to one (1). Petitioner was offered a teaching position, under his continuing contract status, at Sanford Middle School as a peer counselor. The Respondent did not act to approve the reduction in positions, nor was the Respondent notified that Petitioner was not being recommended for reemployment. The School Board does not have a rule to govern how the decision is to be made upon a reduction in staff. At the time of the hearing and at all relevant times prior thereto, Petitioner held a valid Florida Department of Education certification in the teaching fields of health education, physical education and supervision and administration. On or about June 9, 1989, one day prior to the expiration of Petitioner's contract as Assistant Principal II, the Petitioner met with Dan Pelham and John Reichert, Director of Personnel. At that time, Petitioner was again advised by Mr. Pelham that he had not changed his decision not to renew Petitioner as an assistant principal, even though he had been advised that the position had been restored. The Petitioner was advised that he could apply for the vacant Assistant Principal II position but he would have to submit an application and a resume. The Petitioner responded that Dan Pelham was well aware of his qualifications, and that a copy of his resume was on file. At that time, Mr. Pelham offered Petitioner the peer counselor position, but salary was not discussed. Petitioner was given copies of documents containing the job information for the position of peer counselor. The position had not previously existed and had not been advertised. Petitioner was reassured that he had employment with the School Board as a teacher under his continuing contract status. At the same meeting, Mr. Reichert advised Petitioner to accept the teaching position, and at the same time apply for the assistant principal vacancy at Sanford Middle School. Petitioner applied for state retirement on June 27, 1988, and his retirement was accepted by the School Board of Seminole County thereafter, on July 13, 1988. Prior to the time Petitioner submitted his application for retirement, he was verbally offered a teaching position under his continuing contract status for the 1988-89 school year at Sanford Middle School. Petitioner is an experienced school administrator, holds a master's degree in [school] administration and supervision from Rollins College, in Winter Park, Florida. As a component of his master's degree requirement he had instruction in school law. Petitioner was aware that his employment as an assistant principal was on the basis of an annual contract of employment and that the position was not entitled to continuing contract status. Petitioner did not apply for the position of Assistant Principal II (secondary) at Sanford Middle School, after it was declared vacant and advertised (in the Spring of 1988), even though he was told that he would be considered for reappointment to the position if he did. Petitioner was aware that if he accepted the offered position of peer counselor his pay would resume in the Fall of 1988, along with all of the other teachers, and that he would be paid at the top of the teaching salary scale on the basis of his thirty (30) plus years of service. Petitioner did not respond, verbally or in writing, to the offered position of peer counselor subsequent to its offer and prior to his retirement. Mr. L. David Pelham, the principal of Sanford Middle School, was not obligated to reappoint Petitioner to the position of assistant principal, after June 10, 1988. However, Petitioner was entiled to a performance assessment prior to that date. Mr. Pelham recognized that Petitioner held continuing contract status and was entitled to be placed in a teaching position at Sanford Middle School for the 1988-89 school year and thereafter. Petitioner never discussed his decision to retire with Mr. Reichert or Mr. Pelham. Neither person had any communications with Petitioner after the June 9, 1988 meeting. Petitioner's annual contract of employment clearly put him on notice that neither he nor the school board owed the other any further contractual obligation after June 9, 1988 and that he had no expectancy of employment as an assistant principal after June 10, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the affirmative relief sought by the Petitioner should be DENIED. It is further RECOMMENDED that each party should bear their own costs and attorneys fees. DONE AND ENTERED this 31st day of October, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2007 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Findings of Fact Paragraphs 1 (1st three sentences), 2, 3, 4 (1st sentence), 5, 6, 7, 8, 10 (except the last 2 sentences) - Accepted in substance. Paragraphs 4 (2d sentence), 9,12 - Rejected as against the weight of the evidence. Paragraph 11 (except sentence 2)-Rejected as subservient. Respondents Findings of Fact Paragraph 1 through 26 - Accepted in substance. COPIES FURNISHED: Robert E. Hughes Superintendent of Schools c/o Seminole County School Board 1211 Melonville Avenue Sanford, Florida 32771 John D. Carlson, Esquire Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive Tallahassee, Florida 32308 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A. Post Office Box 1330 Sanford, Florida 32772-1330 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Tracy Tashanna Jackson is a 13-year-old, and Tammy Terrell Jackson is a 12-year-old, who were, until February 7, 1979, assigned respectively to the eighth and seventh grades at Miami Edison Middle School in Miami, Florida. On February 7, 1979, an incident occurred at Miami Edison Middle School which resulted in both students being reassigned to Jan Mann Opportunity School North. At the time of this incident, the two students had been attending Miami Edison Middle School for only approximately one month. On February 6, 1979, one day prior to the incident which gave rise to this proceeding, the students were threatened by another student who allegedly was a member of a group of students popularly known as the "Graveyard Gang." Upon receiving the throat, the students went to the office of the Assistant Principal and advised him that they expected trouble from these other students. The Assistant Principal essentially advised the students to attempt to avoid any confrontation. However, on the afternoon of February 6, 1979, while Tammy and Tracy Jackson were on their way home from school, they encountered the students who had threatened them, and a fight ensued. After the fight, Tracy and Tammy Jackson were advised by the other students that the fight would continue the next day at school, that these other students would have knives, and that Tracy and Tammy Jackson should come prepared. When Tracy and Tammy Jackson and their brother stepped off the city bus in the vicinity of Miami Edison Middle School the next morning, they were met by a large group of other students. Apparently, some member of this group struck Tracy and Tammy Jackson's brother, at which point Tracy and Tammy Jackson first displayed knives which they had brought with them from home. According to the testimony of Tracy and Tammy Jackson, which is not controverted, this was the first and only time that they had attended school armed with knives. The entire group of students apparently began milling around but proceeded generally in the direction of the main school building. At this point, Freddie Robinson, the Assistant Principal at Miami Edison Middle School, noticed the crowd of students, and proceeded into the crowd on the assumption that a fight was occurring. Upon being advised that Tracy and Tammy Jackson were armed with knives, Mr. Robinson managed to direct the students into the main school building, down the hall and into the Counselor's office. At all times during those movements, the Assistant Principal and the students were surrounded by a milling group of hostile students apparently intent on prolonging the confrontation. According to the Assistant Principal, at no time did either of the students display their knives in a threatening or offensive manner, but were instead attempting to defend themselves against attack. At some point in this process, the Assistant Principal was joined by George Thomas, a teacher at the school, who attempted to assist Mr. Robinson in disarming the girls. Mr. Thomas managed to remove the knife from the possession of Tammy Jackson without incident, but when Mr. Robinson grabbed the arm of Tracy Jackson, that student, in attempting to break free, inflicted what appears to have been a minor wound to Mr. Robinson's forearm. Mr. Robinson testified, without contradiction, that it appeared to him that the student did not intentionally stab him, but inflicted the wound accidently in the process of attempting to break free from his hold. On February 22, 1979, both Tammy and Tracy Jackson were reassigned from Miami Edison Middle School to Jan Mann Opportunity School North as a result of this incident. There is nothing in the record to indicate the procedures by which this assignment was accomplished. It is, however, clear that the students never attended Jan Mann Opportunity School North, but were instead held out of school by their mother. As a result, February 7, 1979, was the last day on which these students attended school during the 1978-79 school year. The incident which occurred on February 7, 1979, was the only incident of disruptive behavior in which Tracy and Tammy Jackson have been involved while enrolled in the Dade County Public Schools. The other students involved in the fight with them, however, had been suspended from school on several occasions for fighting and disrupting classes. There is no evidence in the record in this cause concerning Tracy and Tammy Jackson' grades from which any determination could be made that they have been unsuccessful in the normal school environment. Likewise, the record is devoid of any testimony regarding their lack of attendance in the regular school program. Although the students did not attend Jan Mann Opportunity School North after having been assigned to that facility, there appears no evidence of record concerning the programs available at that institution in which the students would have been enrolled had they chosen to attend. In addition, although there exists some testimony concerning a very commendable Dade County School Board policy against the possession of knives on campus at any school in Dade County, no such written policy was offered into evidence at this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That a final order be entered by the Dade County School Board reassigning the students, Tammy Terrell Jackson and Tracy Tashanna Jackson, to the regular school program in the Dade County School System. Recommended this 17th day of July, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mrs. Jerry D. Jackson 2340 NW 73rd Terrace, #12 Miami, Florida 33147 Jesse J. McCrary, Jr., Esquire 3000 Executive Building, Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Ludwig J. Gross Executive Director Division of Student Services Dade County Public Schools 5975 East 7th Avenue Hialeah, Florida 33013 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue Miami, Florida 33132 Michael Neimand, Esquire 3050 Biscayne Boulevard Miami Florida, 33137 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY CASE NOS. 79-709, 79-710 MRS. JERRY D. JACKSON, on behalf of minor child, TAMMY TERRELL JACKSON, Petitioner, vs. CASE NO. 79-709 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / MRS. JERRY D. JACKSON, on behalf of minor child, TRACY TASHANNA JACKSON, Petitioner, vs. CASE NO. 79-710 THE SCHOOL BOARD OF DADE COUNTY, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting on August 22, 1979, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that Tammy Terrell Jackson and Tracy Tashanna Jackson be reassigned to the regular school program in the Dade County school system. IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that the Hearing Officer's findings of fact, conclusions of law and recommended order are adopted with the following modifications: 1. The Hearing Officer's Conclusions of Law are modified by deleting paragraph 7 and substituting the following therefor: 7. F.A.C. Section 6A-1.994 provides: "6A-1.994 Educational alternative programs. Definition. Educational alternative programs are programs designed to meet the needs of students who are disruptive, dis- interested, or unsuccessful in a normal school environment. The educational alter- native may occur either within the school system or in another agency authorized by the school board. Criteria for eligibility. A student may be eligible for an educational alternative program if the student meets one (1) or more of the criteria prescribed below as deter- mined by grades, achievement test scores, referrals for suspension or other discipli- nary action, and rate of absences. (a) Disruptive. A student who: Displays persistent behavior which inter- feres with the student's own learning or the educational process of others and requires attention and assistance beyond that which the traditional program can provide; or Displays consistent behavior resulting in frequent conflicts of a disruptive nature while the student is under the jurisdiction of the school either in or out of the class- room; or Displays disruptive behavior which severely threatens the general welfare of the student or other members of the school population." (emphasis supplied) 8. The petitioners have both displayed "dis- ruptive behavior which severely threatens the general welfare of the student or other members of the school population." Meeting this criteria is sufficient grounds for placement in an educational alternative program. Accordingly, they are properly, and in their own best interests, assigned to Jan Mann Opportunity School North. There is no evidence that this assignment is punitive rather than positive in nature. 2. The Hearing Officer's recommendation is, therefore, rejected, and the assignment of Tammy Terrell Jackson and Tracy Tashanna Jackson to Jan Mann Opportunity School North is affirmed. DONE AND ORDERED this 22nd day of August, 1979. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA By: Phyllis Miller, Chairman
Findings Of Fact Background Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section 2 contains 15 categories that are marked based on classroom observations and experience with the teacher. The back of the evaluation form explains the marks as follows: Mark Description Commendable (C) Indicates exceptional performance of the identified behavior(s). Satisfactory (S) Indicates satisfactory performance of the identified behavior(s) Needs Improvement (NI) Indicates a need for the employee to strengthen/improve performance of the identified behavior(s). Must Improve (MI) Indicates a need for the employee to remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected. The back of the evaluation form explains the "NEAT Procedure/Due Process": When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows: Notice--The employee has the right to receive full written notification of the identified deficient behaviors. Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient. Assistance--The employee has the right to receive assistance in remediating the deficient behavior. Time--The employee has the right to a reasonable amount of time to achieve remediation. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part: When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate [Professional Development Plan]. The plan shall include the following: Area to be improved: specify the identified problem. Specific desired improvement: write as a measurable goal or objective. Action to be taken: describe action the involved parties will complete to achieve desired improvement. Assistance plan: List and describe who will provide assistance, showing role of each participant. Time line: specify dates for each activity to be completed and evaluated. Evaluation: describe how and when evaluation of progress or success will occur. Consequences: specify consequences if improvement is not achieved satisfactorily. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety: For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed. Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT) If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute. On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states: Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract]. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students." Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment. Evaluations Prior to 1991-92 School Year Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator. Evaluations During 1991-92 School Year A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste." Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved." Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation." Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc." Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem." Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you." Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI." Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract." By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five (5) days for gross insubordination." Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous." Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child." Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair." Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator." Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October 92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year. The Grievance Process On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'" The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April 7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94." Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students." Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May 13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)." On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year. The 1991-92 School Year During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator. Evaluations During the 1992-93 School Year As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy." By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined." Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration." By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part: . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . . Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed. The 1992-93 School Year Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy." Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542) At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you." In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents. But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract. ENTERED on January 13, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1993. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9-18: adopted or adopted in substance. 19: rejected as irrelevant. 20-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-39: adopted or adopted in substance. 40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited. 41: adopted or adopted in substance. 42: rejected as subordinate. 43-44: adopted or adopted in substance. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-48 (first three sentences): rejected as irrelevant. 48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant. 57-59: adopted or adopted in substance. 60-61: rejected as irrelevant. 62: adopted or adopted in substance. 63: rejected as irrelevant. 64-65: adopted or adopted in substance. 66: rejected as subordinate. 67-69: adopted or adopted in substance. 70: rejected as subordinate. 71-74: adopted or adopted in substance. 75-76: rejected as subordinate. 77-78: adopted or adopted in substance. 79: rejected as hearsay. 80-85: adopted or adopted in substance. 86: rejected as irrelevant. 87-92: adopted or adopted in substance. 93: rejected as subordinate. 94: rejected as irrelevant. 95-100: adopted or adopted in substance. 101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook. 102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing. 103-04: rejected as irrelevant. 105: rejected as subordinate. 106-17 (first sentence): adopted or adopted in substance. 117 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 118: rejected as irrelevant and subordinate. 119: rejected as hearsay. 120-34: adopted or adopted in substance. 135-37: rejected as irrelevant. 138: adopted or adopted in substance. 139: rejected as irrelevant. 140: adopted or adopted in substance. 141: rejected as irrelevant. 142-43: adopted or adopted in substance. 144: rejected as subordinate. 145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance. 8-10: rejected as irrelevant. 11-14: adopted or adopted in substance. 15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 17 (second sentence): adopted or adopted in substance. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance. 21-22: rejected as subordinate. 23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate. 27-28 (first sentence): adopted or adopted in substance. 28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence. This provision governs only when Petitioner must refer matters to the Department of Education. 35: rejected as subordinate. 36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up conferences. 40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant. COPIES FURNISHED: Superintendent Richard Farmer Highlands County School District 426 School St. Sebring, FL 33870-4048 Commissioner Doug Jamerson Department of Education The Capitol Tallahassee, FL 32399-0400 James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870-3698 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302
Findings Of Fact The Respondent Myers holds teaching certificate number 329276. The Respondent's certificate is a Rank 3 covering the area of elementary education. The Respondent Myers holds a fourth annual contract as a teacher with the Dade County public schools which expires at the end of the 1983-84 school year. During the 1982-83 school year, she was employed at North Hialeah Elementary School as a second grade teacher. Allen C. Starke was the principal of that school. Mr. Starke and Ms. Myers met during the first week of the school term when Starke asked Myers to balance a student's grades, which Myers had neglected to do the previous year. A student's grade is balanced when the teacher gives a final grade balancing all four nine-week reporting period grades. The Respondent took the student' file home and notwithstanding that there was nothing in the file to warrant a failing grade, gave the student all F's. Starke requested that the Respondent regrade the project, giving the appropriate grades. The task was accomplished. The 1982-83 school year was the Respondent's third year of service with the Dade County public schools. Had her performance that year been satisfactory, she would have been eligible for continuing contract (tenure) status. As a third year teacher, she was subject to being observed in the classroom by her supervisors. Maria Pernas, the assistant principal at North Hialeah Elementary School, scheduled such an observation of the Respondent for October 5, 1982. However, when Ms. Pernas arrived in the classroom, it was in such a state of chaos and confusion that she approached the Respondent and told her that she would come back at a later date, hoping to give the Respondent the benefit of the doubt. Ms. Pernas returned to Respondent's classroom on November 2, 1982, but found the same state of affairs which she had observed on October Again she decided to give the Respondent another chance and did not officially observe her on that date. Ms. Pernas' official observation of the Respondent took place on November 18, 1982. The classroom climate was again chaotic and confused. The Respondent, however, appeared unaware of the lack of student interest or of the difficulties being encountered by her students. When students raised their hands, the Respondent either did not notice or paid no attention to them. The Respondent was attempting to conduct a reading lesson but she lacked the basic elements for implementing the same. It is an accepted technique in the teaching of reading for the teacher to physically divide the class into approximately three ability groups. The teacher then conducts approximately 20 minutes of teacher-directed lesson with one of those groups while the other groups do independent, previously assigned work. The teacher concludes with the first group, assigns them independent study, moves to the next group, etc. until the School Board mandated one consecutive hour of reading is complete and she has conducted a teacher-directed lesson with each group. The Respondent conducted no teacher-directed reading lesson and assigned no independent work. She did not have appropriate lesson plans and the class did not last the required one hour notwithstanding the fact that the Respondent was aware of this requirement. Ms. Pernas recommended several sources of help to the Respondent, including books and documents. Subsequent to this observation, Mr. Starke, Ms. Pernas and the Respondent participated in a conference-for-the-record held on November 30, 1982. The Respondent was advised to study various texts and to enroll in a course in "techniques of instruction" through the Teacher Education Center. The Teacher Education Center is an educational center mandated by the Florida Legislature. Its purpose is to provide in-service staff development courses and workshops for instructional personnel. Cathia Darling had also been called in to assist the Respondent. Ms. Darling is a teaching specialist who implements workshops for beginning teachers in the Dade County school system who may be having difficulty. On October 18, 19, and 21 1982, she had been at North Hialeah Elementary School providing teachers an update on the PREP program, a Dade County program designed to give students expanded services, both academically and physically, in the classroom. She was called back by Ms. Pernas on November 4 and 10 to go over the implementation of a reading program (RSVP) 1/ with two of the teachers at North Hialeah Elementary School who required further help. The Respondent was one of those teachers and Ms. Darling met with her for approximately one-half hour to 45 minutes at that time. Ms. Pernas observed the Respondent again on January 21, 1983. At that time she was teaching a science class and the topic was "Body Temperature." Pernas noted that the Respondent had insufficient visual aids and/or manipulative devices. Further, she did not appear to understand the substance of what she was teaching. She wrote a "102 degree Fahrenheit temperature" as "1.02." Pernas advised her that there should be no decimal point when recording such a temperature. When a student answered a question in Celsius (the student was Hispanic and accustomed to Celsius), the Respondent said the answer was wrong. Pernas suggested that the Respondent review literature regarding Fahrenheit and Celsius. She also recommended that the Respondent attend a TEC workshop in preparation and planning. The Respondent did not attend the prescribed workshop on preparation and planning, because the course was too far away from her home. Another course was offered but she did not attend that one either, stating that her sister was ill. Subsequent to Pernas' second evaluation, the Respondent told Mr. Starke that she believed Ms. Pernas was being unfair. Accordingly, Starke offered to observe the Respondent and she agreed. The observation took place on February 11, 1983. Starke found the classroom to be disorganized and confused. When he entered the classroom, the Respondent picked up a book and began to read. The children did not have their books open. They were walking about the classroom, generally entertaining themselves. They were not involved in the lesson and they were not paying any attention to the Respondent who continued to read verbatim from the book. From time to time, she would say "Sit down, sit down, can't you hear I'm reading?" The children continued to walk about. Starke felt they exhibited this behavior because they didn't know what they were supposed to be doing. After observing the classroom for a period, Starke began to check the Respondent's student folders. Teachers in the Dade County school system are required to keep folders to show samples of students' work. He found that as of February 11, 1983, no papers had been graded and placed in the folders since November 18, 1982. Starke pointed out that if the children's work had not been graded, a diagnostic, prescriptive approach to teaching could not be utilized. In short, the Respondent could not possibly have known at what level her students were functioning if she did not grade their papers. Accordingly, she could not teach them what they needed to know. Starke made several suggestions in his recommended prescription as to how the Respondent could improve her performance. He asked her to become familiar with the lesson before attempting to deliver it and he told her to read the teacher's guide and use it throughout the period as appropriate. He prescribed that in order to cut down on classroom disruption, she obtain the children's attention before attempting to introduce a lesson and that she distribute the books and other needed materials before the class activities began. He asked her to use the grade level chairperson as a resource. She was directed to report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and did not see the grade level chairperson. The Respondent was also told to correct and grade the students' papers as mandated and to place at least two graded papers per student per subject matter per week in each work folder. She did not comply with this directive, nor did she comply with Starke's repeated direction to contact the TEC to enroll in the course. At this point, Starke advised the Respondent that since her teaching performance had been unsatisfactory during that school year, he would not recommend her for continuing contract for the school year 1983-84. He did state, however, that he would recommend that she be granted a fourth year annual contract. He had not given up on her at that time and wanted to give her all the possible assistance he could. Starke observed the Respondent again on March 24, 1983. According to Starke's master schedule, the Respondent was to be teaching a reading lesson. However, when he entered the class- room, she was not teaching reading. Again, the class was chaotic. The students were unprepared for work. The Respondent herself had no lesson plans for the lesson. The students in the Respondent's class never moved into reading groups and she never gave a teacher-directed lesson to any group. Instead, she called on four students to read orally out of four different texts, each book representing an ability group. The students who were not studying a particular book derived no benefit from the reading. After 30 minutes, the Respondent asked the students to put their reading books away, and started a spelling lesson. Starke noted that she had only one grade in her record book for eight weeks of instruction. She should have had 16 or 18 or at least one grade per week per subject. Additionally, the Respondent had not graded any papers since November 18, 1982. Starke gave her another prescription telling her to have lesson plans before attempting to teach and to arrange her students into reading groups. He asked that she introduce all lessons and make sure materials were in place before instructions were given. She was told again to teach reading for 60 consecutive minutes and she was directed to grade her students' papers -- at least one grade per student per subject per week. Starke, at that point, kept eight of the folders that he had been going through in Ms. Myers' room. Subsequently, he replaced five of them, and three were introduced into evidence in this case. A review of these files indicates that when the papers were graded (prior to November 18, 1982), they were graded incorrectly. Credit was given for obvious errors. Sometimes the corrections themselves were incorrect. Corrections were written as "Not rite," or "Not finiseb." A math paper was graded A when 6 of the 15 problems were done incorrectly. Incorrect answers were marked "correct," correct answers were marked "incorrect," and some answers were not marked at all. The Respondent testified that all of the grades which appear in Exhibits 10A, B and C are marks which she did not personally put there and that she does not know who graded those papers or when. The Hearing Officer finds that the Respondent's explanation lacks credibility and that the Respondent graded the papers incorrectly. Another conference-for-the-record was held on March 30, 1983. At that time, the Respondent and Starke discussed her inadequate lesson plans. The Respondent stated, "I had lesson plans, but they did not represent what I was teaching." When questioned about not grading her students' papers, the Respondent stated that some of the papers were graded but that she didn't have time to grade them all. At that conference, Starke also noted that he had come upon the Respondent sitting with her grade book in front of her and placing grades in that book. He noted that there were no papers in front of the Respondent from which she could be recording the grades. When he inquired about it, she said that she was putting grades in the book. He asked how she could put grades in her book with no papers to copy from and she said she just knew what the children had done. Starke believed that this was impossible, considering the size of her class. Subsequently, at the conference of March 30, the Respondent said that, in fact, the grades had always been in the book but that she just hadn't seen them, and that when Starke had come upon her she was just checking students present or absent. Starke advised the Respondent that based upon her total performance, he was changing his recommendation from an extended annual contract to dismissal for cause. Notwithstanding this recommendation, Starke testified that if the Respondent had suddenly given some evidence that she was going to become a competent teacher, he would have changed his recommendation. On April 5, 1983, Mr. Starke gave the Respondent a memorandum from John N. Ranieri, the director of the Dade-Monroe Education Center, outlining numerous courses which Starke felt would be of benefit to Ms. Myers in improving her deficiencies. These were courses which he had prescribed for her and which she had not taken. John Ranieri testified that the Respondent did in fact enroll in three TEC courses during the 1982-83 school year. She enrolled in Techniques of Instruction twice and she enrolled in a class in Classroom Management. The system does not permit credit for taking a course over, therefore she did not get credit for the second time she took the Techniques of Instruction course. She did receive credit, however, for taking that course once. The Respondent failed the Classroom Management course. The records of the Teacher Education Center indicate that she did not turn in her assignments, she did not pass the test (she received the second lowest test score in a class of 90) and she was late to class three out of the four times the class met. Each time she was late over twenty minutes. The Respondent had numerous excuses for her lack of success in this class. She stated that she was late for the first class because the traffic was heavy. She stated that even though Starke had told her she could leave school 15 minutes early, her relief teacher did not show up on time and she therefore did not leave on time. She testified that she told Starke about her problem with the substitute teacher, but Starke testified that this was not so. The Respondent said that she failed the test in the course because the instructor gave her the wrong test and that when he gave her the right test, she only had 20 minutes left out of an hour class to take the test. The Hearing Officer finds this testimony by the Respondent not credible. On April 29, 1983, Cathia Darling returned to North Hialeah Elementary School to once again attempt to assist the Respondent in establishing a reading program. While Darling had been working with the Respondent in November, she had explained how to initiate the pre-testing, instruction, and, finally, post- testing. When Darling returned in April, the Respondent had still not mastered what she had been taught in November, and the process had to be started over again. Darling returned again in May to follow up, and the Respondent still had not implemented any of the testing. This testing should have been started at the beginning of the school year. At that point, Darling implemented the Respondent's testing program and charted the results. In Darling's opinion, the Respondent never implemented a reading program in her second grade classroom. In an attempt to explain her failure to implement the program, the Respondent stated that she asked for an RSVP kit four or five times but was never given one. Allen Starke testi- fied that the Respondent never asked him for any instructional materials and that he had never denied her request for an RSVP kit at any time during the 1982-83 school year, nor to his knowledge had anyone ever denied her access to the kit. Cathia Darling noted that the booklets necessary to implement the program were in the school, although they were not in Daisy Myers' classroom when Darling visited that classroom. No teacher at North Hialeah had complained to Darling about not having access to the RSVP kits or booklets. On May 5, 1983, Eneida Hartner, a school system area director who supervises 18 schools including North Hialeah Elementary School, observed the Respondent teach a reading class. Hartner was called in to observe the teacher as an objective outside observer. She noted for the record that it is always possible that an outside observer might feel that a teacher could improve her performance. Hartner observed that a significant amount of class time was wasted by students talking to each other. This occurred because they had not been given any clear direction as to what they were to do, The Respondent was not using a lesson plan nor was she using the teacher's guide for the reading lesson. She interacted with the children for a very limited amount of time when she should have worked with each group of children for 20 minutes. She was not teaching decoding skills, which she should have been teaching (decoding teaches the sound a letter makes). Ms. Hartner looked at the student folders and found that the answers in the fo1ders were not marked right or wrong. Grades were given to the students but there was no indication as to whether the answer to the question was correct. When Ms. Hartner asked the Respondent about her diagnostic/prescriptive folders (testing, teaching, testing) which every teacher is required to maintain, Myers said that she did not have any. She had no records of what the children knew or what they did not know. Hartner saw no visible evidence that any child had learned anything from the Respondent. Subsequent to her observation of the Respondent, Ms. Hartner gave Mr. Starke a prescription to be delivered to the Respondent. The prescription consisted of a group of activities having to do with self-assessment, self- analysis, making changes and trying them out in the classroom. The Respondent did not fully comply with the prescription, and Hartner testified that it was her opinion that no further remediation would he successful in making the Respondent a competent teacher. The Respondent was observed one more time during the 1982-83 school year. On June 9, 1983, Maria Pernas observed what was scheduled as a reading lesson. In fact, the Respondent was teaching writing. Pernas noted that the Respondent's plans did not match what she was teaching. She also found that the Respondent continued to be unacceptable in teaching techniques, assessment techniques and professional responsibility. Pernas testified that if she were to rank all of the teachers that she has evaluated during her years as an assistant principal, the Respondent would be in the very last place. She does not believe that the Respondent's students gained anything by being in her class during the 1982-83 school year. Allen Starke agreed with Ms. Pernas' evaluation. In fact, he felt that the Respondent's second grade students had learned so little during their year in Respondent's class that he broke the class up into smaller groups, assigning them to numerous other teachers for the third grade. He did this because he felt that the students might learn more from other students who had had a successful experience in the second grade than if they were all kept together. Starke does not believe that the Respondent should be a classroom teacher. The last witness to testify for the Petitioners was Patrick Gray, Executive Director of the Division of Personnel Control for the School Board of Dade County, Florida. He stated that having reviewed the file of the Respondent, based on his extensive experience in the field of personnel control and education, it was his judgment that she had been provided every opportunity to demonstrate competence or to become competent in an instructional capacity in the public school system, that she had failed to evidence the required standard of instructional competence and that she should therefore not be licensed to teach children by the State of Florida; neither is she competent to be employed by the school in the Dade County public school system. Dr. Gray testified that the Respondent had been ranked acceptable for her performance for the 1980-81 school year and the 1981-82 school year; however, that both of the principals who evaluated her those years noted that there were categories which required improvement. He also noted that in a letter from the Respondent's 1980-81 principal, Ms. Culver, the principal declined to testify on her behalf at this hearing. She stated that she recalled that the two areas in which the Respondent required improvement as a teacher in 1980-81 were preparation and planning and classroom management and that her reviews of the observations of Myers' teaching made during the 1982-83 school year showed that time and time again the same areas were listed as unacceptable. Ms. Culver felt that the Respondent's planning should have been greatly improved by the end of her second year of teaching. She also noted that during the 1980- 81 school year, she had released the Respondent on several occasions to observe and work with other classroom teachers who excelled in the area of classroom management. Both Ms. Culver and the assistant principal had recommended books in both areas to the Respondent. Ms. Culver observed that the Respondent had taken courses in RSVP as early as 1980-81, which she felt should have benefited her in teaching reading. Yet, the 1982-83 observations showed that the Respondent lacked competence in the area. Ms. Culver concluded that the Respondent is a fine person but, apparently, she lacks the basic skills to be a teacher.
Recommendation Based on the foregoing, it is recommended that: The teaching certificate of Respondent Daisy Myers be permanently revoked; and The suspension of the Respondent, Daisy Myers by the School Board of Dade County, Florida, be sustained, and that Respondent Myers be dismissed from employment with the School Board of Dade County, Florida, and any claim for back pay be denied. DONE and ORDERED this 11th day of January, 1985, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985.
The Issue Whether Respondent’s termination of employment as a teacher should be upheld.
Findings Of Fact Respondent received her Florida teacher certification in elementary education in 1988. Since then, she has worked for four different elementary school principals, all in Palm Beach County Schools. Although she has received overall satisfactory evaluations throughout her career, only one of the four principals for whom she has worked found her performance satisfactory in all areas throughout an entire school year. In its Petition for Suspension, the School Board seeks to terminate Kelson's employment, alleging that her teaching performance during the 2001-2002 school year at Jupiter was deficient in the areas of presentation of subject matter, knowledge of subject matter, planning, assessment and recordkeeping. Each of these areas has, over the years, often been identified as being an area of concern on evaluations rendered by three out of four of the principals for whom Kelson has worked. For the 2001-2002 school year, Kelson was offered by Jupiter's principal, Ann Wark (Wark), the opportunity to teach a small class of older elementary aged children who spoke little or no English. Kelson accepted, never suggesting that she was not appropriately credentialed. Kelson did not have a successful year in this assignment. Through counsel, she stipulated that the School Board has complied with all of the substantive and procedural requirements set forth in state law and in Kelson's contract with Petitioner for evaluating teaching performance. The evaluations were negative. Kelson further stipulated that the School Board has complied with all its legal and contractual obligations governing procedures for terminating employment due to deficient performance. Numerous meetings were held between Kelson and School Board representatives to discuss her 2001-2002 performance. At least some of these meetings were also attended by Kelson's union representative. At no time did Kelson express disagreement with the substance of the evaluations. The evidence affirmatively established that Kelson was properly evaluated by individuals qualified to conduct her evaluations; that she was provided with sufficient and appropriate assistance, including improvement strategies reasonably calculated to enable her to bring her performance up to the district's minimum requirements; that she was given adequate opportunity to correct her deficiencies; and that she failed to do so. By way of defense, Kelson contends that she was teaching out-of-field at the time the adverse evaluation was rendered. She argues that, as a matter of law, she cannot be terminated for performance deficiencies which occurred while teaching out-of-field. However, the record affirmatively shows that Kelson was not teaching out-of-field. Neither was any evidence or legal argument offered to support the notion that if a teacher is assigned out-of-field, she has an absolute defense to termination. Like most elementary school teachers employed in Florida, Kelson holds what is known as an English for Speakers of Other Languages (ESOL) endorsement to her elementary education certificate. The endorsement arises pursuant to a "grandfathering" provision contained in a Consent Decree entered into by the State of Florida Department of Education on August 14, 1990. The Consent Decree was aimed at assuring that children of limited English proficiency (LEP) would not be left out or left behind due to the language barrier between them and their teachers. Like most of her colleagues, Kelson took the training contemplated in the Consent Decree and necessary to qualify for the ESOL endorsement to her teaching certificate. The ESOL endorsement, or, more precisely, the classes required to earn the ESOL endorsement, provides the teacher with the requisite training, in fact and in law, to serve LEP students, including students with no ability to speak English. In order to obtain an ESOL endorsement, a teacher must have obtained sufficient credentials to be presumed qualified to teach LEP students in a classroom where most of the children speak proficient English, as well as in a class of nothing but LEP students. At first blush it is counterintuitive at a minimum that a child who speaks no English could learn academic content, including language arts, from a teacher who speaks not a word of the child's language. Yet, the evidence established that in large school districts such as Palm Beach County, dozens of foreign languages may be spoken by students; it would be impossible to find teachers fluent in each of those languages. The point of the Consent Decree is to assure that LEP students are appropriately served, whether or not their teacher is able to speak to them in their primary language. To that end, the grandfathering provision was put in place. Over time, the parties to the Consent Decree have come to be satisfied that the grandfathering provision has furnished teachers for LEP students who have the necessary credentials to teach them. Kelson's theory rests upon a misunderstanding of what ESOL is and is not. ESOL is not a subject, like math or history. Instead, it is a method, or set of strategies, by which teachers who speak no language other than English can teach content to students who speak little or even no English. Kelson, and all teachers who hold an ESOL certificate, have the training necessary to deliver content not only to LEP students in a class with English-speaking students, but also to students in classes which include only children who speak little, and perhaps even no English. Kelson contends that the student population to which she was assigned could be lawfully taught only by a teacher with a state ESOL certification. A certification in ESOL requires substantially more classroom hours than Kelson or any other teacher with an ESOL endorsement would be expected to have. Kelson's claim that only an ESOL certified teacher would have been qualified to teach her 2001-2002 class was not supported by any evidence other than her personal opinion, and is rejected as factually and legally unsound. Kelson claims that she accepted the assignment Wark offered because she felt pressured to do so. She intimated in general ways her belief that school officials, particularly Wark, were not dealing in good faith with her. No evidence was offered upon which a finding could be based that Kelson's feeling of being pressured to teach any particular class was reasonable. Neither was there evidence that Petitioner or its employees acted in bad faith toward her. Rather, the evidence established that prior to the time she retained counsel, Kelson had not claimed to anybody that she was unqualified to teach her class. In fact, Kelson was appropriately credentialed for the class she was teaching. It was her performance, not her resume, which was deficient. Subsequent to obtaining her ESOL endorsement, she completed over one hundred hours of in-service points in ESOL. With this additional background, Petitioner could and did reasonably expect that not only was Kelson qualified to teach her assigned students, she was also credentialed to teach certain aspects of ESOL to other teachers. In the spring of 2002, Kelson requested a transfer to another school, which request was denied. On November 26, 2002, acting in accordance with the Superintendent’s recommendation, the School Board voted to suspend Respondent without pay and terminate her employment effective December 11, 2002.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Cherlyn Kelson’s employment for unsatisfactory performance as set forth in the Petition for Suspension dated November 26, 2002. DONE AND ENTERED this 6th day of August, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 6th day of August, 2003. COPIES FURNISHED: Andrew DeGraffenreidt, III, Esquire Powers, McNalis & Moody Post Office Box 21289 2328 10th Avenue, North, Suite 601 Lake Worth, Florida 33461-6617 Jean Marie Nelson, Esquire School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C302 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, Suite C316 West Palm Beach, Florida 33406-5869 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32499-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
