Findings Of Fact The Respondent Carr has been employed as an art teacher for the School Board of Dade County, Florida, since approximately 1972. He has taught at the senior high, middle school, and elementary school levels. He obtained tenure during 1976 or 1977. He has had varying levels of success according to his official performance evaluation ratings that are contained in his personnel file. In all but three years of his service, his annual evaluations have contained at least one category that was at or below an acceptable level of teaching in the Dade County Schools. Since the 1979-80 school year, the Respondent has received unacceptable ratings in three out of eight evaluative criteria on his annual evaluations. Respondent Carr has been the subject of personnel investigations on five different occasions, each involving the alleged use of physical contact beyond what is normally acceptable with students. Three instances of misuse of physical contact/corporal punishment were tried at the November 14, 1983, hearing. In the first incident which occurred in September, 1978, the Respondent came up behind a student and placed his hand in the student's hair in order to remove him from a classroom. From that point forward, it is unclear exactly what occurred since the incident which happened five years prior to the hearing could not be specifically recalled by the student. The student did, however, swing his arms at the Respondent in order to release the Respondent's grasp on the back of his head. In the second incident which also occurred in September, 1978, Respondent reached across student Byron Martin's desk with a pole or a stick and tapped the student on the head. The Respondent did not hurt the student who testified at the final hearing that other people made a bigger issue out of the incident than he did. In the final incident, during October or November, 1982, the Respondent turned the head of student Karen Bass, a nine-year-old girl, in order to get her attention. Karen became scared and began to cry. The Respondent did not intend to strike or frighten Karen, but turned her head to try and prevent her from being distracted by another student. Respondent was formally observed by the assistant principal of Edison Park Elementary School, Jill Witlin, on May 15, 1980. He was found to be overall unacceptable and specifically unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships. The Respondent was marked unacceptable in classroom management because he was not able to manage the classroom. The students did not respond to him. They did not follow his directions or do what he asked them to do. As he became frustrated with the class, he would use sarcasm and cynicism. The Respondent addressed the students in an angry manner and did not seem to know their names. At times he would bring students to the office, pushing them toward the assistant principal saying that he could not deal with them. This is an inappropriate way to handle students because it lets students know that a teacher cannot deal with them, lets them see the teacher's frustrations, and is a misuse of physical force. A teacher is required to have the skills and techniques for dealing with students calmly, despite emotions. Mrs. Witlin rated Respondent unacceptable in techniques of instruction because Respondent dealt with very technical kinds of instruction without following conventional, developmental learning modes of children. The lesson was too heavily teacher-directed and Respondent was very concerned with the ultimate art product. His instruction was very technical without giving the children any sense of where they were headed. This is not an appropriate way to teach elementary school children. Such children learn best when they have some sense of what they are doing and why they are doing it, rather than just following instructions. Respondent taught above the level of the children and used vocabulary and instructions that were too difficult for them to understand. There were times when Respondent did not use CurriculArt. There were other times when he did use CurriculArt but he did not fulfill many of the aspects of what the CurriculArt manual suggested. Respondent was marked unacceptable in teacher-student relationships because he talked to the students in a harsh manner. He did not know the names of his students so he called them "Boy" or "Girl." He referred to the students in a negative manner and did not have a good opinion of what they could accomplish or learn. He was negative toward what they knew and what they could produce. He was also negative about their behavior. There was screaming coming from his room that could be heard in the hallways. Respondent could be heard saying "shut up" to his students. Respondent would make negative comments about students in front of other students. This is inappropriate because it can damage a child's self- concept, does not provide a proper role model for a child, and makes the teacher immediately lose his position as an authority figure. As a result, some of the Respondent's art students did not want to go to his class at all. On Respondents's annual evaluation, although he received three unacceptable categories, he was recommended for employment the following year. His classroom management was unacceptable because he spent a great deal of time at the outset of classroom time lecturing students about their behavior from the previous week's class. He took up 10 or 15 minutes of instruction time doing this. Once he got the class started, the students lacked direction and walked around the room not knowing what their particular task was. Respondent had great difficulty in keeping their interest and keeping everyone on task. At times the room became so noisy that Respondent had to scream and yell in an attempt to get the class under control. The class got progressively worse as the classroom time extended. The Respondent was marked unacceptable in teacher-student relationships because he had difficulty in working with students in a positive manner. He name-called and belittled students in front of other students. He said such things as "stupid" and "you are stupid" and "you really don't know what you are talking about; you are no good." These statements are demoralizing and ridiculing to students in front of other students. His instructional techniques did not motivate and enable students to learn. Respondent was next formally evaluated by his principal, Della Zaher, on June 16, 1981. He was found to be overall unacceptable and was rated unacceptable in the categories of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was marked unacceptable in preparation and planning because he did not have his materials ready for this particular class. He began the class by talking about the children's negative behavior from the week before. Then he spent a good portion of the class time trying to retrieve the materials and getting them ready for the classroom instruction. In the meantime, the children became disruptive because of the time that Respondent had taken for this preparation. Respondent was marked unacceptable in knowledge of the subject matter because his vocabulary was overly advanced for elementary-age children and they had no idea what he was saying. The students did not understand the intent of the lesson. Most of the time, they were sitting idle, not comprehending the lesson. This led to unacceptable classroom management. Respondent was marked unacceptable in classroom management because of his negative and sarcastic comments to the children. There was no mutual respect on the part of the children or the teacher. If the children did not follow exactly what was presented to them, he would tear up their papers and throw them in the waste basket. When the children did their tasks incorrectly, Respondent could be heard outside of his classroom scolding his students even with the door closed. The children were not in their seats and were not working on the lesson. The entire classroom period was devoted to this type of disruptive behavior. Respondent could not correct the children by calling their names because he apparently did not know their names although he could have learned their names through the use of a seating chart or name tags. Other teachers who taught special classes, and who had as many students as Respondent, did not have the same difficulty ascertaining the names of the children. Respondent did not improve in his knowledge of the children's names by the end of the school term or from year to year when he had many of the same children again. Respondent was marked unacceptable in techniques of instruction because he did not have a way of explaining the assignments and giving clear instructions to his students. He never completed a task on time because he took too much classroom time disciplining the students and telling them about their behavior from the previous week. Because of this, he did not finish his lessons. The endings of his class periods were chaotic. Respondent was marked unacceptable in assessment techniques because of the manner in which he graded students' papers. He used a random assessment technique. There was no consistency in grading procedures. He would have the students stand up and show their papers and he would try to grade them. This technique can be ridiculing to students. There was very little meaning in the lesson for the children because he did not explain to them why they got the grades they got. He never completed an entire class and he spent a great deal of the class time at the end of the period trying to record grades. The students who were not being graded were disruptive. The Respondent kept no individual folders on the students where a student's progress could be monitored; instead, the papers were placed in a stack of papers in a closet. With Respondent's lack of a paper filing system, it would be impossible to explain to a parent why a child got a particular grade on his report card. His grade book was not up-to-date and he did not have sufficient grades for each child. Respondent was also marked unacceptable in student-teacher relationships because of his continual negative approach. Respondent did not indicate any real respect for each individual child in his classroom. There were some students who did not want to go to art class. In every conference that Respondent had with the principal, Respondent reminded her that black children could not learn. He also stated this belief to Ms. Witlin in that he felt the schools were spinning their wheels and wasting their time working in a low income, black area. Respondent was marked unsatisfactory in professional responsibility because he had difficulty turning his grades in on time so that the classroom teachers could record the students' art grades on their report cards. Respondent was again recommended for employment on his annual evaluation for the 1980-81 school year, although he was rated unacceptable in the categories of classroom management, techniques of instruction, and teacher- student relationships. He was recommended for reemployment because he had shown some improvement and the principal was interested in trying to improve his instructional techniques and his classroom instruction. Respondent was next formally observed by his principal, Mrs. Zaher, on September 25, 1981. While Respondent was marked overall acceptable, he was still unacceptable in classroom management, teacher-student relationships, and in one subcategory of preparation and planning. Respondent was unacceptable in classroom management because his voice was still very loud. He would almost lose complete control when he could not get the students' attention. He still began the class by lecturing to them about their behavior from the previous week. He did not have the materials ready to begin the lesson which added to the poor classroom management and resulted in more disruption. The children became disruptive each time Respondent had to retrieve supplies. Respondent was marked unacceptable in teacher-student relationships because he was unaware of the lack of student interest and other individual differences which caused students to be disruptive. Respondent was next formally observed by Ms. Witlin on October 23, 1981. Although he was found to be overall acceptable, this observation was a result of priming by Ms. Witlin. She met with Respondent early in the year to go over the observation form in great detail prior to the actual observation in an attempt to show him exactly what she would be looking for. He followed through on many of the things she had suggested. As a result, the lesson was acceptable. The next formal observation was performed by Jacqueline Hinchey, Art Supervisor for the Dade County Public Schools. Ms. Hinchey was called in to give advice to Respondent. She attempted to be as positive as possible. She rated the Respondent acceptable even in borderline areas in her attempt to be helpful and positive. Ms. Hinchey rated the Respondent overall acceptable. She felt that while he had made strides in improving his instructional techniques and public relations strategies, his knowledge of child development was still very limited. The major shortcoming of his teaching was that because he did not understand how children grew, he was unable to level his knowledge in a manner so that the children could understand and be able to succeed. Because of his lack of understanding how children grew, he had unreal expectations of them. This resulted in his will being pitted against the children's will. As a result, Respondent became angry. The children were not doing what he expected them to do or what he wanted them to do or they could not do it, and he, therefore, became angry. He was not using CurriculArt. CurriculArt is a School Board-approved program which incorporates the School Board's balanced curriculum. A teacher is required to use CurriculArt unless he has submitted a different, but acceptable, program to Ms. Hinchey. Since no school in the county has submitted an alternate curriculum, it would be expected that all art teachers, including Respondent, would be using CurriculArt. Respondent was still assessing the children's work by having them hold up their work, and he would say that one child's work was the best. This is not an appropriate assessment technique because he did not explain why a work was the best and also makes the other children feel inadequate. The Respondent tended to talk too long and his demonstrations were too technical and detailed for the age group with which he was working. Since not all the children could see his demonstration, they would begin to get fidgety. Respondent was recommended for reemployment at the end of the 1981-82 school year. Although Respondent needed to improve his techniques of instruction, he was showing some improvement. Respondent was next formally observed by Ms. Witlin on November 15, 1982. He was found to be overall unacceptable and was rated unacceptable in one subcategory of preparation and planning and in the areas of techniques of instruction, assessment techniques, and professional responsibility. Respondent was marked unacceptable in Part A of preparation and planning because while his planning was done, the lesson was not an effective one. He needed to plan his lesson in much greater detail in terms of what he wanted to accomplish, what time frames he would use, and what specific actions he would take. Respondent was still not using CurriculArt. Respondent was marked unacceptable in techniques of instruction because he did not accept student responses and utilize students' ideas, and he did not vary instructional strategies or adapt his methodology to different students. Respondent was marked unacceptable in assessment techniques because art projects were not graded and were not organized into portfolios. There were insufficient grades in the grade book. There was no ongoing regular assessment week after week and the assessment was irregular. Respondent was marked unacceptable in professional responsibility because there were consistent delays in getting his art grades to the home room teachers. If Respondent would have kept up with his grades on a weekly basis and had averaged them, he would not have had a problem getting his grades to the home room teachers. He had to rush to get the grades in to the teachers at the last minute and as a result, the other teachers bothered the assistant principal for them all day long on the teacher workday. This was not a professional way to operate. Further, Respondent's room was very disorganized, messy, and uninviting. The next formal observation was performed by Ms. Witlin approximately a week and a half after her last observation. This observation took place on November 24, 1982. "While his progress was not fully acceptable, there was propress over the prior observations. Ms. Witlin wanted to encourage Respondent's use of CurriculArt which she had prescribed in the prior observation. His classroom management was unacceptable because he spent an inordinate amount of time introducing the lesson, preparing the materials for it and following the CurriculArt card to the letter. He began to lose track of time. He was not able to pace the lesson properly and when he told the children to stop doing their work they did not listen to him. As time ran out and things started to unravel, the Respondent became frustrated. Classroom discipline broke down badly. He was not able to grade the children's work or give them a conduct grade. He was marked unacceptable in a subcategory D of techniques of instruction because he did not give ample time for cleanup, or organization of materials, and for putting away art products. The next formal observation was performed by Ms. Zaher on December 14, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in classroom management, techniques of instruction, and in one subcategory of preparation and planning. He was found unacceptable in category C of preparation and planning because he did not arrange for the distribution of materials in an effective manner, and he did not begin his lesson on time. He would begin his lesson by spending time talking about the children's behavior from the prior weeks. He was never able to complete a lesson because of the time taken to discipline the children and to give instructions as to how they should behave. Respondent was marked unacceptable in classroom management because he never got the class under control. He ran out of time and did not complete grading. He did not close his lesson. He spent too much time trying to get the classroom under control. Students were out of their seats running around the room and exhibiting disruptive behavior. Respondent was marked unacceptable in techniques of instruction because the children had no time to finish their lesson and clean up. Respondent lost instructional time because of disruptiveness. Although Respondent was rated acceptable in assessment techniques, he was still shouting out grades in front of the whole class, and taking up a great deal of time trying to grade the children. The next formal observation was performed by Ms. Hinchey on January 10, 1983. He was rated overall unacceptable and was unacceptable in the areas of classroom management, techniques of instruction, and teacher-student relationships. Respondent deteriorated in his teacher-student relationships and in his teaching techniques since Ms. Hinchey's prior observations. Teacher-student relationships was marked unsatisfactory, because Respondent frequently appeared and sounded angry with his students. He still did not know the names of the students and pointed or gestured at the students when he wanted them. The students became fidgety and began to nudge each other and whisper. The more this happened, the more upset Respondent became. He gave the students angry looks and raised his voice. Techniques of instruction was marked unsatisfactory because one-third of the class could not see a demonstration rubbing. As a result, the children did not get the idea of what a rubbing is. They did not get the idea of repeating the shapes on the page and there was no planned critique at the end of the lesson so that the children could see if they understood the goals of the lesson. Respondent was still assessing the students' work by choosing the best one at the table. Respondent was using the Curricul Art card but the lesson was misleveled and the lesson was very minimal. During the many informal observations of Respondent, he fared no better. He had the same kinds of problems that he had on the formal observations. He was having trouble in all of his classes and he was frustrated and angry with his students. The administration has attempted to help Respondent improve his teaching. Since Respondent had been having difficulties in his prior school assignment, Ms. Hinchey recommended that he be placed in the elementary level where there was more structure and a curriculum that could easily be followed. She recommended that he be put with an administrator who was known to be a helping person and someone who would patiently work with him. Her recommendation was that Respondent be placed with Della Zaher at Edison Park Elementary. Ms. Zaher had a reputation of being an administrator who could get along with individuals and would try to work with them closely to get the best out of them. After various classroom observations, the administrator prescribed various means of help for the Respondent. It was recommended that Respondent observe two good art teachers in other inner-city elementary schools in order to see that it was possible to get good control from these students. An assertive discipline workshop was also prescribed for the Respondent. It was recommended to Respondent that he take the time to learn the students' names. The administration ordered any supplies that Respondent wanted in order to provide him adequate materials with which to work. The administrators recommended that Respondent establish classroom rules, enforce them, and use behavior modification techniques. Conferences were held with Respondent in order to help him improve. It was suggested that Respondent meet with the counselor of the school in order to learn positive techniques for motivating student interest and for learning techniques to control student behavior in a positive way. It was recommended that Respondent attend workshops. It was recommended that he tape his own lessons to hear how he addresses students so that he would be aware that he was not getting the response that he wanted. Ms. Witlin asked Respondent to discuss his feelings about the students and to take a humanistic attitude toward the children and to observe a variety of teachers at Edison Park, teachers of the young, and teachers of old, and teachers of ethnic groups to see how pleasantly and positively they got along with the students. In early October, 1981, as discussed above, Ms. Witlin gave Respondent extra help prior to his November 15, 1982 observation in order to help him reach an acceptable observation. After the November 15, 1982 observation it was prescribed that Respondent begin to use CurriculArt. Ms. Witlin developed an elaborate procedure in order to help the special teachers get their grades to the home room teachers on workdays. Ms. Zaher brought in the art supervisor, Jacqueline Hinchey, to give advice to Respondent. Ms. Hinchey recommended the CurriculArt workshops for Respondent. She also recommended that the area art consultant and the assistant principal work with Respondent. The area art consultant worked specifically with Respondent in the areas of classroom management and planning five or six times during the 1982-83 school year. He assisted Respondent with planning and did a demonstration lesson for Respondent. The art consultant recommended the two teachers whom Respondent was to visit in the other schools. None of these prescriptions seemed to improve Respondent's performance. As a final attempt to offer Respondent an opportunity to improve his teaching, Ms. Zaher recommended a reduction from continuing contract to annual contract status. She felt that if he would understand that the school system meant serious business, Respondent would do something about his teaching. This was the last remedial action, a final opportunity for Respondent to improve his teaching while on a probationary status and placing the burden of competent performance on him. On December 17, 1982, Ms. Zaher put Respondent on notice that he had not sufficiently improved in the areas of planning, classroom management, and techniques of instruction and assessment. At that time, she could not recommend him for continuing contract status. She indicated that in order to be recommended for continuing contract by February 25, 1983, there must be improvement as indicated in her memo. On February 9, 1983, Ms. Zaher notified Respondent that she would be recommending that he be returned to annual contract status for the 1983-84 school year since the standard of performance indicated on her memo of December 17 had not been achieved. At a conference-for-the- record with the Executive Director, Division of Personnel Control of the Dade County Public Schools, on March 14, 1983, the charges were made known to the Respondent, and his prior investigative reports were reviewed. It is the consensus of opinion of the administrators who observed Respondent that the students in Respondent's class did not receive the minimal amount of educational experience to which they were entitled. There was a repeated failure on the part of Respondent to communicate with and relate to the children in his art room to such an extent that they were deprived a minimum educational experience. The art experience was a very negative experience for his students. Although Respondent is intelligent and knows his subject matter, he is a poor teacher. On March 23, 1983, the Superintendent of Schools notified Respondent that he would recommend to the School Board at its next regularly scheduled meeting on March 30, 1983, that Respondent's continuing contract be removed and that he be returned to annual contract status for the 1983-84 school year. The Superintendent's letter indicated a right to a hearing and a time frame within which to exercise that right. It also contained a copy of the charges, to wit: . . . for just cause including, but not limited to, incompetency . . . . On March 30, 1983, the Superintendent filed his written recommendation with the School Board, and the School Board acted to remove the continuing contract of Respondent and to return him to annual contract status effective for the 1983-84 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: That a final order be entered by the Petitioner, Dade County School Board, affirming the reduction of contractual status of the Respondent Richard Carr from continuing contract to annual contract status. DONE and ENTERED this 11th day of October, 1984 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1984. COPIES FURNISHED: Ellen L. Leesfield, Esquire Jesse J. McCrary, Esquire DuFresne and Bradley 3050 Biscayne Boulevard 2929 S. W. Third Avenue Suite 800 Fifth Floor 3050 Miami, Florida 33137 Miami, Florida 33129 William DuFresne, Esquire Dr. Leonard Britton 1782 One Biscayne Tower Superintendent of Schools 2 South Biscayne Boulevard Dade County Public Schools Miami, Florida 33131 1410 Northeast Second Avenue Madelyn P. Schere, Esquire Suite 200 1410 N. Second Avenue Miami, Florida 33132
The Issue As stated in the prehearing stipulation, the issue is whether the school board should accept or reject the recommendation by the superintendent of schools to reduce Andrea Childs from continuing contract status to annual contract status for the 1989-90 school year.
Findings Of Fact Andrea Childs was employed by the School Board of Okeechobee County as a teacher in December, 1980. Ms. Childs is certified as a teacher in Social Science. She taught 9th grade Social Science at the Okeechobee Junior High School for the school years 1980-81, 81-82, 82-83, and 83-84. She transferred to Okeechobee High School after the school board moved the 9th grade from the Junior High School to the High School. She has taught continuously at the High School since her transfer. Prior Evaluations Ms. Childs' performance as a teacher was first evaluated on January 16, 1981. While her performance was found to be satisfactory, she had been on staff for such a brief period of time it was difficult to make a meaningful evaluation. She was next evaluated on March 16, 1981, and found satisfactory for all twenty characteristics contained on the school's evaluation form. On December 14, 1981, she was evaluated for the first semester of the 81-82 school years, and again rated satisfactory on all characteristics. Her evaluation at the end of the 1981-82 school year and the first semester of the 1982-83 school year found her satisfactory on all characteristics. Ms. Childs was recommended for continuing contract in April, 1983, at the close of 1982-83 school year, when her evaluation was satisfactory on all characteristics. She obtained a continuing contract on May 19, 1983. When her teaching at the Okeechobee High School was evaluated on February 20, 1984, she was rated satisfactory on all twenty characteristics. Ms. Childs was next evaluated at the end of the second semester of the 1984-85 school year by her new principal, Phoebe Raulerson. The evaluation forms used by the district then changed. The behaviors to be assessed were grouped into six categories, each having subdivisions denominated as indicators. Ms. Raulerson evaluated Ms. Childs' performance as meeting each of the 31 indicators. The new evaluation forms also included a separate assessment of additional factors called employability behaviors, and Ms. Childs was found acceptable on each of those behaviors. On April 1, 1986, Ms. Raulerson again evaluated Ms. Childs, and found that Ms. Childs' teaching performance met all 31 indicators, and that Ms. Childs' performance was acceptable on each of the employability behaviors during the 1985-86 school year. On April 13, 1987, Ms. Raulerson found that Ms. Childs' performance met all 31 indicators and found her service acceptable on all employability behaviors. On March 11, 1988, Ms. Raulerson evaluated Ms. Childs, finding that her performance met all 31 indicators and acceptable on all employability behaviors. At no time from her first employment with the school board in December, 1980 through her annual evaluation on March 11, 1988, was there any finding that Ms. Childs had failed to perform satisfactorily on any characteristic, indicator or employability behavior evaluated by the School Board of Okeechobee County. In February, 1988, as will be discussed in greater detail below, Ms. Raulerson observed Ms. Childs' teaching, determined that her performance was inadequate, and recommended to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status. When confronted at hearing with the uniformly positive evaluation Ms. Childs had received, including those from Ms. Raulerson herself for each of the school years from 1984-85 through 1987-88, Ms. Raulerson deprecated her own evaluations with the suggestion that Ms. Childs had been in poor health since the birth of her first child in approximately August, 1985, 1/ and explained that the positive evaluations should not be taken at face value. Ms. Raulerson contended that Ms. Childs' performance was evaluated leniently because of her health difficulties. There is no such indication on the evaluation. Ms. Raulerson is obviously a competent principal who does not confuse efforts with results. The evaluations were accurate as written, and there were no deficiencies in Ms. Childs' performance during any prior school year. The Oblique Warning During the teachers' work period before students returned to school in August 1988, Ms. Childs had an informal discussion with Ms. Raulerson, during which Ms. Raulerson told Ms. Childs "this has got to be a good year". Apparently Ms. Raulerson meant to tell Ms. Childs that her performance as a teacher needed to show improvement that year. If that was her intention, her choice of words was so oblique that the message was not conveyed. An ordinary listener would not have understood the comment as a criticism of past teaching performance. The comment was so general that it would not draw the attention of a teacher to any area of deficiency which a teacher could then attempt to correct. There was no criticism of Ms. Childs' performance on her last evaluation which could have served as a focus for any need for improvement. Ms. Raulerson is an experienced administrator, able to draw the attention of teachers, students or others at the school to inadequate performance or misconduct in a direct manner. In the Okeechobee High School, students are grouped for classes by broad ranges of ability. There are classes for slow learners, known as basic classes, as well as for regular students. In 1988-89 school year, Ms. Childs taught two basic classes, and other regular social studies classes. The classes which Ms. Childs taught during the sixth and seventh periods were basic classes. Ms. Childs had some difficulty with the behavior of two students in basic classes, and discussed the problem with an Assistant Principal, Barbara James, on September 15, 1988. One of the problems was tardiness by some of her students. Ms. James' written suggestions to Ms. Childs for dealing with the problem included: In the beginning, you might try some extra, positive reinforcement for the on-time rule until you get going, if tardies are a problem. Always be on time yourself. This advice was a common sense suggestion to a class management problem. It was not any sort of admonition to Ms. Childs that she herself was not arriving to teach her classes on time and that she should make a better effort to be punctual. Tardiness Unknown to Ms. Childs, Ms. James, the Assistant Principal, had mentioned to the Principal, Ms. Raulerson, that Ms. Childs was sometimes arriving late for her classes. Ms. Raulerson told Ms. James to keep track of the times Ms. Childs was late for a class. Ms. James noted 11 instances between September 19, 1988, and February 27, 1989, of apparent tardiness by Ms. Childs. Ms. Childs was not in her classroom at the beginning of first period on 5 of those occasions (all in September of 1988), but there was good reason for this. That class was made up of 11 Junior and Senior students during the first semester, and 9 Juniors and Senior students during the second semester. Ms. Childs taught in a small portable building, separated from the main building. It had no clock, nor a working intercom system with the main building. Ms. Childs left her first period class to go to the school office to listen to the daily school announcements which she could not hear in her classroom. This was important, because those announcement often contained relevant information about subjects such as class meeting and scholarships, and students were charged with notice of the information. This information was not always available from other sources. Ms. Childs ultimately avoided this problem by taking her students to the cafeteria at the opening of first period so they could hear the announcements. No one at the office had ever indicated that she should not be there. The School's Faculty Handbook does tell teachers to remain in their classroom during class periods. Ms. Childs had frequently asked to have the intercom line between her classroom and the main building fixed. There was no adequate explanation for why the intercom had not been fixed. Ms. Childs' actions were common sense accommodations to the problem which confronted her and her students. Other instances when Ms. Childs was seen out of her classroom when first period began occurred during the second semester, in February, 1989. At this time she was team teaching with another teacher, Ms. Audrey. That teacher was in the classroom, and Ms. Childs was using the time to prepare lessons for her sessions of that class on the Holocaust. Those students were not left unattended. Ms. Childs' lateness in arriving for class during the first semester is much less than it seems on its face. The charges with respect to lateness are mere makeweight arguments. The Teaching Evaluation The contract between the school board and the teachers union for Okeechobee County prescribes a procedure for teacher evaluation which is consistent with the Okeechobee County Teacher Assessment System adopted by the school board on June 28, 1988. According to the school board policy and the union contract, teachers are provided with copies of the forms and procedures that will be used in the evaluation process. The teaching performance of continuing contract teachers is assessed by the principal at least once annually. The assessment for Ms. Childs was made on February 27, 1989. She had received the evaluation forms at the beginning of the year, as did all other teachers. The assessment of a teacher is based on observations conducted and other information gathered during the year by the principal, supervisor or assistant principals. The evaluation of teaching is accomplished using the summative evaluation from the Florida Performance Measurement System, i.e., an evaluation used for personnel decisions about a teacher, rather than an evaluation done to assist the teacher in developing good teaching technique, which is know as a formative evaluation. Ms. Raulerson had been trained in the use of the Florida Performance Measurement System summative evaluations. Before February 27, 1989, Ms. Childs received no oral or written notice that she was not performing her duties as a teacher in a satisfactory manner, and had no conference with any school administrator about unsatisfactory performance. Of necessity, she had been given no recommendations about ways in which to remedy any specific areas of unsatisfactory performance. On February 27, 1989, Ms. Raulerson observed Ms. Childs' first period class. This single class period provides the sole basis for Ms. Raulerson's evaluation of Ms. Childs' teaching for the entire year. By its very nature, that sample of teaching is entirely too small to permit Ms. Raulerson validly to generalize a conclusion that Ms. Childs' teaching is inadequate. 2/ After observing Ms. Childs during the first period, Ms. Raulerson had a consultant who is a professor of education at Florida Atlantic University, Dr. Mary Gray, who was at the school that day, observe Ms. Childs during the class period which begins at about 10:50 a.m. Ms. Raulerson had a brief discussion with Dr. Gray following her observation. By the fifth period on February 27, Ms. Raulerson presented Ms. Childs with her evaluation report. Ms. Raulerson informed Ms. Childs that Ms. Raulerson would recommend to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status for the 1989-90. The whole evaluation process was remarkably swift. Ms. Raulerson was obviously displeased by what she saw during Ms. Childs' first period class, but the summary fashion in which she completed the evaluation is more indicative of pique than of reasoned professional analysis and judgment. Ms. Raulerson became angry, and allowed that anger to guide her actions. During the first period on September 27, 1989, Ms. Childs taught American History. She showed the class a video that she had searched out prepared by the National Geographic Society. The video dealt with the conservation of tigers and other animals in India. It was a story of Jim Corbet, who formerly had been a big game hunter, but who later become a conservationist. At first blush this video seems to have little to do with an American History class, but upon analysis, this is not the case. Ms. Childs was teaching students about the presidency of Theodore Roosevelt, and his personal transformation from a game hunter to conservationist, including his significant role in the establishment of a national parks system in the United States. Drawing the analogy between a contemporary big game hunter who had become a conservationist with the conversion of Teddy Roosevelt was one reasonable way to relate current experience to history and assist the students in comparing and contrasting concepts using different people as examples. Since the student text devoted three of seven and one half pages on Teddy Roosevelt to conservation, Ms. Childs' use of the film is defensible. No doubt, different educators might have different views as to how to approach the subject. To conclude from this single event, however, that Ms. Childs was deficient in the categories of content coverage and utilization of instructional material cannot be sustained. Ms. Childs also used the same video in other classes she taught on February 27, 1989, including World History and four World Geography classes. The video was appropriate for those classes also. It is not unusual for a teacher to show the same video to all of her classes. It makes sense to concentrate the use of audiovisual materials across several classes to minimize the logistical problems inherent in having the equipment delivered on a number of days at different class periods. The use of the video in several classes cannot have been very important in Ms. Childs' evaluation, however, because the only class period which Ms. Raulerson observed was the first period. It is difficult to understand how Ms. Raulerson could criticize the use of the video in other classes which she had not observed. More importantly, the Florida Performance Measurement System is designed to evaluate traditional teaching performance. The materials which make up the performance system point out that the summative evaluation of teaching cannot be performed during a class period if a test is given to students of 20 minutes duration or longer. Similarly here, the attempt to perform a summative evaluation during a class period where the teacher was screening a video renders the teaching evaluation invalid. An administrator trained in the use of the system should have know this. In any case, the expert testimony offered by Dr. Heald on the inappropriateness of using the Florida Performance Measurement System during a class period in which the video was shown is persuasive; the evaluation made is invalid. Ms. Raulerson also criticized Ms. Childs in the evaluation because two students in the class watching the video were "off task". One student removed a compact from her purse and put power on her face while watching the video. She had put powder on her face in other classes without being criticized. The action distracted no one. One could easily put on makeup while still paying attention to the film. It is inappropriate to generalize from this event that Ms. Childs generally fails to "stop misconduct" in her classes. Another student had obtained Ms. Child's permission before class to wrap a box with construction paper which the student was going to use in a peer teaching class. The student was a good student who could easily watch the film while devoting some time to covering the box. Ms. Childs' decision to grant the student permission to cover the box while watching the film is an insufficient basis to determine that Ms. Childs generally fails to stop misconduct in her classes. No misconduct was involved. These same instances also were the basis for determining that Ms. Childs does not orient students to classwork and maintain academic focus. As with the criterion dealing with misconduct, these instances do not support the generalization Ms. Raulerson made from them. Spelling On the area of presentation of subject matter, Ms. Raulerson found Ms. Child deficient for the indicator "treats concept- definition/attributes/examples/non-examples", with the comment "many words incorrectly spelled". This is the result of trivial misspellings contained in forms Ms. Childs completed during the year. One form was a referral slip written by Ms. Childs when a student misbehaved and was being sent to the office; it contained the word "surprize". The other was a note sent in lieu of a referral slip resulting from a fight where the word "cussed" appeared as "cused" and "none" is written "non". Since the notes obviously were written in haste in an effort to correct discipline problems, the misspellings are of no consequence. The spelling Ms. Childs used is, however, one recognized spelling of the word "surprise". In another situation, she wrote in a note on a student progress report that the student was failing "royaly". This was also a handwritten note that was passed from teacher to teacher for comments about the student's performance. Given its nature, the misspelling in this internal memo is of little significance. The Gray Notes Shortly after Ms. Raulerson's first period evaluation, Ms. Childs was evaluated by Professor Mary Gray from Florida International University. Ms. Childs had not been told beforehand that Dr. Gray would be observing her teaching that day. Had she know this, she would have rearranged her lessons so that she would have been providing a more standard lecture format for her class in order to benefit from the observation. Dr. Gray made notes of her observation of Ms. Childs. These five pages of notes written on legal pad sheets were introduced at the hearing as corroboration of the testimony of Ms. Raulerson, who had spoken with Dr. Gray before the summative evaluation was completed and given to Ms. Childs during fifth period on February 27, 1989. While the notes may be technically admissible as corroboration, Ms. Gray did not testify at the final hearing, and review of those notes is unenlightening. Lesson Plans and Punctuality Ms. Raulerson rated Ms. Childs unsatisfactory for dependability and "following policies and procedures" because lesson plans had not been completed before the lesson was presented on February 27, and because of her lateness for classes. Ms. Childs had been specifically instructed by her department chairman that her lesson plans for the week could be completed during her free period on Monday. As a result, she did not have a lesson plan already written out during the first period on Monday, February 27. It is true that the Faculty Handbook distributed to teachers for the 1988-89 school year states, under the heading "Plan Book and Grade Books," the following: Friday afternoon each teacher must hand in a copy of his/her plans for the next week to the Department Chairman. The faculty handbook is a tool created by the school administration, it was not shown to be a rule of the school board, although the board has a similar "policy." Exhibit 15. Having first established the general requirement that lesson plans should be submitted on the Friday before the week of instruction, the school administration also could modify that requirement. The general practice at the school did modify it. Ms. Childs' compliance with her department chairman's instruction and the general practice of the school should not be held against her. Finding that Ms. Childs' punctuality was unacceptable because she was not in class on time has been discussed above. It would be one thing if Ms. Childs had been late in arriving at school, but that was not the case. Her absence from classes early in the year occurred because she was learning announcements which both she and her students were required to know. Her conduct was a reasonable means of dealing with a difficult situation created when the school administration failed to make the speaker in her portable classroom operational. It is also significant that there were no instances of misbehavior by her students while she was spending the first few minutes of her class period in learning the announcements. The class was made up of older students with good records, so that leaving them unattended was not fraught with the peril presented by leaving younger or less responsible students without supervision for a few minutes early in the first class period. Procedural Errors After receiving the evaluation report prepared by Ms. Raulerson, the superintendent of schools recommended to the school board that Ms. Childs be reduced to annual contract for unsatisfactory performance. This would have the effect of terminating her continuing contract status. He sent Ms. Childs' notice of his recommendation on March 6, 1989. The matter was considered by the school board at its meeting on March 14, 1989, despite the requirement in the contract with the teacher's union that: Any teacher terminated from his/her contract shall have an opportunity to be heard before public hearing after at least ten (10) days written notice of the charges against him/her and of the time and place of hearing. Exhibit 13 at page 67 lines 2-5. The recommendation of reduction to annual contract was placed on the consent agenda, which means that the matter was considered favorably but without discussion at the board meeting. As a result of the board's action, Ms. Childs filed an appeal with the District Court of Appeal, Fourth District challenging her reduction to annual contract. By agreement of the parties, the court relinquished jurisdiction to the school board to conduct a full Section 120.57(1) hearing on Ms. Childs' contract status, which lead to this hearing. The Board's Assessment Policies The Okeechobee County Teacher Assessment System During the summer of 1988, the School Board of Okeechobee County adopted a systematic procedure for the evaluation of teacher performance know as the Okeechobee County Teacher Assessment System. That program had been developed by a committee established by the school board; among the members of the committee were the principal of the Okeechobee High School, Ms. Phoebe Raulerson, and the Superintendent of Schools, Mr. Danny Mullins. Under the heading of "Philosophy", the procedure adopted by the school board states: Teachers who experience performance problems should be advised of specific problems and provided assistance. Also, teachers who demonstrate superior performance should be recognized for their talent and diligence. In the substantive portion describing the procedure for assessment of teaching, the school board policy states: In the event that an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and assistance in helping to correct such deficiencies with a reasonable, prescribed period of time. Exhibit 14 at I., General Procedure. The Union Contract The School Board of Okeechobee County had a collective bargaining agreement with the Okeechobee Federation of Teachers which was in effect during the 1988-89 school year. The contract contains provisions governing personnel rights, which give every teacher the right to due process and grievance procedures. The contract also has a provision regarding teacher evaluation, which provides: . . . in the event an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct such deficiencies within a reasonable, prescribed period of time. Exhibit 13 at 43. The provisions on teacher assessment in the County's Teacher Assessment System and the union contract are essentially identical. The question arises whether the employee is entitled to a written description of unsatisfactory performance and the opportunity to correct performance deficiencies within a reasonable, prescribed period of time before the conduct may be embodied in an evaluation having adverse consequences on the teacher's employment status, or whether the adverse evaluation can itself be the written statement of unsatisfactory performance and result in reduction from continuing contract to annual contract status before the teacher has been offered assistance from the school board in correcting deficiencies. Viewed together, both the County Teacher Assessment System, and the Teacher Evaluation portions of the union contract indicate that a teacher will receive written notice of unsatisfactory performance and assistance in correcting deficiencies before adverse employment action is taken by the school board. It would be unreasonable to interpret the provisions of the Assessment System and the union contract quoted above to allow the school board to terminate an employee by following the procedure the board and its administration used here. The action the board has attempted to take with respect to Ms. Childs is less severe than termination, but it is adverse employment action. It was not preceded by delivery of any written statement of unsatisfactory performance to Ms. Childs. No administrator made any recommendations to Ms. Childs about how to improve her performance or established a period of time in which to correct deficiencies before her continuing contract status was threatened with termination. Ms. Raulerson's brief conversation with Ms. Childs at the opening of the year does not suffice, because it was not a written statement of unsatisfactory performance, and was not sufficiently specific to advise Ms. Childs of any failings. The written suggestions given to Ms. Childs by the Assistant Principal, Ms. James, were not criticisms of Ms. Childs putting her on notice that the administration found her performance inadequate. As discussed above, the general admonition in the second paragraph of Exhibit 1, "Always be on time yourself", was not an effort by the administration to put Ms. Childs on notice that her practice of going to the office to learn announcements which could not be heard in her classroom, in order to pass them on to her students, was unacceptable. The proposed reduction in contract status is inconsistent both with the Okeechobee County Teacher Assessment System and the provision of the union contract on teacher evaluation. Summary The basic problem in this case arose from Ms. Raulerson's dissatisfaction with the instruction she observed in Ms. Child's first period class on February 27, 1989. Ms. Raulerson attempted to apply the Okeechobee Teacher Assessment System in her observation, even though that system, and the state system on which it is based, is structured so that it cannot validly be applied when the lesson observed is an audiovisual presentation. Educators may differ over whether the National Geographic film shown in the American History class was appropriate, but Ms. Childs' explanation is cogent, and supported by the expert testimony of Dr. Heald. The use of the film was not improper. Ms. Raulerson completed the teaching evaluation of Ms. Childs based on the single, unrepresentative and invalid observation, and a brief discussion with Dr. Gray, who had observed the third period class. This resulted in a disciplinary recommendation which was unduly severe, and inconsistent with the procedures set out in the Okeechobee County Teacher Assessment System and the Board's contract with the Okeechobee Federation of Teachers.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered by the School Board of Okeechobee County instructing the superintendent to prepare a contract for Andrea Childs for the 1989-90 school year in the usual form for continuing contract teachers. DONE and ORDERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1989. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989.
Findings Of Fact Respondent is a ninth grade student at North Dade Junior High School. She was born August 22, 1968. Respondent's behavior during the 1983-84 school year has been unsatisfactory and she is no longer responsive to the supervision of school officials. She was counseled or suspended on three occasions for excessive talking in class. She rejected an assignment to a special assistance classroom (C.S.I.) and refused to serve one suspension. She has cut classes and left school without permission on several occasions. A school-parent conference held December 7, 1983, produced no improvement in Respondent's disruptive behavior.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Rose Marie Farrell to its opportunity school. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Mary Farrell 2970 Northwest 153 Terrace Opa Locka, Florida 33054 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent committed any of the offenses alleged in the Amended Administrative Complaint dated March 26, 2014, and, if so, what is the appropriate disciplinary penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates accused of violating section 1012.795, Florida Statutes, and related rules. Respondent Erin S. Scheumeister holds Professional Educator’s Certificate 982133. Valid through June 30, 2015, the certificate covers the areas of Elementary Education, English for Speakers of Other Languages, Exceptional Student Education, and Autism Spectrum Disorders. At all times material to this proceeding, the St. Lucie County School District (District) employed Ms. Scheumeister as an Exceptional Student Education teacher at Samuel S. Gaines Academy K-8 (“Samuel Gaines” or “Gaines Academy”). During the 2012-2013 school year, a typical school day in Ms. Scheumeister’s class ended with a science or social studies lesson which would be presented jointly with the class of Ms. Madelina. Ms. Madelina was another Exceptional Student Education teacher at Gaines Academy, and she and Ms. Scheumeister would co-teach the class. For the science lesson, Ms. Madelina would bring her class to Ms. Scheumeister’s classroom. Ms. Madelina’s self-care aide, Jane Alice Waite, assisted with the joint science lesson. During the 2012-2013 school year, two support staff members, a behavior tech and a paraprofessional, were assigned to Ms. Scheumeister’s class. Ms. Scheumeister is charged with violations that flow from an incident that occurred during a joint science class on Friday, March 8, 2013. The joint science class was conducted, as was customary, at the end of the school day but in Ms. Madelina’s absence because she was absent from school the entire day. In her place was Amy Crossland, a frequent substitute teacher at Gaines Academy. Ms. Crossland also substituted on occasion for Ms. Scheumeister when she was absent and had filled in for Ms. Scheumeister’s paraprofessional aide on more than one occasion so that she was familiar both with Ms. Scheumeister’s class and Ms. Madelina’s class and the arrangement for joint science or social studies classes at the end of the day. As Ms. Crossland put it at the hearing, “It [Ms. Scheumeister’s class] was a challenging classroom, so they [the Administration] would put me in there frequently because they knew I [could] do it.” Hr’g Tr. 11. One of the students in Ms. Scheumeister’s class was R.W., a nine-year-old male student with Autism Spectrum Disorder and Language Impairments. Described by Ms. Crossland as “a sweet kid but . . . a handful,” Hr’g Tr. 12, R.W. exhibited aggressive behavior on a regular, if not daily, basis. Ms. Scheumeister summed this behavior up as follows: He would hit, kick, punch staff, students, knock over desks, fall on the floor, roll around on the floor, knock over furniture. He would do self-injurious behavior such as pinching himself on the arm or he would run over into the kitchen and hit his head on . . . the counter where we have to block him from hurting himself. Hr’g Tr. 102. R.W.’s aggressive behavior was triggered when his routine was disrupted or he became upset. Whenever the trigger occurred, R.W.’s behavior became aggressive quickly. An example of R.W.’s aggressive behavior involved a sink in an island in the kitchen that is either adjoining the classroom or part of the classroom. The sink had a faucet that could be rotated away from a position above the sink into a position above the floor. In moments of acting out, R.W. would swivel the faucet and turn the water on so that water would pour onto the floor. Over the course of the several times that Ms. Crossland was present in Ms. Scheumeister’s class, she saw R.W. turn the faucet on above the floor. Ms. Scheumeister’s response usually consisted of attempts to redirect R.W. to appropriate behavior. By the time of the incident on March 8, 2013, R.W. had swiveled the faucet and turned it on to spill water onto the floor more than once that day. These spills occurred during the joint science class in the presence of students from the two classes of Mses. Scheumeister and Madelina. Immediately after the first time, R.W. ran from the sink and dropped to the floor, which was common behavior for R.W. when he did not get his way or was disciplined. Ms. Scheumeister “raised her voice a little bit,” Hr’g Tr. 13, and her facial expression indicated that her patience with R.W. was wearing thin. Ms. Crossland attributed Ms. Scheumeister’s less-than calm reaction to R.W.’s misbehavior, plus the added stress of the joint science lesson with so many students present in the classroom at once. Ms. Scheumeister did not do anything to R.W. physically the first time he ran the water onto the classroom floor on March 8, 2013. Her reaction became physical, however, when R.W. did it again. Ms. Scheumeister grabbed R.W.’s shoulders with both of her hands. With R.W. kicking and screaming, Ms. Scheumeister sat him on the floor. Ms. Scheumeister pushed and pulled R.W. through the water in what witnesses described as a mopping action. His shirt and shorts became wet. Ms. Scheumeister followed this physical discipline with words to R.W. with the effect that if he thought it was funny to spill water on the floor, she thought it would be funny for him to have to explain to his parents why his clothes were wet. Jane Alice Waite, a paraprofessional aide assigned to Ms. Madelina’s class, observed Ms. Scheumeister push and pull R.W. through the water on the classroom floor. Ms. Waite’s response was immediate. She gathered Ms. Madelina’s students, left Ms. Scheumeister’s classroom with them, and returned the students to Ms. Madelina’s classroom. Ms. Waite did not want her students to remain in the presence of Ms. Scheumeister’s actions with R.W. for fear that they would be upset or become over-excited, a tendency of autistic students. Ms. Waite appreciates that maintaining order in a classroom of autistic students can be a task that is “overwhelming.” Hr’g Tr. 46. Nonetheless, Ms. Waite found Ms. Scheumeister’s method of discipline of R.W. to amount to a loss of control and to be unjustifiable and inappropriate. Morgan Kelly was the behavior tech in Ms. Scheumeister’s classroom the day of the incident. Ms. Kelly confirmed the testimony of Mses. Crossland and Waite. She saw Ms. Scheumeister “proceed with the mopping action dragging [R.W.] back and forth across the water.” Hr’g Tr. 53. Ms. Kelly’s immediate reaction was to offer to change R.W.’s clothing. Ms. Scheumeister reiterated that R.W. could go home wet and his parents can wonder why. R.W. responded to the comment by again turning on the faucet and running water onto the floor. Ms. Scheumeister grabbed R.W. and dragged him through the water again and then instructed Ms. Kelly to put R.W. on the bus wet without a change in clothing. R.W. rode the bus home in wet clothing. The incident with R.W. was not the first time Ms. Kelly had observed Ms. Scheumeister act inappropriately with the autistic students in her classroom. On one occasion, Ms. Scheumeister disparaged her students for their inability to answer questions about a topic at kindergarten level that she had just read to them. On other occasions, Ms. Scheumeister said to some of her students that she intended to “choke them out.” Ms. Scheumeister also on more than one occasion pulled a student’s tee shirt over the back of the chair in which they were sitting so that the student could not get up. Ms. Kelly reported the incident with R.W. to Carolyn Wilkins, the principal of Gaines Academy at approximately 5:30 p.m. on the evening of March 8, 2013, a few hours after it occurred. Ms. Crossland also reported the matter. Rather than to the principal, Ms. Crossland submitted the report to the Exceptional Student Education Department chairperson. In the investigation that ensued, Mses. Kelly, Crossland, and Waite provided written statements. Ms. Waite’s view of the incident with R.W. differed from Ms. Crossland’s in one respect. Ms. Waite was “not sure” how R.W. ended up in the water. But her statement was consistent with the other two statements in that Ms. Waite wrote that Ms. Scheumeister “pulled him in the water two or three time[s] and stated she was not going to change him and he was going home wet and he got on the bus wet.” Pet’r’s Ex. 4. In the wake of the report from Ms. Kelly, Ms. Wilkins called the assistant superintendent of Human Resources. The assistant superintendent directed Principal Wilkins to call the Department of Children and Families and the school resource officer. Ms. Wilkins did so. She followed up the reports with a call to Ms. Scheumeister. In the conversation with Ms. Scheumeister, the principal informed her of the allegations, and ordered Ms. Scheumeister to report to the District office on the following Monday. The District followed its procedures dictated by reports of a teacher’s inappropriate conduct with a student. The District commenced an investigation, and Ms. Scheumeister was transferred to the District office on what the District refers to as a “temporary duty assignment,” Hr’g Tr. 81, or “TDA.” See Pet’r’s Ex. 7. In keeping with standard procedure, the District hand-delivered to Ms. Scheumeister a copy of a written document entitled “Notice of Investigation and TDA” dated March 11, 2013, the Monday after the incident with R.W. In May 2013, Principal Wilkins sent a letter dated May 29, 2013, to Ms. Scheumeister. It informed her that Principal Wilkins had decided not to recommend Ms. Scheumeister for reappointment for the 2013-2014 school year. An Administrative Complaint was executed on November 7, 2013. On March 26, 2014, Petitioner moved to amend the Administrative Complaint. The motion was granted following Respondent’s notice of withdrawal of her opposition to the amendment. A section of the Amended Administrative Complaint entitled “MATERIAL ALLEGATIONS” contains three paragraphs, numbered 3, 4, and 5. Paragraph 3 alleges: Respondent twice grabbed R.W., a 9-year-old student diagnosed with Autism Spectrum Disorder and Language Impairment, and dragged him across the floor in an attempt to mop up a puddle of water that R.W. had spilled. During this, Respondent stated to the student, “You think it is funny to flood the room? Well, I think its funny your clothes are wet.” When another school personnel offered to change R.W.’s clothes, Respondent refused to allow it and commented she wanted R.W. to go home with wet clothes. Paragraph 4 alleges: Respondent made inappropriate comments or actions to her nine (9) students, who are diagnosed with Autism, including but not limited to, “I’m going to choke you out”; “That’s a kindergarten book and you (students) are not as smart as kindergarteners”; “It’s ok his (student’s) pants are too tight, he shouldn’t reproduce,”; putting student’s over their chairs to prevent them from getting out of their chair and yelling at students. Amended Administrative Complaint, executed March 26, 2014, EPC Case No. 123-2596. Paragraph 5 alleges that following an investigation, Ms. Scheumeister’s “employment contract was non- renewed for the 2013-2014 school year.” On the basis of the material allegations, the Amended Administrative Complaint charged Ms. Scheumeister as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 2: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 3: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 4: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety. COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Ms. Scheumeister requested a formal hearing before DOAH on an Election of Rights form in which she disputed all allegations of the Administrative Complaint. On March 10, 2014, the Office of Professional Practices Services filed the case with the EPC, and the EPC announced in a letter dated March 11, 2014, that it would forward the case to DOAH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be revoked for a period of not less than five years and that an appropriate fine be levied for each count. If Respondent, when eligible, reapplies for an educator’s certificate and receives one, a condition of the certificate should be probation for a period of five years with additional conditions appropriate to the facts of this case to be set by the Education Practices Commission. DONE AND ENTERED this 8th day of September, 2014, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2014. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 Tallahassee, Florida 32399-0400 (eServed) Lois S. Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Carol R. Buxton, Esquire Florida Education Association 1516 East Hillcrest Street, Suite 109 Orlando, Florida 32803 (eServed) Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Curtis Stephen Pope, a 12-year-old student, attends seventh grade in the public schools of Dade County. He lives with his grandmother, Mrs. Joyce Robinson, at 11352 Southwest 214 Street, Goulds, Florida. Until January, 1981, he attended seventh grade at nearby Mays Junior High School. (Testimony of J. Robinson, McPhaul.) In December, 1980, the vice principal of Mays Junior High recommended that Curtis be administratively reassigned to the Opportunity School South because of repeated disruptive behavior affecting the learning opportunity of others creating an unsafe learning environment. The school principal subsequently joined in that recommendation and on January 26, 1981, Curtis was reassigned to an educational alternative program at Youth Opportunity School South, 6135 Southwest 66th Street, Miami, Florida--a school located approximately 15 miles from Curtis' residence. It is that reassignment which is the subject of this proceeding. (Testimony of McPhaul; P-3). From September, 1980, through January 1981, Curtis repeatedly disrupted classes at Mays Junior High. His behavior adversely affected the learning environment and interfered with the educational process of other students, as well as his own. He was frequently referred to the assistant principal for disciplinary action. Twice he was suspended from school for ten-day periods: on October 20, 1980, for disrespect and defiance to the assistant principal and principal, and on November 12, 1980, for fighting with another student. Mrs. Robinson was contacted by Curtis' teachers as well as the school's administrators in an attempt to define the nature of Curtis' problem and take remedial action. However, despite these good-faith efforts, his classroom behavioral difficulties continued. (Testimony of McPhaul, J. Robinson; P-2). Specifically, Curtis' disruptive classroom behavior is described below: 2/ CLASS CURTIS' BEHAVIOR Reading Highly disruptive; fails to bring classroom materials or pay attention; easily distracted; plays during class and frequently tardy or absent. Math Disturbs class by talking, walking, and bothering other students; beats on desk, makes loud noises, and runs in and out of classroom; frequently tardy or absent. Intuitive Math Plays and walks about class; fails to follow directions; disturbs class and leaves without permission. Physical Education Disinterested n class; fails to participate in activities with other children. Science Rarely cooperates; fails to remain in seat, and leaves room without permission; unprepared for class; excessive tardiness. Civics Engages in fights and horse- play with other students; makes loud noises and refuses to stop; leaves room without permission; excessive absences. (Testimony of Herrman, Smith, Delvalle, Nicholson, Rochfort, Fields; P-2). At this time, Curtis requires individualized and special educational instruction which is unavailable at Mays Junior High--where classroom enrollment ranges from 25 to 30 students. On the few occasions when Curtis has received individualized instruction at Mays, his interest increased and his academic performance improved. Such individualized attention is available, on a routine basis, at the Youth Opportunity School South's educational alternative program-- where there is one teacher for every ten students. If Curtis makes the progress which can reasonably be expected of him in such a learning environment, he should eventually be able to return to regular school programs. Whether Curtis profits from and takes advantage of the greater instructional opportunities at Youth Opportunity School--and eventually returns to regular school programs--is wholly dependent on his own attitude and choice. (Testimony of J. Robinson, C. Robinson, Smith, Herrman, Delvalle, Nicholson, Rochfort, Fields; P-4). Mrs. Robinson opposes Curtis' reassignment primarily because of her belief that several neighborhood boys who attended the school later became involved in crime. But the fact that some students' behavioral problems persisted despite the educational opportunities offered at the Youth Opportunity School do not negate those opportunities or make them less real. Given positive support and encouragement at home--coupled with the educational environment available at the Youth Opportunity School South--Curtis will be given the opportunity to learn and achieve his potential; whether he--in--fact--does so will depend on him. (Testimony of J. Robinson, C. Robinson, McPhaul).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Superintendent's action in placing Curtis Stephen Pope in the educational alternative program offered at Youth Opportunity School South be upheld and confirmed. DONE and RECOMMENDED this 20th day of May, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1981.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed the offense(s) charged in the Amended Administrative Complaint; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Respondent holds Florida Educator's Certificate No. 1091499, covering the areas of Elementary Education, English for Speakers of Other Languages (ESOL), Exceptional Student Education, and Autism Spectrum Disorder, which is valid through June 30, 2016. The Commissioner of Education is responsible for investigating and prosecuting allegations of misconduct against individuals holding a Florida Educator's Certificate. Respondent is an experienced teacher, having taught for 22 years, the last ten in Florida. Respondent has a post- bachelor's degree in Special Education, and a second bachelor's degree in English, and a master's degree in Special Education. Respondent began his career teaching emotional behavioral students, and did that for a few years. He later worked at a residential school, then transferred to teaching those with intellectual disabilities, and later focused his time and professional efforts on autistic students. Respondent decided to teach Special Education students because he had himself been a Special Education student. The incidents complained of in the Amended Administrative Complaint are alleged to have taken place over a three-month period at Olympic Heights High School in Boca Raton, Florida, where Respondent was employed as the emotional behavioral teacher and provided math support. Respondent testified that students with emotional behavioral disorders that interfere with their learning, need a support system to help them learn how to better handle their emotional and behavioral states in order to learn. His job was to oversee that system and to direct a classroom where he could teach them those skills. In addition to his special needs classes, Respondent would "push into" math classes, to teach Special Education students that were in the general education community. In this case, Petitioner outlined several rule and statutory violations by Respondent in its Amended Administrative Complaint including: Violations of the Principles of Professional Conduct. Failing to make a reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Unreasonably restraining a student from independent action in pursuit of learning. Intentionally exposing a student to unnecessary embarrassment or disparagement. The factual allegations underlying these violations were as follows: During the 2014-2015 school year, Respondent improperly and aggressively handled T.C., an eighteen year old, male student with Autism Spectrum Disorder (ADF). On or about January 27, 2015, when T.C. grabbed Respondent's coffee cup, Respondent improperly restrained T.C. by placing T.C. in a headlock. On three (3) other occasions during the 2014/2015 school year, Respondent pulled T.C. to the floor, squeezed his cheeks and yelled at him. Respondent would often put his hands on a student when unnecessary and yell at them calling them names. Further, in November of 2014, the Respondent left a student, P.M., unattended in the classroom for twenty (20) minutes while he used the bathroom facilities. Facts Regarding Aggressive Handling and Improper Restraint of T.C. Nicole Ben-Hamo was a speech pathologist doing contract work for the Palm Beach County School District at Olympic Heights High School, in Boca Raton, Florida. She testified that on January 15, 2015, she observed an incident between Respondent and T.C., a student. The incident occurred in what she described as "an amazing small classroom" (referring to its physical size). The classroom was full of other staff members who were in a position, she felt, to observe what she observed. Ben-Hamo saw what she described as "a little wrestle," when student T.C. "grabbed" Respondent's coffee cup. T.C. was tall, heavy, and a big guy. She observed Respondent move forward from behind T.C. to try to reclaim his coffee cup. She claimed that Respondent was standing up behind T.C. and both had their feet on the floor. Respondent reached over the shoulder of T.C. and around him as he tried to take back the coffee cup. Ben-Hamo later wrote a statement in which she claimed that Respondent's arm was around T.C. in a "headlock." Pet. Ex. 2. In her hearing testimony, she described the action as Respondent reaching with one hand to reach the coffee cup, and reaching around T.C. to restrain him with the other hand. In her prior deposition testimony, she noted that it was probably not the right terminology to say a "headlock," but said that Respondent was holding the student's head in a restraint while reaching for the cup. She conceded that she was not familiar with wrestling moves or any kind of move that would be called a "headlock." She testified that she does not know if that is what the move is called, or if it was intended to be a headlock.1/ Ben-Hamo tried to clarify that what she actually observed was Respondent's arm extending from T.C.'s clavicle to his neck area. She could not tell if Respondent was squeezing T.C. In both her deposition testimony and at the hearing, she indicated that she could not imagine that he was squeezing or trying to hurt T.C. In her written statement, given a day or so after the event, Ben-Hamo wrote that she did not believe that Respondent's actions constituted intentional abuse. Pet. Ex. 2. In an effort to further clarify what she thought she saw, Ben-Hamo explained that she did not think that she had witnessed intentional abuse. She felt that Respondent was trying to get the coffee cup back and calm the student.2/ Pet. Ex. 2. Ben-Hamo testified that the entire incident took a "short time" and that none of the other adults who were present intervened. Because she felt that the incident was not "proper interaction," she reported it to an assistant principal. Sarah Borah, the assistant principal; Sharon Dix-Stark, the ESE coordinator; and David Clark, the principal, all were called to testify by Petitioner.3/ Mary Beth Hall, who was present in the room, reported that Respondent sat next to T.C., as he often did. This was done to keep T.C. from jumping up to be disruptive or grab the food of others. While they were seated, she saw T.C. grab Respondent's coffee cup off the table. In turn, Respondent took T.C.'s hat, telling T.C. that "if you take something of mine; I'll take something of yours." Hall reported that nothing she saw about the interaction was extraordinary. She felt that by the time an investigator was called in "things had been kind of blown out of proportion" and the incident between T.C. and Respondent was more a matter of "perception." She felt Respondent worked well with the students. He was more "hands on" with T.C., with whom he got along well. Respondent served as a needed male role model to T.C. Hall recalled that Respondent and T.C. remained seated throughout the incident. Contrary to the testimony of Ben-Hamo, Hall never saw T.C. or Respondent stand during the incident. Hall gave a statement months later in which she used the term "chokehold." Pet. Ex. 3. However, she unequivocally explained at the hearing that she did not see Respondent actually choking T.C., using a chokehold on T.C., or restraining T.C. Hall testified, instead, that the two were "wrestling with their arms" over the items (the cup and hat) and reaching over and around each other, as would two children tussling for the same toy. They both remained seated during the incident and their respective desks never moved or were jostled out of position. Respondent never stood behind T.C. during the incident. According to Hall, the entire incident was two people sitting next to each other and wrestling with their arms. She used the term "wrestling" to indicate two people reaching around each other. Hall testified that she saw Respondent's actions as a means for him to teach T.C. not to grab something that did not belong to him and belonged to someone else. After what she described as a very quick incident, Hall reflected that Respondent got his coffee mug, T.C. got his hat back, and they both seemed happy after the incident concluded. Hall did not find it necessary to intervene in the incident, as there was no violence between Respondent and T.C. Hall observed several paraprofessionals in the room. None intervened, or put down their cell phones during the incident. According to Hall, T.C. was not harmed in any way. Hall testified that no noises or sounds were made by T.C. during the incident that indicated he was in any pain, distress, or discomfort. Hall never saw Respondent mistreat T.C. in any way. Respondent appeared to treat all children respectfully and attentively, and she never saw him use his hands improperly on any student in the classroom. Respondent testified on his own behalf. He felt he had a "wonderful" relationship with T.C. He described T.C. as a physically 18-year-old adult, who was large and strong. However, his emotional development was at the pre-kindergarten level. T.C. was over six feet tall, and weighed 250 to 260 pounds. T.C. was obsessive compulsive and had a short attention span. He had certain behavioral problems, which were accentuated because he never learned proper replacement behaviors for his maladaptive kindergarten behaviors. These behaviors were not appropriate for an 18-year-old. T.C. always needed to be escorted because he liked to run, look, investigate, and discover. Whether it was in front of a car or whether it was a trash can, he just always wanted to do things. For safety reasons, an adult was always required to be with him. Assistance was provided to help steer T.C. to more appropriate behavior and activities. Occasionally, T.C. would put Respondent's hand on his shoulder for Respondent to rub his shoulder. It was a method that Respondent used to soothe T.C., which they called "tickles." On the day of the incident, Respondent sat down next to T.C., who had finished lunch. Respondent placed his coffee cup on the dining table some three feet away. Without warning, T.C. lunged across Respondent to grab Respondent's coffee cup. He did not reach it the first time. Respondent began massaging T.C.'s arm and said, "Do you want tickles, or do you want the coffee cup?" T.C. calmed for a time, and then reached for the cup again. T.C. reached and got his hand on Respondent's cup. While doing this, he was leaning into or on Respondent's lap. He eventually reached and grabbed Respondent's cup. Respondent took T.C.'s hat from the windowsill, and asked if T.C. wanted his hat given back. T.C. reached for his hat with his other hand. As the incident unfolded, T.C. held the cup and reached over Respondent trying to grab his hat back from Respondent. The two were right next to each other, reaching back and forth. Respondent extended his hand out, so that T.C. would see that he was waiting for his cup to be exchanged. Eventually T.C. got bored of the cup and gave it back to Respondent. When T.C. gave Respondent the cup, Respondent gave him back his hat. The more persuasive and credible testimony regarding the classroom incident was that T.C. impulsively grabbed Respondent's cup while they were seated next to each other. Respondent then attempted to make a teaching point with T.C. about not taking the things of another, by taking his hat. In the process, T.C. and Respondent reached over and around the other in an effort to retrieve their item from the other. There was physical contact between the two, but it was not inappropriate, or unduly rough.4/ There was no credible proof that Respondent intended to harm, restrain, or injure T.C. Ben-Hamo's testimony and conclusions regarding the extent, type and nature of the contact and interaction between T.C. and Respondent is rejected as unpersuasive and implausible.5/ The undersigned finds that Respondent did not place or restrain T.C. in a "chokehold," "headlock," or other improper restraint. Based on this record and the circumstances, there was no clear and convincing evidence to support Petitioner's allegation that Respondent violated any statute, policy, or rule in the incident with T.C. regarding the coffee cup. Allegations Reported by Shannon Lewis Shannon Lewis, a paraprofessional, testified by deposition. Pet. Ex. 11. She described T.C. as being 6'5" tall and weighing 250 to 280 pounds. She noted that he had very little impulse control, and that when he saw something of interest, he impulsively went to get it. Lewis testified that one day when Respondent took T.C. to physical education class, T.C. wanted to put his tooth on the doorway when he exited the gymnasium.6/ According to Lewis, Respondent grabbed T.C. by one arm, then pulled him away and yanked him. She testified that Respondent put his foot behind T.C.'s foot, so that T.C. would have to go to the ground. According to Lewis, Respondent did that three times before he would relent.7/ Lewis testified that the students in the physical education class and two paraprofessionals, including Pedro St. Jacques and Illiana Girtman, were present when the incident occurred and saw it. She testified that St. Jacques was the aide assigned to T.C. Lewis testified that while T.C. was on the ground, Respondent squeezed his face and made his lips pucker and yelled, "No, T. No." No student or other teacher testified that they saw or witnessed the actions described by Lewis. St. Jacques executed an affidavit admitted into evidence as Respondent's Exhibit 3.8/ Resp. Ex. 3. However, he never witnessed anything inappropriate between Respondent and any students, including T.C. St. Jacques never witnessed Respondent throw T.C. to the ground and never saw him treat T.C. badly.9/ St. Jacques testified that sometimes it was necessary to approach T.C. in a different manner because of his size and to prevent him from getting hurt. It was sometimes necessary to physically guide T.C. away from whatever activity he became fixated on. St. Jacques never observed Respondent use any unnecessary or questionable force on T.C. in those instances. He knew that Respondent was working with T.C. to have him stop biting the door frames as he walked through the halls. He heard Respondent tell T.C. not to bite them and saw him maneuver T.C. away from them. No undue force was used by Respondent. Girtman was also present during this incident, according to Lewis. She was a paraprofessional with Respondent at Olympic Heights High School. She never saw Respondent touch a student in a way that she thought was unnecessary or improper. Respondent was always gentle with T.C. She never saw Respondent squeeze T.C.'s face or yell at him. Another paraprofessional, Alvaro Rodriguez testified. He was also identified by Lewis as being present during the door- biting incident. He never saw Respondent use physical methods or force on T.C. in a way that he thought was improper. He never saw Respondent pull T.C. down to the floor. He never saw Respondent squeeze T.C. by the cheeks or yell at him. Respondent denied that the hallway incident occurred, as described by Lewis. He testified that the banging of T.C.'s teeth on a piece of metal was part of his obsessive-compulsive disorder.10/ Respondent was not big enough to pull T.C. down to the floor, and never did so. When T.C. was agitated or running around, Respondent would ask him to sit, but he never pulled him to the floor. Respondent explained that sometimes T.C. needed gentle pressure on his arm or something to reinforce what it means to go down or to go in one direction or the other. Respondent denied that he yelled into T.C.'s face or yelled at him, and that T.C. did not respond to yelling, he only responded to quiet talking. Respondent testified that he never grabbed T.C. by the cheeks and squeezed. Respondent's testimony concerning this incident, and the testimony from St. Jacques, Girtman, and Rodriquez was more persuasive and credible. There simply was no clear and convincing evidence that Respondent improperly, violently, or forcefully threw or took T.C. to the ground, yelled at him, squeezed his cheeks or handled him in an inappropriate way. Further, the proof was insufficient to prove any unreasonable restraint was used by Respondent during this incident with T.C. Incident Involving P.M. Lewis described P.M. as a non-verbal and out of control student, who destroyed his home and wiped feces everywhere. Lewis claimed that Respondent decided to work with P.M. in his classroom one-on-one during lunch.11/ One day Lewis walked into Respondent's classroom and saw P.M. sitting on a yoga ball with no teacher in sight.12/ She then heard the toilet flush, and Respondent walked out of the bathroom. The aides were instructed that no student should ever be left alone. St. Jacques' statement indicates he (St. Jacques) was always assigned to supervise P.M. when Respondent was at the school, and that he (St. Jacques) was supposed to be with P.M. on the day in question. Apparently, P.M. was another student who needed full-time supervision. Evidently, P.M. liked to walk around the classrooms and would walk into Respondent's classroom on occasion. St. Jacques would always redirect him. When P.M. wandered into Respondent's classroom, it would only be for about 30 seconds. There was never a time that Respondent was responsible to supervise P.M. during his planning period, or at any other time. It was always the responsibility of the paraprofessional to supervise and attend to P.M. Even if Respondent was working with P.M., St. Jacques was responsible to be with him. Respondent testified, consistent with St. Jacques, that he never worked with P.M. without the aide present. He was never assigned to supervise P.M. in lieu of the aide, because that would have changed P.M.'s Individualized Education Program. Students were not allowed in Respondent's classroom during his planning period, except to be escorted to use the bathroom. Respondent testified that there were times that he would transition back from a class and P.M. would be in his room using his sensory equipment, but he would always be with St. Jacques. One time when he came out of the bathroom during his planning period, he observed P.M. in his room with Lewis, who sometimes covered for St. Jacques during the other paraprofessional's break. During the period of time that Respondent was in the bathroom, he was not assigned or supposed to be supervising P.M. He was surprised to see P.M. when he came out of the bathroom during his planning period. The allegation that Respondent failed to properly supervise P.M. and left him alone while Respondent used the bathroom was not proven by clear and convincing evidence. The more persuasive evidence at the hearing indicated that Respondent was not assigned to supervise P.M. at the time of this particular incident. The testimony of St. Jacques supports Respondent's version and this finding. Whatever Lewis saw, or thought she saw, was not persuasive or sufficient to establish by clear and convincing evidence that Respondent left P.M. unattended in his classroom for 20 minutes or failed to supervise a student assigned to him. Exposing a Student to Unnecessary Embarrassment or Disparagement Lewis further testified that there was an incident involving students who wanted to use calculators during math class. J.M. wanted to use the calculator, but Respondent would not let her use it. The student had to be taken from the room because she screamed and carried on when not permitted to use the calculator. Apparently, Respondent wanted her to learn to do math without a calculator. There were two other students who Respondent also did not allow to use the calculator. In response to the various requests, Respondent commented, "This is ridiculous. You guys are stupid if you can't do this without a calculator. You need to have life skills in order for you to be successful outside of the classroom." There was not a shred of proof offered or adduced at the hearing that Respondent "put his hands on" any of these students.13/ Furthermore, there was no clear and convincing proof that Respondent intended to expose these math students to unnecessary embarrassment. See Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1996). Respondent denied that he ever called any of the students a derogatory name or called any of them "stupid." Lewis agreed that it was Respondent's role as the teacher to determine whether a calculator was used. She claimed that St. Jacques was in the room when Respondent called the girls stupid and heard him say it. St. Jacques' attested in his written statement in a contrary manner. Resp. Ex. 3. He said that he never witnessed anything inappropriate between Respondent and any students, including the girls involved in the calculator incident, J.M. and Rebecca. St. Jacques never witnessed Respondent mistreat the math students referred to by Lewis. Respondent was always respectful to the students and he never saw Respondent embarrass or ridicule any of them. Respondent testified that he treated the students in general with compassion and respect. He denied he ever called them names other than their own and never embarrassed any student or called them names because they wanted to use the calculators. Based upon the more persuasive and credible evidence adduced at the hearing, the allegations of belittling the math students and calling them "stupid" were not proven by clear and convincing evidence. There was insufficient proof to establish that Respondent intended to unnecessarily ridicule, demean, or belittle any particular student The testimony of St. Jacques bolsters Respondent's testimony on this point. The undersigned credits Respondent's testimony and finds it more persuasive. The undersigned finds that there was no clear or convincing evidence to conclude that Respondent's actions or statements to the girls regarding the use of the calculator, constituted a violation of any statute, policy, or rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Amended Administrative Complaint against Jeffrey Voner. DONE AND ENTERED this 30th day of April, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2018.
The Issue Whether Respondent should be assigned to the school system's opportunity school program.
Findings Of Fact At all times material hereto Respondent, Guillermmo Hernandez, was an eighth grade student assigned to South Miami Middle School. While in math class during November, 1988 through January, 1989, Respondent was disruptive in the classroom, tardy on several occasions and unprepared for class. In an attempt to ascertain the reasons for his behavior and to assist him, Respondent's parents were consulted, Respondent was consulted, and Respondent was assigned to detention and work detail. Again, while in home economics class during February through March, 1989, Respondent disrupted the classroom by his antics which on one occasion included piercing his ear and dressing as a girl. Respondent also chased other students, popping them with towels. Here too, his parents were consulted, Respondent was consulted and he was assigned to both outdoor and indoor supervision. Respondent is a disturbed young man who at first appears to be a class clown. He pushes a situation until is becomes a problem and then begs for forgiveness. Further, he does not appear to be learning disabled. However, after repeated attempts to help him, it is apparent that he is unable to control himself in a regular classroom and would benefit from a more structured setting such as the opportunity school program of the Dade County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 29th day of June, 1989 in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1989. COPIES FURNISHED: Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mr. and Mrs. Juan Hernandez 6361 S.W. 33rd Street Miami, Florida 33155 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
