Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
Findings Of Fact Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to 1992, he worked for the United States Postal Service and as a tennis instructor. In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools. Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate. In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12. In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994. Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family. The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then. When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County. On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question: "Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application." Petitioner answered "no" to the question. A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate. On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him. Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher." As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows: This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education. The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas. Allen J. DuBois, by this agreement, neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time. Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction. Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice. In furtherance of this agreement, Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect. As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that (although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application. Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. " In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six statutory violations and four rule violations as grounds for the denial: Statute Violations Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that the Department of Education may deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate. Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means. Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule Violations Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 8: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination. Count 10: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage. Respondent offered no competent evidence that Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done. Respondent offered no competent evidence that Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 19th day of December, 2008. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact On November 11, 1989, Respondent forwarded a request for hearing by Petitioner to contest his suspension without pay and dismissal by the school board. Due to insufficient information being furnished, no case was opened. Subsequent administrative oversight resulted in no action being taken on this request by the Division of Administrative Hearings. By letter dated June 5, 1989, Petitioner, by and through his attorney, requested the status of the hearing requested by the school board in November 1987. In response thereto, Respondent filed the Motion to Dismiss that constituted the basis for the telephone conference call. At this conference call hearing, Petitioner conceded that all facts recited in the Motion to Dismiss are accurate and, that on May 14, 1987, Petitioner and the Florida Department of Education entered into a Stipulation for Settlement wherein Petitioner's teaching certificate was suspended for one year retroactive to April 25, 1986. Petitioner was suspended without pay by Respondent on May 14, 1986, based upon his arrest for the offense which resulted in the suspension of his teaching certificate by the Department of Education. Petitioner was subsequently terminated by Respondent on May 26, 1987, retroactive to May 14, 1986, the date he was suspended without pay. On the effective date of Petitioner's termination by Respondent, May 14, 1986, he did not hold an active teaching certificate from the State Department of Education and was not qualified to work as a teacher in any Florida public school.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Franklin B. Etheridge's request for hearing to challenge his dismissal by the School Board of Polk County be denied, and Respondent's Motion to Dismiss be granted. Entered this 18th day of August, 1989, in Tallahassee, Florida. K.N. AYERS 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 18th day of August, 1989. COPIES FURNISHED: Dr. John A. Stewart Superintendent Polk County Schools Post Office Box 391 Bartow, Florida 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 C. A. Boswell, Esquire School Board of Polk County Post Office Box 391 Bartow, Florida 33830 John F. Laurent, Esquire Post Office Box 1018 Bartow, Florida 33830
The Issue The issue is whether the School Board policy that requires full-time non-degreed teachers of vocational programs to pass a basic skills test as a condition of being certified by the School Board and as a condition of continued full-time employment in such programs is an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, the School Board of Hillsborough County, Florida (School Board or Respondent), employs non-degreed persons to teach certain vocational subjects, including, health occupations and cosmetology. In or about May 1990, the Florida Legislature enacted Section 231.1725, Florida Statutes (2001), which authorized school boards to establish qualifications for substitute teacher, teachers of adult education, and non-degreed teachers of vocational education. By virtue of that provision, which became effective in 1990, non-degreed vocational teachers are not required to obtain state-issued teaching certificates required of teachers of non-vocational subjects in Florida public schools. Pursuant to Subsection 231.1725(1)(c), Florida Statutes (2001), school boards, including Respondent, are required to establish the minimum qualifications for non-degreed teachers of vocational programs. The School Board has established requirements for the employment and certification of persons seeking to be employed as non-degreed teachers of vocational programs. The requirements for certification include requirements not identified as the minimum requirements in Section 231.1725, Florida Statutes (2001). On or about May 22, 1991, the Division of Personnel and Human Resources submitted Agenda Item 3.02 for approval to the School Board. According to the "Agenda Item" form submitted to School Board members, the proposed policy concerned non-degreed full-time vocational instructional personnel, part-time vocational instructional personnel and adult education personnel. The form indicated that the proposed policy was required because Section 231.1725, Florida Statutes (2001), "absolved the state of responsibility of issuing state certificates for non-degreed full-time, part-time vocational and adult education teachers" and each school district was "responsible for determining both eligibility and district certification requirements for non-degreed vocational and adult part-time teachers." The rationale for the proposed policy was that "recent legislation [Section 231.1725, Florida Statutes] has resulted in the need to create a district certification process" for non-degreed full-time personnel, part-time vocational instructional personnel, and adult education instructional personnel. On or about June 11, 1991, the School Board held a public meeting in accordance with its policies and procedures, and state law and approved "the proposed policies concerning certification for non-degreed full-time vocational, part-time vocational, and adult education teachers, as necessitated by recent legislation (F.S. 231.1725) which shifts responsibility of issuing eligibility certificates for such personnel." The 1991 Agenda Item 3.02 consisted of three separate policies that were being recommended for approval by the School Board, for the following separate and distinct categories of employees: non-degreed full-time vocational instructional personnel; part-time vocational personnel; and adult education instructional personnel. The proposed policy and procedures for non-degreed full-time vocational instructional personnel provided the following: Policy: The School Board authorizes the employment of personnel to teach full-time in non-degreed vocational programs to comply with Section 231.1725(1)(c), Florida Statutes. Procedures: An applicant must hold at least a high school diploma or the equivalent and meet the established minimum competency in the area of assignment. The minutes of the June 11, 1991, meeting state that "the proposed rules will now go through necessary process including advertising and public hearing per Administrative Procedures Act," with a notation to "See minutes of July 16, 1991." There is no indication that this process was not carried out as noted. On August 6, 2002, at a regular meeting, the School Board considered and unanimously approved School Board Policy 6.25. Section 2 of School Board Policy 6.25, addresses certification of full-time and part-time teachers of non-degreed programs. The policy provides in pertinent part the following: FULL-TIME TEACHER CERTIFICATION (Non-degreed programs): The Office of Teacher Certification issues an initial 3-year nonrenewable temporary certificate in the same manner that state-certified teachers are certified. During the validity period of this temporary certificate, the teacher must produce documentation of the following to qualify for the professional certificate: Successful completion of the district's Preparing New Educators (PNE) Program. Successful completion of the State Professional Educator's Exam. A minimum of three years successful teaching experience. Successful completion of the (4) district certification courses listed below or their university equivalents. [1.] Surviving the First Year of Technical Teaching [2.] Special Teaching Methods for Technical Teaching [3.] Special Needs Student for Technical Education [4.] Philosophy, Practices and Management of Technical Education. Verification of basic skills by successful completion of the Test of Adult Basic Education (TABE) at or exceeding the profile established for the area of certification, or successful completion of another recognized test of basic skills accepted for state-certificated teachers. Upon receipt of the above documentation and of the appropriate application fee, the Office of Teacher Certification issues the full-time technical and career education teacher the 5-year Professional District Certificate that is valid for five years from July 1st of the school year it was issued. This certificate must be renewed in the identical manner that a state-issued certificate is renewed. According to School Board Policy 6.25, the School Board's requirements for certification as a non-degreed teacher of vocational programs include the successful completion of the Test of Adult Basic Education ("TABE") or successful completion of another recognized test of basic skills accepted for state certificated teachers, and successful completion of the Professional Education Examination. The School Board does not require the passage of these tests in order to meet the minimum qualifications for initial employment. The executive summary which describes the purpose of the superintendent's recommendation regarding School Board Policy 6.25, states in pertinent part the following: In 1990, by legislative action, districts assumed responsibility and authority for establishing employment and credentialing qualifications for teachers of non-degreed vocational programs and of part-time adult programs. The School Board originally adopted procedures in 1991 to address these matters. Various improvements and refinements to these procedures, many of which have paralleled provisions provided by statute to state-certificated teachers, have been adopted as sound practices over the years. The enclosed manual, "Guide to Hiring Teachers: Technical & Career and Adult & Community Education Programs," reflects these improvements and modifications. In accordance with School Board Policy 6.25, the School Board issues three-year temporary teaching certificates to full-time non-degreed vocational teachers upon their hiring. During the first three years that a full-time non-degreed vocational teacher is employed, the teacher must produce the documentation enumerated in Section 2 of School Board Policy 6.25 and listed in paragraph 10 above, to qualify for the district professional certificate. The School Board's requirement that non-degreed full- time vocational teachers successfully complete a basic skills test and the Professional Educator Examination is not a requirement of initial employment, but is required in order to obtain a district teaching certificate. The district-issued teaching certificate is a prerequisite for a non-degreed vocational teacher to continue full-time employment in such capacity. Non-degreed vocational teachers employed by the School Board on a full-time basis for three years may not continue such full-time employment unless they obtain a district-issued professional certificate by meeting the requirements of School Board Policy 6.25, which includes successfully completing the basic skills test. The School Board employs non-degreed vocational teachers on a part-time basis. Part-time non-degreed vocational teachers are not required to take a basic skills test under the School Board's current policy, and those teachers were not required to do so prior to 1990, when the State issued teaching certificates to this category of teachers. Pursuant to the School Board's current policy, non- degreed vocational teachers may be hired by the School Board to teach vocational courses on a part-time basis, and there is no requirement that they ever take or successfully complete a basic skills test. However, in order to continue full-time employment as a non-degreed vocational teacher beyond the initial three years of employment, the teacher must successfully complete the basic skill test. If the non-degreed vocational teacher fails to do so, that individual may no longer work as a full-time non- degreed vocational teacher. Petitioners are non-degreed teachers of vocational subjects who were formerly employed by the School Board as full- time, non-degreed teachers of vocational programs. Petitioners are affected by the challenged rule because each has been deemed ineligible for a district-issued certificate and for continued employment as a non-degreed teacher of vocational programs due to his or her failure to comply with one or more of the School Board's requirements for certification as a non-degreed teacher of vocational programs. Here, Petitioners failed to successfully complete at least one part of the required basic skills test. Non-degreed vocational teachers who are terminated or not rehired as full-time teachers because they failed to successfully complete the basic skills test may be employed by the School Board as part-time vocational teachers or as substitute teachers. The School Board employs substitute teachers in vocational subjects in the same fashion it employs substitute teachers for academic subjects. The only requirement to become a substitute teacher is a high school diploma and the completion of a ten-day training program. Although Petitioners failed to successfully complete the basic skills test requirement of School Board Policy 6.25, they are eligible for employment as part-time non-degreed vocational teachers or as substitute teachers. Petitioner McNeeley is currently employed as a part-time vocational teacher, and Petitioner Kennedy is employed as a full-time substitute teacher in a vocational program. Prior to 1990, non-degreed vocational teachers were employed in the same manner as degreed teachers. During that time period, the State of Florida issued certificates to both degreed teachers and non-degreed teachers. The State of Florida required all teachers, degreed and non-degreed, to take and pass the FUCOSE exam, which later became the Florida Teachers Certification Exam, ("FTCE"). From 1990 through 1991, Janice Velez, general director of Human Resources for the Hillsborough County School District, was part of a consortium of Florida school districts that worked together to develop a policy for the employment and certification of non-degreed vocational teachers. As a result of the work of the consortium, the School Board developed its current policy and procedures, which require non-degreed vocational teachers to take and pass a basic skills test.
Findings Of Fact At all times material to this case, Respondent was a School Board charged with the duty to operate, control, and supervise all free public schools within the Dade County school district. Such authority includes, but is not limited to, the employment of appropriate staff for the Dade County schools. Geographically, the Respondent's district covers a span of approximately seventy-eight miles. Petitioner is an unmarried 41 year old male citizen of the United States of America. In August of 1992, Petitioner applied for a teaching position with the Office of Personnel Staffing (the personnel office) in the Dade County school system. The personnel office is responsible for staffing instructional staff: teachers and teacher's aides. The personnel office receives approximately fifty thousand applications annually from individuals seeking employment with the Respondent. Many of the applications are for employment as teachers for the Dade County school system. The personnel office hires approximately three to four thousand people a year. Of that number, approximately two thousand people are hired as teachers. The operational procedures of the personnel office regarding the application and hiring process for teachers are set forth in the instructions for completing the teacher application package. The instructions are in the front of the application package. Completion of the teacher application process requires that all applicants submit a completed application package, including the submission of all official transcripts. An applicant's official transcripts are always required; all teacher applicants must submit these documents to the personnel office. In this case, Petitioner signed the application package attesting to the fact that he received the package in its entirety. Petitioner was familiar with all of the contents of the application package, including the instructions to the application package. Before submitting his application package to the personnel office, petitioner knew or should have known that official transcripts were a required portion of the application package. Petitioner failed to provide the personnel office with his official transcripts when he submitted his application package. Official transcripts are required to avoid the submission of transcripts that reflect altered and/or forged grades and subject areas. Additionally, the submission of official transcripts facilitates the analysis of the applicant's individual subject performances, possible secondary areas of certification, and additional experiences, subjects or classes that may enhance or decrease the written assessment of the applicant. Examination of an official transcript is the only reliable available means of receiving the information. The personnel office does not seek an applicant's official transcripts, nor does the office have the authority to request such documents from the Florida Department of Education. Official transcripts are confidential documents and once submitted to the State such documents will be released only to the applicant once the applicant's file has expired. Additionally, the Board does not have the capability, nor is it required, to confirm or cross reference the existence of an applicant's official transcript with another agency for purposes of assessing the applicant's qualifications. All applicants seeking employment as a teacher with the Board must meet the application criteria established by the personnel office. All of the requirements for completing an application package are chronicled in the instructions to the application package. Once an application is received, the personnel office has a standard procedure of immediately reviewing an application to verify that it is complete. In this case, Petitioner's application was deemed incomplete because it lacked Petitioner's official transcripts. Based on the preceding, Petitioner's application was not processed. Because the application was not completed, Petitioner was not eligible for employment. An applicant may call for an appointment for an interview after the applicant has submitted a completed application package and the applicant's file is processed. If the applicant's file is not completed and processed, the applicant cannot be scheduled or considered for an interview. The personnel office did not interview Petitioner because his application was incomplete and unprocessed. The only reason Petitioner was not interviewed was because his application was incomplete. No other factor influenced this matter. The Petitioner's marital status did not impact the decision to deem his employment application incomplete. The Board does not take issue with employing single men. Other than Petitioner's complaint, the Board has not received a charge of marital status discrimination in the last ten years. Staff from the personnel office spoke with Petitioner regarding his incomplete application package. The personnel office offered to assist Petitioner. Petitioner was advised that if he furnished the personnel office with his original set of official transcripts, that Dr. Garner would personally copy his originals, attest to their authenticity, return the originals to Petitioner, and proceed with Petitioner's interview (presuming the transcripts were as Petitioner represented). Petitioner never submitted the official transcripts for review and copying. Additionally, Petitioner did not seek a certified copy of his records from the Florida Department of Education. Only at the hearing was Petitioner willing to allow his set of the official transcripts to be reviewed. A statement of eligibility or certification from the Florida Department of Education does not make an applicant automatically qualified for, and entitled to, a teaching position with the Board. Completion of the teacher application package also includes the submission of a completed W-4 tax form. The information solicited on a W-4 form is not considered or even reviewed by the personnel office when they assess an applicant's credentials and overall qualifications for employment. The personnel office does not use a W-4 form to screen applicants by marital status. Additionally, the personnel office requests the tax information, along with other information, before the actual date of hire, in order to avoid operational delays. Past experiences have demonstrated that it is inefficient and impractical to have a newly hired employee mail the W-4 form to the wage and salary office after the individual's actual date of hire. The personnel office processes the paperwork but does not hire teacher applicants. The office is a clearing house that gets applicants ready for hire. The actual hiring of an applicant occurs at a school. The application procedures and all of its requirements have been in effect for approximately thirteen years. The application procedures and all of its requirements are essential in order to facilitate the procedure of hiring the most qualified personnel, regardless of their marital status. It is also essential in order to expedite the process for providing newly hired employees with immediate compensation and benefits. Administrative procedures, regulations, directives and guidelines are permissible methods of implementing School Board policies. The Board received notification from the EEOC that Petitioner had filed a charge of sex and marital discrimination against the School Board. On May 23, 1995, the EEOC issued a letter of determination as to the merits of Petitioner's allegations of sex and marital status discrimination, finding, in pertinent part, that Examination of the evidence of record shows that (Petitioner) was not considered for any position because he failed to submit all the material required with the application. Evidence further shows that all applicants must submit the required material to be con- sidered for vacancies. The (Petitioner) was unable to provide and the Commission's inves- tigation did not disclose any evidence which would show Respondent considered the (Petitioner's) sex or marital status when reaching its decision.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint against the Dade County School Board. DONE AND ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-5316 Rulings on the proposed findings of fact submitted by the Petitioner: None submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1, 2, 3, 4, 6, 8, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 23, 25, 27, 29, 30, 33, 34, 35, 37, 50, and 54 are hereby accepted and adopted by reference. Paragraph 5 is accurate but irrelevant to the resolution of the issue of this case. Paragraphs 19 and 20 are accurate but unnecessary to the resolution of the issue of this case. Paragraphs 24, 26, 28, 31, 32, 36, 38, and 44 are accepted. All other paragraphs not listed above are irrelevant. COPIES FURNISHED: Heidi N. Shulman, Esquire School Board of Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Steve J. Longariello 9999 Summerbreeze Drive, Number 422 Sunrise, Florida 33322 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Building Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Building Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 this 12th day of July, 1991.
The Issue May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
Findings Of Fact Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes. Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows: 231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction. On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN). Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president. On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question: Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations? Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing." On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent part: It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law. The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible. Implementation and compliance are to be at the local level. (Emphasis supplied) Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools. Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher. In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems. According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services. The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers. In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter, Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request. On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels. On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent. TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus. On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows: We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . . Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal hearing . . . . Respondent did not deny TEA's request for formal hearing. Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes. In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1 Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District. Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.) Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll. Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO. At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO. There are no professional (certificated or licensed) teachers on TEA's Board of Directors. It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either. TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development. Mr. Daniels has a background in insurance and union organization and litigation. Ms. Heard's qualifications were never clearly revealed. It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed. Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained. It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher. Also, the cost and objectives of Worwetz's courses were not explained. However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services. Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard. TEA currently has no employees, agents, or contractors who can offer continuing teacher education. TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks. TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service. TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute. Respondent School District, as represented by Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes. Respondent School District, as represented by Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions. Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows: In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation. See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990). In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993). In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996). In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998). In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999). On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena. . . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998). [Bracketed material added for grammar and clarity.] The PERC Order gave Mr. Daniels 10 days in which to respond. TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5 DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of January, 2001.
The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2000.
The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
