Findings Of Fact The Parties. The Petitioner, Betty Castor, as Commissioner of Education, through the EPC, is authorized to discipline Florida teaching certificates. The Respondent is Dewey McKinney, who, at all times relevant to this proceeding, held Florida teaching certificate number 163503. Mr. McKinney is qualified to teach physical education and to be a school principal. Mr. McKinney's certificate is valid through June 30, 1993. From approximately November, 1988, to October 14, 1991, Mr. McKinney served as a school principal for the Bradford County School Board (hereinafter referred to as the "School Board"). Mr. McKinney was employed as "principal" pursuant to a Continuing Contract of Employment for Instructional Personnel of the Public Schools entered into between Mr. McKinney and the School Board on or about March 5, 1974. Mr. McKinney's Requests to Lula Marie Thornton for Prescription Drugs. Lula Marie Thornton was hired in 1976 by Mr. McKinney as school secretary at Starke Elementary School. Ms. Thornton worked for Mr. McKinney from 1976 to 1977 and from 1988 until 1991. In September or October, 1989, Ms. Thornton fractured her elbow. Ms. Thornton's physician prescribed Tylenol III, which contains codeine, a controlled substance. Ms. Thornton took the Tylenol III to school with her the day after injuring her arm in case the pain became severe. Mr. McKinney noticed Ms. Thornton's injury and inquired about it. Mr. McKinney specifically asked Ms. Thornton what medications her physician had prescribed. Ms. Thornton told Mr. McKinney that she had been prescribed Tylenol III and showed him the prescription bottle. Mr. McKinney told Ms. Thornton that he had been experiencing severe headaches at night. Mr. McKinney asked Ms. Thornton if he could take a couple of her Tylenol III pills so that he could take them at night to help him sleep. Mr. McKinney also told Ms. Thornton that he had taken Tylenol III for his headaches before. Ms. Thornton was aware that Mr. McKinney had a history of migraine headaches and that he took prescription medication. Mr. McKinney's testimony that he told Ms. Thornton that he was experiencing a migraine headache at the time he requested the medication is not credible. Ms. Thornton acquiesced to Mr. McKinney's request and Mr. McKinney took a couple of the pills from the bottle. Ms. Thornton did not see Mr. McKinney take any of the pills she gave him. Ms. Thornton was aware that it was improper to give the prescription medication to Mr. McKinney. Even so, she gave him the pills because he was her boss and she considered him a friend. Mr. McKinney was Ms. Thornton's immediate supervisor and Ms. Thornton knew he would have a great deal of influence in the decision of the Superintendent as to whether her annual employment contract was renewed. She also knew that Mr. McKinney signed her annual contract. Consequently, she did not refuse Mr. McKinney's request. Because Ms. Thornton was aware that it was improper to give another person her prescription medications, Ms. Thornton felt very uncomfortable about Mr. McKinney's request and her acquiescence to his request. She did not take the medication back to school after this incident. A couple of nights after Ms. Thornton allowed Mr. McKinney to take some of the Tylenol III, Mr. McKinney telephoned her at her home. This was the first time that Mr. McKinney had ever telephoned Ms. Thornton at her home. Mr. McKinney informed Ms. Thornton that he was experiencing severe headaches, that Tylenol III helped him sleep and asked her whether she still had any of her Tylenol III left. Ms. Thornton told Mr. McKinney that she had some of the medication left. Mr. McKinney then asked Ms. Thornton if she would bring him some of Tylenol III the next day. Despite the fact that Ms. Thornton believed that it was wrong to give anyone else her prescription medications, she told Mr. McKinney that she would bring him some of her Tylenol III. Ms. Thornton again acquiesced to Mr. McKinney's request because he was her immediate supervisor. She felt very uncomfortable, however, with Mr. McKinney's request. The next morning, Ms. Thornton intentionally left the Tylenol III at home and told Mr. McKinney that she had forgotten to bring it. Mr. McKinney replied, "okay." Lying to Mr. McKinney made her feel very uncomfortable. In both incidents, Ms. Thornton was concerned about the possibility of losing her job if she refused Mr. McKinney's request. She was also aware that it was improper to give Mr. McKinney drugs that had been prescribed for her use. These mixed feelings, brought on by Mr. McKinney's requests, caused Ms. Thornton to feel uncomfortable, nervous and upset. Mr. McKinney did not request medication from Ms. Thornton at any other time not reflected in the foregoing findings of fact. Nor did Mr. McKinney act aggravated or express any displeasure toward Ms. Thornton. Mr. McKinney realized that Ms. Thornton felt uncomfortable with his request after she told him that she had forgotten to bring her medication the day after Mr. McKinney's telephone call to her. Mr. McKinney's Request to Ms. Thornton to Pick Up Medication. While principal at Starke Elementary, Mr. McKinney asked Ms. Thornton to go to the store and buy Donnagel PG for him. This occurred at least 5 to 8 times. Donnagel PG is intended for the treatment of diarrhea. It contains paregoric, a pain reliever. Donnagel PG is not a prescription medication. In order to purchase it, however, the purchaser is required to sign for the medication and list their name, address and the date on a log. Ms. Thornton felt uncomfortable purchasing the Donnagel PG for Mr. McKinney because she did not like signing for medication she was not purchasing for herself. She agreed to Mr. McKinney's requests, however, because he was her boss and she felt intimidated. When questioned about these incidents by the Superintendent, Mr. McKinney agreed not to ask anyone to purchase Donnagel PG for him again. Mr. McKinney's Requests to Edna Allen for Prescription Drugs. Edna Allen has been employed at Starke Elementary School since 1970. She worked in the same general area as Ms. Thornton. During 1991, Ms. Allen's immediate supervisor was Mr. McKinney. In April or May, 1991, Ms. Allen went to the dentist because of an abscessed tooth. The dentist prescribed a controlled substance, hydrocodone, to relieve Ms. Allen's pain. After receiving the pain medication, Ms. Allen was explaining her dental problem to Ms. Thornton and Geraldine Tomlinson, a clerical employee at Starke Elementary School. Ms. Allen told Ms. Thornton and Ms. Tomlinson what medication she had been given and showed them the bottle. Mr. McKinney was in the same room at the time that Ms. Allen was talking to Ms. Thornton and Ms. Tomlinson. After returning to her desk, Ms. Allen noticed Mr. McKinney come into her area and go into a closet where student awards were kept. Mr. McKinney made several trips in and out of the area. Ms. Allen had not seen Mr. McKinney go into the closet before and she became nervous. After making several trips into the closet, Mr. McKinney stopped at Ms. Allen's desk. He began to tell her that he had a severe headache and asked her for some of her pain pills. Ms. Allen acquiesced and gave him four pills. Ms. Allen felt very nervous and upset over Mr. McKinney's request for her prescription medication. She knew that it was wrong to give him the pills but she also knew that he was her boss. Ms. Allen was worried about the possible adverse consequences to her employment and her evaluations if she declined to give Mr. McKinney the pills. Based upon Mr. McKinney's testimony that he sensed that Ms. Tomlinson felt uncomfortable about his second request for some of her medication, Mr. McKinney has little excuse for placing Ms. Allen in the position he placed her in when he asked for her prescription medication. Ms. Allen told Ms. Thornton and Ms. Tomlinson about the incident. They told Ms. Allen that she should not bring prescription pain medication to the office because of Mr. McKinney. Therefore, Ms. Allen only brought one pill with her the next day in her purse. The next morning, Mr. McKinney again asked Ms. Allen for some of her pain pills. Ms. Allen lied to Mr. McKinney and told him that she had not brought any medication with her. Ms. Allen felt very upset and nervous as a result of Mr. McKinney's request. The foregoing events caused Ms. Allen to be distracted from performing her job fully for a day or two. Other than the incidents described in the foregoing findings of fact, Mr. McKinney did not ask Ms. Allen for any medications. Mr. McKinney's Failure to Insure that Student Medications Were Safely Stored. Prior to Mr. McKinney's employment as principal of Starke Elementary School, student medications at Starke Elementary School were kept in a vault in the administrative offices of the school. The medications were kept on a shelf in the vault. The vault was left open during the school day. The practice of keeping medications in the school vault on a shelf was continued after Mr. McKinney became principal of Starke Elementary School. Three employees were designated by Mr. McKinney to administer medications to students: Ms. Thornton, Geraldine Tomlinson, a member of the clerical staff, and Ms. Allen. A commonly dispensed medication was Ritalin, a medication taken by children for attention deficit disorder. Parents left medications which their children were required to take with only the three employees who were authorized to dispense the medications, the medications were kept in the vault, the three employees dispensed the medications to the students and the three employees informed the parents when the supply of medications was running low and needed to be replaced. Kathy Whitehead, a parent of a child that took Ritalin, informed Ms. Tomlinson that her child's medication, which she carefully counted, was running out too fast. As a result of concern over whether medications were being taken by someone, Ms. Tomlinson decided to stop keeping student medications on the shelf in the vault. Instead, Ms. Tomlinson decided to keep the medications in an unlocked tin cookie can. She also placed the can in an unlocked file cabinet and began keeping a log of the amount of medications left by parents and dispensed to students. Mr. McKinney's testimony that it was his idea to no longer keep student medications on the shelf is not credible. In addition to student medications, school supplies and student records were maintained in the vault. At all times relevant to this proceeding, the vault in which student medications were stored was left unlocked and open during school hours. The vault was accessible to all teachers and other employees of Starke Elementary School. During the 1990-1991 school year Catherine Rosier, mother of a student taking Ritalin, noticed that her child's medication bottle contained two different colored pills: light blue pills which contained Ritalin and white pills which Ms. Rosier had not seen before. It was subsequently determined that the white pills were not Ritalin. Mr. McKinney was present when Ms. Rosier noticed the white pills. Mr. McKinney reported the incident to the police and an Assistant Superintendent of Bradford County Schools. Mr. McKinney also took some of the white pills to a pharmacist. As a result of Ms. Rosier's discovery, Mr. McKinney instructed Ms. Thornton to purchase a lock box with two keys and begin to store the medications in the lock box. Mr. McKinney gave one key to Ms. Thornton and the other key to Ms. Tomlinson. The evidence failed to prove that Mr. McKinney took any of the missing medications at Starke Elementary School. Mr. McKinney did not, however, take adequate precautions to secure student medications until after problems had occurred. By leaving the vault open and accessible to all employees and faculty to keep student medications under lock and key, student medications were tampered with. Mr. McKinney's Removal as Principal of Starke Elementary School. As a result of the incident involving student medications described in findings of fact 36-46, Finley J. Duncan, Superintendent of Bradford County Schools from January, 1985, until November, 1992, recommended to the School Board that Mr. McKinney be transferred to Bradford High School as Assistant Principal. Mr. Duncan also notified the State Attorney's office of the incident. At the time of this recommendation, Mr. Duncan believed that Mr. McKinney could meet the responsibilities of assistant principal. Mr. Duncan's recommendation to the School Board was rejected. Mr. Duncan then decided, and Mr. McKinney agreed, that Mr. McKinney should be transferred to the position of Director of General Services, the position that Mr. Duncan currently holds. This agreement between Mr. Duncan and Mr. McKinney was intended to resolve the matter involving the missing medications. It was not intended, however, to resolve any of the other charges which are the subject of this proceeding. At the time of Mr. Duncan's recommendation to the School Board that Mr. McKinney be assigned as an assistant principal, Mr. Duncan had been told of accusations against Mr. McKinney concerning requests for medications from coworkers. Assistant Superintendent of Bradford County Schools, Wayne McLeod, had reported to Mr. Duncan that he had been hearing comments concerning Mr. McKinney requesting medications from coworkers. Mr. Duncan, however, took the position that he had no direct evidence that Mr. McKinney had requested medications from coworkers, i.e., no person told him that they had been asked for medications. Consequently, Mr. Duncan did not take any action against Mr. McKinney. While the information that Mr. Duncan had received concerning Mr. McKinney may have been sufficient to warrant further investigation, the evidence failed to prove that any information concerning Mr. McKinney's possible solicitation of medications should have been relied upon by Mr. Duncan to take any action against Mr. McKinney. Nor did the evidence prove that Mr. Duncan, in deciding that Mr. McKinney could effectively fulfill the responsibilities of the position of Director of General Services in the fall of 1991, should have considered the rumors concerning Mr. McKinney. Criminal Charges Against Mr. McKinney. In March, 1992, Mr. Duncan learned from the State Attorney's Office of the extent of the investigation of Mr. McKinney. This was the first time that Mr. Duncan learned of the requests for medications from Mr. McKinney to Ms. Thornton and Ms. Allen. On or about April 1, 1992, Mr. McKinney was arrested and charged by information in the Circuit Court for Bradford County with twelve felony counts. Two of those counts involved Mr. McKinney's request for prescription drugs from Ms. Thornton and Ms. Allen. Mr. McKinney has reluctantly admitted that he committed those violations although he still questions whether he did anything illegal. The other ten counts against Mr. McKinney involve allegations that Mr. McKinney obtained prescription medications from two different physicians without divulging that he was seeing both physicians. The evidence failed to prove whether these charges are correct. The criminal charges are still pending. A Pretrial Intervention Agreement has, however, been entered into to resolve the charges against Mr. McKinney. Pursuant to the Pretrial Intervention Agreement, Mr. McKinney agreed to, among other things, the following: 11) The Defendant agrees, at his expense, to enroll in a facility and submit to and comply with reasonable procedures or requirements employed by such a facility or a facility to which the Defendant is referred by such facility, including but not necessarily to providing urine samples at random times and to maintain a true and accurate log of all substances ingested or otherwise consumed and to not take nor undertake any action inconsistent with the goals referred to in Section I, paragraph 10) of this Agreement. Mr. McKinney has, in conformity with paragraph 11 of the Pretrial Intervention Agreement, referred himself to Vista Pavilion for evaluation and treatment for prescription medication abuse. At the time of the final hearing of this case, Mr. McKinney was attending another drug rehabilitation program pursuant to the Pretrial Intervention Agreement. The Impact of Mr. McKinney's Actions on His Ability to Perform His Duties Effectively. As a result of the charges against Mr. McKinney, Mr. Duncan filed a petition in April, 1992, with the School Board seeking to suspend Mr. McKinney as an employee of the School Board. The petition was amended in June, 1992, to seek Mr. McKinney's dismissal from employment with the School Board. While serving as Principal and as Director of General Services, Mr. McKinney received relatively high ratings for his performance. Those ratings, however, did not take into account all of the specific actions which are the subject of this proceeding. Mr. Duncan made several statements during his testimony which, if considered alone, may indicate that his recommendation that Mr. McKinney be dismissed and his opinion's concerning whether Mr. McKinney can effectively continue to work for the School Board, is based upon the total number of felony counts Mr. McKinney has been charged with. Mr. Duncan's testimony must be considered as a whole, however. A consideration of all of Mr. Duncan's testimony does not support a finding that his opinions concerning Mr. McKinney's effectiveness are based upon the total number of felony counts Mr. McKinney was charged with. Based upon all of Mr. Duncan's testimony, Mr. Duncan has recommended Mr. McKinney's dismissal, and has concluded that Mr. McKinney can no longer effectively carry out his responsibilities with the School Board as a principal because of his solicitation of controlled substance from subordinate employees. Mr. McKinney solicited controlled substances from Mr. Thornton and Ms. Allen. As a consequence of these actions, Mr. McKinney placed subordinate employees in an untenable position. His actions also constituted the improper use of Mr. McKinney's position and power for his own personal gain. Mr. McKinney requested that Ms. Thornton and Ms. Allen, persons under his immediate supervision, provide him with controlled substances in possible violation of criminal laws of the State of Florida. These actions have impaired Mr. McKinney's ability to have effective working relationships with persons under his supervision. Mr. McKinney's effectiveness as a teacher and principal has also been impaired when the nature of the events involving Mr. McKinney's use of drugs as described in this Recommended Order is considered. Although Mr. McKinney has testified that he does not believe he has a drug problem, the weight of the evidence indicates otherwise. While it is true that the evidence failed to prove that Mr. McKinney misused drugs to the extent that he was not able to continue to be a productive member of society and the evidence failed to prove that Mr. McKinney meets some stereo type image of a drug user, Mr. McKinney has had difficulty with drug use. First, Mr. McKinney admittedly has suffered from a number of medical problems which have necessitated fairly significant treatment with medications. Secondly, Mr. McKinney has admittedly requested persons under his supervision for controlled substances in violation of State law; he has, therefore, solicited controlled substances. Thirdly, Mr. McKinney has sent employees to the drug store to pick up medications for him. Although this action alone may not be sufficient to conclude any significant wrongdoing, it is consistent with other problems. Lastly, Mr. McKinney has attended, and was attending at the time of the final hearing of this case, a drug rehabilitation program. Several witnesses were called by Mr. McKinney who testified about Mr. McKinney's good character. Some of these witnesses also indicated that they did not believe that Mr. McKinney had done anything terrible wrong or that he had lost his effectiveness in their minds. The testimony of Mr. McKinney's witnesses has been considered but found not to be persuasive in light of all the evidence presented in this proceeding. Mr. McKinney has caused public disrespect for himself and the education profession. The evidence failed to prove that Mr. McKinney's effectiveness as a principal or teacher have been impaired because the State Attorney investigated Mr. McKinney, because Mr. McKinney was arrested and charged with twelve felony counts, or because Mr. McKinney was suspended by the School Board.
Findings Of Fact A. The Parties. 1. The Petitioner is the Bradford County School Board. 2. The Respondent is Dewey McKinney, an employee of the School Board. 3. Mr. McKinney served as a school principal for the School Board for approximately nineteen years, including the period from approximately November, 1988, to October 14, 1991. Mr. McKinney previously served as an assistant principal for four years. Mr. McKinney was employed as "principal" pursuant to a Continuing Contract of Employment for Instructional Personnel of the Public Schools entered into between Mr. McKinney and the School Board on or about March 5, 1974. Respondent's exhibit 8. At all times relevant to this proceeding, Mr. McKinney was employed by the School Board. The evidence failed to prove that the School Board has taken any other disciplinary action against Mr. McKinney. Mr. McKinney's Requests to Lula Marie Thornton for Prescription Drugs. Lula Marie Thornton was hired in 1976 by Mr. McKinney as school secretary at Starke Elementary School. Ms. Thornton worked for Mr. McKinney from 1976 to 1977 and from 1988 until 1991. In September or October, 1989, Ms. Thornton fractured her elbow. Ms. Thornton's physician prescribed Tylenol III, which contains codeine, a controlled substance. Ms. Thornton took the Tylenol III to school with her the day after injuring her arm in case the pain became severe. Mr. McKinney noticed Ms. Thornton's injury and inquired about it. Mr. McKinney specifically asked Ms. Thornton what medications her physician had prescribed. Ms. Thornton told Mr. McKinney that she had been prescribed Tylenol III and showed him the prescription bottle. Mr. McKinney told Ms. Thornton that he had been experiencing severe headaches at night. Mr. McKinney asked Ms. Thornton if he could take a couple of her Tylenol III pills so that he could take them at night to help him sleep. Mr. McKinney also told Ms. Thornton that he had taken Tylenol III for his headaches before. Ms. Thornton was aware that Mr. McKinney had a history of migraine headaches and that he took prescription medication. Ms. Thornton acquiesced to Mr. McKinney's request and Mr. McKinney took a couple of the pills from the bottle. Ms. Thornton did not see Mr. McKinney take any of the pills she gave him. Ms. Thornton was aware that it was improper to give the prescription medication to Mr. McKinney. Even so, she gave him the pills because he was her boss and she considered him a friend. Mr. McKinney was Ms. Thornton's immediate supervisor and Ms. Thornton knew he would have a great deal of influence in the decision of the Superintendent as to whether her annual employment contract was renewed. She also knew that Mr. McKinney signed her annual contract. Consequently, she did not refuse Mr. McKinney's request. Because Ms. Thornton was aware that it was improper to give another person her prescription medications, Ms. Thornton felt very uncomfortable about Mr. McKinney's request and her acquiescence to his request. She did not take the medication back to school after this incident. A couple of nights after Ms. Thornton allowed Mr. McKinney to take some of the Tylenol III, Mr. McKinney telephoned her at her home. This was the first time that Mr. McKinney had ever telephoned Ms. Thornton at her home. Mr. McKinney informed Ms. Thornton that he was experiencing severe headaches, that Tylenol III helped him sleep and asked her whether she still had any of her Tylenol III left. Ms. Thornton told Mr. McKinney that she had some of the medication left. Mr. McKinney then asked Ms. Thornton if she would bring him some of Tylenol III the next day. Despite the fact that Ms. Thornton believed that it was wrong to give anyone else her prescription medications, she told Mr. McKinney that she would bring him some of her Tylenol III. Ms. Thornton again acquiesced to Mr. McKinney's request because he was her immediate supervisor. She felt very uncomfortable, however, with Mr. McKinney's request. The next morning, Ms. Thornton intentionally left the Tylenol III at home and told Mr. McKinney that she had forgotten to bring it. Mr. McKinney replied, "okay." Lying to Mr. McKinney made her feel very uncomfortable. In both incidents, Ms. Thornton was concerned about the possibility of losing her job if she refused Mr. McKinney's request. She was also aware that it was improper to give Mr. McKinney drugs that had been prescribed for her use. These mixed feelings, brought on by Mr. McKinney's requests, caused Ms. Thornton to feel uncomfortable, nervous and upset. Mr. McKinney did not request medication from Ms. Thornton at any other time not reflected in the foregoing findings of fact. Nor did Mr. McKinney act aggravated or express any displeasure toward Ms. Thornton. Mr. McKinney's Requests to Edna Allen for Prescription Drugs. Edna Allen has been employed at Starke Elementary School since 1970. She worked in the same general area as Ms. Thornton. During 1991, Ms. Allen's immediate supervisor was Mr. McKinney. In April or May, 1991, Ms. Allen went to the dentist because of an abscessed tooth. The dentist prescribed a controlled substance, hydrocodone, to relieve Ms. Allen's pain. After receiving the pain medication, Ms. Allen was explaining her dental problem to Ms. Thornton and Geraldine Tomlinson, a clerical employee at Starke Elementary School. Ms. Allen told Ms. Thornton and Ms. Tomlinson what medication she had been given and showed them the bottle. Mr. McKinney was in the same room at the time that Ms. Allen was talking to Ms. Thornton and Ms. Tomlinson. After returning to her desk, Ms. Allen noticed Mr. McKinney come into her area and go into a closet where student awards were kept. Mr. McKinney made several trips in and out of the area. Ms. Allen had not seen Mr. McKinney go into the closet before and she became nervous. After making several trips into the closet, Mr. McKinney stopped at Ms. Allen's desk. He began to tell her that he had a severe headache and asked her for some of her pain pills. Ms. Allen acquiesced and gave him four pills. Ms. Allen felt very nervous and upset over Mr. McKinney's request for her prescription medication. She knew that it was wrong to give him the pills but she also knew that he was her boss. Ms. Allen was worried about the possible adverse consequences to her employment and her evaluations if she declined to give Mr. McKinney the pills. Ms. Allen told Ms. Thornton and Ms. Tomlinson about the incident. They told Ms. Allen that she should not bring prescription pain medication to the office because of Mr. McKinney. Therefore, Ms. Allen only brought one pill with her the next day in her purse. The next morning, Mr. McKinney again asked Ms. Allen for some of her pain pills. Ms. Allen lied to Mr. McKinney and told him that she had not brought any medication with her. Ms. Allen felt very upset and nervous as a result of Mr. McKinney's request. The foregoing events caused Ms. Allen to be distracted from performing her job fully for a day or two. Other than the incidents described in the foregoing findings of fact, Mr. McKinney did not ask Ms. Allen for any medications. Mr. McKinney's Removal as Principal of Starke Elementary School. In the fall of 1991, medications maintained for students at Starke Elementary School were tampered with. As a result of this incident, and the fact that Mr. McKinney was the Principal, Finley J. Duncan, Superintendent of Bradford County Schools from January, 1985, until November, 1992, recommended to the School Board that Mr. McKinney be transferred to Bradford High School as Assistant Principal. At the time of this recommendation, Mr. Duncan believed that Mr. McKinney could meet the responsibilities of assistant principal. Mr. Duncan's recommendation to the School Board was rejected. Mr. Duncan then decided, and Mr. McKinney agreed, that Mr. McKinney should be transferred to the position of Director of General Services, the position that Mr. Duncan currently holds. This agreement between Mr. Duncan and Mr. McKinney was intended to resolve the matter involving the missing medications. It was not intended, however, to resolve any of the charges which are the subject of this proceeding. At the time of Mr. Duncan's recommendation to the School Board that Mr. McKinney be assigned as an assistant principal, Mr. Duncan had been told of accusations against Mr. McKinney concerning requests for medications from coworkers. Assistant Superintendent of Bradford County Schools, Wayne McLeod, had reported to Mr. Duncan that he had been hearing comments concerning Mr. McKinney requesting medications from coworkers. Mr. Duncan, however, took the position that he had no direct evidence that Mr. McKinney had requested medications from coworkers, i.e., no person told him that they had been asked for medications. Consequently, Mr. Duncan did not take any action against Mr. McKinney. While the information that Mr. Duncan had received concerning Mr. McKinney may have been sufficient to warrant further investigation, the evidence failed to prove that any information concerning Mr. McKinney's possible solicitation of medications should have been relied upon by Mr. Duncan to take any action against Mr. McKinney. Nor did the evidence prove that Mr. Duncan, in deciding that Mr. McKinney could effectively fulfill the responsibilities of the position of Director of General Services in the fall of 1991, should have considered the rumors concerning Mr. McKinney. Mr. McKinney's Arrest and Suspension by the School Board. In March, 1992, Mr. Duncan learned from the State Attorney's Office of an investigation of Mr. McKinney. This was the first time that Mr. Duncan learned of the requests for medications from Mr. McKinney to Ms. Thornton and Ms. Allen. On or about April 1, 1992, Mr. McKinney was arrested and charged by information in the Circuit Court for Bradford County with twelve felony counts. Two of those counts involved Mr. McKinney's request for prescription drugs from Ms. Thornton and Ms. Allen. The other counts related to alleged incidents which are not a part of the School Board's charges in this case. As a result of the charges against Mr. McKinney, and in particular, the two counts involving Ms. Thornton and Ms. Allen, Mr. Duncan filed a petition in April, 1992, with the School Board seeking to suspend Mr. McKinney as an employee of the School Board. The petition was amended in June, 1992, to seek Mr. McKinney's dismissal from employment with the School Board. In particular, Mr. Duncan recommended Mr. McKinney's dismissal due to events described in findings of fact 4-20 and 21-30. The Impact of Mr. McKinney's Actions on His Ability to Perform His Duties Effectively. While serving as Principal and as Director of General Services, Mr. McKinney received relatively high ratings for his performance. Those ratings, however, did not take into account the specific actions which are the subject of this proceeding. Mr. Duncan made several statements during his testimony which, if considered alone, may indicate that his recommendation that Mr. McKinney be dismissed and his opinion's concerning whether Mr. McKinney can effectively continue to work for the School Board, is based upon the total number of felony counts Mr. McKinney has been charged with. Mr. Duncan's testimony must be considered as a whole, however. A consideration of all of Mr. Duncan's testimony does not support a finding that his opinions concerning Mr. McKinney's effectiveness are based upon the total number of felony counts Mr. McKinney was charged with. Based upon all of Mr. Duncan's testimony, Mr. Duncan has recommended Mr. McKinney's dismissal, and has concluded that Mr. McKinney can no longer effectively carry out his responsibilities with the School Board because of the events involving Ms. Thornton and Ms. Allen, as described in the amended petition. Mr. McKinney's actions, as described in findings of fact 4-30, involve improper solicitation of controlled substances, placed subordinate employees in an untenable position and constitute the improper use of Mr. McKinney's position and power for his own personal gain. Based upon the nature of the events described in findings of fact 4- 30, Mr. McKinney requested that Ms. Thornton and Ms. Allen, persons under his immediate supervision, provide him with controlled substances in possible violation of criminal laws of the State of Florida. These actions have detrimentally impacted Mr. McKinney's ability to have effective working relationships with persons under his supervision. The community's awareness of Mr. McKinney's actions with Ms. Thornton and Ms. Allen as a result of the smallness of the community, has detrimentally impacted Mr. McKinney's ability to effectively work for the School Board. Mr. McKinney has caused public disrespect for himself and the education profession. Mr. McKinney's effectiveness as a principal and administrator for the School Board has been impaired as a result of the acts described in findings of fact 4-30.
Findings Of Fact Respondent left Cuba with her parents in 1981. She resumed school in Spain and thereafter immigrated to the United States. She has had difficulty in adjusting here, especially to the language change. She is currently a 7th grade student at West Miami Junior High School. She is failing most of her subjects and has an absentee rate (unexcused) of nearly 50 percent. She has been involved in fights at school on two occasions during the current academic year. School officials have met with her parents, and have counseled Respondent in an effort to assist her. These efforts have been unsuccessful. Recently, her parents have taken her to the "Family and Adolescent Development Center" where she is apparently receiving therapeutic services. A late-filed exhibit on her current, diagnosis (Respondent's Exhibit 1) was to be furnished by Respondent's therapist. However, this document was not filed. Therefore, the results of the therapeutic referral were not established.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assigning Respondent to its Educational Alternative Program. DONE AND ENTERED this 19th day of June, 1984, at 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mr. Reinaldo Sanchez 6797 South West 21st Street Miami, Florida 33155 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether the Respondent committed the violations set forth in the Notice of Specific Charges dated March 20, 2000, and, if so, what penalty should be imposed.
Findings Of Fact Since 1988, Respondent Priscilla Stephens Kruize ("Kruize") has been employed by the Miami-Dade County School Board teaching various grade levels at Gulfstream. At all times during which Kruize has been so employed, teachers in the Miami-Dade County school system were evaluated annually pursuant to the Teacher Assessment and Development System ("TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract ("the contract") between the School Board and the United Teachers of Dade ("UTD"). The same TADS documents are used for all grade levels, subject areas, and teachers. TADS purports to objectively measure 67 minimal behaviors necessary for teaching. TADS includes in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. TADS observations and ratings are performed by school supervisory personnel. TADS observers are trained and certified. The observer records deficiencies noted during the observation period, if any. In addition, the observer provides a so-called "prescription," or plan, for performance improvement in each of the areas in which deficiencies are noted. A post- observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response. Under the School Board's contract with the UTD, the teacher is required to comply with the prescription plan, performing all activities specified in the prescription and meeting the deadlines set forth. Miami-Dade County's TADS assessment system was implemented to fulfill the legislative mandate of Section 231.29, Florida Statutes. The statute requires the superintendent of each of Florida's school districts to establish procedures for assessing, on an annual basis, the performance of all instructional personnel employed by the district. At all times material hereto, TADS was used to evaluate Kruize's performance. Miami-Dade County's TADS procedures include all of the statutorily required elements, and Kruize received the benefit of each of the statutory requirements, including notice in writing of each deficiency observed; assistance and recommendations designed to help correct those deficiencies; and a reasonable period of time in which to correct deficiencies. As a result of certain amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedure to comply with new statutory requirements. Under the amended procedures, a meeting known as a conference for the record ("CFR") initiates a 90 calendar-day performance probation period. From the beginning of her employment at Gulfstream through and including the 1998-99 school year, Kruize's TADS evaluations were satisfactory. In the 1999-2000 school year, Kruize was assigned to second grade. On October 11, 1999, Kruize was formally observed by Assistant Principal Cheryl Oglesby ("Oglesby"). This observation, along with one conducted on January 14, 2000, was identified in the March 20, 2000, Notice of Specific Charges ("Notice"). A November 22, 1999, observation was also conducted, but not specified in the March 20 Notice. At the October 11, 1999, observation, Kruize was rated unsatisfactory in preparation and planning; knowledge of subject matter; classroom management; techniques of instruction; and teacher-student relationships. 1/ Kruize was rated unsatisfactory in preparation and planning because she did not have a lesson plan that included objectives, activities, homework, and a way of monitoring pupil progress. Additionally, she failed to follow the lesson plan she did have. Kruize was rated unsatisfactory in knowledge of subject matter because she made a substantial factual error, incorrectly explaining the concept of "blends." She also failed to be organized in her presentation. Kruize was rated unsatisfactory in classroom management because she did not use appropriate verbal or non- verbal techniques to redirect the large number of students who were off-task or behaving inappropriately. Kruize was rated unsatisfactory in techniques of instruction because her instruction was not appropriate to the needs and abilities of her students. She seemed unaware that 90 percent of the students were not following the lesson, the content of which was not age appropriate. Kruize was rated unsatisfactory in teacher-student relationships because she failed to encourage participation from students who were reluctant to participate; she was impatient with students who did not answer questions with the answer she wanted, and did nothing to deal with a student who was being rude to a classmate. A timely post-observation conference for the record ("CFR") was held on October 19, 1999. At that time, Kruize was advised that her performance was unacceptable. In accordance with Section 231.29(3)(d), Florida Statutes, and with the TADS procedures approved by the Department of Education and embraced within the School Board's contract with the UTD, Kruize was placed on a performance probation. Kruize was provided with assistance in the form of a written prescription 2/ to aid her in improving her unsatisfactory performance. The deadline for completing the prescriptive activities was November 17, 1999. The prescription contained, as it must, specific recommendations with respect to each area of unsatisfactory performance and identified individuals and written materials available to Kruize to help her to comply with the prescription plan. The assistance provided included a sample lesson plan format, the opportunity to consult with and/or observe a successful teacher, and the opportunity to consult with administrators and subject matter specialists for the purpose of obtaining help in addressing the cited weaknesses. The prescription also included directions to submit written summaries of her observations of the methods used by a successful teacher in encouraging students to improve their behavior; directions to read specific pages from the TADS Prescription Manual and to complete certain activities in that Manual; and to otherwise submit written work done in accordance with the prescription to administrators for review and feedback. Kruize was generally well liked by her colleagues, most, if not all, of whom stood ready to assist her. The TADS observation/prescription form provides space in which a teacher may respond to alleged deficiencies. Kruize made no written response on this prescription, nor on the ones which would follow. Kruize did observe the teacher designated to assist her in dealing with classroom discipline, but failed to perform any of the required reading and writing assignments prior to the November 17 deadline. In accordance with "standard operating procedure" the deadline was extended by one day, and Kruize again did not comply. Pursuant to a Memorandum of Understanding between the School Board and the UTD dated September 26, 1997, it was necessary for Gulfstream's administration to conduct an additional two TADS observations after the compliance deadline but before the 90-day probation period ended. The required observations were conducted on November 22, 1999, and January 14, 2000. On November 22, 1999, a second CFR was held. At this time, Kruize was placed on prescription relative to professional responsibilities, due to her failure to comply with the deadline contained in the October prescription. In addition, Kruize was instructed to complete all prescriptive activities by January 22, 2000. Also on November 22, 1999, the first of the two required follow-up TADS observations was conducted by Assistant Principal Helene Chait ("Chait"). A new prescription was issued for deficiencies in classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Kruize was rated deficient as to classroom management because she did not have a schedule for the children; she was unable to control inattentive children; and was otherwise unable to use instructional time for instruction. Kruize was rated unsatisfactory in techniques of instruction because she did not appropriately lead-in, sequence, and close her lessons, and otherwise failed to provide context for lessons, and because she ignored, and in one case shunted off to the back of the room, a child who was isolated from the classroom activities. Kruize was found defiencent in teacher-student relationships because she failed to address inappropriate behavior and failed to be cognizant of the individual needs of her students. Kruize was rated unsatisfactory in assessment techniques because she failed to maintain a grade book which documented student performance in the form of two grades per week, the minimum required. Based upon the November 22, 1999, observation, a new prescription dated December 1, 1999, was issued directed to the specific deficiencies observed by Chait. The prescription included specific directions, such as observing a designated teacher and noting at least one method used by the teacher to adjust a lesson to the needs of students. Kruize was required to demonstrate that she understood what she had observed by writing a paragraph describing the method and submitting same to an assistant principal. Various other reading, writing, and in-service assignments were prescribed, all in accordance with the TADS prescription manual and all appropriate to help Kruize to improve her classroom performance. Kruize was given until January 4, 2000, to comply with the assignments contained in the prescription. Subsequently, the deadline for compliance was extended to January 5, 2000. Kruize did not complete any of the tasks and requirements set forth in the December 1, 1999, prescription. On January 7, 2000, a CFR was held at which time Kruize was informed that she had again failed to fulfill the prescription requirements. In accordance with procedure, Kruize was given an extension, until February 9, 2000, to comply with her professional responsibilities prescription, i.e. to complete all prescriptive activities assigned in the original, October 21, 1999, prescription. That deadline was subsequently extended to February 10, 2000, which deadline was characterized by Barr as an "absolute final deadline." Prior to setting the February 9 deadline, Barr inquired of Kruize how much additional time she would require to complete the prescription. Kruize told Barr the requirements were overwhelming and she couldn't do any of it. A third and final required TADS observation was conducted by Barr on January 14, 2000. Kruize was rated unsatisfactory in preparation and planning, classroom management, techniques of instruction, and assessment techniques. Kruize was rated unsatisfactory in preparation and planning because she was not in substantial compliance in following approved Miami-Dade County curriculum. For example, Kruize's lesson plans identified activities, not objectives as is required. As with her prior prescriptions, she refused to submit lesson plans for review each Friday, even though doing so would have assisted her in identifying deficiencies while there was time to correct them. Kruize was rated unsatisfactory in classroom management because she failed to control off-task behaviors. Kruize was rated unsatisfactory in techniques of instruction because she did not use methods appropriate to the needs and abilities of the students. For example, it was evident that she continued not to grasp the concept of sequencing lessons. Instead, she moved from one activity to another without employing standard techniques for ensuring at the beginning of a lesson that students understood what was expected of them, and at the end of the lesson reviewing the material so that she could be certain as to whether students had in fact mastered it. Kruize was rated unsatisfactory in assessment techniques because she failed to maintain folders for each child, as was required. An examination of her grade book or her students' "cubbies" failed to reveal the child's progress because it was impossible to match the worksheets in the cubbies with the grades in her gradebook. Kruize's failure to comply with prior prescription directives to provide to an assistant principal, for advance review, weekly written lesson plans which would include an assessment activity, made it impossible for Kruize to have the feedback necessary to correct her deficiency in this and other documented areas. As in previous prescriptions, Kruize was once again directed to develop and enforce a seating chart. She refused to take even this simple step to facilitate an organized classroom in which learning could take place. Once again, Kruize was offered help in the form of specific resources, recommendations, and prescribed activities, all from the TADS Prescription Manual, and all intended to assist her in improving her classroom performance. She was directed to read certain pages of the TADS manual; prepare and submit lesson plans which complied with approved formats and which would include assessment activities; outline introductions and closures for each lesson and attach same to her lesson plans; observe a designated teacher for purposes of recording proper methods of providing students with concrete examples and other methods of providing clarification to students. Kruize was required to create student work folders which a third party could correlate not only to the lessons taught, but also to the grades reflected in her gradebook. The time line in this prescription required that all prescribed activities be completed by February 9, 2000. That deadline was also extended by one day, to February 10, 2000. Kruize failed to comply with the third prescription in any way. In addition to the prescriptive activities specified in each of the above-described prescriptions, Kruize was afforded additional assistance by Barr in order to help her correct her deficiencies. For example, Kruize was afforded the opportunity to attend a best practices workshop for Miami-Dade County second grade teachers. The workshop was not limited to teachers who were on prescription. Instead, principals had discretion to pick which of their second grade teachers could attend. The purpose of the workshop was to enable teachers to share best practices and strategies in reading and planning. Barr selected Kruize to attend because Barr felt it would be a very positive form of assistance. The workshop sessions took place over a period of four days from October 1999 to January 2000. With respect to the workshop session held on January 22, 2000, Kruize went to Chait's office in the morning to advise that she had forgotten that she was to attend that day. Chait scrambled to cover Kruize's class so that she could attend. Other specialized assistance was provided by Gulfstream's reading specialist, Johnnie Farrington ("Farrington"). Farrington's job is to assist all of Gulfstream's teachers in implementing a district-wide comprehensive reading curriculum. She provides basic training to all teachers in the comprehensive reading program and is also responsible for knowing which teachers require what types of additional assistance. Kruize required more assistance than was needed by most other teachers. In addition, Kruize's students were not being provided at all times with each component of the comprehensive reading program. Kruize was the only teacher for whom Farrington performed a full two-hour reading block classroom demonstration. Demonstrations are performed only in classrooms where the teacher is having difficulty with one or more components of the reading program; Kruize was the only teacher having difficulty with each component. The assistance provided to Kruize through the various prescriptions and additional assistance offered were reasonable and appropriate to assist her to remedy her cited deficiencies. By February 10, 2000, the 90-day performance probation period was over. In accordance with state law and the UTD contract, a final "confirmatory" observation was required before action to terminate Kruize's contract could be commenced. The purpose of the final observation was to document whether the deficiencies had or had not been corrected. Kruize's confirmatory observation was conducted by Barr on February 11, 2000. The observation revealed that by this time Kruize had essentially given up on her teaching. At the commencement of the observation, very little of substance was occurring in the classroom. Eight of the 22 pupils were doing nothing. One of the non-participating students slept for 20 minutes until Kruize asked another student to wake him. Kruize was rated unsatisfactory in every TADS category. At some point following the completion of the TADS assessment process, Barr, acting on orders from a Ms. Waddell, the director of personnel for Region 6, offered Kruize a transfer to another school. Kruize refused the transfer. The transfer offer was unusual, and perhaps unique. Kruize claimed that Barr offered to wipe out all the prescriptions if Kruize accepted the transfer. Barr denies making such an offer. Neither side attempted to corroborate its version of the conversation in which the transfer was offered. On February 14, 2000, Barr timely forwarded to the Superintendent of Schools her recommendation that Kruize's employment be terminated. Kruize was provided a copy of Barr's recommendation. On February 28, 2000, the Superintendent timely notified Respondent that he was recommending to the School Board that her employment contract be terminated because she had failed to correct her performance deficiencies during her 90 calendar-day performance probationary period and because of gross insubordination. Throughout this long and unpleasant process, Kruize suspected that, as an African-American woman, she was being victimized by a racist white principal. At a minimum, Kruize felt she was being set-up by a principal who disliked her for reasons having nothing to do with the quality of her teaching. Kruize received satisfactory TADS assessments from 1988 when she was first employed at Gulfstream through Barr's first three years as Gulfstream's principal, 1996-97; 1997-98; and 1998-99. Although the TADS evaluators gave Kruize passing scores during those three evaluation periods, Barr and other Gulfstream administrators personally observed significant deficiencies in Kruize's classroom performance. Some parents asked that their children be assigned to other teachers. Two of the parents who complained about Kruize expressed dissatisfaction with the amount of African-American history she taught. 3/ Despite her concerns, Barr viewed a prescription as a drastic remedy which she declined to take before exhausting other avenues. Nevertheless, in 1999-2000, Barr placed three teachers besides Kruize on prescription. 4/ Relations between Barr and Kruize began to deteriorate at the end of the 1996-97 school year when Barr assigned Kruize to teach kindergarten in 1997-98. Barr hoped that Kruize's teaching would be more effective in a less demanding academic setting. Kruize vehemently protested the transfer in the form of letters and phone calls to Barr's supervisors. In the winter of 1999, Kruize and Barr again came into conflict when Barr questioned Kruize about a conversation she had with the PTA president regarding a contribution to an African heritage museum which Kruize operated on Gulfstream's campus. Barr and Kruize's perceptions of how the conversation was received by the PTA president are diametrically opposed. Kruize viewed Barr's inquiry as a racially motivated reprimand which she protested in at least two letters distributed to Barr's supervisors. Kruize also insists that Barr was rude and angry and told her to "stop making white people feel guilty." Kruize took umbrage that Barr would question her at all about what she regarded as a private conversation between herself and the PTA president. Barr denies being confrontational. She maintains that she was merely inquiring as to Kruize's version of what happened after the PTA president brought the conversation to Barr's attention. Kruize's evidence fails to demonstrate any impropriety in Barr's inquiry regarding the communication between Kruize and the PTA president. In the summer of 1999 Kruize vacationed in Ghana. Although she was aware that air service between Ghana and the United States was offered only twice weekly, she had booked her return flight so close to the start of the new school year that if the flight were cancelled--as it was--it would be impossible for her to be back in time for the opening of school. As a result of the flight cancellation, Kruize missed two teacher planning days. On those days, teacher training for a "Sing, Spell, Read and Write" program was conducted. Kruize had not prepared her classroom for the new children in advance of her departure for Ghana, and her students spent the first three days of the new school year without her. Barr docked Kruize's pay for the days she was absent. Kruize initiated a letter-writing campaign to protest that decision, and ultimately was reimbursed for that week's pay. Throughout the 90-day probation period, Kruize clung to the belief, as she described it, that Barr was out to get her. Kruize sought solace from family, as well as letters of support from friends, parents of former students, and colleagues in the system. None of the individuals who wrote letters or testified on her behalf had any personal knowledge of her teaching in 1999-2000, and none was qualified in the TADS methodology. 5/ Kruize's attitude toward the 90-day probation period was one of denial. She refused on several occasions to sign for receipt of various documents provided to her as part of the TADS process. She believed herself to be a good teacher and refused to take any of the prescribed corrective actions because she did not believe in the legitimacy of the TADS process, as applied to her by Barr. The School Board, through its duly-designated representatives at Gulfstream, appropriately applied the TADS procedures to Kruize, and has proved, by a preponderance of the evidence, that Kruize's performance in the 1999-2000 school year was unsatisfactory. The School Board has failed to prove gross insubordination by a preponderance of the evidence. There is no evidence that racial animus or personal hostility on Barr's part played any role in the application of the TADS process to Kruize. The School Board has met its burden of proving by a preponderance of the evidence that Kruize failed to perform in a satisfactory manner and failed to correct her deficiencies by the close of her 90-day performance probationary period.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment for unsatisfactory performance as set forth in Count I of the Notice of Specific Charges, and dismissing the charge of gross insubordination contained in Count II. DONE AND ENTERED this 5th day of December, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2000.
Findings Of Fact Respondent holds a valid teaching certificate from the State of Florida, number 512951. Respondent's teaching certificate is valid through June 30, 1993. Respondent is certified to teach elementary education. Respondent is employed by the Dade County Public School Board (the "School Board"). Respondent was employed as a teacher at Palm Springs Elementary School in Dade County, Florida ("Palm Springs") for the school years 1989-1990 and 1990-1991. On or about April 30, 1991, Detective Michael Segarra, a police officer in Pembroke Pines, Florida, was investigating a bank robbery in that city at the site of the robbery. Respondent approached Detective Segarra and gave him relevant information concerning two men who may have committed the robbery. Respondent was riding in an automobile with two men who said they were going to rob a bank. Respondent was able to get out of the car by telling the two men that she wanted to go into a McDonald's restaurant across the street from the bank for some orange juice. The two men let her out of the car, and Respondent hid from them. They returned after the robbery was committed, searched without success for Respondent, and left. Respondent walked across the street and gave Detective Segarra the information she had. Based upon Respondent's unusual demeanor and behavior, Detective Segarra asked if he could inspect Respondent's purse. Respondent consented to the search, and Detective Segarra found nine small plastic bags of cocaine and a small cigarette with 20 grams or less of cannabis. Respondent admitted to Detective Segarra that she had used both controlled substances. Detective Segarra did not arrest Respondent at the time of the consent search because Respondent agreed to help him trace the source of the cocaine and the whereabouts of the two men during the previous day and a half. Detective Segarra questioned Respondent further at the police department, took her written statement, and then dropped her off at her residence. 5/ An Information was filed against Respondent on July 24, 1990, for possession of cocaine and cannabis. Respondent pled guilty to both charges on December 5, 1990. Adjudication of guilt was withheld. Respondent was ordered to pay a fine of $240 and placed on probation for two years. The terms of probation included random drug testing and regular drug evaluations. Respondent violated the terms of her probation by failing to timely pay her fine, by testing positive for cocaine, and by failing to report for regular drug evaluation. She was charged by affidavit dated February 15, 1991, with violating the terms of her probation. On April 5, 1991, Respondent pled guilty to violating her probation and to one count of possession of cocaine. Adjudication of guilt was again withheld, and her probation was revoked. Respondent was sentenced to two years of probation and required to complete a drug rehabilitation program at Mount Sinai Hospital. Respondent was removed from the classroom without pay sometime in August, 1990. She returned to the classroom in February, 1991, and was removed again without pay in April, 1991. Although Respondent has not returned to the classroom, the School Board never terminated her employment. She has remained on leave without pay for approximately a year and a half. 6/ Respondent is the first employee of the School Board to qualify for and participate in the Alternative Discipline Program (the "ADP"). The ADP is designed to rehabilitate employees with superior performance histories who have developed a chemical dependency and return them to the classroom as effective teachers. The program is adopted from a similar program developed at Mount Sinai Hospital for physicians with a chemical dependence. The ADP was developed in consultation with Dr. John Eustace, an addictionologist at Mount Sinai Hospital, and through the combined efforts of the School Board's Employee Assistance Program ("EAP"), the School Board's Office Of Professional Standards, and the United Teachers of Dade (the "UTD"). Respondent entered the ADP on August 15, 1991. The ADP is a two year program that places qualified employees with a chemical dependence on leave without pay. If the participant has no connection with a chemical substance for a period of two years, there is a very strong possibility of permanent recovery. Approximately 80 percent of the individuals who have no connection with a chemical substance for two years recover permanently. A participant in the ADP is not entitled to utilize hardship benefits or extra pay benefits while on leave without pay but retains other fringe benefits, including hospitalization. During his or her leave, the participant is hospitalized and receives medical treatment. The participant is required to live in a halfway house, then a three-quarter house, and then to participate in programs of recovery such as Alcoholics Anonymous ("AA") or Narcotics Anonymous ("NA"). If the participant completes that part of the program successfully, the participant is entitled to return to the classroom on a part time basis and then on a permanent basis subject to probation for a year or more. During probation, the participant's performance, attendance, and participation in a program of recovery is strictly monitored. The terms of probation require that the participant sign a letter of resignation and waiver of right to appeal any termination of employment if the participant fails to successfully complete the ADP. In order to participate in the ADP, an employee must enter into a written agreement in which he or she agrees to: participate in a drug screening program utilizing random urine and blood testing within 24 hours of notification; abstain from all mood altering substances, including alcohol, marijuana, crack/cocaine, over the counter preparations, stimulants, street drugs, and pharmaceuticals; participate in a structured chemical dependance program recommended by the EAP or designated program administrator; follow all recommendations of the treatment facility, including a residential long term treatment in a half-way house or other appropriate facility; participate in weekly aftercare upon completion of primary care at Mount Sinai Hospital; provide documentation of attendance at a minimum of five meetings a week at an appropriate program of recovery; obtain an AA or NA sponsor and complete a 12 step recovery program; encourage family members to attend their own 12 step support groups; utilize the comprehensive services available through EAP and the hospital for personal, physical, family, and stress related problems; seek part-time employment upon completion of the structured treatment program only with permission of the program; attend monthly monitoring conferences with a designated fitness supervisor, union representative, and EAP coordinator; and be responsible for all treatment fees not covered by insurance. A participant in the ADP further agrees to resign their employment and waive their right to appeal in the event the participant fails to successfully complete the terms of the ADP. Respondent is the first School Board employee to qualify for the ADP. Only teachers with good performance records qualify for the ADP. Prior to her substance abuse, Respondent had a good performance record. She was more than acceptable. She had very good performance evaluations and recommendations. Respondent executed the first written agreement utilized in the ADP. The written agreement executed by Respondent is substantially equivalent to but not identical to the form Settlement Agreement developed since Respondent entered the program. The form Settlement Agreement includes a letter of resignation which a participant must sign upon entering the ADP and which becomes effective immediately without appeal if the participant fails to complete the ADP successfully. Respondent has successfully completed the major portion of the ADP. She is currently eligible to return to the classroom as a substitute teacher for three days a week. If she successfully completes her part time employment, she will be eligible to return to full time teaching in August, 1992, on a probationary basis. Respondent will be required to execute a Settlement Agreement prior to returning to full time teaching on a probationary basis. Respondent, with the advice and consent of her attorney, agreed under oath during the formal hearing to immediately and voluntarily relinquish her teaching certificate if she failed to complete the remainder of the ADP. The ADP will not be successful if a participant has his or her teaching certificate revoked or suspended prior to completion of the program. Full time teaching on a probationary period for at least one year is an integral part of the ADP. If the participant has his or her teaching certificate revoked or suspended, he or she cannot complete the full time probationary phase of the ADP. Revocation of Respondent's teaching certificate would cause her to lose her continuing contract status. If she obtained a teaching certificate following revocation, she would be required sign an annual contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent be found guilty of violating Section 231.28(1)(e), Florida Statutes, and that Respondent be placed on probation pursuant to Section 231.262(6)(d), Florida Statutes. It is further recommended that the terms and conditions of Respondent's probation should be the same terms and conditions as those prescribed in the agreement entered into between Respondent and the Employee Assistance Program when Respondent entered the Alternative Discipline Program (the "ADP") and any additional terms and conditions contained in the Settlement Agreement Respondent will be required to enter into upon resumption of full time employment. As a further condition of probation, it is recommended that Respondent be required to successfully complete the ADP and, in the event Respondent fails to do so, voluntarily and immediately resign her employment from the Dade County School Board and surrender her teaching certificate to Petitioner. RECOMMENDED this 19th of February 1992, in Tallahassee, Florida. DANIEL MANRY 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 19th day of February 1992.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment based on the alleged conduct.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. Petitioner employed approximately 30 nurses during the 2007-2008 school year. Petitioner also used the services of other nurses, referred to as “agency nurses”, on an as-needed basis. Petitioner has adopted “The Health Services Manual” and a Standard Operating Procedures Manual containing the policies and procedures applicable to all nurses and to each person designated by a school principal as a “healthcare designee” pursuant to Section 1006.062, Florida Statutes. At all times material hereto, Petitioner employed Respondent, who is a registered nurse, as a school nurse pursuant to an annual contract. Respondent was hired as a school nurse beginning March 2007 and was assigned to Whispering Pines Elementary School. Respondent testified without contradiction that she was not provided any training or provided copies of the pertinent policies and procedures when placed at Whispering Pines. Respondent had 12 years of experience as a Registered Nurse when Petitioner first hired her. WHISPERING PINES While working at Whispering Pines, Respondent was alleged to have administered an incorrect dosage of medication to a student and to have falsified a student medication record. Respondent denied the alleged charges. The Office of Professional Standards and Special Investigative Unit investigated the allegations. On November 5, 2007, Joe Melita, Executive Director of Petitioner’s Professional Standards and Special Investigative Unit, issued Respondent a formal letter of reprimand that provided, in part, as follows: The Professional Standards Committee at its meeting on August 22, 2007, reviewed the matter of your falsification and malpractice. After careful review by this committee it has been determined that sufficient factual or legal basis exists to establish probable cause to recommend disciplinary action to the Superintendent regarding this incident. Let this correspondence serve as a reprimand that any future violation will result in a recommendation for further disciplinary action up to and including termination. . . . Respondent did not formally challenge the reprimand. REORIENTATION Petitioner thereafter assigned Respondent to a reorientation program, consisting of three days of training regarding Petitioner’s policies as to the administration of medications and the keeping of records related to the administration of medications. Respondent was specifically trained in the following topics: “Nurses Requirements Under Florida Statutes Governing School Health,” “School Nurse’s Responsibilities,” “Students’ Health Records – Documentation,” “Medication Administration,” and “Diabetes In-service Training.” Petitioner thereafter assigned Respondent to work for four days at four different schools under the guidance of four experienced school nurses where she received further training in the application of Petitioner’s policies and procedures. The reorientation training Petitioner gave Respondent was unprecedented.1 NOVA On November 7, 2007, after Respondent had undergone the reorientation described above, Petitioner assigned Respondent to serve as the school nurse at Nova. Petitioner selected Nova because a Nova student (K.W.) had recently been diagnosed with insulin-dependent diabetes. A registered nurse is required to administer insulin injections and to monitor glucose levels of an insulin-dependent diabetic. Nova has a clinic for students with medical needs. Prior to Respondent’s arrival at Nova, Ms. Whitsett (the office clerk) took care of the medical needs of the students the vast majority of the time. On November 7, 2007, Ms Martinez (office manager) and Ms. Whitsett showed Respondent around the clinic and told her where documents were kept. Respondent worked at Nova on November 7, 8, and 9, 2007. The Veterans Day holiday was observed on Monday, November 12, 2007. Respondent was absent from work on November 13, 14, and 15. Respondent returned to work on November 16. Ms. Whitsett tended the clinic during those three days Respondent was absent. While tending the clinic during Respondent’s absence, Ms. Whitsett noted what she believed to be deficiencies in the medical records maintained by Respondent as to the following three students: J.M., A.A., and K.W. Ms. Whitsett discussed the matter with Ms. Martinez. NOVA STUDENT J.M. An Authorization for Medication/Treatment Form signed by J.M.’ s doctor and his parents reflected that J.M. was to receive two puffs of Albuterol as follows: “at 12:30 all this week and next week until coughing stops.” The order was entered onto J.M.’s Student Medication Log beginning November 5, 2007, as “Albuterol Inhaler 2 puffs by mouth every 4 hours as needed.” Respondent testified that she did not administer J.M.’s Albuterol on November 8 or 9, 2007, because she called J.M.’s teacher, who informed her that J.M. had not been coughing. Respondent made no entry on J.M.’s Student Medical Log on November 8 or November 9, 2007. Ms. Whitsett questioned Respondent on November 16, 2007, as to whether the student had been administered Albuterol on November 8 and 9 and she also questioned how J.M.’s Student Medical Log should be documented. On November 16, 2007, Respondent marked the code letter “R” on J.M.’s Medical Log under the dates of November 8 and November 9 to reflect that J.M. had refused his medications on those dates. Those entries were clearly erroneous. Respondent initialed those entries, but she did not date the entries for November 8 or 9 as being non-contemporaneous entries. At some undetermined time thereafter, Respondent changed the code letter “R” to the code letter “S” to reflect that the medication was not administered, but that the reason for the non-administration was in the category of “other” as opposed to “refused”. No dates were entered to reflect that the change to J.M.’s Medical Log was a late entry. No explanation as to what Respondent considered to be “other” was documented. Respondent testified that she was not required to initial and date the non-contemporaneous entries on J.M.’s Student Medical Log. Petitioner’s rule pertaining to the completion of school health forms (Respondent’s Exhibit 13) requires, in relevant part, that “. . . Documentation errors should have a single line through them with the initials of the person striking the error.” For the correction of an entry on the same date reflected on the medical log, Petitioner’s policy would require only that the person making the correction strike through the error, make the correction, and initial the entry. Based on the clear and convincing testimony from Ms. O’Keefe and Ms. Bynoe, the undersigned finds that Petitioner’s policy should be read in conjunction with standard nursing practice, which would require the person making the correction subsequent to the date reflected on the medical log to both initial and date the non-contemporaneous entry. J.M.’s Student Medical Log is misleading because Respondent failed to initial and date the non-contemporaneous entries reflected under the dates November 8 and 9. In making her decision not to administer Albuterol to J.M. on November 8 and 9, Respondent relied on her interpretation of the doctor’s order that the medication could be withheld if the student was no longer coughing. Petitioner’s policies require that the parents or the doctor be contacted if there is any question regarding medication instructions. The doctor’s instruction that the medication is to be administered “all of this week and next week until coughing stops” can be interpreted in more than one way. Consequently, Respondent should have questioned what the doctor intended before she withheld the medication during the first week of its administration. Respondent did not talk to, observe, or otherwise assess J.M. on November 8 or 9, 2007. The testimony from Ms. O’Keefe and Ms. Bynoe established that standard nursing protocol required Respondent to physically assess J.M. prior to discontinuing his medication.3 Respondent did not inform J.M.’s parents that he was not administered Albuterol on November 8 or 9. Respondent’s failure to contact the parents on November 8 or 9 violated Petitioner’s policies as set forth in its Medication Administration at School – A Handbook for School Personnel (Petitioner’s Exhibit3), pages Med – 9 and Med – 29. NOVA STUDENT A.A. An “Authorization for Medication/Treatment” dated November 5, 2007, and signed by A.A.’s doctor and parents reflect that the patient was to be administered 200 mg. of Furadantin every six hours as need with the following instruction: “after lunch between 12:30 – 1:00.” The order was entered onto A.A.’s Student Medication Log for the week beginning November 7, 2007, as follows: “Furadantin oral 2 teaspoons every 6 hours for 10 days at 12:30 PM.” Petitioner’s policy requires that medication be administered within 30 minutes of the prescribed time. In this case, A.A.’s medication should have been administered no later than 1:30 p.m. Petitioner’s policy requires the person administering medication to a student too early or too late to notify the parent. On November 7, 8, and 9, 2007, Ms. Whitsett and Respondent both worked in the clinic during parts of the day. On November 7 and 8, Ms. Whitsett administered A.A.’s prescribed medication. On November 7, Ms. Whitsett administered A.A.s’ prescribed medication at 1:50 p.m. Ms. Whitsett could not recall whether she called A.A.’s parent to determine whether she should administer the medication after the 1:30 p.m. deadline, and there was no documentation that she had done so. On November 9, after 1:30 p.m., Ms. Whitsett reminded Respondent that A.A. had not been administered the prescribed medication. Respondent testified, credibly, that she thought that Ms. Whitsett was taking care of the administration of medicine to A.A. A.A. was called to the office and Respondent administered the medication to A.A. at 3:00 p.m. Respondent made the following notation on A.A.’s Student Medication Log: “Student called to office for med.,” noted the time as being 3:00 p.m., and initialed the entry. Respondent testified at the formal hearing that she called A.A.’s mother on November 9 and received permission to administer the medication to A.A. after the 1:30 p.m. deadline. On November 9, Respondent did not note on any medical record that she had contacted A.A.’s parent and had received permission to administer the medication after the 1:30 p.m. deadline. On December 3, 2007, a pre-disciplinary meeting was held to discuss the deficiencies at issue in this proceeding. At some point after that meeting, Respondent added the following on A.A.’s Student Medication Log as part of the entry reflecting a date of November 9 at 3:00 p.m.: “Mom was called to inform her that med was not given at 12:30 – 1 [sic] p.m. Mom says it is o.k. to give now.” Respondent signed the entry as “L. Maddox, R.N.” Respondent did not note the date she made the entry. As reflected above, Petitioner’s policy, when read in conjunction with standard nursing practices, required Respondent to indicate that the entry was non-contemporaneous. Because Petitioner failed to date the non-contemporaneous entry, A.A.’s Student Medication Log was misleading. NOVA STUDENT K.W. K.W., the student with diabetes, required that her blood glucose level be checked three times during the school day. On November 16, 2007, Respondent was responsible for K.W.’s glucose checks. Respondent made no entry on K.W.’s Student Medication Log on November 16. Between November 20 and December 7, 2007, Respondent made entries on K.W.’s Student Medication Log reflecting that she had checked K.W.’s glucose levels at 9:00 a.m., 12:30 p.m., and 3:35 p.m. Respondent did not note these entries to be non- contemporaneous. As reflected above, Petitioner’s policy, when read in conjunction with standard nursing practices, required Respondent to indicate that the entry was non-contemporaneous. Because Petitioner failed to date the non-contemporaneous entry, K.W.’s Student Medication Log was misleading. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.4
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent’s employment. DONE AND ENTERED this 19th day of February, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2009.
Findings Of Fact During the 1985-86 school year, the Respondent, Janet Robinson, was a seventh grade student at Norland Middle School. During the 1985-86 school year, the Respondent accumulated an excessive amount of absences from all six of her classes. The Respondent was absent 36 times from her language arts class, 40 times from her business education class, 32 times from her mathematics class, 36 times from her physical education class, 44 times from her science class and 46 times from her home economics class. In each of her classes, the Respondent received an "F" as a final academic grade. In each class, the Respondent consistently received ratings of "3" for effort. A "3" is the lowest rating possible for effort. When a teacher or other staff member at Norland Middle School has difficulty with a student's behavior, the teacher or staff member may submit a report of the incident to the front office. The reports are called Student Case Management Referral Forms and are reserved for serious behavior problems. During the 1985-86 school year, 19 Student Case Management Referral Forms were written regarding Respondent's behavior. On July 31, 1985, a Student Case Management Referral Form was written because Respondent was consistently tardy to class and was disruptive after she arrived. The Respondent was suspended from class for two days. On September 13, 1985, a Student Case Management Referral Form was written because Respondent was involved in a fight, which she provoked. The Respondent was suspended from school for three days. On October 21, 1985, a Student Case Management Referral Form was written because Respondent constantly talked out loudly in class, argued with her teacher, and was tardy to class on numerous occasions. On November 5, 1985, a Student Case Management Referral Form was written because Respondent was tardy to her physical education class, refused to "dress out" in the appropriate attire and continued to walk around after being told to sit down. On November 14, 1985, a Student Case Management Referral Form was written because Respondent was singing and talking out loudly in class. The Respondent was suspended from school for three days. On November 20, 1985, a Student Case Management Referral Form was written because Respondent was disruptive in class and left the room without permission. On December 2, 1985, a Student Case Management Referral Form was written because Respondent refused to "dress out" on numerous occasions for her physical education class. The Respondent was suspended from school for three days. On December 9, 1985, a Student Case Management Referral Form was written because Respondent continued to refuse to dress properly for her physical education class. The Respondent was suspended for three days. On December 20, 1985, a Student Case Management Referral Form was written because Respondent did not serve administrative detention as requested and was disrespectful to the assistant principal. The Respondent was suspended for three days. On January 9, 1986, a Student Case Management Referral Form was written because Respondent was belligerent and argumentative when she was stopped in the hall way by a staff official who was checking for hall passes. On January 30, 1986, a Student Case Management Referral Form was written by a substitute teacher because Respondent was disruptive in class. On February 19, 1986, a Student Case Management Referral Form was written because Respondent refused to dress properly for her physical education class and was rude to her teacher. On March 27, 1986, a Student Case Management Referral Form was written because Respondent was involved in a fight, which she provoked. The Respondent was suspended for three days. On April 14, 1986, a Student Case Management Referral Form was written by a substitute teacher because the Respondent was disruptive in class. The Respondent was assigned to a special counseling program. On April 22, 1986, a Student Case Management Referral Form was written because Respondent displayed a negative attitude in class, refused to bring books or materials to work with, repeatedly asked to use the bathroom and left the class without permission. Respondent was suspended for three days. On April 22, 1986, a second Student Case Management Referral Form was written because Respondent refused to cooperate in class, was inattentive and displayed a very negative attitude. On May 2, 1986, a Student Case Management Referral Form was written because the Respondent was tardy to class. On May 20, 1986, a Student Case Management Referral Form was written because Respondent was found on the school grounds during a period in which she was suspended from school. The Respondent received five additional days of suspension. On May 23, 1986, a Student Case Management Referral Form was written because Respondent was tardy to class, disruptive and refused to participate in the classroom lesson. Ms. Beth Casenhiser is an English teacher at Norland Middle School. During the 1985-86 school year, the Respondent was a student in Ms. Casenhiser's class. The Respondent did not seem to want to work and did not bring her materials to class. The Respondent would talk out loudly in class, search through her purse, call to students across the room and walk around during class. The Respondent refused to follow instructions or do any work in class. Attempts by Ms. Casenhiser to correct Respondent usually resulted in a strong verbal confrontation and open defiance. Ms. Ruby Hudson teaches business education at Norland Middle School. During the 1985-86 school year, the Respondent was a student in one of her classes. The Respondent consistently refused to bring her books or other materials to class. The Respondent was consistently inattentive and talkative in class. The Respondent refused to do any work, repeatedly arrived late and unprepared, and generally demonstrated a negative attitude. Ms. Jackie Miller, a student counselor at Norland Middle School, spoke with the Respondent on many occasions. Based on Respondent's record from her elementary school, Ms. Miller had targeted Respondent as a person to be given special attention and counseling. The Respondent usually left the counseling sessions with Ms. Miller with a good attitude but failed to follow through on her commitments to perform better in her classes. Nothwithstanding the numerous conferences with Respondent and the Respondent's mother, the Respondent continued her disruptive behavior. Ms. Miller believes that the Respondent would benefit from an alternative school placement because of its smaller student/teacher ratio and system of short term positive rewards. Mr. Kenneth McCard, assistant principal, made numerous attempts to counsel Respondent regarding her behavior. During a conference with Respondent and her mother, the Respondent made a written commitment to improve her behavior and performance in school. Despite these efforts and repeated reminders by Mr. McCard of Respondent's written commitment, Respondent's classroom performance and conduct remained unchanged. During the 1985-86 school year, the Respondent was suspended from school on ten separate occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North. DONE AND ORDERED this 14th day of October, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 14th day of October, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2537 Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 2. Adopted in Finding of Facts 3-22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 16. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. COPIES FURNISHED: James G. Bovell, Esquire 1401 Ponce de Leon Blvd. Coral Gables, Florida 33134 Mr. & Mrs. Guy Robinson 19331 N.W. 7th Avenue Miami, Florida 33169 Madelyn P. Schere, Esquire Assistant School Board Attorney The School Board of Dade County Board Administration Building Suite 301 1450 N.E. Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Bldg. 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, David Mark McGrew, was licensed as a medical doctor by petitioner, Department of Professional Regulation, Agency for Health Cost Administration, Board of Medicine (Board), having been issued license number ME 0042526. Respondent is engaged in the practice of medicine as a family practitioner at 4655 Keysville Avenue, Spring Hill, Florida. He has been licensed by the Board since 1983, is board certified in family practice, and is president of the Florida chapter of the Academy of Hospice Physicians. Except for this proceeding, which is based on a failure by respondent to comply with a previous Board final order disposing of a complaint, there is no evidence that respondent has been subjected to prior disciplinary action. The facts which gave rise to this dispute are as follows. On an undisclosed date in 1988 or 1989, the Board issued an administrative complaint against respondent alleging generally that he had inappropriately prescribed certain pain medication to a longtime patient. Although respondent was not represented by counsel, he entered into negotiations with the prosecuting attorney and eventually executed a stipulation wherein he agreed to certain conditions, including the imposition of a $500 fine to be paid within thirty days from date of the final order, a reprimand, and a requirement that he attend a three day course at the University of South Florida School of Medicine. However, respondent did not admit that his prescribing was inappropriate or excessive. The stipulation was presented to the Board at a meeting held on August 5, 1989. The dialogue of the relevant portion of the meeting was introduced into evidence as a part of joint exhibit 1 and petitioner's exhibit 3. It should be noted that a considerable amount of discussion was given to whether new conditions should be substituted for those contained in the stipulation. The discussion in the transcript does contain comments, albeit somewhat unclear, which lend support to the Board's contention that it intended to add a number of new conditions to the agreement but also retain the $500 fine. At the same time, however, the transcript discloses that respondent, who was not represented by counsel at the meeting, did not fully understand that certain features of the original agreement were being retained in the new agreement. This is evidenced by the fact that near the end of the meeting, respondent was requested to reiterate his understanding of the terms and when he did he failed to include a fine. No one corrected his misunderstanding. Accordingly, respondent left the meeting with the impression that the original stipulation had been rejected by the Board and a new agreement approved which required that respondent be reprimanded, he complete a course of at least two weeks duration in pharmacotherapeutics and addictionology within six months from the date of the final order, and for a period of one year after completion of the course, he use sequentially numbered duplicate prescriptions in prescribing controlled substances, retain one copy of the prescription in the patient's records, and furnish a DPR investigator a copy of all such prescriptions within thirty days after being written. Respondent believed that the Board no longer intended to impose a $500 fine, particularly since no specific mention of the fine was made by the Board's members while discussing the new conditions and because the Board had imposed a new (and more costly) requirement that he attend a two-week approved course. Finally, respondent was under the impression that the Board would lend assistance in finding a course of the nature prescribed at the meeting since respondent was unaware of any formal course of that duration. On August 17, 1989, the Board issued its final order concerning the stipulation. The order provided that "the (original) Stipulation as submitted be and is hereby approved and adopted in toto and incorporated by reference herein with the following additions:" Thus, the Board actually approved the original stipulation, including the fine, with certain modifications. The final order did not carry the advice that if respondent disagreed with the order, he must file an appeal with the district court of appeal within thirty days. This was probably because, in the original stipulation, respondent had specifically waived "all further procedural steps, and expressly waive(d) all rights to seek judicial review of or to otherwise challenge or contest the validity of the joint stipulation". Thus, the final order was never appealed, and its specific terms were not timely satisfied. However, for the reasons stated later, the failure by respondent to satisfy these conditions was not intentional and occurred because of his misunderstanding of the agreement and his failure to find a satisfactory two-week course. On August 22, 1989, respondent wrote the Board a letter acknowledging receipt of the final order and stating that he believed the Board had specifically rejected the fine in favor of a two-week educational course and that he "did not agree to a $500 fine." He asked what he should do about this disagreement, and then noted that he had contacted fourteen schools, individuals or organizations regarding courses that might satisfy the educational requirement imposed by the Board, and had been offered an internship at a pain clinic. After receiving no reply to his August 22, 1989, letter, respondent again wrote the Board on October 17, 1989, regarding his prior inquiry. He added that "it is my sincere desire to get this matter resolved at the earliest convenience." A second follow-up letter was sent by respondent to the Board on January 19, 1990, with copies of his two earlier letters. In addition, he made several telephone calls to the Board seeking to obtain a reply to his inquiries. On June 11, 1990, or some ten months after respondent's first letter, a Board administrative assistant replied to respondent's letter and acknowledged that "there was some confusion as to the administrative fine imposed by the Final Order dated August 17, 1989." The letter also stated: The tape of your appearance before the Board of Medicine on August 5, 1989, has been reviewed and there is no indication that the Board agreed to waive the $500 administrative fine which was due September 16, 1989. The amendment to the Stipulation concerned a formal course in pharmacotherapeutics and addictionology, to be a minimum of two weeks in length and approved by the Board. This course was to have been taken as soon as possible, but in any event, no later than six months after the date of the Final Order. After completion of the course reference (sic) above, the one year monitoring of your prescribing habits was to begin. At this time, there is no indication in your file that such a course has been approved by the Board or completed by you. In order to avoid possible disciplinary action against your license, please comply as soon as possible with the requirements of the Final Order. If you have further questions regarding this matter, please contact the Board office. (Emphasis in original) This letter prompted further correspondence between respondent and the Board. On June 26, 1990, respondent wrote another letter to the Board in which he acknowledged receipt of the Board's recent letter and gave a lengthy description of his unsuccessful efforts to find a course of the nature prescribed by the Board in its final order. He identified several shorter courses he had already attended plus future courses he planned to attend and asked that they be used collectively to satisfy the two weeks of educational training. He also asked for a copy of the tape of the Board's meeting. On July 25, 1990, a Board administrative assistant replied to respondent's letter and advised him that he was "in violation of the Final Order." The letter further stated that he was required to pay a $500 fine no later than September 16, 1989, or thirty days after the final order. As to the educational requirement, the assistant noted that the Board "acknowledges your attempts to receive guidance regarding the course of education, therefore, if it is your wish to attempt to comply with the requirement of the Order, we suggest that you consider the following individuals." The letter then identified two physicians in Minnesota who had "experience in assisting physicians fulfill particular course requirements." Finally, the letter noted that "failure to comply with a lawful order of the Board may be grounds for further disciplinary action." On August 18, 1990, respondent again wrote the Board and stated that he had just learned the Board was considering the issuance of another administrative complaint and was surprised. He also indicated he had contacted the two individuals mentioned in the Board's letter of July 25, 1990, and the courses offered by those individuals were "unstructured internship programs" of a type which had been previously rejected by the Board as being insufficient. Finally, respondent mentioned that he could attend a two-week course offered by a substance abuse center if this met the Board's approval. By letter dated August 29, 1990, a Board administrative assistant replied to respondent's letter and told him his suggested coursework would be presented to the Board at its September 20, 1990, meeting, and he would be notified of its decision. Thereafter, on October 8, 1990, respondent was advised by letter that the Board had rejected his request for approval of the two-week course at the substance abuse center. The Board also advised that respondent's request for partial credit for attending a conference on prescription drug abuse had been rejected. On October 24, 1990, the Board filed an administrative complaint against respondent for failing to comply with the terms of the final order issued on August 22, 1989. That prompted respondent to initiate this proceeding. At hearing respondent established that, although he had not yet attended a formal two-week course in pharmacotherapeutics and addictionology, he had no intent to defy the Board's order. Indeed, respondent has made a genuine effort to comply with this requirement by contacting numerous schools, individuals and organizations, including several suggested by the Board, but he has had no success in finding a two-week course that would meet the Board's approval. He has repeatedly asked the Board for assistance in finding such a course but was offered only very limited assistance. To illustrate his willingness to attend continuing medical education courses, respondent identified twenty-five courses of varying duration (but all less than two weeks) he has attended since the Board's final order, many of which deal with pain management and therapy. These courses total 173.25 hours, or twice the hours that would be included in a formal two-week course. He was also certified as a diplomate in the American Academy of Pain Management in 1990, which evidences further skills and knowledge obtained in this area after the Board's final order. He has expressed a complete willingness to attend the requisite course if he can find one that meets the Board's satisfaction. In the alternative, he has asked that the hours spent attending shorter courses in the same subject matter be used as credit towards satisfying the two-week course. This is a reasonable alternative and should be approved since the number of hours far exceeds the number he would receive in a two-week course. As to the fine, respondent has reviewed the transcript of the Board's meeting and still maintains that there is no indication in the transcript that the Board intended to assess a $500 fine when it imposed the new conditions. However, because he has now, for the first time, been given his "day in court" in this proceeding to explain his side of the story, he is willing to pay the fine if in fact the Board still intends to assess one. There is no evidence to show that respondent deliberately defied the Board's order that he pay the fine since he genuinely believes his position on that issue is correct. Finally, respondent is concerned that if he is found guilty in this proceeding, the disposition will be reported to the National Practitioners Data Bank and will be a permanent mark against his license to practice medicine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order dismissing with prejudice the administrative complaint. Respondent should also be required to comply with the terms of the final order issued on August 17, 1989, as discussed in paragraph 17 of this order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of September 1992. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September 1992. APPENDIX Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6-8. Partially accepted in finding of fact 4. 9. Rejected as being unnecessary. 10. Partially accepted in finding of fact 13. 11-14. Partially accepted in finding of fact 3. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17. Partially accepted in finding of fact 11. 18. Partially accepted in finding of fact 4. Respondent: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6. Partially accepted in finding of fact 4. 7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11-12. Partially accepted in finding of fact 7. Rejected as being unnecessary. 14-18. Partially accepted in finding of fact 3. 19. Rejected as being contrary to the evidence. 20-22. Partially accepted in finding of fact 3. 23. Partially accepted in finding of fact 4. 24. Partially accepted in finding of fact 7. 25. Partially accepted in finding of fact 8. 26. Partially accepted in finding of fact 10. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in findings of fact 9 and 10. 30. Partially accepted in finding of fact 10. 31. Partially accepted in finding of fact 11. 32. Partially accepted in finding of fact 12. 33. Rejected as being unnecessary. 34. Partially accepted in finding of fact 13. 35. Rejected as being unnecessary. 36. Partially accepted in finding of fact 13. 37. Rejected as being unnecessary. 38-39. Rejected as being irrelevant. 40-41. Partially accepted in finding of fact 10. 42-43. Partially accepted in finding of fact 13. 44. Rejected as being irrelevant. 45. Rejected as being unnecessary. 46-47. Partially accepted in finding of fact 13. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, not supported by the evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Richard A. Grumberg, Esquire Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lee Sims Kniskern, Esquire Suite 630 2121 Ponce de Leon Coral Gables, Florida 33134-5222 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of September, 1983.
