The Issue The issue to be determined is whether Respondent violated section 1012.795(1)(d) or (g), Florida Statutes (2009)1/ and/or Florida Administrative Code Rule 6B-1.006(3)(a) or (e), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is charged with the certification and regulation of professional educators in the state of Florida, pursuant to the provisions of section 20.15 and the Florida K-20 Education Code, chapters 1000-1013, Florida Statutes (2009). Respondent, Deidra Juniper ("Respondent" or "Ms. Juniper"), holds Florida Educator's Certificate 317540, covering the area of elementary education, which is valid through June 30, 2016. At all times material to the allegations in the Administrative Complaint, Respondent was employed as an elementary school teacher at Yniestra Elementary School ("Yniestra") in the Escambia County School District. Yniestra was a Title I school. Since the events in this case, Yniestra has closed. During the 2009-2010 school year, Respondent taught fifth grade. She had taught at Yniestra since 2000. At the beginning of the 2009-2010 school year, Yniestra received a new principal, Dr. Sharee Cagle, following the retirement of the former principal, Nancy Reese. Dr. Cagle was also the principal for Hallmark Elementary School, serving in that capacity at both schools simultaneously. Shortly before the beginning of the school year, Respondent's adult son died unexpectedly. Dr. Cagle, along with other school district administrators, attended the wake for Respondent's son to offer their condolences. Although Dr. Cagle had attended a faculty meeting soon after her appointment was announced at the end of the preceding year, this was the first time that she and Respondent had met. Respondent believed she had a good relationship with Ms. Reece, and Ms. Reece's testimony was consistent with that belief. She generally had a reputation of being a good, professional, and knowledgeable teacher, with high standards for her students. She did not share the same rapport with Dr. Cagle. The 2009-2010 School Year Medication M.H. was a student in Respondent's fifth-grade class during the 2009-2010 school year. He made B's and C's in her class. M.H. claimed that Respondent told him that he needed to be on medication and that she called him dumb in front of the class. M.H. admitted that right before the alleged comment regarding the need for medication, he was standing at his seat as opposed to sitting, and liked to move around the class a lot. He did not recall her ever calling a student in the class stupid. Respondent denied asking M.H. if he was on medication or telling him that should be medicated. Respondent acknowledged that she spoke to M.H.'s mother during a parent conference about his behavior and asked whether he was on medication. Although M.H. was unsure why he was removed from Respondent's classroom, he was transferred to the other fifth-grade teacher (Ms. Sheater) at his mother's request. K.L. was also a student in Respondent's class. Generally, he was a B-to-D student who Respondent did not consider to be a discipline problem. K.L. was on medication that helped him with focus. One morning, K.L. failed to take his medication before leaving for school. K.L could not stay still that day and was not getting his work finished. K.L. testified that Respondent asked him why he was not finishing his work, and whether he had taken his medication that day. When he said no, she told him he should take his medication. No testimony was presented as to who else could hear the comments made to K.L. Respondent vaguely remembers an incident where K.L. was not doing his work and was talking instead, but does not recall telling K.L. that he should have taken his medication. Another student testified that on occasion, Ms. Juniper would make the statement that the students were "on medication or something" when they were noisy and disruptive as a class, and she was trying to get them to be quiet. The comments were directed to the class as a whole, however, and this student denied ever hearing Respondent tell an individual that he or she needed to be on medicine. Dr. Cagle testified that it would be inappropriate to tell an unfocused student who had already told her that he forgot to take his medication that he needed to do so. According to Dr. Cagle, it is not up to the teacher to determine whether taking meds is going to help him have a better day, and it is not appropriate to make a statement regarding medication in front of other children. After review of all of the evidence presented, the Commissioner presented clear and convincing evidence that Respondent told K.L. that he needed to take his medication on the day that he acknowledged he had not done so. It is not established by clear and convincing evidence that the statement was heard by other students. The other allegations regarding comments to students that they needed medication were not supported by clear convincing evidence. Belittling or Disparaging Remarks M.H. claimed that Respondent called him dumb in front of the class. He did not recall her ever calling a student in the class stupid. M.H. admitted that Respondent told the entire class that not doing their work was dumb, but insisted that she also made that statement about him individually. K.L. also testified that she called him dumb in front of the class. Another student, G.L., stated that she told a student on a single occasion that they needed to be on medication but could not identify the student and could not recall any of the circumstances related to the incident. No student indicated that they heard Respondent call a student crazy or retarded. While D.L. testified that Respondent told a student he or she was not going to sixth grade, she was unsure which student was involved. Other individuals, including students, parents, and staff, testified that they had never heard Respondent accuse a child of needing medication or call a student dumb, crazy, or retarded. Respondent denies ever making such statements. With respect to the statement about going to sixth grade, she testified credibly that the only time she would discuss a student's promotion to the next grade would be in the context of parent-child conferences, and not in front of other students. The evidence is not clear or convincing that Respondent called students crazy, dumb, or retarded. Clothing Yniestra, as a part of the Escambia County School District, had a dress code that prohibited clothing that could be considered disruptive. On one occasion, a female student in Respondent's class was wearing a t-shirt that depicted a vampire biting in the general vicinity of the student's breast. The t- shirt was covered by another shirt, but while the students in Respondent's class were in line in the hallway, the overshirt had come loose, exposing the t-shirt. Respondent found the t-shirt inappropriate, and noticed that the boys in the line were talking about it. Ms. Parker, the reading coach at Yniestra, was also in the hallway. Respondent asked Ms. Parker whether the shirt was inappropriate, and in Ms. Parker's view, Respondent was speaking about the shirt too loudly and where the class could hear her. Ms. Parker felt that Respondent was being confrontational toward the child and that if the shirt was a problem, the proper procedure was to send the student to the clinic, where the student could either secure something to wear over the shirt or arrange for other clothing. Ms. Juniper did not report the child or send her to the office, but she admits that she asked the child to cover the t- shirt. The child was never identified at hearing, and did not testify, so it cannot be determined whether the student felt singled out or embarrassed by the incident. On another occasion, Respondent commented upon T.I.'s pants which had a paint-splatter pattern on them. T.R., however, testified that Respondent told T.I. that her clothes were dirty, and when she did so T.I. was wearing cut-up jeans and a white t- shirt which was in fact dirty. T.I. did not testify. The evidence is not clear and convincing that Respondent made inappropriate comments regarding students' clothing. Informal Conference On November 5, 2009, Dr. Cagle requested an informal conference with Respondent to discuss complaints that she had received regarding inappropriate comments to students, such as "you need medication"; "you need counseling, you are crazy"; and "you'll never make it to middle school." Dr. Cagle's notes from the conference indicate that Respondent admitted saying things "like this" but not in the way the statements reported. Dr. Cagle spoke with her about talking with students privately and appropriately. The documentation relates only the events from Dr. Cagle's point of view, with no written comments from Respondent. In February 2010, Dr. Cagle sent Respondent a memo indicating that discipline was being considered for several reports of inappropriate comments being made to students in front of the class, and for not following appropriate procedures. The reference to improper procedures apparently was in response to a report that on at least one occasion, Respondent sent a student to the office for discipline as opposed to having assistance sent to her classroom. The memo outlined strategies for improvement, and Ms. Juniper was given a copy of the Discipline Procedures from the Policy Book and a copy of a memorandum that outlined the steps for discipline. The Treatment of S.J. S.J. is by all accounts, a very bright child, and was at the head of her class. She was generally considered to be a model student. Respondent thought her to be a bright child, but believed she at times had an attitude problem. The Administrative Complaint alleges that Respondent singled S.J. out for disparagement and told other students S.J. was a bad influence and was trying to get Respondent in trouble. The allegations regarding S.J. revolve around three incidents: a claim by Ms. Brees, the art teacher, that Respondent singled S.J. out for rebuke in the hallway; a claim by Ms. Brees that she reprimanded S.J. in the classroom when S.J. had done nothing wrong; and an incident where Respondent allegedly tore S.J.'s citizenship card. Ms. Brees was the art teacher at Yniestra, and taught there for six years. Her classroom is in a portable whereas Ms. Juniper's was on the second floor of the school building. Ms. Brees describes two incidents that led her to believe that Respondent had singled out S.J. for disparaging treatment. The first was an incident where students from Ms. Juniper's class were standing in line in the hallway. According to Ms. Brees, Respondent accused S.J. of talking and berated her for doing so, when S.J. was actually one of few students standing quietly in line. There was no testimony as to when this incident occurred, or how long Ms. Brees had been observing the conduct of the students. It is impossible to tell, from the evidence presented at hearing, whether S.J. may have been misbehaving before Ms. Brees observed her or whether Respondent in fact singled her out for rebuke. The second incident occurred at the end of art class on or about February 16, 2010, when Respondent went to pick up her students and escort them back to lunch. She and Ms. Brees were standing in the doorway to Ms. Brees' portable. According to Ms. Brees, she was standing in the open doorway, with her back against the frame of the door. Ms. Juniper was standing in the open doorway of the portable but was partially inside the classroom. While the students were waiting to line up to leave, Ms. Juniper testified that saw S.J. make a "smart face" at Ms. Brees and say something under her breath. She told S.J., "that is not appropriate. You are our valedictorian and should be an example to others." Ms. Brees testified that she did not see or hear S.J. do anything that needed correction. While Ms. Brees testified that she could see S.J. the whole time, and Ms. Juniper testified that Ms. Brees could not, from both women's descriptions, Ms. Juniper would have had a better view of the children and was closer to them in terms of hearing what was said. It is found that Respondent had a basis to correct S.J.'s behavior and did so. Ms. Brees acknowledged that there are times when a student can present behavioral issues for one teacher and not for others. Moreover, there was a prior incident to which Respondent testified she had observed Ms. Brees speaking to a student in what she believed to be an inappropriate manner, and had told Ms. Brees that she "couldn't say those things to a kid." Whether or not Ms. Brees acted inappropriately in the prior incident is not an issue in this case. However, Respondent's comment on Ms. Brees' behavior, whether or not warranted, may have had an effect on her attitude toward Respondent and her view of Respondent's behavior. In any event, after the incident in the portable, Ms. Brees wrote an e-mail to Ms. Cagle complaining about Respondent's treatment of S.J. The third incident involved the tearing of a citizenship card (also referred to as a conduct card. On or about March 8, 2010, Respondent was filling out a citizenship card for S.J. and S.J. asked her for it. Ms. Juniper was not finished writing on the card when S.J. reached for it, and the card tore as she took it. Although S.J. knew that Ms. Juniper had not torn the citizenship card, she told both her mother and Dr. Cagle that Respondent had ripped the citizenship card into pieces. She did not retract her statement until after the school year ended and never told Dr. Cagle that her accusation was not true. After the incident with the conduct card, S.J. started keeping a log of things that Respondent did or said that she felt were improper. Shortly thereafter, on March 12, 2010, Dr. Cagle issued an e-mail to Respondent and to Ms. Sheater, stating: "[S.J.] will be moved to Mrs. Sheater's class effective Monday, March 15, 2010. This is at the mother's request and I believe it will be the best for all parties involved." At the time Dr. Cagle made the decision to transfer S.J., she had both the e-mail from Ms. Brees and a complaint from S.J.'s mother in response to the alleged incident with the conduct card. Transferring the child to another classroom under these circumstances was reasonable. However, the question remains what would cause S.J. to pull the conduct card from Respondent's hand in the first place, and then lie about the incident to both her mother and to Dr. Cagle. It is implausible that a model child with absolutely no discipline or attitude problems would attempt to snatch something out of her teacher's hand to the point of tearing it. The circumstances related to the torn citizenship card lend credence to Respondent's testimony that she was recording on the card that S.J. had been disrespectful and belligerent in class that day, and that the citizenship card would reflect that information. Contrary to Ms. Brees' testimony, the guidance counselor, Ms. McGowen, testified that she had been in Ms. Juniper's classroom and that her interaction with students was appropriate. She did not believe that Respondent singled out S.J. for disparagement. She testified that Respondent had actually come to her about S.J., stating that S.J. may need to talk to Ms. McGowen about some personal problems away from school. Respondent testified that she had suggested to S.J.'s mother that she go to guidance. Given this testimony, it is plausible that, for whatever reason, S.J. resented Respondent and/or did not behave as well in her classroom as she did elsewhere. Whether or not that is the case, the evidence is not clear and convincing that Respondent singled her out for disparagement. The Code Yellow On or about April 5, 2010, a lockdown was initiated at Yniestra. Lockdowns could be a code yellow or a code red. A code yellow indicates that there is someone around the premises or in the nearby community that could be or cause danger. In that circumstance, a teacher was to account for all of the students in her class, and if accounted for, place a green sheet of paper in the door, lock it, and continue instruction quietly. A code red indicated that someone has broken into the building. The same procedures are followed as for a code yellow, except that students and staff are to remain silent and stay away from windows and doors. The lockdown on April 5, 2010, was extremely long. Initially, all of the students in Respondent's class were at a reading table in the back of the classroom. As the lockdown continued, however, the students became restless and were talking. Some of them were under the table, laughing, cutting up, and banging their heads. Respondent instructed them to be quiet, but to no avail. Ms. Juniper called the front office to find out why the lockdown was taking so long, and no one answered. She then called Ann Choat, a curriculum coordinator for the 2009/2010 school year at Yniestra, to ask what was going on, and told Ms. Choat that she had called the office and could not get anyone. Ms. Choat confirmed at hearing that she had received the call and testified as to the contents of the conversation, yet none of the students remembered whether Ms. Juniper used the telephone during the lockdown. This is significant because it indicates to the undersigned that the students were paying more attention to their own conversations, which they were not supposed to be having, than to what Ms. Juniper was doing or saying. D.L. was one of the students who was laughing with her friends. When the students did not follow her directions to be quiet, Ms. Juniper moved her away from the other students to a spot along the wall under the windows, on the same side of the room as the door. Her head was not above the windows and she could not be seen from outside the room. At least one other student was also moved in order to get the students to be quiet. D.L. testified that she did not like being moved, and told Respondent that if someone was outside, they could see her and shoot her. D.L. testified that Respondent said she hoped the person would come in and shoot them. Respondent adamantly denies making such a statement, and testified that she responded to D.L. by saying "I hope you aren't shot, but if you keep talking like that, I couldn't stop one from coming through this door." The testimony from other students regarding this incident was varied. Some testified that it was a code red, while others testified it was a code yellow. Students remembered other students being moved from the back of the room, but could not remember who or how many were moved or the location to which they were moved. They could not remember whether D.L. was talking to Respondent before Respondent's comment, and if they could remember, did not recall what D.L. said. All remember some version of Ms. Juniper saying she hoped that those who were talking got shot. Given the level of noise in the room and the inability to remember other details about the lockdown, it is just as likely (and more plausible) that Ms. Juniper said "I hope you aren't shot" as opposed to saying "I hope you are shot." Dr. Cagle acknowledged that children sometimes relate what they thought they heard rather than what was actually said. It is farfetched to believe that these students, who were holding their own conversations and could not identify with certainly any of the details surrounding the lockdown, suddenly heard with crystal clarity exactly what Ms. Juniper said. In any event, the evidence does not rise to the level of clear and convincing evidence that she told her students she hoped they were shot. Whether or not she actually made the statement, it is clear that D.L. believed that she did. She became very upset and once the lockdown was over, Respondent sent her to Ms. Sheater, the other fifth-grade teacher, so that she could take a few moments and calm herself down. While in Ms. Sheater's room, she relayed her version of the events to Ms. Sheater, who instructed D.L. to write down what happened, and called Ms. Parker, the reading coach. Ms. Parker had D.L. come to her room and tell her what happened. D.L. was visibly upset. Ms. Parker spoke to another, unidentified student in the hall who was in Ms. Juniper's class, who verified D.L.'s story. She then called Dr. Cagle and to report the incident. Discipline by the School District Dr. Cagle spoke to D.L. and then spoke to the other children in the classroom. As a result of her investigation, the district office was notified of the incident, and Ms. Juniper was immediately placed on suspension with pay while the incident was investigated by the district. After the district's investigation, on May 12, 2010, Respondent received a letter of reprimand "for use of abusive, rude or inappropriate communication both to, and in front of, students and other employees at Yniestra Elementary School." She was required to attend the staff development training titled "What is it about me you can't teach?" and to meet regularly with her principal to discuss any and all concerns regarding her students. Participation in the Employee Assistance Program was suggested but not required. Respondent grieved the reprimand through the district's process for doing so. Consistent with the notice provided in the reprimand, Responded prepared a written response which stated in part: As a 36 year veteran teacher, I have spent the last ten years at Yniestra Elementary. I have received commendations from students, parent and administrators throughout my career. I have always conducted myself in a professional manner, keeping the best interests of my students in my mind. I am cognizant of their individual differences, respectful of their feelings, and doing my best to meet their needs. Your letter stated that it was given to me because of my professional demeanor was determined to be inappropriate. Incidents that occurred during the 2009-2010 year were interpreted to portray me in a negative light and to shed doubts on my professionalism. I believe the District's decision to discipline me is based on information obtained from biased and shoddy investigations, giving undue weight to statements made by students known to have discipline issues in my and other classrooms. This led to a faulty conclusion, casting me in a negative light. . . . The 2010-2011 School Year A. Abusive Statements Dr. Cagle changed Respondent's teaching assignment for the 2010-2011 school year from the fifth grade to the second grade. She testified that she believed there would be fewer disciplinary challenges in a second-grade setting because children generally love their teachers at that age and are generally easier to manage. In her view, it was a better match for Respondent. She acknowledges that there were fewer issues in this school year. Dr. Cagle testified that while there were fewer issues, at least three or more students complained to her that Respondent made derogatory comments to them or put her hands on them when she was angry. On October 22, 2010, she sent a memorandum to Respondent directing her to come to the office and discuss allegations that she made inappropriate comments in class and engaged in inappropriate touching of students. Although the memorandum indicated that documentation gathered regarding these issues was attached, no such documentation was entered into evidence. Further, no student testified that inappropriate statements were made to them or that Respondent touched them inappropriately. Dr. Cagle could not name any of the students that she states complained to her. Clear and convincing evidence was not presented to support the allegation that Respondent made disparaging or inappropriate remarks to students. The only evidence to support the allegation regarding inappropriate touching involved an incident with K.S., which is discussed below. The Bathroom Incident Judy LaBounty, was a curriculum coordinator for Yniestra and Hallmark Elementary Schools during the 2010-2011 school year. She testified that on or about October 15, 2010, she was standing in the hallway of the school and saw Ms. Juniper and her class as the girls were going to use the restroom. According to policies instituted by Dr. Cagle, students and staff were not supposed to talk in the hallways. She said that it appeared that Respondent was upset or angry, and she called a student from the restroom to the door. When the student appeared, she took her by the arm above the elbow, pulled her over to the wall and leaned over to speak to her. Ms. LaBounty stated that she was about ten yards from her and could not hear her, but from both people's body language, she was reprimanding the student in an angry tone. Ms. LaBounty did not know why Ms. Juniper was reprimanding the child, whom she could not identify by name, but simply knew she was trying to get the child to leave the restroom. She notified Dr. Cagle of the incident because Respondent had put her hand on a student. The student involved in this incident was K.S., an energetic and bright young girl. On this particular occasion, K.S. said another child was "messing with me" in the bathroom, so she jumped on the other girl's back. The other child came out of the bathroom with tears in her eyes. When Ms. Juniper asked her what was wrong, she relayed that K.S. had jumped on her. Ms. Juniper called to K.S. to come out of the bathroom and had to call more than once. When she came out, according to K.S., Ms. Juniper "gently pulled me out of the bathroom and she just talked to me about it." Ms. Juniper's testimony is consistent with K.S.'s, and Respondent admits taking K.S. by the arm as she exited the bathroom. Both Ms. LaBounty and Dr. Cagle stated that it is against Escambia County School District policy to lay a hand on a child. However, no copy of any policy was placed into evidence, and without the policy in evidence, no analysis of its parameters can be made. In any event, from the evidence and the demeanor of the witnesses, it does not appear that there was any attempt by Respondent to yank on K.S.'s arm, engage in corporal punishment, or to hurt K.S. in any way. Birthday Licks M.W. is a special education student in the extended services program for the Escambia County School District. At the time of the incident he was approximately 19 years old, and worked as a volunteer at Yniestra. He is described as a good worker with limited academic skills. February 22, 2010, was M.W.'s birthday, and consistent with school custom, he was wearing a birthday ribbon. The students in Ms. Juniper's class wanted to make him a birthday card, and Ms. Juniper gave them permission to do so. When M.W. went into Ms. Juniper's classroom that day, one of the children asked to sing "happy birthday," and they did. After singing to him, someone suggested that the students give him "birthday licks." While the testimony is in dispute as to whether Respondent suggested the licks or simply acquiesced to them, it is clear that she allowed at least two of the students in the class to hit M.W. on either his buttocks or his lower back, and at least one child hit him hard. M.W. was uncomfortable with the process and told Ms. Juniper that "this was not a good idea." At some point, Dr. Cagle walked into the room and witnessed the children giving M.W. birthday licks. She immediately told Ms. Juniper that it was not appropriate, and had M.W. leave with her. Dr. Cagle had M.W. visit the clinic where he was examined for any injuries caused by the licks. None were noted. However, M.W. was embarrassed by the incident and felt he was in trouble for it. Respondent did not think anything of having the children give M.W. birthday licks, because during the many years that she taught for the Department of Defense schools overseas, giving birthday licks was routine. However, Respondent had been in the Escambia County School District for several years, and should have known that it was not part of the culture in this setting. Moreover, having second graders give licks to a much older special needs student was clearly inappropriate. Later in the day, Respondent took the card her class had made to M.W., and he was still upset. She was then called to the office and told to pack her things because she was being suspended. She told Dr. Cagle that the incident was her fault and she would take the blame for it. Respondent was placed on suspension with pay during the investigation of the incident. Ultimately, she was suspended without pay for two days, beginning Wednesday, April 20, 2011, as discipline for the incident. The Relationship Between Dr. Cagle and Respondent Evidence was presented at hearing regarding the changes at Yniestra once Dr. Cagle became principal, for the purpose of showing bias or prejudice concerning Dr. Cagle's testimony.3/ Dr. Cagle did not know Respondent before she became principal, and before that time her contact with Respondent was limited. However, it is clear that Dr. Cagle's management style was very different from that of her predecessor, Nancy Reese. This proceeding is not the place to determine which, if either, style is or was more effective, but it is clear from the testimony that not all teachers who had taught under Ms. Reece were thrilled with the changes. Several testified that they were removed from committee assignments and did not feel that their contributions were respected by the new leadership. Several transferred or retired rather than stay at Yniestra. Yniestra was scheduled to close after the 2010-2011 school year, and Dr. Cagle was to stay on and serve as principal for the Global Learning Academy, an elementary school that would open in the same location as Yniestra. From the totality of the evidence, it appeared that Dr. Cagle was "cleaning house" in terms of staff. While there is no question that some of the events alleged in the Administrative Complaint in fact occurred, it also appears that Dr. Cagle was motivated to remove Respondent from her position. As Ms. McGowen stated, she did not believe Respondent could please Dr. Cagle. For example, on June 23, 2011, Dr. Cagle wrote to the Department of Education about Respondent's performance. At hearing, Dr. Cagle indicated that she wrote the letter at the request of an investigator at the Department of Education. The letter, however, makes no reference to a pending investigation and makes several statements that are inconsistent with the other evidence presented at hearing. For example, the first bullet point states that: Ms. Juniper is emotionally unstable. She lost her son unexpectedly right before school starts. She cries often and for long periods of time. She talks about his death daily to her class. She talks endlessly to anyone who will listen about him. I encourage her to go to counseling but she says she does not need to go. Dr. Cagle acknowledged at hearing that she is not qualified to determine emotional instability, and no fitness-for- duty evaluation was ever requested. No other staff member from Yniestra testified that Respondent was mentally unstable. To the contrary, Linda Mashon (who retired in September 2010), Uadona Lobley (who transferred after the 2009-2010 school year), Holli Herron (who transferred after the 2010-2011 school year), Jennifer Kemp (who transferred after the 2009-2010 school year), and Ann Choat (who retired after the 2009-2010 school year) uniformly described Respondent as having a reputation of being a professional who worked well with her students and, notwithstanding the loss of her son, none of them considered her to be unstable. Dr. Cagle's letter identified several inflammatory statements that she attributed to Respondent, some of which were alleged in the Administrative Complaint and some of which were not. Although this letter is supposed to be part of an investigation into Respondent's behavior, she gives no specifics as to the identity of the students to whom these statements were made, who reported them, or when they were made in order for the Department to investigate. The letter states that "eight parents requested that their child be placed in another class the year [sic]." At hearing, she testified specifically about a request from D.V. that her daughter not be placed in Respondent's class: Q. And can you tell us the reasons why these parents asked that their child be removed from Ms. Juniper's class? A. The first request came before the first day of school. It came from a parent, Ms. V. Q. What is Ms. V's first name? A. D.V. That her daughter not be placed in Ms. Juniper's class. That she had past experience with Ms. Juniper. I believe her words were, the lady is crazy, I don't want my daughter in that classroom. And I put her in Ms. Sheater's classroom before school started. The other incidences, the other students that were moved were for various reasons. It was typically the result of a situation that occurred between Ms. Juniper and their child and that they wanted another teacher. When she was asked on cross-examination whether the placement request could have been because Respondent and D.V. were friends and Respondent had known the child for years, Dr. Cagle stated that was not what was told to her and she had no knowledge of their friendship. D.V. was the only parent that testified at hearing whose child was reassigned. D.V.'s testimony, however, directly contradicted that of Dr. Cagle. She credibly testified that she met with Dr. Cagle as she has met with the principal each year with respect to her child's placement. According to D.V., her daughter, J.V., is adopted and has bipolar disorder. She is strong willed and can be manipulative. She flatly denied telling Dr. Cagle that she did not want J.V. in Respondent's class because Respondent was crazy: to the contrary, she did not want her placed in Respondent's class because J.V. and Ms. Juniper knew each other too well, and D.V. felt that her daughter would "make a run on Deidra, play on her, on our relationship." She denied ever thinking that Respondent was unstable and denied telling either Dr. Cagle or Ms. Parker that Respondent was crazy. Finally, the letter states that the former principal "said she felt sorry for her because of her divorce and did not take enough action but encouraged her to go to counseling." However, Nancy Reece's testimony at hearing is inconsistent with such a statement. Ms. Reece testified that Respondent was a very professional teacher who stayed on task and exhibited good quality teaching. The testimony and other evidence presented convinces the undersigned that for whatever reason, Dr. Cagle was willing to believe the worst of Respondent and not likely to give her the benefit of the doubt should a complaint arise. To be sure, there is at least one incident of inappropriate behavior that has been proven by clear and convincing evidence. However, Respondent is not the unstable, out-of-control disaster that Dr. Cagle clearly believes her to be. Dr. McDonald's Evaluation For mitigation purposes, Respondent was evaluated by Dr. Randi McDonald to obtain a current psychological evaluation in order to determine the presence of mental health issues that impair her ability to continue working as an elementary school teacher. Dr. McDonald is a forensic psychologist with a doctorate degree in psychology. She has been licensed in Florida since 2009. Dr. McDonald conducted a forensic evaluation which included the administration of psychological tests, interviews with Respondent, and review of the Department of Education file. She ultimately opined that Respondent does not suffer from any significant psychiatric issue which would affect her ability to teach. She did, however, stated that the testing revealed that Respondent does not want to admit to even minor shortcomings and faults that most people have, and that her "underreporting" was consistent with her very traditional background. Dr. McDonald stated that Respondent has difficulty seeing weaknesses because they "just don't register in how she defines herself." As stated in her report, It is this evaluator's clinical impression that Ms. Juniper is perfectionistic and somewhat over-controlled in her general approach to life and her interactions with others. These qualities can be quite positive, in that they likely contribute to excellent organizational skills and leadership capacity and have most certainly played a part in her success as a teacher over the years. On the other hand, these qualities can make her less amenable to change at times. . . . Dr. McDonald's evaluation is consistent with Respondent's demeanor and responses at hearing. Several of the allegations in the Administrative Complaint were not proven by clear and convincing evidence, and in some instances, a change of phrase makes a great deal of difference in how behavior is perceived. The evidence as to some alleged events was simply not sufficient to meet the clear and convincing standard. However, even in those instances where Respondent essentially admitted to the behavior at issue, she tended to minimize her role in the negative result.
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 section 1012.795(1)(g), Florida Statutes, and rule 6B-1.006(3)(a) and (e), and placing Respondent on probation for a period of two years, subject to terms and conditions imposed by the Commission. DONE AND ENTERED this 31st day of August, 2012, 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 31st day of August, 2012.
The Issue Whether the after school child care program operated by the YMCA on the campus of Keeth Elementary School under a contract approved by the Seminole County School District, exclusively for children ages 5 Kindergarten and older, is required to be licensed as a child care facility, pursuant to the provisions of Sections 402.301-402.319, FLORIDA STATUTES(1988 SUPP.).
Findings Of Fact Respondent, Department of Health and Rehabilitative Services, is charged with the responsibility to enforce the statewide minimum standards for the care and protection of children in child care facilities, as set forth in Secticns 402.301-402.319, Florida Statutes (1987). Petitioner, YMCA of Central Florida, Inc. (YMCA), is a not-for-profit corporation licensed in Florida. The YMCA is a local membership organization affiliated with the national YMCA whose primary purpose is to provide activities that contribute to the development of good character and good sportsmanship of children and other family members in Seminole County. For several years, the YMCA has operated an after school child-care program for children five years old and older on the campus of Keeth Elementary School. The program is staffed by a YMCA counselor who participates in the program as the child-care counselor. The program was licensed as a child day care facility under the name YMCA/Keeth School Age Child Care by HRS, License Number 987-1. Their current license to operate this facility expired in 1988. Keeth Elementary School is a public elementary school owned and operated by the Seminole County School District. The YMCA operates the program under an oral year-to-year agreement with the School Board of the Seminole County School District. On August 22, 1988, an inspection of the facility (the buildings and grounds of the Keeth Elementary School) by an HRS inspector revealed that the facility failed to substantially comply with the requirements of Chapter 10M-12, Florida Administrative Code, which would be sufficient to sustain the denial of the license renewal. By letter dated September 12, 1988, Respondent advised the Petitioner that their application for relicensure was denied. Petitioner was directed to cease operation within 15 days of receipt of this letter unless the cited deficiencies were corrected and Petitioner re-applied for a license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's after school child-care program continue to operate without the requirement of a license from HRS, so long as they continue under contract with the School Board with the same terms and conditions as presently exist. DONE AND ENTERED this 18th day of May, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the Petitioner. Petitioner's Proposed Recommended Order does not contain specific findings of fact but consists primarily of legal argument which has been adopted in substance. COPIES FURNISHED: William E. Ruffier, Esquire Sanders, McEwan, Mims and Martinez, P.A. Attorneys at Law 108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753 James A Sawyer, Jr., Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson, Suite 911 Orlando, Florida 32801 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether the Respondent should be reassigned to the Opportunity School.
Findings Of Fact Raul Lopez entered the Dade County Public Schools in 1980 and was enrolled in the fifth grade. He repeated the fifth grade once, passed the sixth grade, and, in the 1984-85 school year, was repeating seventh grade. When Raul entered the Dade County school system he did not know the English language and was enrolled in a special program called English for Speakers of Other Languages (ESOL). He remained in the program for three years. Raul received no bilingual educational services from the school system after the first three years. Raul Lopez entered Palm Springs Junior High School on September 7, 1984, and was recommended for alternative school on January 18, 1985. During the time Raul was at Palm Springs, he was referred to the office for disciplinary reasons on eight different occasions. Assistant Principal Long's testimony was the only evidence presented by Petitioner to show that Raul had a record of disruptive behavior. However, Mr. Long's testimony was not credible and, for the most part, was uncorroborated hearsay. Mr. Long had no personal knowledge of any of the incidents which caused Raul's disciplinary referrals, and could not provide any information, other than speculation, as to what had actually happened to cause each referral. Mr. Long explained that, when a disciplinary problem occurs, the teacher or staff person involved fills out a referral, setting forth the details of the incident. The assistant principal to whom the matter is referred then prepares a computer card on the incident, fitting the behavior that occurred into one or more of the available categories, such as "general disruptive behavior." Mr. Long's testimony regarding Raul's behavior came directly from a computer print-out. It was clear that Mr. Long had no independent recollection of any of the incidents. From the computer print out, Mr. Long testified that Raul received the following referrals: DATE REASON FOR REFERRAL 10/9/84 general disruptive behavior 10/16/84 defiance of school authority; dress code violations; rude and discourteous (Mr. Long stated that Raul may have had his shirttail out or not worn socks) 10/30/84 general disruptive behavior; rude and discourteous; no school materials (Mr. Long explained that Raul didn't have his books or didn't have his P.E. uniform) 11/1/84 excessive tardiness; rude and discourteous 11/13/84 general disruptive behavior; didn't complete class assignment 11/21/84 unauthorized location; no school materials 12/10/84 excessive tardiness; general disruptive behavior; rude and discourteous 1/11/85 general disruptive behavior; assault (Mr. Long stated that he knew nothing about the assault because he didn't handle the referral) Raul was placed on indoor suspension as a result of the October 9, 1984, incident, and was referred to counseling after the November 1st and November 13th incidents. Although Mr. Long stated that attempts were made to contact the parents, the only conference with the parents was on January 18, 1985, to inform them that Raul was being referred to the alternative school. Mr. Long had personal contact with Raul and found him to be defiant, hostile, and disrespectful. Raul also used obscene language. However, he also testified that he had never had problems with Raul. The evidence establishes that Raul had a very poor attendance record while attending Palm Springs. He was absent 25 days, of which 15 absences were confirmed truancies. The Dade County Public Schools Complaint of Truancy (R.Ex.-l) indicates that several conferences were held with Raul's parents concerning Raul's excessive absences; however, the visiting teacher could not remember whether he actually made contact with Raul's parents or merely went to Raul's home and left a message that Raul was truant, and Mr. Long's testimony concerning parent conferences was inconclusive. Several letters were sent to the home regarding Raul's non-attendance. Mrs. Lopez testified that the only contact she had with school personnel was on January 18, 1985. Raul has not been successful academically. He had to repeat the fifth and seventh grades. After the first nine weeks at Palm Springs he received one C, two Ds, and three Fs. After the first semester the number of Fs had increased to four. Mr. Long testified that Raul was not in school often enough to receive passing grades. He also testified that the low grades were a result of Raul's behavior problem. Raul testified that he didn't go to school because he did not understand the school work. He admitted that he does not read or write very well. He stated that nobody had ever asked him why he did not like to go to school. Raul admitted that he had refused to "dress out" for physical education class. Mr. Long did not know why Raul failed to attend school, but stated that every effort was exhausted at Palm Springs to correct Raul's problems. He felt that Palm Springs simply could not meet Raul's needs. The counselor at the school requests testing for exceptional education, and although Raul had been sent to the counselor, Mr. Long did not know whether the counselor had requested exceptional education testing. Mr. Long believed that Raul was in the proper academic program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the assignment of Respondent to the opportunity school program at Jan Mann Opportunity School-North. DONE and ENTERED this 6th day of August, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1985. COPIES FURNISHED: Mark A. Valentine, Jr., Esq. Assistant Schoo1 Board Attorney McCrarY & Valentine, P.A. 3050 Biscayne Boulevard Miami, Florida Mitchell A. Horwich, Esq. Education Advocacy Project Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami, Florida 33147-4796 Dr. Leonard Britton Superintendent of Schools Board Administration Building Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Phyllis O. Douglas Assistant School Board Attorney Dade County School Board Suite 301 1450 N.E. 2nd 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 The School Board of Leon County, Florida ("Respondent") is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption Rule Gx37-3.02, which establishes 1980-1981 school attendance zones for public school students in Leon County, Florida. Respondent published notice of its intent to adopt Rule Gx37-3.02 in the April 12, 1980, edition of the Tallahassee Democrat. In advertising its intent to adopt the proposed rule, insofar as relevant to this proceeding, Respondent indicated that attendance zones ". . . of several elementary schools are being examined for possible rezoning to reduce overcrowding and to eliminate underutilization." The proposed rule would modify attendance zones for the following Leon County elementary schools: Astoria Park, Riley, Ruediger, Sabal Palm and Kate Sullivan. The proposed attendance zones would also have some impact on students currently attending Carolyn Brevard. In its advertising notice Respondent listed Sections 230.22(2) and 230.23(4), Florida Statutes, as authority for adoption of the proposed rule. Section 230.22(2), Florida Statutes, empowers Respondent to: . . . adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient operation of the district school system. Section 230.23(4)(a), Florida Statutes, authorizes Respondent to "[a]dopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district . . .," and further, after considering recommendations of the superintendent of schools concerning attendance areas: . . . to authorize schools to be located and maintained in those communities in the district where they are needed to accommodate, as far as practicable and without unnecessary expense, all the youths who should be entitled to the facilities of such schools, and to approve the area from which children are to attend each such school. Although not cited by Respondent in its advertising notice as authority for adoption of the proposed rule, Section 230.232(1), Florida Statutes, provides that: The school boards of the several districts are hereby authorized and directed to provide for the enrollments in a public school in the district of each child residing in such district who is qualified under the laws of this state for admission to a public school and who applies for enrollment in or admission to a public school in such district. The authority of each such board in the matter of the enrollment of pupils in the public schools shall be full and complete. No pupil shall be enrolled in or admitted to attend any public school in which such child may not be enrolled pursuant to the rules, regulations, and decisions of such board. Section 230.232(2), Florida Statutes, also not cited in Respondent's public notice, provides that: In the exercise of authority conferred by subsection (1) upon the school boards, each such board shall provide for the enrollment of pupils in the respective public schools located within such district so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, education and general welfare of such pupils. In the exercise of such authority the board shall prescribed school attendance areas and school bus transportation routes and may adopt such reasonable rules and regulations as in the opinion of the board shall best accomplish such purposes. The school boards shall prescribe appropriate rules and regulations to implement the provisions of this subsection and other applicable laws of this state and to that end may use all means legitimate, necessary and proper to promote the health, safety, good order, education, and welfare of the public schools and the pupils enrolling therein or seeking to enroll therein. In the accomplishment of these objectives the rules and regulations to be prescribed by the board may include, but be not limited to, provisions for the conduct of such uniform tests as may be deemed necessary or advisable in classifying the pupils according to intellectual ability and scholastic proficiency to the end that there will be established in each school within the district an environment of equality among pupils of like qualifications and academic attainments. In the preparation and conduct of such tests and in classifying the pupils for assignment to the schools which they will attend, the board shall take into account such sociological, psychological and like intangible social scientific factors as will prevent, as nearly as practicable, any condition of socio-economic class consciousness among the pupils attending any given school in order that each pupil may be afforded an opportunity for a normal adjustment to his environment and receive the highest standard of instruction within his ability to understand and assimilate. In designating the school to which pupils may be assigned there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil, the available facilities and teaching capacity of the several schools within the district, the effect of the admission of new students upon established academic programs, the effect of admission of new pupils on the academic progress of the other pupils enrolled in a particular school, the suitability of established curriculum to the students enrolled or to be enrolled in a given school, the adequacy of a pupil's academic preparation for admission to a particular school, the scholastic aptitude, intelligence, mental energy or ability of the pupil applying for admission and the psychological, moral, ethical, and cultural background and qualifications of the pupil applying for admission as compared with other pupils previously assigned to the school in which admission is sought. It is the intention of the legislature to hereby delegate to the district school boards all necessary and proper administrative authority to prescribe such rules and regulations and to make such decisions and determinations as may be requisite for such purposes. The 1980-1981 enrollment in the elementary schools of Leon County, Florida, is projected to be approximately 10,404 students, excluding those elementary students participating in special programs. Of this total, the proposed rule would require an estimated 262 elementary school pupils to change schools for the 1980-1981 school year. Petitioners are a group of parents and children residing in the affected attendance areas who will be required to change schools if the proposed rule is adopted. Respondent proposes to modify its current attendance zones by shifting three study areas to new schools. If the proposed rule is adopted, Study Area 0360 will be moved from Sabal Palm Elementary to Astoria Park Elementary; Study Area 0460 will be moved from Sabal Palm Elementary; Study Area 0460 will be moved from Sabal Palm Elementary to Riley Elementary; Study Area 2365 will be moved from Kate Sullivan Elementary to Ruediger Elementary. Petitioners reside within Study Area 0460, and would be transferred under the proposed rule from Sabal Palm Elementary to Riley Elementary. The closest school to Study Area 0460, where Petitioners reside, is Astoria Park Elementary. Four of Respondent's elementary schools are closer to Study Area 0460 than Riley Elementary, where Petitioners will attend if the proposed rule is adopted. Study Area 0460 was rezoned in 1975 so as to shift Petitioners from Astoria Park Elementary, the school closest to their homes, to Sabal Palm Elementary, where they currently are enrolled. Respondent challenges Petitioner's standing to contest the validity of the proposed attendance boundaries, and, alternatively, contends that adoption of the proposed attendance boundaries is within Respondent's statutory authority under Sections 230.23(4) and 230.232, Florida Statutes. In support of their contention that they are "substantially affected" by the proposed rule in order to maintain this action pursuant to Section 120.54(4), Florida Statutes, Petitioners allege that: [They] attend the public schools of [Leon County], which are under the direction and control of the respondent . . . and [are] regulated by rules and regulations concerning public school zones promulgated by respondent. . . . Petitioners are entitled to an orderly and effective educational program which is not arbitrarily and unreasonably disturbed and disrupted. The proposed rule arbitrarily disrupts petitioners' educational progress by moving them to a different and less academically advantageous school facility and program. The proposed rule will disrupt the educational progress of petitioner children to their substantial detriment by transferring them to a school (Riley Elementary) which produces students who score persistently lower on the Statewide Student Assessment Tests (SSAT) than students from the school (Sabal Palm Elementary) petitioners currently attend. On the SSAT tests administered in October, 1979, Riley was designated as one of four elementary schools in the district which failed to meet the composite student performance criteria in mathematics, writing, and reading at the fifth grade level; on the same test, Sabal Palm fifth graders tied for second in mathematics, tied for first in writing, and ranked fourth in reading when compared with other district schools. The proposed rule will disrupt and adversely affect the educational progress of petitioner children by assigning them to a school (Riley) which produces students who demonstrate less proficiency on the Comprehensive Tests of Basic Skills than those students from the school (Sabal Palm) petitioners now attend. Although students at Sabal Palm and Riley schools show little difference in attainment of basic skills of reading, language, and mathematics when measured at the first grade level, by fifth grade the students at Riley are performing the basic skills at approximately a grade level lower than students at Sabal Palm. The academic progress of petitioner children will be substantially slowed and adversely affected by transferring them from a school which stimulates performance at or above grade level norms to a school whose program is geared to lower levels of attainment. The rule as proposed requires an estimated 262 public elementary students, including petitioner children, to leave the school and the educational program in which they are now enrolled while the remaining 10,142 elementary students are not required to move. Respondent is not required by court order to carry out this rezoning. The proposed rule contains no "grandfather" clause or exemption which would prevent its application to petitioners. The proposed rule will operate unequally and arbitrarily on petitioners by requiring them to change schools while others similarly situated are not so required. The proposed rule violates petitioners' right to equal protection under Article I, section 2 of the Florida Constitution and Amendment XIV of the United States Constitution. Section 229.57, Florida Statutes, establishes a statewide student assessment program, one of the purposes of which is to assess how well districts and schools are meeting state goals and minimum performance standards. Respondent administers two tests in elementary schools which measure mastery of basic skills. The Florida Statewide Student Assessment Tests, commonly know as "SSAT", are administered in October of each year to all third and fifth grade students not participating in exceptional education programs. Skills tested on the SSAT are reading, writing and mathematics. On the SSAT, schools with a composite student performance score below 70 are reported as below minimum standards in those areas tested. The 1980 SSAT results show a composite score for both Riley Elementary and Sabal Palm Elementary in excess of 70 in all areas tested at the third grade level. At the fifth grade level, Riley Elementary's composite scored were below 70 in all three areas, while composite scores of Sabal Palm Elementary students were among the top scores in the Leon County School District. The Comprehensive Test of Basic Skills ("CTBS") is administered by Respondent to students in the regular school program in grades one through five in the Spring of each school year. The CTBS measures achievement in reading, language and mathematics. On the 1979-1980 CTBS, both Riley Elementary and Sabal Palm Elementary students exceeded national norms at the first and third grade levels. At fourth and fifth grade levels, however, Sabal Palm Elementary students continued to perform at or above national norms, while Riley Elementary students dropped well below these norms. At the fifth grade level, Riley Elementary students performed a full grade level or more lower than Sabal Palm Elementary students in all areas tested. Testing data compiled over a five-year period indicate a pattern of comparable performance of basic skills at lower grade levels at both Riley Elementary and Sabal Palm Elementary. However, at the fourth and fifth grade levels, the test scores of Riley Elementary students are consistently lower than those obtained by Sabal Palm Elementary students. There exist recognized non-school variables which affect student performance on the SSAT. These variable are: percentage of students eligible for free or reduced-price lunches; percentage of students' families with some amount of college education; percentage of students' families whose head of household is employed in a white-collar occupation; percentage of students who are members of minority groups; percentage of black minority students; and percentage of students with Spanish has a native language. If accepted as accurate, these variables should affect test scores at all grade levels. However, as noted above, standardized test-score results at the first grade level indicate Sabal Palm Elementary and Riley Elementary students functioning at about the same level, whereas test scores obtained at later stages in their elementary school tenure indicate a drop-off in performance by Riley Elementary students. These test score results indicate that the instructional program at Riley Elementary School, for some reason not entirely clear from the record in this proceeding, is not meeting state goals and minimum performance standards as well as the program at Sabal Palm Elementary. Section 120.52(14), Florida Statutes, defines "rule" as ". . . each agency statement of general applicability that implements, interprets, or prescribes law or policy . . ." In Polk v. School Board of Polk County, 373 So.2d 960, 961 (2nd DCA Fla. 1979), the Court refused to invalidate the restructuring of high school attendance zones for failure of the school board to submit an economic impact statement. In the course of its decision, however, the Court specifically pointed out that "[b]y definition the action of the school board in adopting the attendance plan constituted the making of a rule." Id. at 961. Accordingly, Rule Gx37-3.02, as proposed by Respondent, is a rule within the meaning of Section 120.52(14), Florida Statutes. Section 120.54(4), Florida Statutes, provides that: Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority. Section 120.52(10)(b), Florida Statutes, defines "party" as: Any . . . person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party. (Emphasis added). Section 230.232(2), Florida Statutes, quoted fully above, requires that in the course of setting school attendance zones ". . . there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil. . . ." Thus, the interests of parents, and through them, their school-age children, must be considered by Respondent in the context of any proposed changes of school attendance zones. In School Board of Broward County v. Constant, 363 So.2d 859 (4th DCA Fla. 1978), the school board, after holding a series of public hearings, established school attendance lines, and several parents and school children filed complaints in circuit court to set aside the board's action. The school board moved to dismiss the complaint on the grounds that the sole remedy available for parents and school children to contest the Board's action was by appeal to the District Court of Appeals, pursuant to Chapter 120, Florida Statutes. The trial court denied the board's motion to dismiss and an appeal was taken. One of the contentions advanced by the parents and school children on appeal was that even if Chapter 120, Florida Statutes, were applicable to the decision of the school board in adopting the school attendance lines, the parents and children were not "parties" to that decision, and would not, therefore, have standing to pursue appellate review under Chapter 120. In reversing the decision by the trial court, the District Court of Appeal held, in part, that: . . . we reject appellees' contention that they are not parties within the meaning of Section 120.52(10). On the contrary, appellees fit the description of any person who, as a matter of agency regulation, have substantial interests which will be affected by the proposed agency action. Such a person is a party within the meaning of the [Administrative Procedure] Act. Thus, appellees are entitled to be heard but via the Administrative Procedure Act and not by resort to collateral action in the Circuit Court. In Polk v. the School Board of Polk County, supra, several members of a group known as "Concerned Citizens" opposed the restructuring of high school attendance zones because the proposed plan would force their children to move to a school further from their home than the school they had been attending, and asserted that such a change ". . . was an unwarranted disruption of their children's school lives and . . . would be the third or fourth such disruption." 373 So.2d at 961. In the course of its opinion, the Polk court pointed out that the "[a]ppellant represents a group known as Concerned Citizens, South Lakeland, who are adversely affected because the new attendance lines will require their children to attend a different school." Id. (Emphasis added).
The Issue The issue in this case is whether Petitioner is exempt from licensure as a child care facility.
Findings Of Fact Petitioner, Project Esteem, operates a program that offers after-school tutoring and academic enrichment for children in kindergarten to fifth grade and ninth to twelfth grade in Tallahassee, Florida. It is funded by a 21st Century Grant as a program to provide activities and supervision to children in low-income neighborhoods. The 21st Century Grant program is facilitated through the Florida Department of Education. There are several academic and programmatic requirements for a program that receives this type of educational funding from the Department of Education. In July 2013, the Department granted Petitioner an exemption from licensure and recognized Petitioner’s program as a strictly instructional “after school program” pursuant to Florida Administrative Code Rule 65C-22.008(2)(c)2. At the time, meals were not served at the program site. The Department based its decision on a Child Care Licensure Survey completed by Project Esteem which indicated that activities in the program would be “exclusively academic/instructional activities” and that only “individually wrapped snacks would be provided.” Additionally, the survey indicated that the program would operate for less than four hours and that “[s]tudents could enter and leave the program without any supervision.” In December 2014 an updated questionnaire was used by the Department to make licensing determinations. For reasons not related to the Department and not relevant here, Petitioner completed the 2014 survey and submitted it to the Department for its review. Based on that survey, a review of Petitioner’s website and other information, the Department denied Petitioner an exemption from licensure. The Department concluded that Petitioner did not meet the exemption criteria for after school programs contained in Florida Administrative Code Rule 65C- 22.008(2)(c)2. and 3. for “strictly instructional or academic/tutorial,” non-meal programs, unsupervised entry and exit, and USDA Afterschool Meal Program (AMP) optional programs. At the time of the hearing, the program was located in space provided by the New Mount Zion AME Church. Other than providing space, the church was not affiliated with or an integral part of the operation of Petitioner’s program. As such, the program was not exempt as an integral part of a church under section 402.316, Florida Statutes (2015). Project Esteem operated three and one-half hours from 3:00 p.m. to 6:30 p.m., after school and for extended hours during school holidays and summer months. Ms. Stephanie McKoy was the director of the program, and Ms. Adrienne Hampton- Webster was the on-site coordinator for the program. The evidence demonstrated that the program at Project Esteem was “strictly instructional or academic/tutorial in nature” and operated very similar to a school with class periods and field trips. In fact, the clear intent of the program’s owner and director was not to be a day care facility, but to function as an educational enrichment facility.1/ Attendance and student progress were required to be tracked for the 21st Century Grant program and sign in and out logs were used daily for that purpose. Staff met students at the bus and checked them in. The evidence was not clear that safety was the reason Petitioner used such logs, albeit the logs did provide a safety benefit. Older students, whose attendance was logged and of which there were only a few, were free to come and go. On the other hand, elementary students, which were the bulk of Petitioner’s students, were required to be signed out by an authorized adult as a safety measure for the children. Such children were prevented from leaving unless an authorized person signed them out and were clearly under the control and supervision of Project Esteem. Additionally, Petitioner, like a school, gathered health information and kept it on file for each student to ensure all health and safety needs were met for the children while at Project Esteem’s program. Indeed, the website for Project Esteem, indicated that the program was designed to “help working parents” by providing a safe environment for students during non-school hours or periods when school is not in session. As such, supervision was provided by Petitioner’s staff much like a school provides. Under the Department’s rule, a comparison of the various exemptions demonstrated that safety or supervisory services during the time a student was at Petitioner’s facility, was not the defining criteria for determining if a program was an after-school program exempt from licensure, since many such programs offer some supervision and control for programmatic and tort liability reasons. Under the Department’s rule, supervision and control over a child’s entry and leaving the facility was one of many criteria distinguishing certain types of after-school programs defined in subsections (2)(c)2. (supervised programs) and (2)(c)3. (unsupervised entry and exit programs) of rule 65C-22.008(2)(c). However, since supervision of the students’ entering and leaving the program was provided by Project Esteem, Petitioner did not meet the requirements of rule 65C-22.008(2)(c)3. for unsupervised programs. Therefore the Department’s denial of the exemption delineated in subsection (2)(c)3. of the rule should be upheld. In its program, Project Esteem provided a variety of academic programs for its students, including math, English and music. Further, it provided instruction in activities, such as computing, drumming, dance/fine arts, physical education and karate; tutoring in specific subject areas; personal enrichment/character development; outdoor recreation; homework assistance; summer field trips; and snacks and meals. The equipment list for the program listed flags for football, dodge balls, jump ropes, pogo sticks, and recorders (a musical instrument). Such equipment was used for instruction in those activities, but also sometimes incorporated academic instruction. These were not strictly music lessons or math lessons; instead, activities were layered so that instruction and academics were provided at the same time. For example, Petitioner’s lesson plan involving a drum circle was done for the purpose of teaching the children how to play the drum, but also to teach them the academic subjects of music (rhythms and beats) and math (counting). The evidence did not demonstrate that such equipment was used for free-time play. In fact, there was no evidence that demonstrated such equipment was used outside instructional or academic activities, irrespective of whether such activities were layered or not. Similarly, field trips for academic or instructional purposes are not prohibited by the rule. Meals were contracted to be provided to the students at Project Esteem by Juvenile Transition Team, the non-profit parent company of Project Esteem also directed by Ms. McKoy. The meals provided complied with USDA AMP. However, Project Esteem’s staff served the meals at its program and had several employee positions designated for such purpose. The evidence was not clear that such staff prepared the meals. However, the service of the meals by Petitioner disqualified it from exemption under rule 65C-22.008(2)(c)2. and, given these facts, the Department’s denial of the exemption should be upheld. There was some evidence that the Department narrowed the scope of rule 65C-22.008(2)(c) by “interpreting” rule 65C- 22.008(2)(c)2. to exempt only programs like a ballet or dance school where a child goes after school for instruction in ballet for 30 minutes to an hour and then leaves.2/ Further, the Department narrowed the meaning of an “academic/tutorial” program to a program that offered one-on-one instruction in a certain topic or subject area. The Department felt Petitioner’s manner of teaching or instructing in multiple areas at the same time was prohibited by subsection (2)(c)2. of its rule. However, the language of subsection (2)(c)2. of the rule does not prohibit layering or instructing in more than one subject at a time, but only requires that program “activities” be “strictly instructional or academic/tutorial” in “nature.” This narrowing of the language of the rule was not simple interpretation of the rule, but the implementation of policy not otherwise adopted by the agency. Unadopted policy cannot be enforced by an agency. As such, Petitioner’s method of teaching, tutoring or instructing in more than one subject area at a time is not prohibited by subsection (2)(c)2. of the rule. However, as indicated earlier, the serving of meals does disqualify Petitioner from exemption under subsection (2)(c)2. of the rule. Therefore, given these facts, the Department’s denial of the exemption should be upheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding that the decision to deny the exemption from licensure as a child care facility was proper and dismissing the request for hearing filed in this cause. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S Diane Cleavinger 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 October, 2015.
Findings Of Fact At all times pertinent to the allegations contained in the Notice of Charges, Williams was employed by the School Board in a variety of capacities. With the exception of paragraph 22, which, to preserve continuity, will be consolidated with paragraph 2 of the Notice of Charges, the allegations shall be considered seriatum. That during the 1965-1966 school year, the Respondent did receive an overall unsatisfactory rating. That the Respondent in the 1965 and 1966 school years received a poor rat- ing in the following area: "Relation- ship with others," and "Is healthy and emotionally stable;" and further received an unsatisfactory rating in the category of "works well with others," end "demon- strates professional attitude and imple- menting school policy." The evidence indicates that for the school year 1965-1966, Williams received an average score of 3.3 on his Dade County evaluation form. According to the form an average rating below 3.5 indicates unsatisfactory work in Dade County schools. On that same evaluation form Williams received a 3.0 rating for the category "Works well with others." There was no rating for "Is healthy and emotionally stable." Williams received a 2.8 rating for the category "Understands and supports school policies aid demonstrates a professional attitude in implementing them." From the 1965-1966 school year until the present Williams has consistently received satisfactory overall ratings for his work in the Dade County schools. That on or about January 16, 1968, the Respondent, while a visiting teacher with the School Board of Dade County, and more particularly assigned to Gladeview Ele- mentary School, the Respondent, did without reason or authority demanded [sic] of the principal, Mr. Leonard Wollman, his reason for having a child stand outside and perform a task signed by the principal. Said demand made by the Respondent was made in a loud, rude and unprofessional manner, and was over- heard by numerous persons located within the confines of the school. On or about January 16, 1968, Mr. Leonard Wollman was principal of Gladeview Elementary School and at that time observed a student throw an apple out a school window. When the student refused to pick up the apple, Mr. Wollman made the student pick it up along with other trash. At that time, Williams criticized the handling of the incident by Wollman and claimed that the child was being mistreated. There was a lack of competent substantial evidence to establish that Williams' inquiries as to the handling of the incident were made in a loud, rude and unprofessional manner. There was a complete absence of evidence to establish that Williams' comments were overheard by numerous persons located within the confines of the school. That during the 1969-1970 school year, the Respondent, Charles Williams, did receive an unsatisfactory evaluation in the area of personal characteristics and leadership, notwithstanding an overall average of 4.2. The Dade County evaluation form for school year 1969-1970 reflects that Williams received a score of 3.0 in each of two categories of personal characteristics and leadership. The remarks section indicates "Needs improvement in human relations and group processes, which hopefully he will develop within the year. Otherwise, performance this year has been outstanding." That during the year 1970, more particularly, during the month of October, 1970, the Respondent was required by the Director of the North Central District to submit to the district office a plan for gifted children to participate in a program as outlined by the District Office. Further, as a result of the Respondent's failure to comply with the directive of the District Office two deserving children from the Respondent's school were left out of the program. There is no evidence in the record to establish that Williams was required to submit a plan for gifted children. There was evidence to establish that Williams was required to submit the names of students in his school who qualified for the gifted child program by October 30, 1970, and that such names were submitted late. Notwithstanding the late submission, the names were still considered for the gifted child program. Furthermore, there is an absence of competent substantial evidence to establish that at deserving children were left out of the program because of the actions of Williams. In the final analysis, Williams is charged with failing to submit a plan when the evidence shows that he was not required to submit a plan. Accordingly, the charge is not supported by the evidence. That on or about November 23, 1970, the Respondent did berate and make sarcastic and provocative remarks to Mrs. Carol Kleinfeld because said teacher had sought a transfer from the school where the Respondent served as principal. On Motion of Williams at the hearing, the undersigned ruled that there was a complete absence of evidence to support this charge. That on or about March 1, 1971, the Respondent did berate Mrs. Carol Kleinfeld who [was a] teacher at the school where the Respondent is principal and further did scream and shout at [her] in a violent and threatening manner further threatening that he would fire all parties concerned. During the 1970-1971 school year, Carol Kleinfeld worked for Williams at Primary C Elementary School. From time to time, Williams and Mrs. Kleinfeld engaged in discussions concerning Mrs. Kleinfeld's performance of her duties. The evidence establishes that Williams was displeased with the performance and gave Mrs. Kleinfeld the lowest possible performance rating. The evidence also establishes that Williams pointed his finger at Ms. Kleinfeld on one or more occasions. However, there is an absence of competent substantial evidence to establish that Williams berated Ms. Kleinfeld or that he screamed and shouted at her in a violent and threatening manner. That during the 1970-1971 school year, the Respondent acted in such an unprofes- sional fashion towards teachers assigned to his school, that numerous teachers requested transfers to other schools as a result of the humiliating and threaten- ing attitudes of the Respondent. There was no competent substantial evidence to establish that Williams acted in an unprofessional manner toward his teachers or that numerous teachers requested transfers because of Williams' conduct. That on or about April 4, 1975, the Respondent did, in front of children and custodians, harass, threaten and berate one Franklin Clark, Coordinator of Primary C Elementary School, con- cerning an event which did not happen. On April 4, 1975, Franklin Clark was Community School Coordinator for Primary C Elementary School. Clark's working hours were from 2:00 to 10:00 P.M. On several occasions, prior to that date, Clark had taken extended supper without informing Williams. When Williams discovered this practice, he had occasion to correct Clark and reiterate the requirement that Clark be present at the School for the appropriate period of time. On the day in question, Williams confronted Clark with an accusation that Clark had not been present during his proper working hours the night before. Clark denied the accusation. While Williams was angry during that conversation, there was no evidence to establish that he harassed, threatened or berated Clark during the encounter. That during the year 1975, the Respondent did fail to cooperate with other school principals, more particularly Ms. Della A. Zaher, principal at Edison Park Elementary School, in that he failed to cooperate with a fellow school principal in establishing and coordinating the articulation plans for the second and third grade students. While the evidence shows that Williams did not in fact work with Ms. Zaher in establishing articulation plans for second and third grade students, the record is devoid of any evidence which would establish that Williams was required to do so. In fact, inter school cooperation was necessary only as desired by participating principals. The evidence does establish that Williams followed prescribed procedure for articulation plans and that there would have been no real benefit in deeling with Ms. Zeher as she had requested. That on or about November 19, 1976, the Respondent did leave a meeting early without authorization which meeting was for the purpose of the area superintendent to explain the alternative plans for attendance. The evidence establishes that on November 19, 1976, Williams attended a meeting of principals, directors, and area office personnel, called by the area superintendent. Williams left the meeting early. However, the evidence affirmatively establishes that no permission was required for any of the participants of the meeting to leave early. That during the month of November, 1976, the Respondent did fail to observe and follow the purposes outlined by Robert Little Supervisor of the attendance office, in his memorandum entitled, "Pro- cedures and Calendar for the Development of the 1977-78 Attendant Zone Changes," dated November 4, 1976. That by failing to follow the plan as outlined by the memorandum, the Respondent's actions created the potential for negative parent/community reaction. That the Respondent did not provide a written plan to the area office for con- sideration until February 8, 1977, and said report was scheduled to be rendered to the area office and the area superintendent on November 19, 1976. All other principals met this deadline. The evidence affirmatively establishes that the memorandum in question did not require Williams to do anything. The alternatives available in the memorandum were optional on the part of principals. On Motion of Williams, the Hearing Officer declared that there was insufficient evidence to establish the allegations of the foregoing charges. That on or about July 11, 1977, the respondent failed to be a witness for the School Board of Dade County which involved the suspension of an employee who was under the direction and control of the Respondent while he was principal at the Primary C Elementary School [sic]. That his refusal to be a witness was without foundation and further, was his duty and responsibility as an employee of the School Board of Dade County. On July 11, 1977, Williams was called to a conference regarding a hearing that was to be held that afternoon, involving another employee of the School Board. Williams went to the conference and became upset because he believed certain questions propounded to him were improper. Williams, however, was neither requested nor directed to be a witness at the hearing to be held later that day. No subpoena was issued to compel Williams' attendance at that hearing. That during the 1978-1979 school year, numerous teachers at the Primary C Elementary School, where the Respondent was assigned as principal, have sought reassignment because of the open criticism and un- warranted harassment by the Respondent. This charge is not substantiated by competent substantial evidence. While the evidence does indicate that Williams had a small number of disagreements with one or two teachers during that school year, the evidence further establishes that the overwhelming majority of the teachers at that school during that school year hold Williams in high regard. There is am absence of evidence to establish that numerous teachers sought reassignment. That on or about November 8, 1978, a principal's meeting was held for the purpose of assisting administrator's review procedures used to remediate professional personnel where performance is deficient and at said meeting, the Respondent acted in a negative and disruptive manner, so as to make the meeting ineffective for all persons concerned. This charge is unsupported by the evidence. The evidence does establish that at the meeting in question, Williams fully participated and asked pertinent, incisive questions of those conducting the meeting. That on or about January 9, 1979, the area superintendant [sic] attempted to have a conference with the Respondent con- cerning specific recommendations for improvement, and at said conference the Respondent was insubordinate, disruptive, hostile and negative toward the area superintendant [sic], in such a manner as to make the meeting an ineffective one, and thus the meeting had to be terminated because of the behavior of the Respondent. At the hearing in this cause, there was made available a complete transcript of the conference held on January 9, 1979, with Williams and the area superintendent. The document, received as Respondent's Exhibit "Y", demonstrates that Williams was neither insubordinate, disruptive, hostile or negative. In fact, the area superintendant terminated the meeting after ascertaining that Williams had no further questions regarding the recommendations for improvement which were given to Williams at the meeting. That in the school year 1969-1970 it was further noted that the Respondent needed improvement in "Human relations" and "Group processes." (As amended at the hearing in this cause.) The Dade County evaluation form for school year 1969-1970 reflects that Williams received an overall score of 4.2 for that school year. This constitutes a satisfactory rating in the Dade County School System. The remarks section says "Needs improvement in human relations and group processes which hopefully he will develop within the year. Otherwise his performance this year has been outstanding." 25. Evaluations for school years 1970-1971, 1971-1972, 1972-1973, 1973- 1974, 1974-1975, 1975-1976, 1976-1977 and 1977-1978, all show satisfactory performance ratings in the areas in question. Furthermore, these ratings reflect that while Williams is not a perfect individual, he is an outstanding educator who has made continued significant contributions to the Dade County School System and to the students under his care.
