The Issue The issue to be resolved in this proceeding concerns whether the Leon County School District has just cause, as defined in Section 1012.34(3)(d), Florida Statutes (2006), to end the Respondent's tenured employment as a teacher, due to allegedly deficient performance.
Findings Of Fact The Respondent, Mr. Waters, has worked as a Special Education Teacher in Leon County for approximately 13 years. He most recently has worked in the field of Special Education at Oakridge Elementary School (Oakridge), starting in the school year 2001-2002 and ending in December 2005. Mr. Waters is married and has two children by a former wife, with whom he shares custody of his children. He has volunteered for 18 years as a Troop Leader for a troop of disabled Boy Scouts in Tallahassee. He has been recognized for those efforts by being the recipient of the Tallahassee Memorial Hospital Foundation's "everyday hero" award. He has also been a finalist for the Tallahassee area "volunteer of the year award" in 2005. When Mr. Waters was hired at Oakridge Elementary School he was interviewed by the head ESE teacher or "team leader", Donna George. He was chosen for the available position from three or four final applicants, based upon her favorable view of the qualities he could bring to the position, which she still believes to be the case. During the 2001-2002 school year the principal at Oakridge was Michelle Crosby. Ms. Hodgetta Huckaby was the Assistant Principal. Sometime during that school year Mr. Waters encountered a problem involving two of his students being engaged in an after school fight. He apparently referred the students for discipline to the Assistant Principal, Ms. Huckaby, and she sent the students back to his class. He disagreed with this disciplinary decision and appealed the matter to the principal, Ms. Crosby. Ms. Crosby resolved the disciplinary matter in favor of Mr. Waters' position. Ms. Huckaby thereupon called Mr. Waters to her office to upbraid him and express her anger at his having "gone over her head." After a heated exchange between the two she told the Respondent to "never come back into my office for any reason." Thereafter, for the remainder of his tenure at Oakridge their relationship was very strained, especially during the time Ms. Huckaby was Principal, which began at the beginning of the following year, the 2002-2003 school year, after Ms. Crosby left Oakridge and was replaced by Ms. Huckaby. In order to replace Ms. Huckaby's vacant former position as assistant principal, the District assigned Kim McFarland as the new assistant principal in the fall of 2002. Prior coming to the assistant principalship at Oakridge, Ms. McFarland had served as a fifth grade regular classroom teacher for 10 years in the District. She had no prior administrative experience and had no experience in Exceptional Student Education. Her degree field is in the area of elementary education. After the events at issue in this case, Ms. McFarland left Oakridge, on July 1, 2006, to become the assistant principal at Swiftcreek Middle School. Ms. Huckaby and Ms. McFarland jointly performed the annual evaluation of the Respondent for the 2002-2003 school year. They used the "Accomplished Teacher Performance Feed Back Summary Form." Mr. Waters's overall rating for that year was "at expectancy level." Ms. McFarland wrote several positive comments concerning his performance on that document, but he also received ratings of "below expectancy" in two areas, teacher performance improvement and professional development. Also, in the Spring of 2003, Ms. McFarland observed his class on or about April 23, 2003. She was positive about that evaluation and wrote Mr. Waters a note wherein she indicated that he had "presented a great lesson" and that his students were engaged and on task. She praised him for monitoring student behavior using a behavior management point system and found his room "exciting" because he displayed a great deal of students work on the walls. In the 2003-2004 school year, specifically in November 2003, Ms. McFarland informed Mr. Waters that his lesson plans were not adequate because he was failing to incorporate a new component which required that notations of student remedial reading levels be made, represented by "lower case" roman numerals. She required him to submit his lesson plans to be reviewed each Monday while he was seeking to improve his lesson plans. Thereafter, on April 26, 2004, Ms. McFarland notified the Respondent that he had satisfactorily complied with lesson plan requirements and no longer needed to submit lesson plans for review each Monday. She also emphasized in that letter of April 26, 2004, that he should adhere to his lesson plans, as prepared, in his teaching presentation to the extent possible, so that when administrators observed his room they would be able to determine exactly what he was performing at the time simply by looking at his lesson plan book. In the meantime, Mr. Waters was given an improvement notice on February 20, 2004, by Ms. McFarland. This was because of her concern that he was not fully cooperating with procedures and recommendations concerning behavior management; recommendations made by behavior management consultants on contract with the School Board. Those consultants were working with him and his emotionally handicapped (EH) student class at that time. During their meetings and contacts with Mr. Waters and his EH student class that year he had exhibited a good level of agreement and cooperation with their recommendations to him regarding changes in behavior management methodologies for his class, but the consultant, Dr. Adams, perceived that he was slow or reluctant to actually carry them out. Later in the spring of that school year, Dr. Adams took Mr. Waters on a tour at Kate Sullivan Elementary and another school, to observe how behavior management models or methodologies were employed in EH classes at those schools and which Dr. Adams opined he was later reluctant to implement in his own class. They communicated these concerns about his perceived intransigence in changing his behavioral management style or methodology to the administration at Oakridge, which resulted in the February 20, 2004, improvement notice from Ms. McFarland. Significantly, however, Ms. Haff, in her observations of the Respondent's performance during the following school year found that he had received the higher level of training in the "Champs program" concerning behavioral management, and had been and was successfully implementing it in his class and with his students to a great degree, although, of necessity, adapting it to the needs of his students and his role then as a resource teacher, rather than as a discrete EH classroom teacher during the following 2004-2005 school year. Ms. Huckaby changed his assignment from duty as a direct class EH teacher to that of "resource teacher" after the 2003-2004 school year. Mr. Waters had a meeting with Ms. McFarland on February 20, 2004, to discuss that improvement notice, and her concerns that he was not fully cooperating with the recommendations of the behavior management consultants in terms of not carrying out their recommendations. During the course of that meeting she stated, "You know its not me that’s behind this" implying to him that Ms. Huckaby was actually the instigator of the improvement notice concerning this subject matter. Apparently Mr. Waters contacted union officials for the Leon County Teachers Association (LCTA) complaining that the improvement notice was too general and did not specifically point out what must be done to correct the perceived problem. In response to those concerns, in part, Ms. McFarland issued a subsequent improvement notice on April 27, 2004, with a few more specific expectations and which updated the status of Mr. Waters's efforts to address the concerns raised in the February 20th revised improvement notice. Ms. McFarland observed Mr. Waters' class on March 11 and March 16 and did a "part A" teacher's assessment document for each observation. Mr. Waters was due to be evaluated using the Accomplished Teacher Summary Form for 2003-2004 and so the assessment part A form was not required to be completed for him. Nonetheless, Ms. McFarland told Mr. Waters that these were really informal observations and she was completing these observation forms in order to get some practice using them since it was her first year as an administrator, formally observing and evaluating teachers independent of Ms. Huckaby. The Respondent did not get a copy of these assessment part A documents until June of that year and did not get an opportunity to discuss them with Ms. McFarland. Ms. McFarland also completed the Accomplished Teacher Feedback Summary Form for the 2003-2004 school year. That form states that overall assessments must be satisfactory if all the required areas are completed. Ms. McFarland described Waters' performance unfavorably in the "comments" section of the form and gave him an overall performance rating of "below expectancy level." He received this Accomplished Teacher Summary Form rating document on or about September 22, 2004. During the month of October he inquired of Ms. McFarland, union officials, and school district officials concerning the meaning of his overall "below expectancy" rating for the 2003-2004 school year. Apparently an attorney for the school district informed him that the evaluation was considered satisfactory on the Accomplished Teachers Summary Form, unless school administrators produced an evaluation document that indicated an overall "needs improvement" rating. Ms. McFarland had informed him that the Accomplished Teacher document reflecting the below expectancy rating was his only official evaluation. Although Mr. Waters received confirmation that the use of the Accomplished Teachers Summary Form rendered his 2003-2004 evaluation to be automatically a satisfactory one, it is also clear that Ms. McFarland intended to give him the below expectancy rating and for some reason mistakenly used the wrong form and procedure. During October 2004 the Respondent met with Ms. Huckaby to discuss some matter unrelated to his performance rating. During the course of that meeting, at which only Ms. Huckaby and the Respondent were present, Ms. Huckaby became angry at the Respondent and engaged in a tirade, calling him "the worst teacher she had ever seen, as well as making other unprofessional comments." Mr. Waters then stated to the effect that he did not think he was such a bad teacher since he had consistently received satisfactory evaluations. Ms. Huckaby then indicated that she felt he had received a needs improvement evaluation for the 2003-2004 school year, to which Mr. Waters retorted that based upon the Accomplished Teachers Summary Form being used his evaluation was deemed to be satisfactory overall. Ms. Huckaby then angrily threatened him with an unsatisfactory evaluation for the upcoming 2004-2005 school year. Only a week or two elapsed after this meeting and comment by Ms. Huckaby when, at Ms. Huckaby's behest, Mr. Waters inclusion class was changed to a "pull-out reading group," meaning that he then had to work with a new reading curriculum and plan his own reading lessons using that curriculum instead of relying upon and carrying out the regular classroom teacher's daily lesson plan reading goals, which had been the program he had been instructed to perform previously. Ms. Eydie Sands was dispatched by Ms. Huckaby to observe Mr. Waters' reading class and made critical observations during follow-up meetings with Mr. Waters and Ms. Huckaby; the team-taught writing group jointly taught by Mr. Waters and Ms. Wacksman, which had worked well in rendering progress to the students in writing, was abruptly separated into two sections by Ms. Huckaby with no explanation or apparent reason; thereafter on approximately November 6, 2004, Ms. Huckaby gave Mr. Waters a lengthy letter of harsh criticism as to almost all aspects of his teaching performance and directed him to immediately comply with 13 directives contained in the letter. Additionally, Mr. Waters' 2004-2005 school year resource teacher schedule was changed five times, adding further confusion to an already difficult year, which started with a new classroom assignment. The new room was piled high with boxes of materials for many teachers and classrooms other than his own. This circumstance required him to spend his entire pre-planning time moving and clearing out his newly assigned room so that he could use it. Significant changes and requirements were imposed for lesson plans, student progress monitoring requirements, and the new A3 computerized IEP technology, as well as a substantially increased amount of related paperwork burdens placed upon all teachers at the school, including Mr. Waters, through Ms. Huckaby's policy directives. One directive in the November 6, 2004, letter from Ms. Huckaby required Mr. Waters to again submit weekly lesson plans to school administrators by 8:00 a.m. every Monday morning. The normal procedure provided for having lesson plans to be examined from time to time, after advance administration notice to the faculty of their lesson plan review dates. Despite lesson plan component changes made unilaterally by the administration in both the 2004-2005 and 2005-2006 school years which added several time-consuming, ill-defined requirements to the previous less formal structure for lesson plans, the Respondent's lesson plans during those years remained detailed and organized when compared to those of his fellow special education teachers who apparently were deemed to have performed this task appropriately. In carrying out this instruction Mr. Waters tried to obtain model lesson plans and to incorporate the new requirements into his plans. They were consistently unacceptable to Ms. Huckaby, however, and ultimately cited as one of the reasons for his termination recommendation. Similar, and even less detailed lesson plans of his colleagues that had been found acceptable, were not reviewed or remained the same even after administrators provided plan improvement instructions, without those teachers being subjected to discipline therefor. In an effort to comply with the directive concerning his lesson plans and because the new lesson plan components imposed were difficult to understand and reasonably apply, especially for an ESE teacher and students, Mr. Waters sought to obtain model plans and lesson plan advice, but received little or no meaningful help. His mentor teacher assigned for 2004-2005, Michelle Smith, did not respond to his request for samples of her lesson plans. The Oakridge administration gave him only limited excerpts of two teachers' lesson plans for 2004-2005, which were confusing and did not themselves comply with the new lesson plan format imposed that year. In the 2005-2006 year the Respondent was not asked to submit lesson plans on a weekly basis and received no assistance with lesson plans until Ms. Palazesi, who was observing his class or classes that fall, in early November, wrote a model lesson plan, adapted from one of his actual lessons. Ms. Palezesi, however, was not aware of the lesson plan requirements in place at Oakridge then, and even her lengthy lesson plan sample, for just one class period, did not meet all of Oakridge's lesson plan criteria imposed for 2005-2006. It is noteworthy that the lesson plans for 2004-2005 and 2005-2006 of teacher Charles Robshaw, also a resource teacher for Special Ed at Oakridge clearly do not comply with the lesson plan requirements. This fact serves to corroborate the Respondent's contention that only he was held strictly accountable for the administration's excessively detailed and to some extent non-germane lesson plan requirements. In both pertinent school years the Respondent was deemed deficient by Ms. Huckaby and Ms. McFarland in terms of timely or fully complying with student progress monitoring test data compilation requirements. The Respondent did keep abreast of his students daily classroom progress and maintained files on their work and test papers. In the 2004-2005 school year, however, in the early part of the year (September thorough mid- November) he encountered problems in timely complying with submitting the "cover sheet" student progress test data information as part of the curriculum notebook he was required to supply the administration, through the mechanism of either monthly or bi-weekly progress monitoring meetings between teachers and the administration. He was given a needs improvement notice as to this issue, and as the year progressed, he complied with these requirements. In the 2005-2006 school year he inadvertently missed the initial progress monitoring meeting because he became confused as to when his fourth grade team was supposed to meet for the progress monitoring session and he candidly admitted that was his own mistake. Ms. McFarland did not criticize him for that, but simply reminded him that he had missed the meeting. A subsequent meeting early in the fall of 2005 was scheduled with Ms. McFarland and he did attend with his notebook (or other required data) for a 3:00 p.m. meeting. He had an pre-existing appointment after school at 3:30, which he could not miss, and he informed Ms. McFarland of that fact. She excused him from the meeting. After those two early progress monitoring meeting discrepancies in September 2005, however, the Respondent complied with his progress monitoring requirements and those issues were not again raised with him, until raised as one of the reasons in Ms. Huckaby's final decision in late December 2005 as to why she recommended his termination. Significantly, the school administration only checked to see that teachers other than Mr. Waters had completed similar student data compilations only once or twice early in each school year. Subsequently, each year the administration was less interested in actually inspecting such data and course test score charts plotted on spread sheets/graphs by most teachers. In neither of the two school years in question was Mr. Waters given a full planning period or a week after students arrived to prepare for his resource assignment ESE students. These are privileges which were customarily given to resource teachers in prior years. Despite the meager planning time he was accorded on the administrator's schedule, in reality he lost significant valuable planning time by escorting students to and from classes and due to his morning duties. Adequate planning time is crucial to the work of special education teachers, particularly if one is deemed to be struggling with lesson planning, IEP preparation and timeliness issues, and related A3 IEP technology time demands. The Respondent asked for schedule changes to improve his ability to meet the new administration demands, as, for instance, to allow time during the day to input IEP requirements into the A3 system to prepare IEP documents, instead of at the end of the school day when all the ESE teachers were on the A3 system, which slowed it down drastically. Ms. Huckaby, however, never agreed to provide such schedule changes so that he could more efficiently use his planning time. Indeed, in the 2005-2006 school year, Ms. Huckaby scheduled Mr. Waters to spend 26.25 hours teaching students each week which is more than the 25 hour per week maximum teaching time provided by the collective bargaining agreement while still providing him less than a full class period of uninterrupted planning time. Sometime in the 2003-2004 school year the system for generating individual education plans (IEP) changed from paper IEPs or the so called "gibco" IEP system (apparently a school based software operated system) to a district-wide computer net system called the "A3 IEP." This was a difficult system to learn and to use in completing IEP's without mistakes in the first effort. The District made training available in 2004, particularly in the summer of 2004 and subsequently. It can take as much as three hours to create IEP's "from scratch" on the A3 system and to input all the necessary student demographic and test score history data to upgrade a previously hand-written or gibco-generated IEP in converting it to an A3 IEP. This is especially so for newly trained or partially trained teachers. Complicating these time constraints were the Respondent's limited planning time, with competing meetings being held in the conference room area where cumulative ("cume") folders were housed at Oakridge, which are necessary to the student data research required to generate the IEP's. Thus teacher access to the demographic and testing information needed for IEP completion was somewhat restricted at times. Moreover, Mr. Waters had his only significant block of continuous planning time, when he could work on IEP's, immediately after school. This is the time of day when the A3 IEP computer network operates very slowly because most of the ESE teachers in the entire district are attempting to use it immediately after school hours. These factors are part of the reasons Mr. Waters in the Spring of 2004 had an occasion when IEP's were prepared somewhat late and computer-generated progress reports on one occasion were submitted several days late. It is also true that the Respondent and Ms. Wacksman were not formally trained on the A3 system until late January 2005. This delay in receiving the A3 system training appears to have been due to both the Respondent's and Ms. Wackman's delay in seeking the training and the district's and the school's inattention to scheduling the training sessions. With regard to the occasion testified to by Ms. Petrick concerning his late preparation of, or need to correct mistakes in some IEPs, the Respondent established that he immediately corrected the minor mistakes in several of the IEPs he prepared and that, when Ms. Petrick contacted him about the need for him to make corrections, in several instances the corrections had already been made on the original IEP in question but had not gotten corrected on her copy. Moreover, four or five of the students who had to have corrected IEPs, or whose IEPs were submitted slightly late were students who the Respondent himself had identified to his administration as being wrongly placed by the administration. The students were supposed to have been in a fourth grade level program and instead were in a first or second grade level program. This necessitated re-constituting their IEPs. The Respondent, after alerting the administration to its error also completed the new IEPs on these students. In any event, it is true that Mr. Waters could have begun sooner and more timely prepared the IEPs involved and the same is true of the occasion when the somewhat late progress reports caused his reprimand by Ms. McFarland. It is also true, however, that the requirement of using the cumbersome A3 system to prepare IEPs, more particularly the lack of adequate usable planning time, and the somewhat chaotic effects of five schedule changes during that school year imposed by Ms. Huckaby also contributed to the issue encountered near the end of that year concerning timeliness and corrected IEPs. Although the Respondent received less than satisfactory evaluation ratings as to professionalism and ethics because of the issue regarding delays and mistakes in the IEPs described above, these were a small number of occurrences, concerning very few students, at one particular period of time in the school year. They did not cause any delay or other adverse effect in the provision of ESE services to students nor the loss of any federal, state, or other special education funds, or adverse effects on the school's rating. Moreover, this aspect of Mr. Waters' performance improved after this occasion. Ms. Huckaby and Ms. McFarland made significant changes in required lesson plan and progress monitoring formats, and student progress charting. These requirements were considerably more time demanding and were accompanied by rigid reliance on upgraded, scripted reading and standardized math curricula with the advent of the 2005-2006 school year. These new requirements were to be applied by all ESE teachers for their students. Ms. Huckaby imposed a severely time-constrained, scripted reading curriculum for Mr. Waters' class and also a mandatory new vocabulary program that took up to 15 minutes more of his reading class time block each day. She also required an additional fluency probe-recording requirement to be carried out weekly in all reading classes, including Mr. Waters', which required an average time for completion of five minutes per student. Mr. Waters' reading mastery (RM) curriculum required class time scheduled during the first ninety minutes of his day in the 2005-2006 year. This was clearly impossible to carry out and remain consistent with the RM program's lesson sequence requirements, particularly with the addition of the fluency probe and vocabulary project requirements that Mr. Waters and all teachers were required to include in their reading classes that year. In fact, the reading mastery schedule for Mr. Waters was impossible to carry out within the allotted time period, even when one was not additionally delivering the required vocabulary project lesson and doing the reading probe requirement. In this regard one of the individuals asked to assist Mr. Waters in the 2005-2006 school year was Donna Haff, of the FDLRS staff. Ms. Haff, in working with Mr. Waters, tried to develop a better means for him to address the RM scheduling problem. She began that effort by "model teaching" his scripted RM classes in order to better understand his problem. This means that she simply tried to teach the RM class herself to see if it could be done within the mandatory curriculum and time period in which Mr. Waters was required to do it. Despite her extensive experience and familiarity with RM curriculum and her experience teaching it as a trainer for teachers, Ms. Haff was unable to complete the RM lesson in the time allotted to Mr. Waters, even without performing the mandatory new vocabulary program or any reading fluency probe requirements. She concluded that his RM schedule could not reasonably be carried out. She informed Ms. Huckaby of that conclusion. Ms. Huckaby expressed her frustration to Ms. Haff concerning this problem by asking, "Do you realize how much time we have put into this?" Ms. Huckaby decided not to act on Ms. Haff's advice and decided not to make any changes in Mr. Waters' 2005-2006 RM schedule. On or about June 3, 2005, Ms. Huckaby imposed an improvement notice on Mr. Waters, listing items in his instruction and teaching management that she felt needed improvement and concomitantly imposing a 90-day probationary period running from a date in September through early December 2005. Making only two observations of Mr. Waters' teaching herself, she relied upon reports of Margot Palazesi's 13 observations of Mr. Waters' classroom and teaching during the 2005-2006 school year from generally September through December. Ms. Palazesi's primary expertise, however, was in IEP compliance, IDEA compliance and grant funding compliance. She has a great deal of training in exceptional student education including a PHD degree, but she was not trained or qualified to work within and with regard to Leon County's performance observation and assessment for teacher evaluation, as either an administrator or a classroom mentor. Ms. Palazesi was unfamiliar with the lesson plan requirements at Oakridge and with the CHAMPS behavioral program requirements. She acknowledged that she understood Mr. Waters had the CHAMPS program implemented in the behavioral management aspect of his class and teaching, but she had little familiarity with what it entailed. She did acknowledge, however, that he had an award system for behavior and academic performance for his students built into and actively followed in his classroom. Ms. Palazesi also was not certified in reading and had not taught a reading mastery class in 20 years. Nonetheless, she made 8 of her 13 observations of Mr. Waters' teaching in his RM class. She did not have any understanding of the impossible double-scripted reading class schedule for his two reading groups that he was required by Ms. Huckaby to execute within the 90 minute time block. Through her interaction with Mr. Waters she came to understand from him that there was more material in the double-scripted reading curriculum than could be delivered in the 90 minute period, as Ms. Haff's testimony also showed. Ms. Palazesi, nonetheless, criticized his lecture teaching style, without acknowledging that that teaching method might have been effectively imposed on Mr. Waters in large part due to the impractical time constraints placed upon his delivery of the reading program, the vocabulary requirement and the reading fluency assessment requirement, imposed on him by Ms. Huckaby. Ms. Palazesi also noted, early in her observations, that Mr. Waters did not, in her view, engage in a review of material previously instructed, as, for instance, the day before, or inform the students what they would be learning in the lesson that day. Concerning one or more of her October observances, however, she acknowledged in her testimony that he had done that or started doing that. Moreover, one of her notations was acknowledged by her to be inaccurate in that she criticized him for not doing an introductory portion to his lesson, but then acknowledged that she had arrived some 10 minutes late, missing that portion of his lesson for that day. She also acknowledged that he was receptive to following her suggestions for improvements she thought should be made in his classroom management, in terms of assigning student desks, changing the arrangement of the room as to where a work table was placed, etc., and he did so. Ms. Palazesi also noted that he had a very good rapport with his students, and that his students behaved well and did their work in his classroom. They were on task much of the time. Although she criticized him for departing from his lesson plan on her first observation, in later observations she acknowledged he appeared to adhere more to his lesson plan. Ms. Palazesi was ostensibly dispatched to Mr. Waters' classroom to provide him technical ESE department-type assistance. However, she primarily engaged in making suggestions concerning ways that Mr. Waters could improve otherwise acceptable lessons and lesson plans and make improvements to his classroom management and the physical layout of his classroom. She acknowledges in her testimony that this was an exercise that she could have undertaken in any teacher's classroom and instructional regimen, and could have found ways to suggest improvements. Her suggestions, however, to the extent they were criticisms, appeared to have been relied on, and, inferentially, used to corroborate Ms. Huckaby's negative findings. During the second part of the 2004-2005 school year and the first half 2005-2006 school year Mr. Waters used computer technology in his classroom. He received advice from Ms. Donna Haff on how to incorporate it as a relevant and exciting way to reinforce his course curriculum and began doing so. In each of the 2004-2005 and 2005-2006 school years, he used power point technology in the form of game show question and answer formats ("Who Wants to be a Millionaire," "Jeopardy," and "Hollywood Squares/Tic Tac Toe"). He also employed other types of computer technology in his classroom on a regular basis, whether or not they were also noted in his lesson plans or were specifically observed by Ms. Huckaby, Ms. McFarland, or Ms. Palazesi. He demonstrated an ability to incorporate technology into his classroom instruction at least as effectively as most of his colleagues. Despite this fact and Ms. Huckaby's own praise for Mr. Waters' use of power point technology as a reinforcement tool in her December 14, 2005, observation, Ms. Huckaby still asserted to the Superintendent of the District in her letter recommendation for his termination that Mr. Waters did not adequately incorporate technology into his teaching and claimed that the December 14, 2005, lesson where she observed his use of technology marked "the first and only time he has integrated technology in the teaching and learning process." If Ms. Huckaby had made adequate observations of his teaching and his classes, or had even adequately conferred with Ms. Haff, she would have known of the extent of his use of technology in the classroom (or else perhaps she knew it and disregarded it). This statement to the Superintendent is one of the indicators of the level of bias Ms. Huckaby bore towards Mr. Waters. Most of the ESE teachers, including Ms. George, Mr. Waters, and Ms. Wacksman customarily do not employ computerized grading of their students because of the unique, singular nature of each ESE student's problems, learning styles, abilities, and each ESE student's goals and the varying curriculum and social needs of each ESE student. These and the other individualized differences among ESE students render a hand-written old fashioned grade book the most effective way to make a record of each student's progress toward that student's IEP- codified goals. Ms. Huckaby gave Mr. Waters a negative rating in the area of technology use partly because he did not use a computerized grading system, but neither did any other ESE teacher at Oakridge. Mr. Waters was singled out for criticism for that aspect of his teaching and the others were not. All teachers at Oakridge, particularly ESE teachers, during both the relevant school years, worked under increasing lesson plan requirements and student performance monitoring and documentation requirements and changes, as well as curriculum changes and related paperwork and time constraints. These were very stressful and no doubt were related in a significant part to the fact that the school had slipped from a "C" rating to a "D" rating on Ms. Huckaby's watch as principal. This no doubt caused significant tension and anxiety for all concerned on the instructional staff and in the administration. Only Mr. Waters, however, was held strictly accountable to all deadlines and all aspects of the burdensome documentation requirements and time constraints imposed during those two school years. In the context of his limited planning time, the excessive student contact time scheduled for him in 2005-2006, the delays he encountered in getting A3 IEP System training (some of which were self-inflicted), the difficulties encountered in gaining sufficient access to the conference room where the cume folders were maintained in order to comply with progress monitoring requirements, as well as the repeated schedule changes to his 2004-2005 assignment schedule and the time constraints of his 2005-2006 reading mastery schedule, put the Respondent in a position where it was impossible for him to timely and fully comply with every requirement imposed on him. Ms. Huckaby's close monitoring of the Respondent, as compared to other teachers, under such circumstances, is reflective of her bias in favor of a recommendation of termination. It impelled her, Ms. McFarland and Ms. Palazesi to document and exaggerate the significance of every minor error or omission that involved Mr. Waters. Arranging for ESE meetings, monitoring and complying with deadlines related to IEP's, monitoring ESE consult situations and completing all IEP-related paperwork are the responsibilities of the assigned ESE teacher. The carrying out of these tasks, however, often involves frequent communications among, and timely cooperation with several other people, such as other ESE teachers, regular classroom teachers, school administrators, the District Staffing Specialist, and the ESE students' parents. Mistakes, delays, and miscommunications concerning these ESE teacher responsibilities will occur and while they are not desirable they are not unusual. When such problems arise they are normally corrected by all persons involved as quickly and cooperatively as possible without resort to blame. Although Ms. Petrick became critical of paperwork problems and delays Mr. Waters was responsible for in the last half 2004-2005 school year, Oakridge school lost no federal funding because of them nor was it shown that any students suffered in academic or behavioral progress because of them. It is noteworthy that the IEP-related deficiencies concerning Mr. Waters began to arise only in the second half of the 2004- 2005 school year around the same time that critical memoranda from both Ms. Huckaby and Ms. McFarland were becoming the norm. In any event, Mr. Waters improved in these areas in the 2005-2006 school year. Mr. Waters received little of the help promised him in the September 2005 revised improvement notice document. He did not have a national board-certified mentor assigned him for 2005- 2006, did not get to meet with consultants from the Reading Mastery Plus Program, "Open Court," the "Great Leaps," or the Harcourt Brace Mathematics Programs. He did not meet with anyone from the Florida Inclusion Network. The administration did not provide adequate or meaningful assistance to him in either school year, but rather denied, delayed answering, or ignored his specific requests for more planning time, model lesson plans which would comply with Ms. Huckaby's lesson plan changes and requirements, relief from his impossible RM schedule for 2005- 2006, and his request for a transfer to another school. Instead of providing practical help to him (with the exception of Dr. Adams), the District focused its "assistance" mostly upon sending more staff and district employees to observe him and provide resulting reports to Ms. Huckaby. (Ms. Smith and Ms. Sands in 2004-2005 and Ms. Palazesi in 2005-2006.) During the 2005-2006 school year Mr. Waters work was being scrutinized over the 90 day performance improvement probationary period imposed by Ms. Huckaby which ended on December 8, 2005. During that time, however, his classroom activities were observed only once by Ms. Huckaby, on November 8, 2005. Ms. Huckaby's second observation of him took place nearly a week after the end of the probation period and was two and one- half hours long. It resulted in a critical observation report based primarily upon the last third of that classroom time when Mr. Waters had a formal lesson plan to take his writing class students to a "writing boot camp" session to be attended by all fourth grade teachers and students. Ms. Huckaby, however, refused to let him follow his lesson plan for that day's writing class and insisted that he teach the group there in his room. It was the last day his writing class would meet before the Christmas break which is why he planned to let them go to the writing boot camp with students from other classes on that day. There were no lesson plans for the rest of that week that he could adapt to the remaining one- third of his class that day, with the students unexpectedly present because of Ms. Huckaby's order; it was the last day of school before the Christmas break, and lesson plans for the next day or other days remaining in the week were thus unnecessary. Nevertheless, Ms. Huckaby made negative comments concerning allegedly inadequate planning for his writing group for the class that day after she concluded her observation. Ms. Huckaby had access to Mr. Waters' lesson plans for his December 14, 2005, class and before her observations that day. She had previously reviewed his lesson plans while observing his class to be sure he was precisely following those plans as he had often been instructed to do. She no doubt reviewed his plans for the December 14th lesson and had to have seen the writing boot camp entry. Nevertheless, she refused to let his students attend the writing boot camp. It was by this means that she was able to document a purportedly inadequately planned writing class activity for that day and then relied upon those negative comments in support of her termination recommendation to the superintendent which, inferentially, she had already decided to write. Ms. Huckaby only observed Mr. Waters classroom activities one time during the probationary period. Her only other observation of his classroom activities occurred on the December 14, 2005, occasion, approximately a week after the probation period ended. School administrators, however, are required to periodically evaluate and apprise teachers of their progress during such a 90-day probationary period, which Ms. Huckaby did not do.1/ The Respondent was confronted with a significant increase in time consuming paperwork/reporting requirements lesson plan requirements and the other burdens depicted in the above findings of fact, which Ms. Huckaby placed upon him. Other teachers and ESE teachers had to contend with some of these as well, although to a lesser extent and with less micro- management by Ms. Huckaby. Nonetheless, the Respondent made significant improvements in teaching methods, lesson plan quality and organization, classroom organization, the variety of planned classroom activities and his technology-supported lesson delivery methods. Mr. Waters was effective enough in his teaching and had made sufficient progress so that he received the second highest number of votes for "teacher of the year" from Oakridge's faculty and staff. He thus only ranked behind one revered teacher who had received the award before and who had more recently received the most votes, but declined the award in order to allow someone else to get it. Mr. Waters complied with all reasonable requests made of him, by and large, and in those areas of less than acceptable compliance made the necessary improvements in his compliance. He satisfactorily executed his job duties in both 2004-2005 and 2005-2006 school years as long as he was at Oakridge. Notwithstanding those improvements in performance, Ms. Huckaby continued to evaluate him as if he had made no improvements, pronouncing in June 2005 the results she had angrily promised him in their October 2004 meeting. She re- confirmed that negative assessment in December 2005 with her termination recommendation, made with only one observation by her during the actual period of his 90-day probationary status. Mr. Waters' teaching and classroom management performance in 2004-2005 as well as 2005-2006 and Ms. Huckaby's and Ms. McFarland's criticism of it, culminating in the termination recommendation by Ms. Huckaby, did not result and was not predicated on his students' FCAT scores. Ms. Huckaby admitted as much in her testimony as to both relevant years. The Petitioner attempted, in its rebuttal case only, to introduce test-related evidence that students of Mr. Waters in the 2004-2005 school year did not do well on standardized tests. That exhibit, and the information it was prepared from, however, were not made available at the hearing, during discovery, were not disclosed in the pre-hearing stipulation, and were not disclosed as a reason for Mr. Waters' performance criticism and termination by any charging document, notice or pleading by the Petitioner made a part of this record. The Petitioner in essence was using or attempting to use the proffered Exhibit 46 to buttress its case-in-chief because it was not rebuttal of anything raised or offered in the Respondent's case. Therefore, it was excluded on the basis that it constituted improper rebuttal evidence and, moreover, because of the non-disclosure problem referenced above, was not admissible on due process of law and "notice pleading" principles. Moreover, the information included in the charts in Petitioner's proffered Exhibit 46 is misleading with respect to comparative student progress issues by teacher. There is confusion as to which student was the pupil of Mr. Waters or another ESE teacher or teachers. It is difficult to determine based upon that exhibit, and the testimony proffered concerning it, an accurate comparison of student progress by the students depicted under Mr. Waters's teaching performance versus that of other teachers. Further, the "Writes Upon Request" chart comparison contained in Petitioner's Exhibit 48 and the testimony related to it, was clearly not a reason used or considered in lodging performance-related criticism against Mr. Waters or ultimately in the decision to terminate him. It clearly could not have been considered until several months after Mr. Waters had been removed from the Oakridge school. Had those Writes Upon Request chart results been considered by Ms. Huckaby in the context of this case, they would not serve as preponderant evidence of sub- standard performance by Mr. Waters, considering the other evidence of the circumstances and abilities of his students in conjunction with his performance. Mr. Waters is at minimum an adequate teacher and in some aspects of his performance a superior teacher, as, for instance, in his ability to advance his students' performance in writing and in terms of his ability to motivate his students and establish a good rapport, with an interest in learning, in his students. His classroom management skills, instructional methods and classroom demeanor fall within the parameters of acceptable performance and behavior as a teacher and an ESE teacher. He consistently and successfully relied upon his own behavior management reward system for his students, employed the Champs Program in his classroom and was successful at motivating his students to enjoy learning. In demonstrating a very good rapport with his students, he always created a classroom environment of mutual respect that is conducive to student learning and his students were learning. His overall performance for both school years at issue was objectively satisfactory despite Ms. Huckaby's biased assessment of his performance during those years and in her ultimate termination recommendation. In fact, the excessive number of areas of criticism by Ms. Huckaby concerning Mr. Waters job performance made it quite difficult to demonstrate mastery of every criticized area, much less to demonstrate it all in only two formal observation attempts by Ms. Huckaby. Ms. Donna George is a 21-year career ESE teacher. She has a master's degree in the areas of learning disabilities, emotional handicap, and varying exceptionalities. She has spent 13 of her teaching years at Oakridge school. She is the ESE Department Team Leader at Oakridge, as well as the "technology contact" teacher, who trains and assists other teachers in implementation of technology programs and equipment at Oakridge. She assists in teacher technology training. She is also a National Board Certified ESE Teacher. Ms. George is thus a leader on the staff at Oakridge. She has observed in ESE meetings and in school-wide faculty meetings, throughout Ms. Huckaby's tenure as Principal, that Ms. Huckaby has an autocratic, dictatorial management style, and an aversion to allowing commentary or questions regarding her policies, directives or programs at Oakridge. Ms. Huckaby has demonstrated little tolerance for questions or comments she perceives to reflect less than complete agreement with her positions or policies. Indeed, although Ms. George is the ESE team leader, she seldom has asked questions or sought clarifications of Ms. Huckaby during such meetings, because of her fear that she would be yelled at, treated with disdain, anger or even with reprisal. Such has also been the experience of Ms. Wacksman and others. Ms. George established that Ms. Huckaby's management style had driven many good teachers away from Oakridge. A survey by the district staff concerning long-term teacher retention rates showed that Oakridge had the lowest retention rate at 17 percent. The next lowest school in the survey had approximately 30 percent retention rate. This survey encompassed the period beginning with the 1999-2000 school year to present. Ms. George observed that Ms. Huckaby often responded to questions or comments from Mr. Waters with both verbal and non-verbal ques, such as eye rolling or turning away or other mannerisms, that generally showed disdain for his questions or his opinions. Ms. George unequivocally opined upon cross- examination by the Petitioner that Ms. Huckaby clearly does not like having Mr. Waters on her staff and was "out to get him." According to Ms. George, Mr. Waters asked questions more frequently than others in faculty meetings, but his questions generally were reasonable ones. He apparently also would attempt to make humorous comments, at times which often irritated Ms. Huckaby and other teachers as well. It is likely that some of his motivation to question Ms. Huckaby and her motivation to treat him with disdain, stemmed from their strained relationship starting with the student disciplinary incident described above. In any event, Ms. George's testimony is accepted in establishing that Ms. Huckaby had a bias in favor of removing the Respondent from her staff, which colored her judgment in making many of her criticisms of his teaching, which long pre-dated his probationary period and which, along with her scant actual observations of his instructional prowess, caused some of his improvements to be overlooked or disregarded, and which caused him to be evaluated more critically than his colleagues as to some performance requirements. In fact, the preponderant evidence establishes that in an objective sense his performance as a teacher, although not flawless, was acceptable and improved in a number of areas. As found in more detail above, in consideration of the circumstances imposed on him by the school administration, in his capacity as a resource teacher, with the time and schedule constraints and disadvantages that status entails, he performed in at least a satisfactory way in the 2004-2005 and 2005-2006 years at issue.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Leon County School Board re-instating the Respondent to a similar special education teaching position, with reimbursement for lost wages and benefits, in a manner so as to be "made whole" from the date of termination. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
The Issue Whether Respondent's teacher's certificate should be revoked pursuant to Section 231.28, Florida Statutes, for alleged sale of marijuana, as set forth in Petition, dated May 11, 1979. The parties stipulated to the expected testimony of Petitioner's witnesses, and Respondent did not call any witnesses at the hearing. The parties further stipulated to the admission of Petitioner's Exhibits 1-5 and to Respondent's Composite Exhibit 1. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on an allegation the Respondent sold marijuana to a police officer on September 1, 1978. The matter was reported by the Superintendent, Polk County Public Schools, to Petitioner by letter of February 21, 1979. (Petitioner's Exhibit 3) The Petition herein was thereafter filed pursuant to directions of the State Commissioner of Education who on May 11, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by Answer, dated May 22, 1979. Respondent filed a prehearing Motion to Strike the Petition on the grounds that the Polk County Superintendent improperly referred the matter to Petitioner on the basis of Respondent's nolo contendere plea in a criminal proceeding, and had suspended her from employment without an evidentiary hearing. The motion further alleged that Petitioner based its probable cause finding upon hearsay evidence and that it has no authority to make a finding of criminal guilt without a judicial adjudication of the same. Respondent's Motion is denied. Petitioner's Rule 6A-4.37, Florida Administrative Code, prescribes procedures for revoking or suspending certificates. It provides, inter alia, that when a superintendent has "cause to believe" that a certificate holder is "guilty of any offense" for which the penalty is revocation or suspension, it is his duty to file a "signed report" with any supporting documentation with Petitioner. Such a report merely triggers an investigation by Petitioner's staff for consideration by its Executive Committee and ultimate finding of probable cause by the Commissioner of Education. All of these procedures are preliminary in nature. No definitive action can be taken against a certificate holder and no final adverse action may be taken without an opportunity for an adversary hearing. The cases cited by Respondent in support of the notion deal with evidentiary standards for the issuance of final orders and do not relate to such preliminary matters. Petitioner observed the requirements of its rules procedurally in this case.
Findings Of Fact Respondent Judy A. Cain holds Florida Teaching Certificate No. 339186, Post Graduate Rank II, valid through June 30, 1983, covering the areas of English and junior college. She was employed in the public schools of Polk County at Wahneta Elementary School as a teacher in September, 1978. (Stipulation) During the evening of September 1, 1978, a police officer of the City of Dundee, Florida, who was working in an undercover capacity, had a conversation with a woman later identified as Respondent and another woman named "Candy" at Walker's Bar in Dundee. They told the officer that they were going to buy a "bag" and get "high." The officer asked if they knew where he could pick up a "bag," and Respondent told him that she would have to have money to get it herself. The officer gave Respondent $20.00 and the two women left the establishment. They returned a short time later, and the woman known as Candy took a plastic bag containing a brownish vegetable matter from her purse and both women stated that it was "dynamite dope." Thereafter, laboratory tests established that the bag contained 18 grams of marijuana. (Stipulated testimony of Castro, Petitioner's Exhibit 1) On October 17, 1978, Respondent was arrested for the offense of sale of marijuana. On February 8, 1979, upon Respondent's plea of nolo contendere to sale and possession of a controlled substance, in the Polk County Circuit Court, an order was issued by the Court withholding adjudication of guilt and placing the Respondent on probation for a period of three years. Respondent was dismissed from employment by the School Board of Polk County on May 21, 1979, for immorality based on the sale of marijuana. Evidence concerning the foregoing disposition of judicial and school board proceedings was received at the hearing upon stipulation of the parties, but will not be considered herein for purposes of determining grounds for disciplinary action under Section 231.28, F.S. (Stipulated testimony of Castro, Wilson, Petitioner's Exhibits 1- 2, 5) In the opinion of Respondent's former principal, the Polk County School Board Director of Employee Relations, the Chairman of the School Board, and several parents, a teacher who commits the offense of sale of marijuana would thereby set an improper example for students and seriously reduce the teacher's effectiveness as an employee of the school system. (Stipulated testimony of Miles, S. Wilson, Qualls, D. Wilson, Aggelis, supplemented by Petitioner's Exhibit 4) During the school year 1975-76 in the Polk County School System, Respondent received a "satisfactory" rating on her annual teacher assessment report. She received the highest rating of "good" during the 1976-77 school year, and a "satisfactory" rating for the 1977-78 year. (Respondent's Composite Exhibit 1)
Recommendation That Respondent's teaching certificate be revoked for a period of two years. DONE and ENTERED this 22nd day of February, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1980. COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Wallace L. Storey Post Office Box 796 Bartow, Florida 33830 Hugh Ingram, Administrator Professional Practices Council 319 West Madison Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Otis Ward Carroll held a Florida Teacher's Certificate No. 169701, which was valid from July 1, 1972 until June 30, 1982. As a certificate holder Respondent was disciplined on August 7, 1979, when the State Board of Education entered an Order adopting a set of stipulated Findings of Fact and Conclusions of Law. The Board's Order suspended Mr. Carroll's license to teach for sixty (60) days beginning on June 15, 1979. This discipline resulted from Mr. Carroll's numerous absences from school due to his drinking alcohol. The stipulation recited several arrests and numerous admissions to the Detox (detoxication) Center for disorderly intoxication. These instances occurred between 1976 and 1978. According to the stipulation Mr. Carroll voluntarily entered an alcoholic treatment program on December 4, 1978 for a period of six (6) months. During all times pertinent to the Amended Administrative Complaint Mr. Carroll was employed as a full-time science teacher by the School Board of Duval County at Fletcher Senior High School. On May 18, 1979, the Assistant Superintendent for Personnel of the School Board of Duval County, Florida, sent a letter to Mr. Carroll informing him that he would be employed for the next school year, but he was warned that, Any further indiscretion, however, such as public drunkeness or drinking while on the job will be reported to the Professional Practices Council and could result in a recommendation for your dismissal in accor- dance with the Duval County Teacher Tenure Act. May 1980 Absence During the 1979-80 school year, Mr. Carroll was absent from his teaching duties without prior approval for approximately one week in May, 1980. Before and during his absence Mr. Carroll failed to give notice of his absence as required by school policy. Upon his failure to appear for teaching as scheduled his principal, Dr. Knight, became concerned about his welfare and sent Mr. Daugherty, his administrative assistant, to look for Mr. Carroll. Mr. Carroll could not be found during the school day, but after work Mr. Daugherty, who was going to the grocery store with his wife, saw Mr. Carroll walking down the street. He was "in real bad shape" and was redolent of alcohol. When Mr. Carroll was offered a ride home he declined stating, "No, I want to go to the lounge." Mr. Daugherty then took Mr. Carroll to the Jax Liquor Store Lounge and promptly found a police officer. Mr. Daugherty explained his concern about Mr. Carroll to the officer. The officer picked Mr. Carroll up from the lounge and transported him to the Detox Center. Mr. Daugherty, who is now a school principal in Okeechobee, Florida, would not, if requested, hire Mr. Carroll as a teacher in his school. He believes that due to Mr. Carroll's drinking problem he could not be relied upon to appear as scheduled for teaching his classes. Dr. Knight has the same opinion. April 14, 1981 Arrest During the afternoon of April 14, 1981, a passing motorist notified Officer Russell of the Duval County Sheriff's Department that a man was staggering down the middle of East Point Road in Jacksonville, Florida. The patrolman went to the location described, and observed Mr. Carroll walking down the centerline of the street. Mr. Carroll smelled of alcohol and was unsteady on his feet. Because of his condition he was transported by Officer Russell to the Detox Center where he was later arrested. July 21, 1981 Arrest At approximately 1:15 a.m. on July 21, 1981, Officer Nixon, a patrolman with the Duval County Sheriff's Department, received a complaint from Mr. Carroll's sister that he was creating a disturbance in her home. She reported that Mr. Carroll was drunk and she wanted him to remain in the house because she thought his condition was too dangerous for him to be out in public. Upon his arrival the police officer attempted to talk with Mr. Carroll but he refused to respond at all. He was quite intoxicated and had to be physically assisted out of the house and into the patrol car. Mr. Carroll was charged with disorderly intoxication and taken to the Detox Centers. Spring 1981 Absences According to Fletcher High School policy teachers were required to either give advance notice of their absences or if such notice was not possible to call the school secretary before 7:00 a.m. of the date on which they would be absent. This notice was required because substitute teachers needed to be obtained as rapidly as possible. If a teacher is too late in giving notice of his absence, it is impossible to obtain a substitute. Other teachers are then required to cover for the absent teacher with the consequential disruption of their omen teaching schedules. During the months of February and March, 1981, there were numerous times when Mr. Carroll did not report his absence as required. He either gave no notice or the notice he gave came after 7:00 o'clock. As a result of his unauthorized absences it was discovered that Mr. Carroll left either inadequate lesson plans or no lesson plans at all for the substitutes who appeared to instruct his class. The failure of Mr. Carroll to timely submit his lesson plans substantially interfered with the ability of the substitutes to teach the appropriate subject material. During one of his absences due to drinking student grades for the third nine-week period were due. Mr. Carroll did not leave any grades with the school administration to be given in his absence. Initially, the administration was unable to obtain the grades from Mr. Carroll. When it appeared that no grades would be available, students were told that they would receive an "I" (Incomplete) grade. This possibility caused much confusion and consternation among the students' parents. It resulted in numerous explanations to them by Mr. Carroll's principal. At the very last moment Mr. Carroll's mother delivered his grade book to the school. The "I's" which were previously placed on the students' report cards had to be removed and the correct grades were then posted. Respondent's unauthorized absences were the result of his being an alcoholic. Frequently Mr. Carroll was unable to go to school because he was in the Detox Center. Finally Mr. Carroll was given a leave of absence beginning on April 21, 1981 in order to seek treatment for his problem. Effectiveness Mr. Carroll's effectiveness as a teacher has been seriously reduced by his alcoholism. He cannot be depended upon to appear at the required time for the instruction of his classes. In two instances he appeared at school with the odor of alcohol on his breath. 1/ Knowledge of and rumors about his alcoholism have reduced the respect accorded him by students at Fletcher High School. On March 12, 1981 Mr. Carroll received an official reprimand from his principal, Dr. Jim Ragans. The reprimand noted that Mr. Carroll had been delinquent in giving notice of his absences to the school administration. The reprimand also noted deficiencies in Mr. Carroll's lesson plans and his completion of the student attendance register. He was warned that any reoccurrences of the enumerated delinquencies would result in a recommendation for his dismissal from teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission enter a Final Order revoking the teaching certificate 2/ of Otis Ward Carroll for a period of two years pursuant to Section 231.28, Florida Statutes, and that once the revocation period has expired he be recertified only upon an affirmative demonstration that he is rehabilitated from alcoholism. DONE and RECOMMENDED this 3rd day of September, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 3rd day of September, 1982.
Findings Of Fact At all times material to the facts alleged in the Administrative Complaint Respondent has been employed by the School Board of Broward County, Florida, as a teacher on continuing contract at Crystal Lake Middle School. Notice of the final hearing was sent to Respondent on January 4, 1983 to her address at 5225 North Dixie Highway, Ford Lauderdale, Florida 33334. The Notice of Hearing which was sent from the Division of Administrative Hearings was not returned as undelivered by the United States Postal Service. The record does not reflect that Respondent made any attempt to contact either counsel for the Petitioner or the Hearing Officer concerning a continuance of these proceedings or providing any explanation for her failure to appear at the final hearing. On May 15, 1980 Ms. Belcher failed to report for work as a classroom teacher without advance notice to the administration of Crystal Lake Middle School as required by school policy. She was absent the entire day and her failure to appear caused considerable administrative difficulty in securing a replacement teacher without prior notification. Her principal at that time, Ms. Jean Webster, sent a memorandum to Ms. Belcher which stated the following: On Thursday, May 15, 1980, you were absent from your job and failed to report that you were going to be absent either to your department head or to me. This is less than responsible action on your part and will be considered an act of insubordination should it happen again. This memo may be considered a written reprimand and will be placed in your personnel folder. The memorandum was received and acknowledged by Ms. Belcher. On October 14, 1982 Respondent was absent from her teaching assignment without leave. She failed to give any prior notice of her absence to the school principal or any other supervisor as required by school policy. The absence of Ms. Belcher was not discovered until one of her students went to another teacher's room to report that Ms. Belcher's unattended students were misbehaving and throwing objects at each other. As a result of the second unauthorized leave of absence without prior notice, her new principal, Mr. Thomas J. Geismar recommended to the Assistant Superintendent of Personnel that Ms. Belcher's contract of employment be terminated. Mr. Geismar's decision to request Ms. Belcher's termination was influenced by her prior conduct on September 23, 1980 when she was discovered by a member of the administration to be falling asleep in front of her class during a regularly scheduled class period. During that time her students were out of control. They made disparaging remarks about Ms. Belcher appearing to be either high or on drugs. The incident was reported to Mr. Geismar who, upon interviewing Ms. Belcher, determined that she was either intoxicated or drugged and was in no condition to teach a class of middle school students. At the time Ms. Belcher attributed her condition to having taken cold medicine. She was sent home in order to recover from whatever was affecting her. On numerous instances, Ms. Belcher fell asleep while on duty in front of her students during the school year 1981-1982. When Ms. Belcher fell asleep her unsupervised students became boisterous and threw things at each other. Prior to falling asleep Ms. Belcher frequently received a back and neck rub from one of her students. After Ms. Belcher's last absence without leave or prior notice on October 14, 1982, it appears that the administration at Crystal Lake Middle School solicited negative comments about Ms. Belcher's teaching behavior. This inference is raised by four letters all dated October 19, 1982 addressed to Mr. Geismar from respectively, J. Kay Betzoldt, Jo Nell Stevenson, Jan Mascia and Walter S. Tilgham. The most serious incident about Ms. Belcher's behavior was raised by Ms. Betzoldt. During fifth period in the last quarter in the 1981-1982 school year, Ms. Betzoldt saw Ms. Belcher in front of her class receiving a "back rub" from one of Ms. Belcher's students. The student was observed standing behind Ms. Belcher reaching forward massaging her breasts. It appeared that Ms. Belcher was not aware of what was happening. When the student realized that Ms. Betzoldt was observing him, he moved his hands to the shoulders of Ms. Belcher. Ms. Betzoldt did not report the incident to the school administration until her letter of October 19, 1982. The contents of the other teachers' letters dated October 19, 1982, were corroborated by the authors' live testimony at the final hearing. They support the allegations against Respondent that on numerous occasions she has slept in the presence of her students when she should have been teaching them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Broward County, Florida, enter a Final Order dismissing Ms. Saundra Belcher as a continuing contract teacher and cancelling her contract of employment. DONE and RECOMMENDED this 6th day of April, 1983, in Tallahassee, Florida. MICHAEL P. DODSON 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 6th day of April, 1983. COPIES FURNISHED: William S. Cross, Esquire 4540 North Federal Highway Fort Lauderdale, Florida 33308 Saundra Belcher 5225 North Dixie Highway Fort Lauderdale, Florida 33334 William T. McFatter Superintendent of Schools Broward County School Board 1320 Southwest 4th Street Fort Lauderdale, Florida 33312 Donald J. Samuels, Chairman School Hoard of Broward County 1320 Southwest 4th Street Fort Lauderdale, Florida 33312
The Issue Whether the Seminole County School Board is entitled to dismiss Respondent for just cause for misconduct in office and/or gross insubordination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner, the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of the school board. Respondent, Robert Brinkman, is employed by the School Board of Seminole County, Florida, as both a teacher at Sterling Park Elementary School and a custodian at another school in Seminole County and has a professional services contract for instructional personnel with the School Board of Seminole County. Respondent is 57 years old and has taught school for 23 years. No evidence was presented regarding his status as a custodian other than he was a custodian at the time he received his letter of suspension and that he was asked to "turn in his keys." He is not currently performing custodial services. On Wednesday, December 13, 2000, Respondent requested of his supervisor, Principal Deborah Wright, that he be given his paycheck on the following day, Thursday, December 14. The regular payday was Friday, December 15. Respondent advised Principal Wright that he had planned to go on vacation on the 15th and needed his paycheck a day early. Principal Wright refused to agree to give Respondent his paycheck early, advising him that no one else would be given the checks early and further advising him that he would have to reschedule his vacation. Respondent returned to the office he shared with Dawn Towle and, as characterized by both Respondent and Miss Towle, "he just lost it" and said "that black bitch won't give me my check." There is no evidence that this statement was overheard by any students; none were present. Whether the statement was directed to Miss Towle or not, she heard the statement and she responded, "excuse me?", to which Respondent replied "that black lady won't give me my check early." Miss Towle immediately reported the statement to Principal Wright. Principal Wright appropriately interpreted Respondent's statement as a racial remark made about her; the racial remark made her angry. Miss Towle suggests that on four occasions over a two school-year period, while she and Respondent shared their 10-square-foot office, she heard Respondent utter remarks that she considered "similar (racial) comments." The importance of these purported racial comments is discounted by the fact that they occurred in private conversations, some were not epithets or racial slurs, the only one concerning Principal Wright may not have been intended to be heard by anyone (Respondent "mumbled under his breath") and that Respondent denied having made any racial remarks other than the remark on December 13, 2000. Principal Wright called Respondent to her office, and in the presence of a witness, the assistant principal, told Respondent that "if you ever refer to me by any name other than Mrs. Wright, I will walk you out of the school on your toes." Under the circumstances, while the undersigned can only imagine the true import of the statement, it seems perfectly appropriate. Respondent immediately attempted to apologize; Principal Wright directed him to leave her office. He returned later that morning and again attempted to apologize and was again rebuffed. Principal Wright did not accept his apology because she did not believe his apology was genuine. Principal Wright acknowledged animosity toward Respondent based on previous instances with children; she was not aware of any prior racial remarks made by Respondent. Respondent mailed Principal Wright an apology one week after the incident indicating that "he was upset" and that his statement was "inappropriate and did not indicate how I feel about you." Principal Wright testified that Respondent had done nothing that was "racially harassing to her in the past," that his statement did not intimidate her or create a "hostile work environment," and that the statement (dealing with it) took time that she could have devoted to other job responsibilities. Respondent's statement, while clearly racially and sexually offensive, was isolated and not so severe as to create a hostile or abusive work environment. Principal Wright immediately reported the statement to John Reichert, who is charged by the School Board with the responsibility of investigating complaints of misconduct. Mr. Reichert arrived at Sterling Park Elementary School at 12:30 p.m., on the day of the incident. After interviewing Miss Towle and Principal Wright, he interviewed Respondent. Respondent acknowledged making the statement, said it was "a stupid thing to say" but that he was upset because he couldn't get his check, and that "he just lost it." The same day or the next, Respondent was suspended with pay which matured into a suspension without pay, effective January 17, 2001. The slur first heard or overheard by Miss Towle was indirectly published by Principal Wright to the assistant principal who became a witness to Principal Wright's admonishment of Respondent. While the assistant principal is not specifically aware of the text of Respondent's statement, she was made aware that Respondent had made a racial statement about Principal Wright. To the degree this remark has been further published, it is a result of appropriate investigative and administrative action taken by the School Board. There is no evidence that there is a general awareness, in the school system or the community, of Respondent's statement. Other than the testimony of Miss Towle, there is no suggestion that the Respondent made other sexual/racial statements. He has no record of sexual/racial misconduct. Respondent maintains that his remark was not racially motivated, that he was just very upset. He has enjoyed working for Principal Wright for five years. At the final hearing, Respondent again acknowledged that what he said was very inappropriate and that he is very sorry for what he said. There is no evidence that Respondent's remark actually impaired his effectiveness in the school system--which is a necessary factual component of the offense of misconduct in office. The only evidence received on the issue of impairment of Respondent's effectiveness in the school system is John Reichert's testimony that he had no knowledge that Respondent's effectiveness would be impaired anywhere beyond Sterling Park Elementary School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Seminole County School Board enter a final order dismissing the charges against Respondent and returning him to full duty, effective January 17, 2001, with all back pay and benefits. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. JEFFREY B. CLARK 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 20th day of April, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Dr. Paul J. Hagerty Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773
The Issue : The issues to be resolved in this proceeding concern whether the Hernando County School Board (Board), the Petitioner, has just cause to terminate the Respondent's employment, related to alleged excessive absences, during the 2007-2008 school year.
Findings Of Fact The Petitioner Board is charged with operating and administering the Hernando County School District. Through its principals and human resources personnel the Board is charged with operating and regulating all personnel matters, including the monitoring of attendance for all employees at each school operated by the Board. Mr. Charles Johnson was the Principal at Westside Elementary School (WES) for the 2007-2008 school year at issue in this case. He had been the principal at that school since 1988 and it was his duty, among other personnel matters, to monitor the attendance of his employees at the school. The Respondent was employed at WES during the 2007-2008 school year. She had been hired to work there for the first time that year. She had, however, been employed by the Board as a teacher since 1997. Prior to the school year in question, the Respondent had a very favorable record as a teacher for the Board. Soon after the Respondent came to work at WES for the 2007-2008 school year she began to exhibit a pattern of frequent absences. The principal, Mr. Johnson, became concerned with Respondent's absences in late September of 2007 because a parent-teacher conference was imminent and report cards or progress reports were due for the first nine-week grading period around that time. The principal maintained a record of the teachers' attendance, including the Respondent. He created a log documenting the Respondent's absences from August 2007 through January 2008. The Respondent was absent five days in August and present for ten days. She was present for ten days and absent for nine days in September. The Respondent was absent on both October 1 and 2, 2007, as well. The Respondent called the principal's secretary on October 2nd to advise that she had a doctor's appointment on the third and would return to work on the fourth. The Respondent did not return to work on October 4th, however. The principal thereupon sent the Respondent a letter advising her that her absences were excessive and she needed to report to work by October 10th. He gave her some lead time in getting back to work because he was unaware of the reasons why she was missing so much work. He also wanted to allow for any delays due to mailing time for his letter, which was mailed on October 4th. The Respondent called the principal and spoke with him on October 8th and advised him that she had been sick and had been "beaten-up." She assured him that she would return to work the next day. The Respondent, however, did not return to work the next day and also failed to come to work on October 10, 2007, as directed in the principal's letter. She did call the school office and leave a voice mail on the principal's phone that morning assuring him that she would be at work the next day, which was October 11th. The Respondent did not return to work on October 11th as promised. Because of her failure to return to work, the principal sent a letter to her dated October 15, 2007, advising her that he had scheduled a "pre-disciplinary hearing" for October 19, 2007, which she should attend. The purpose of that hearing was to give her an opportunity to explain her "excessive absenteeism." The Respondent thereupon was absent from work every day during the week of October 15th, and then failed to attend the scheduled hearing or meeting on October 19th. Moreover, she did not call or otherwise communicate with the principal that week to explain her absences or why she had missed the meeting. Thereafter, the Principal sent the Respondent a letter dated October 23, 2007, again scheduling a pre-disciplinary hearing. The hearing was scheduled for October 30th. The letter was both mailed and personally delivered to the Respondent. Upon receipt of the hand-delivered copy of the letter, the Respondent phoned the principal and spoke to him. According to Mr. Johnson, the Principal, the Respondent told him in this conversation that she had not opened his previous letters, but she assured him she would be at work the following day. The Respondent, however, did not return to work on the following day, which was October 25, 2007, nor did she attend the pre-disciplinary hearing on October 30th, which Mr. Johnson had scheduled. Mr. Johnson, therefore, sent a letter to the Respondent on October 31st advising her that he was recommending to the Superintendent that she be suspended with pay. He sent a letter to the School District office of Labor Relations and Professional Standards on the same day referring the matter to that office, along with copies of all the relevant documents he had which evidenced what be believed were excessive absences. Because of her 10 days or more of consecutive absences, under Board policy, the Respondent was administratively placed on unpaid leave of absence, instead of being suspended with pay as recommended by her principal. The unpaid leave of absence had an effective date of October 15, 2007. Such a leave of absence is designed to enable a principal to replace a teacher in the situation of the Respondent with a permanent certified teacher, to assure continuity of effective instruction. The Respondent was sent instructions regarding her leave of absence by mail on October 15, 2007, from the Human Resources Department of the District. She was thus informed that she could elect to go on extended personal leave or on family medical leave. No information was received from the Respondent in response to this communication, however. The Respondent maintains that she provided a document concerning family medical leave. That form, however, was merely a medical certification statement and not an actual application or request for family medical leave. Moreover, the evidence shows that the Respondent was not qualified for family medical leave, even had a proper application been submitted, because she had not worked a sufficient number of hours in the preceding school year to establish her entitlement to family medical leave under the relevant rules and policies. An employee conference was held with the Respondent on November 2, 2007. The Respondent, the principal, and Ms. Barbara Kidder, who is the Director of Labor Relations and Professional Standards for the School District, were in attendance at the meeting. The Respondent assured them at the meeting that she would return to work the following Monday, November 5th and thereafter maintain satisfactory attendance. She also agreed to seek assistance through the Employee Assistance Program (EAP) and agreed to advise the school when she had appointments with that program. It was not unusual for Mr. Johnson to have continued the disciplinary process and communication with the Respondent about her absenteeism throughout the month of October, even though she was on a leave of absence. She had been placed on that leave of absence by the District so that it could hire a replacement teacher. It was not a leave she had voluntarily requested. Moreover, even without considering the days of absence while she was on her administrative leave of absence, the principal had a basis for pursuing disciplinary action for the absences she had previously incurred. November 5, 2007, was approved by the District as the Respondent's "early return date" from that leave of absence, which had started on October 15th. Indeed, the Respondent came to work on Monday, November 5th. She was, however, absent for the rest of that week. She did not contact either the principal or his secretary concerning those absences. She called the automated system for assigning substitute teachers (SEMS), which does not constitute nor grant any excuse for an absence. It is merely a means of scheduling or assigning substitute teachers. School did not meet on November 12th, a Monday. On Tuesday, November 13th the Respondent called and left a voice mail message for the principal advising that she had been to the doctor on the Friday before for strep throat and a respiratory infection. She assured him that she would be back the following day November 14, 2007. The Respondent, however, did not report to work on November 14th, but instead called and spoke with the principal around 10:00 a.m., advising him that she just left the doctor's office. She advised him that she had a note indicating she would be clear to report to work on the following Monday. The Principal reminded her that the next week was Thanksgiving week and no school met that week. The Respondent then agreed to come to work on Monday, November 26th and advised that she would have the doctor's note with her at that time. The Respondent failed to report to work on November 26th, as she had promised and did not contact the Principal or his secretary concerning that absence. She also missed work November 27th through the 30th, and did not call the principal or his secretary to explain those absences. The principal accordingly sent her another letter on November 29th advising her that a pre-disciplinary meeting was again scheduled for December 4th to discuss her absences. She did not attend the pre-disciplinary meeting on December 4th nor did she report to work that entire week. She failed to contact the principal or his secretary and explain her absences from work that week and her absence from the scheduled meeting. On December 5, 2007, the principal sent another letter to the Respondent advising her that he was referring her case or situation to the labor relations office. On that same date he sent a memorandum to the director of the labor relations office enclosing all the relevant documentation he had regarding the absences. That office then sent the Respondent a letter on December 5th which advised her that a pre-disciplinary meeting was scheduled for December 12th. The pre-disciplinary meeting was held on December 12th and the Respondent and Ms. Kidder were in attendance. Ms. Kidder gave the Respondent information on the EAP and advised her that she would be reviewing the Respondent's case with the Human Resources Office and the Petitioner's attorney. On December 14th the Respondent met with Ms. Kidder and the principal. The Respondent on this occasion was given a "letter of direction," advising her that she would be assigned a "mentor" and advising her of procedures for absences. The procedures she was directed to follow for absences included a stipulation that a doctor's note would be required for all future absences. The letter of direction given to the Respondent on December 14th contained the following requirements or procedures for the Respondent to follow with regard to her work and her absences: She was be assigned a "mentor" teacher to assist her with transitioning back to work. She was to report to administration each day before reporting to her classroom. She was to meet weekly with administration to review her attendance and her progress. She was expected to be in attendance each day starting Monday, December 17, 2007, and was to follow the Principal's specific directions regarding the process for obtaining approval for sick leave. She was to contact the principal if she had any questions concerning working hours, timesheets, absences, tardiness, sickness at work, leaving the building or related employee issues. She was being placed on probationary status for one year and any future violations of Petitioner's policies or procedures or any administrative directives would constitute "just cause" for disciplinary action up to and including termination. She was expected to contact EAP and attend counseling sessions as recommended by the staff. She was then to document the completed counseling sessions to her principal. During the December 14, 2007, meeting, the Respondent agreed to return to work as directed. She gave no indication that she would be unable to return to work or perform her duties or that there would be any restrictions on her ability to return to work. The Respondent provided no doctor's notes explaining illnesses or absences during either the December 14th meeting or the November 2nd meeting with the Principal. In fact, the Respondent did not return to work the following Monday, December 17th. She also missed the rest of that week and did not contact administration directly about her absences as she had been directed to do on December 14th and as the "letter of instruction" had directed her to do. The Respondent produced phone records at the hearing and testified that certain calls represented conversations with either the Principal or his secretary. This was in an effort to show that she had properly explained her absences. She did not, however, provide corroborating testimony as to which of the calls on the records were specific to a person as opposed to simply leaving a voice mail for that number or receiving no answer at all. In any event, Ms. Kidder sent the Respondent a letter on December 20th reminding her that it was her responsibility to provide a doctor's note in explanation of her absences and that she was supposed to return to work on December 17, 2007. The letter reminded the Respondent that her attendance was critical. The last week of December 2007 and the first week of January 2008, constituted the District's school Christmas Break. The first day of school following Christmas Break was Monday, January 7, 2008. The Respondent did not return to work that day, even though she later presented notes from Doctors Khalil and Alshaar indicating that she was able to work that day. The Respondent did report for work on January 8th, but then was absent for January 9th and 10th. She reported for work on January 11th, but later produced a note from Dr. Alshaar indicating that she should be excused for that day. Ms. Kidder sent the Respondent another letter on January 25, 2008, advising her that a "pre-determination hearing" had been scheduled for February 1, 2008, to again review her absences since January 7, 2008. The Respondent acknowledges that she received the correspondence from the Petitioner referenced above. She was also aware of the Petitioner's polices and procedures on attendance and leaves of absence. She signed a receipt indicating that she had received the Staff Handbook which outlines specific policies and references the School Board Policy Manual in general. Additionally, the Respondent acknowledged to the Principal that "time and attendance" were reviewed during her "new employee orientation" at the school. Teacher absences have a negative impact on the classroom, the students and the school. The principal had to ask other teachers to cover the Respondent's classroom and to use substitutes. A teacher's credibility and the trust of students is impaired when the teacher is constantly absent or alternately appearing or being absent from the classroom on a frequent basis. Mr. Johnson established that the Respondent had the worst attendance record he had experienced with a teacher in his 20 or so years as a principal. Her absences for the 2007-2008 school year far exceeded that of any other teacher at the school. The Collective Bargaining Agreement covering teachers in Hernando County, including the Respondent, provides that sick leave is allowable without loss of pay as provided for by Florida Law and that personal leave should be approved by work site administrators, except in cases of substantial emergency. The Hernando County Staff Handbook is in evidence as Petitioner's Exhibit 24. It provides the details of the Board's policies and procedures on absences, leaves of absence, sick leave and leaves made necessary by sudden emergencies, etc. The general information concerning leaves of absence, the policies and procedures concerning family medical leave, notification of absence, absence without leave, sick leave, depicted in that exhibit are incorporated in these Findings of Fact by reference. Those policies and procedures include the requirement that where there is any doubt as to the validity of a sick leave claim, the superintendent may require the filing of a written certification of illness from a licensed physician or other supporting evidence if personal illness is not involved. It then provides the consequences of false claims for sick leave, proceeding to list cancellation of a teacher's contract or for action seeking revocation of a teaching contract. It also includes a provision that an application for sick leave due to extended illness shall have attached to it a statement from a practicing physician certifying that such leave is essential and indicating the probable duration of the illness and the needed leave. There is no question, given the pattern of extensive absences, and given the Respondent's lack of communication with the principal, or even the principal's secretary, concerning the reason for her absences or the legitimacy of any illness, that the Principal could have doubts as to the validity of any sick leave or illness claims. He was thus proceeding within the appropriate policies contained in the Manual and Handbook in requiring physician certification or proof concerning illness or absences, which mostly was not provided by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County Florida terminating the Respondent from her position as a teacher with that School District. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2008. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Jennifer M. Gallagher 1223 Sanger Avenue Spring Hill, Florida 34608 Wayne S. Alexander, Ed.D. Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
The Issue Whether Respondent should be dismissed from his employment by the Pinellas County School Board as a painter in the School Board’s Maintenance Department for any or all of the following: excessive absenteeism, failure to report absences according to established procedures, failure to provide required medical documentation for absences, tardiness, insubordination, driving under the influence of alcohol and criminal conviction of driving while intoxicated?
Findings Of Fact Petitioner, the School Board of Pinellas County, is the authority that operates, controls and supervises all free public schools in the Pinellas County School District. Dwayne Goodrow has been employed as a painter in the Maintenance Department for the Pinellas County School Board since April 18, 1989. His work has always been satisfactory and sometimes better than satisfactory. Over the years of his employment, however, he has had chronic and serious attendance problems. Absenteeism, Attendance and Other Performance Factors On August 2, 1990, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." The memorandum stated that since the beginning of the school year, Mr. Goodrow had been absent an excessive number of times, including 17 hours of leave without pay. It informed Mr. Goodrow that, "[t]his absenteeism is unacceptable and you must make an immediate and permanent correction of this behavior." (Petitioner's Ex. No. 1) It further advised him that the memorandum would be placed in his file as a record that he had been counseled about the matter and that he fully understood that any reoccurrence of excessive absenteeism would result in a letter of reprimand. The memorandum warns: In the event you receive a letter of reprimand and the excessive absenteeism continues, you will become subject to more severe disciplinary action, which could include suspension or dismissal. Id. The memorandum is signed first by Mr. Goodrow and then by school board personnel: Mr. Goodrow's foreman and general foreman as well as the Superintendent of the School District. On October 5, 1990, Mr. Goodrow received a letter of reprimand for excessive absenteeism. The letter informs Mr. Goodrow of his General Foreman's belief that he has not realized the seriousness of his problem with absenteeism because in the interim since the August 2 memorandum he had been absent 29 and ½ additional hours. The letter warns, "if your absenteeism continues, it will be cause to recommend you for suspension or dismissal." Petitioner's Ex. No.2. It concludes, "Your signature below will acknowledge that you have received and understand this letter of reprimand." Id. Just as the August 2, 1990 memorandum, the letter is signed by Mr. Goodrow and school board personnel. On a Supporting Services Personnel Performance Appraisal signed by Mr. Goodrow January 18, 1991, he received a rating of unsatisfactory in the area of attendance and "needs improvement" in the area of punctuality. The remarks section of the appraisal states with regard to attendance, "[h]as received letters warning him of this, must be corrected." Petitioner's Ex. No. 17. The appraisal also states, "Dwayne has good painting abilities and knowledge, can be trusted to complete any job given him." Id. On June 10, 1991, Mr. Goodrow received a memorandum the subject of which was "Record of Counseling for Excessive Absenteeism." With the exception of stating that he had taken 15 hours of leave without pay, the memorandum is identical to the August 2, 1990 memorandum. On a supporting Services Personnel Performance Appraisal dated February 14, 1992, Mr. Goodrow was again rated unsatisfactory under the performance factor of attendance. The remarks section reflects that he received counseling on December 19, 1991, for frequent tardiness but also that "[j]ob knowledge is adequate," "[c]ompletes assigned work on time," "[h]as the ability to be a self-starter," and "[c]an be a good team worker." Petitioner's Ex. No. 16. On September 15, 1994, Mr. Goodrow received an Attendance Deficiency Notification Letter. The letter states "[y]ou are required to bring in doctor's documentation of your illness on all further sick leave absence requests." Petitioner's Ex. No. 4. Although there is a place on the letter for Mr. Goodrow's signature and a notation that signature by the employee does not imply agreement with statements in the letter, the letter reflects that Mr. Goodrow refused to sign it. On October 3, 1994, Mr. Goodrow received a Record of Counseling. It noted deficiencies in his performance in that, INSUBORDINATION - You were told to furnish doctors excuses for any sick leave taken as per letter dated 9/15/94. On 9/26/94 you used 2 hours sick leave and failed to provide Doctor's excuse upon request of your Foreman. Petitioner's Ex. No. 5. To bring his performance to the satisfactory level, Mr. Goodrow was advised he would have to supply a doctor's documentation of illness whenever he took sick leave in the future. On February 17, 1995, Mr. Goodrow was rated as "Needing Improvement," in the area of attendance on his performance appraisal by his supervisor. The remarks section of the appraisal reflects that he was counseled for not following leave policy but also that "Dwayne has shown a more positive attitude recently, he has the potential to progress." Petitioner's Ex. No. 15. Furthermore, Mr. Goodrow was rated "better than satisfactory, in the area of "job knowledge." Consistent with this rating, in the remarks section, the following appears, "Dwayne exhibits his job knowledge by identifying problems and solving them . . . ." Id. The potential for progress noted in February did not last long. On March 24, 1995, Mr. Goodrow received a letter of reprimand for insubordination for failing to provide a doctor's excuse for sick leave absences contrary to previous instructions. The letter warned that failure to provide doctor's excuses in the future to justify sick leave will result in "further disciplinary action up to and including termination of employment." Petitioner's Ex. No. 6. Over the next 6 months, Mr. Goodrow began again to show progress. By early September, 1995, his attendance had "improved considerably," Petitioner's Ex. No. 7, and the requirement for a doctor's excuse for every sick leave absence was lifted. The procedure for reporting absences in the School Board's Maintenance Department is for employees to call in at least one-half hour prior to their normal starting time. There is an answering machine upon which a message can be recorded when there is no person available to take the call. Shortly after the lifting of the requirement for a doctor's excuse to justify sick leave, Mr. Goodrow, on Wednesday, September 13, 1995, was absent from work. He did not call in consistent with the procedure for reporting absences. He was absent again two days later. In addition to the failure to call in on September 13, 1995, Mr. Goodrow was absent without calling in on three other days in the fall of 1995: October 18 and 26, and November 9. Each time he failed to call in, Mr. Goodrow was verbally warned by Trades Foreman Al Myers of the requirement for calling in and was given a review of proper procedure. On December 14, 1995, Mr. Goodrow received a letter of reprimand for failure to follow proper procedure with regard to the four absences in the fall of 1995. The letter was the result of an agreement with Mr. Goodrow that the letter was the appropriate response by the maintenance department for the absences and failure to follow procedure. A stipulation was added, however, to the agreement: "[A]nother attendance incident within one year will result in recommendation for 'Time off without pay' or possible 'Dismissal'.". Petitioner's Ex. No. 7. The letter concludes, "Also, as of this date you are again required to provide medical proof of your [inability to attend work] . . . and you are required to notify your supervisor prior to the start of work shift you are going to be absent." Id. The letter is signed by Mr. Goodrow. On February 26, 1996, Mr. Goodrow and the School Board entered a Stipulation Agreement. The agreement reviewed Mr. Goodrow's performance appraisals for unsatisfactory attendance, and insubordination for taking sick leave without doctor's excuses. Furthermore, it stated that Mr. Goodrow: On December 15, 1995, . . . left work early without proper notification or required medical documentation. On January 3, 1996, Mr. Goodrow failed to report his absence according to established procedures, and on January 17, 1996, he failed to report his absence according to established procedures and requested 3.5 hours of sick leave without providing required medical documentation. Petitioner's Ex. No. 8. As an expression of regret and to affirm his commitment to notify his supervisor in the future regarding absences, Mr. Goodrow agreed to a three day suspension without pay effective March 19, 20 and 21, 1996. The stipulation also states that Mr. Goodrow, once again, understands that further problems could result in more serious disciplinary action, including dismissal. On April 16, 1996, Mr. Goodrow received a performance review finding him to have continued to demonstrate unsatisfactory attendance and judgment in that on March 6, 1996, he was late 3 hours with no explanation, on March 28, 1996, he was late one-half hour with no explanation, on April 3, 1996 he took eight hours sick leave without doctor's justification, on April 9, 1996, he was arrested and charged with DUI, and on April 11, 1996, he took eight hours sick leave without a doctor's justification. Driving While Intoxicated The job description for a painter employed with the Pinellas County School Board includes the requirement that the employee possess a valid State of Florida Class B commercial driver's license ("CDL"), to include "air brake" qualifications, and any other license as may be required by law. On March 30, 1996, while driving a motor vehicle off- duty, Mr. Goodrow was stopped by a law enforcement officer for failing to maintain his vehicle in a single lane of traffic. Deputy Howard Skaggs, a member of the Sheriff Department's DUI unit, was summoned to the scene to conduct filed sobriety tests to determine whether Mr. Goodrow was driving while intoxicated or under the influence of alcohol. Deputy Skaggs smelled a strong odor of alcohol on the breath of Mr. Goodrow, who, in turn, admitted that he had consumed at least six beers at two different taverns. While at the roadside, three field sobriety tests were performed by Deputy Skaggs, all of which Mr. Goodrow failed. Deputy Skaggs concluded that Mr. Goodrow was without doubt impaired. At the jail, Mr. Goodrow was asked to submit to a breathalyzer. He refused with the statement that he had had too much to drink and the test would only incriminate him. Mr. Goodrow was arrested. On September 17, 1996, Mr. Goodrow entered a plea of nolo contendere to the criminal offense of driving under the influence of alcohol. He was adjudicated guilty, placed on probation for 12 months, required to enroll in DUI school, fined $1000.00, and his driver's license was revoked for one year. Without a driver's license and a CDL, Mr. Goodrow no longer meets the job description of a painter in the School Board's Maintenance Department. Notification of Dismissal On June 19, 1996, Mr. Goodrow was notified that Superintendent Hinesley would recommend to the School Board that he be dismissed due to excessive absenteeism and insubordination. The DUI conviction, not having yet occurred, was not, of course, a factor in the superintendent's decision. Comparison with Other Employees Brett Paul, a painter in the Maintenance Department like Mr. Goodrow, also had attendance problems very similar to Mr. Goodrow's. He was suspended for three days without pay on the very same dates as Mr. Goodrow. Since the March suspension, however, unlike Mr. Goodrow, Mr. Paul's attendance has improved with the exception on an isolated instance in which his absence was due to a "major life event," the purchase of a house. He has not been convicted of DUI. Tom Appold was arrested for DUI during a time that he was employed as a painter in the School Board's Maintenance Department. After his conviction for DUI, he requested that he be allowed to transfer to another department, presumably because he could no longer meet the job description requirement that he hold a CDL. The request was honored and he is now employed by the School Board in another section of the Maintenance Department for which a CDL is not required. Mr. Appold, however, unlike Mr. Goodrow, has never been reprimanded or suspended for attendance problems. His attendance has always been found by the School Board's Maintenance Department to be within acceptable limits. Alcoholism and a Change of Heart Mr. Goodrow is an alcoholic. His excessive absenteeism, refusal to follow proper procedures with regard to work absences, insubordination, driving while intoxicated, arrest and conviction for DUI, and virtually every other work problem he had experienced over his seven years of employment with the School Board's maintenance department stems from alcoholism. For example, many of the days he missed at work were days following dart tournaments the night before at local establishments that served alcohol. Until the aftermath of his DUI conviction, Mr. Goodrow was ashamed and embarrassed to admit he suffers alcoholism. Today, with the assistance of professional counseling required as condition of probation for the crime of which he has been convicted, Mr. Goodrow is able to admit and freely did so at hearing that he is an alcoholic. The ability to make this admission is a major step forward for Mr. Goodrow. It is unfortunate that Mr. Goodrow's ability to face up to his problem has come so late. Had he admitted the condition when he was encountering problems with attendance at work, there were a number of options available to him and the School Board short of poor performance appraisals, letters of reprimand and suspension. As Dr. Martha O'Howell , Administrator of the School Board's Office of Professional Standards testified, We would have talked to him about the extent of that drinking problem. We would have referred him to . . . Cigna, the health provider. At that time, there was no formalized EAP [Employee Assistance Program] in place that the employee could go directly to, but there was . . . substance abuse counselling (sic) through Cigna that was available. We would have referred him or put him in contact with our risk management department. We would have encouraged him to take a leave of absence while he was seeking treatment, (Tr. 78). depending on the nature of the treatment, the severity, the length and so forth. We would have worked with him to provide a medical leave of absence if that had become necessary. If Mr. Goodrow's suspension were lifted and his employment was reinstated, the School Board's Employee Assistance Program would be available now to help him cope with his alcoholism. School Board personnel are not willing to make such a recommendation, however, in light of all that has occurred in Mr. Goodrow's case. A supervisor in the Maintenance Department expressed concern over the precedent that would be set if Mr. Goodrow were allowed to return to work, particularly in the minds of employees who might think that conduct like Mr. Goodrow's resulted in no meaningful consequences on the part of the School Board. Contrary to the concern of the Maintenance Department, the action taken to date, a suspension without pay that has been in effect now for more than eight months, has resulted in very definite consequences to Mr. Goodrow. In the main, he has been unemployed. He has made reasonable efforts to gain employment. But the loss of his driver's license has held him back. At the time of hearing, what little money he had been able to earn from the time of his suspension was certainly far below what he would have earned had he not been suspended from the employment he had held for more than seven years.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the suspension of Dwayne Goodrow be sustained by the Pinellas County School Board but that he be reinstated without back pay if adequate conditions for his return to work can be agreed-to by the parties. If conditions of reinstatement cannot be agreed-to, Mr. Goodrow should be dismissed. DONE AND ENTERED this 11th day of April, 1997, in Tallahassee, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1997. COPIES FURNISHED: Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 4th Street Southwest Largo, Florida 33770-2942 Robert G. Walker, Jr., Esquire Pinellas County School Board Attorney 1421 Court Street, Suite F Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board Attorney 301 4th Street Southwest Largo, Florida 34649-2942 Elihu H. Berman, Esquire Berman & Hobgood, P.A. 1525 South Belcher Road Clearwater, Florida 34624
Findings Of Fact Prior to the commencement of the 1977-78 school year, the position of Assistant Principal at Hardee High School became vacant. The vacancy was properly advertised, and very little interest was shown in the position. The Petitioner, Jerry Kapusta, was at that time employed at Hardee High School as a Physical Education teacher, Head Football Coach, and Head Track Coach. Kapusta applied for the vacant position. The Principal of Hardee High School recommended that Kapusta be hired as Assistant Principal. Acting in part on the basis of the Principal's recommendation, and in part upon his own independent examination of Kapusta's qualifications, the Superintendent of Public Instruction recommended to the School Board that Kapusta be hired as Assistant Principal at Hardee High School. A motion to approve the Superintendent's recommendation was defeated at a School Board meeting by a vote of 2 to 2. One member of the Commission was absent. Subsequently, the Superintendent made a decision to replace the position of Assistant Principal with the position of Dean of Students. The Superin tendent recommended that Kapusta be hired for this position. At a School Board meeting conducted approximately two weeks following the earlier meeting, the Board rejected the recommendation by a vote of 3 to 2. Members of the School Board who voted against the recommendation testified that they did so primarily because Kapusta was not properly certified by the State Board of Education in the fields of supervision and administration. School Board member Barlow testified that she voted against the recommendation because Kapusta was not certified, because she felt he was doing a good job as football coach, and that he should stay in that position, and because she felt that Kapusta's lack of certification would hinder the Board's efforts to get the schools accredited by the Southern Association of Colleges and Schools. School Board member Knight testified that she voted against the recommendation because of Kapusta's lack of certification, and because he was doing a good job as football coach. School Board member Gilliard testified that he voted against the recommendation due to the lack of certification and because be wanted Kapusta to remain as football coach. Sometime during May, 1969, the School Board adopted policies which were included in the Board's policy book. The qualifications for the position of Assistant Principal were among the policies adopted. One of the qualifications was as follows: Candidates for assistant principalships. . . must hold a rank II or higher certificate covering administration and supervision at the level for which the applicant is to be employed or covered by a special permit. Similar qualifications were adopted for other administrative positions. This policy was readopted by the School Board each time that it readopted its policy manual. Since the policy was adopted the School Board has consistently ignored it. Joint exhibits 6 and 7 list persons who were hired by the Board to fill administrative positions since the policy was originally adopted. The overwhelming majority of persons hired for administrative positions since the policy was adopted were not properly certified according to the policy. Certification of administrative personnel as administrative personnel is not among the requirements for accreditation set out In the Southern Association of Colleges and Schools' "Standards of the Commission on Secondary Schools." The Petitioner, Jerry Kapusta, has adequately performed his duties as Physical Education Teacher, Head Football Coach, and Head Track Coach at Hardee High School. Kapusta is certified as a physical education teacher and health instructor for Kindergarten through twelfth grade, and for junior colleges. He is not certified as a supervisor or administrator. He would require approximately twenty-one (21) hours of additional course work in order to obtain such certification. It is Kapusta's intention to enroll in courses that would lead to his certification as an administrator. Kapusta is the most qualified person to have applied for the position of Dean of Students at Hardee High School. Other than his lack of certification, and the desire that he remain as Head Football Coach, no testimony was presented which would establish that Kapusta is other than qualified for the position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RRECOMENDED: That a final order be entered accepting the Superintendent's recommendation that the Petitioner/Appellant, Jerry Kapusta, be appointed to the position of Dean of Students of Hardee High School, and appointing him to that position. RECOMMENDED this 12th day of December, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John W. Burton, Esquire Burton, Patarini & Collins, P.A. Post Office Box 420 and 605 Wauchula, Florida 33073 John J. Chamblee, Jr., Esquire 341 Plant Avenue Tampa, Florida 33606
The Issue Whether or not Respondent is incompetent to teach as defined in Rule 6B-4.009(1)(a), Florida Administrative Code; and whether or not Respondent's alleged incompetency to teach and perform his duties constitutes just cause to terminate his employment and to terminate his continuing contract pursuant to Subsection 1012.33(4)(c), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner operates, controls, and supervises the free public schools of Brevard County, Florida. It has entered into individual and collective agreements with the teachers it employs and has published bylaws and policies that control the activities of its teaching professionals. Respondent is a teacher who was employed by Petitioner from 1976 until his termination in April 2003. He had taught at Palm Bay Elementary from 1984 until 2003. Respondent has a degree in health and physical education. Early in his teaching career he was a classroom teacher; he has taught physical education since 1984. Petitioner conducts annual and interim evaluations of its instructional personnel using a formal Instructional Personnel Performance Appraisal System. The system delineates specific areas of evaluation, the basis for evaluation, and overall performance scores. The system evaluates nine "performance areas": planning, instructional organization and development, presentation of subject matter, instructional communication, knowledge of subject matter, responsibilities, relationships, management of student conduct, and student evaluation. In addition, there is an overall evaluation. Administrative personnel, in the instant case, the principal and assistant principal, are trained to perform the instructional personnel evaluations. Teachers receive one of three ratings in each performance area: unsatisfactory, needs improvement, or effective. Typically, evaluations are done annually. During his teaching career, Respondent served under five principals. In 1998, Joan Holliday became principal of Palm Bay Elementary. An analysis of the performance evaluations of Respondent's first 22 years of teaching reflects that he was an "effective" and "exemplary" teacher (high ratings during the particular rating periods). The same evaluations reflect recurring, but not consistent, shortcomings in the areas of planning and related responsibilities. In Respondent's 1997-1998 annual evaluation, Principal Joseph F. Padula, Jr., who had evaluated Respondent from 1984 to 1998, rated him as unsatisfactory in "planning." Comments by Principal Padula describe Respondent's failure to meet the requirements of the Sunshine State Standards and show evidence of "maintaining pace with new curriculum requirements." Principal Joan Holliday's first opportunity to provide an annual evaluation of Respondent was in the 1998-1999 school year. Her assessment reflects Respondent as a teacher who effectively teaches physical education, but could improve in planning, organization, and "could benefit from newer philosophies in physical education." Respondent responded to his 1998-1999 evaluation by letter dated February 25, 1999. The letter is defensive and reflects his opinion that he is making attempts to improve but that he believes that he is an effective physical education teacher. Respondent's 1999-2000 evaluations (there were two interim evaluations during the 1999-2000 school year) reflect that he was responding positively to the previous critical assessments although he continued to struggle with his lesson plans. The evaluations indicate that he was continuing to effectively teach and interact with students. A 2000-2001 interim evaluation, dated December 11, 2000, contains an unsatisfactory rating. This occurs in the "relationships" assessment area and reflects an apparent problem Respondent has related to "kidding" students which was sometimes not well-received and resulted in sporadic complaints from parents. This rating appears to be incongruous with the effective rating he received in "management of student conduct" in the same evaluation. He continued to receive effective ratings in "presentation of subject matter" and "instructional communication." According to Petitioner's Instructional Personnel Performance Appraisal System, an effective rating describes performance of "high quality" and is the highest rating achievable. The annual evaluation for the 2000-2001 school year rates Respondent unsatisfactory in the "relationships" category. Respondent's "kidding" of students, which caused parental complaints that evoked evaluator's concern and was the apparent basis for the unsatisfactory rating in "relationships" in the 2000-2001 interim and annual evaluations, was clearly subject to interpretation. Testimony did not reveal any "kidding" which would have caused the undersigned to believe Respondent warranted an unsatisfactory rating as defined in the Performance Appraisal System's rating scale definitions. In addition, negative references to Respondent's interaction with "classroom teachers" is not borne out by the testimony. Respondent received five unsatisfactory ratings in his 2001-2002 school year evaluation. He is rated unsatisfactory in "planning," even though it is indicated that Respondent "does turn in his weekly lesson plans," and there is criticism of his failure "to integrate reading, mathematics and writing into [physical education] curricula." At the final hearing, Principal Holliday testified that Respondent's lesson plans for 2001-2002 and 2002-2003 were "adequate." He also is rated unsatisfactory in "responsibilities" and "relationships"; these ratings are supported by comments indicating perceived communications and cooperation problems with other faculty. These perceived communications and cooperation problems were not borne out by the testimony of faculty members. On March 11, 2003, immediately prior to his termination, Respondent received six unsatisfactory ratings on an interim appraisal. This interim appraisal is the only evaluation Respondent received during the 2002-2003 school year. The evaluator observes that Respondent continued to fail to indicate in lesson plans how he was integrating writing, reading, and mathematics into his physical education curriculum and that "developmentally appropriate activities should be planned and taught at each class." Respondent was rated unsatisfactory in "instructional communication"; during Principal Holliday's tenure, Respondent had been rated effective (the highest rating) in this area on five occasions. Comments in this category indicate that Respondent "addresses students in a loud, threatening voice." He was rated unsatisfactory in the "responsibilities" category. "Communication with classroom teachers" is referenced in the comments to this category. The unsatisfactory in "relationships" is referenced by a need to continue to "work on his written and oral communication skills with students, parents, and peers." Principal Holliday had determined late in the 2001- 2002 school year that she was going to recommend Respondent for termination by reason of incompetency. As a result, the evidentiary value of this last assessment is questionable. Principal Holliday acknowledges that most of her concerns with Respondent relate to "lesson planning and communication." If Respondent, in fact, had inappropriate communication with students, such communication reflects teacher misconduct, not incompetence. Her testimony reflects that she formally observed Respondent teaching his class infrequently and that when she formally observed, "he did everything he was supposed to do in a correct manner." Principal Holliday's opinions of Respondent's teaching abilities and utilization of new methodology are largely drawn from her review of his lesson plans, not observing Respondent teaching physical education to students. She is critical of Respondent's failure to implement new (sometimes controversial) physical education methodology; however, she acknowledges that none of these new educational theories are mandated. Respondent's lesson plans for his final teaching years were "adequate." As far as Principal Holliday knows all of Respondent's students met the Sunshine State Standards for physical education; the Sunshine State Standards were all noted in his plan book during the final years she evaluated Respondent. The ultimate goal of a teacher is to teach children, not to write lesson plans. During the period of their relationship as principal- teacher, Principal Holliday wrote 29 letters of reprimand to Respondent. There are 58 faculty members at Palm Bay Elementary; during the five years she was principal, Principal Holliday issued four letters of reprimand to other faculty members. Most of the letters of reprimand concern subjects that appear in Respondent's interim and annual evaluations. Six Palm Bay faculty members testified as witnesses for Respondent. They represent 115 cumulative years of teaching experience; each of their teaching careers at Palm Bay Elementary overlap Respondent's, giving each a familiarity with Respondent. While they did not assess Respondent's lesson plans, record and document production, and other administrative details solely in the cognizance of administration, they had ample opportunity to observe Respondent teaching his physical education classes, his interaction with students, his interaction with faculty, his attention to his faculty responsibilities, and other areas formally assessed by the Instructional Personnel Performance Appraisal System. These informal evaluators collectively report Respondent as "very dependable," having "good rapport with the faculty," appearing to have "well-planned classes," and responsive to suggestions [made by other faculty members] for physical education for younger children, "very helpful." One witness advised, "he jokes with the kids; talks with them in a way they understand." One witness offered the unsolicited comment, "we really consider him to be an asset to the school because of his rapport with some of the older children. It's really nice to have him there." A witness who had early morning bus duty with Respondent reported that he was punctual and dependable. Nothing reported by any of these teacher/witnesses suggests a lack of teaching competency; in fact, their testimony suggests that Respondent was a good teacher. The evidence presented by Respondent's teaching contemporaries, admittedly not trained evaluators, presents a dramatically different assessment of Respondent's teaching performance than does that offered by Petitioner. The testimony of Respondent's teaching peers is credible. The assistant principal, who authored critical interim evaluations, testified that she did not witness Respondent interact with any student in an inappropriate way, except that he spoke loudly on occasion; that when she observed him teaching, the children appeared to be learning; that he conducted class in an appropriate and effective way; and that, recently, he appeared to be complying with Sunshine State Standards in terms of developing students' physical skills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Brevard County School Board, enter a final order finding that Respondent should not have been terminated and reinstating his continuing employment contract effective the date of his termination. DONE AND ENTERED this 13th day of October, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 13th day of October, 2003. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Alan S. Diamond, Esquire Amari & Theriac, P.A. 96 Willard Street, Suite 302 Cocoa, Florida 32922 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699
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.
