The Issue The issue is whether Petitioner, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Ron Ciranna to Respondent dated March 3, 2008.
Findings Of Fact Ms. Brown has been employed by the School Board as a teacher for 11 years. She is a member of the Polk Education Association, the collective bargaining unit for teaching personnel; is covered by the collective bargaining agreement between the School Board and the Polk Education Association; and holds a professional services contract with the School Board pursuant to Section 1012.33, Florida Statutes. During the first several years of her employment, Ms. Brown was assigned to Dundee Elementary School as an Exceptional Student Education ("ESE") teacher, working with children classified as severely emotionally disturbed, emotionally handicapped, and varying exceptionalities. When she transferred to Spook Hill, Ms. Brown initially worked in a self-contained varying exceptionalities classroom. Three years ago the principal of Spook Hill, Matthew Burkett, requested that Ms. Brown transfer to a new ESE Pre-kindergarten (Pre-K) unit that was being established at the school.2 Ms. Brown started work in the ESE Pre-K unit at the start of the 2005-2006 school year and has remained there ever since. Most of the children in Ms. Brown's class were classified as educable mentally handicapped, or EMH. Testing showed that they were developmentally delayed, with developmental ages that were typically one to two and one-half years behind their chronological ages. At any given time, there could be as few as four or as many as 12 children in Ms. Brown's class. A paraeducator was assigned to assist Ms. Brown. The ESE Pre-K classroom was a portable with a ramp leading to the front door. The front door had a gate with a pool lock. The pool lock was chest-high to an adult, out of the reach of most small children. Outside the portable was the ESE playground, which was completely fenced, with a gate and lock. The playground contained a swing set and other equipment. A child could not exit the playground without adult assistance. The school bus pick-up area was just outside the playground gate. Between January 22, 2007, and February 12, 2008, Mr. Burkett disciplined Ms. Brown 16 times, through verbal warnings, written reprimands, letters of concern, and recommendations to the superintendent for suspensions. The first documented disciplinary action was a "written confirmation of a verbal warning" from Mr. Burkett to Ms. Brown dated January 22, 2007. The letter references "many issues" that had been discussed at a January 19, 2007, conference, stating that Ms. Brown had already addressed several of the issues discussed. Mr. Burkett then wrote: I would like to target the issue of "falling asleep" during nap time as a very critical area which must be corrected. You stated that it has happened because you have to model and cuddle with the children to get them to fall asleep and that your para was present. I instructed you to sit up while cuddling the children to sleep and that you must not ever fall asleep. Please know any instance from this point on that jeopardizes the health and safety of the students will result in further disciplinary action. On February 8, 2007, Mr. Burkett issued a written reprimand to Ms. Brown. The reprimand letter stated that on February 2, 2007, at 12:45 p.m., Mr. Burkett walked through Ms. Brown's class to observe. The room was quiet and dark. All the students were lying down, and some of them were already asleep. Mr. Burkett observed that Ms. Brown was lying down with several students. She was not asleep, and she responded when spoken to by Mr. Burkett, who nonetheless felt obliged to issue a written reprimand in light of his prior warning. Ms. Brown signed the reprimand letter, acknowledging receipt, but also wrote the following: "Due to this concern I have quit sitting w/any students. I sit in my chair w/students around my desk. Any parent concerned about their child not napping will be directed to the office (Burkett or [assistant principal Sharon] Neal)." On February 9, 2007, Mr. Burkett issued a "letter of concern" to Ms. Brown regarding conferences held on February 2, 5, and 8, 2007. The letter discussed a number of concerns that had been voiced by parents or school administrators. Ms. Brown's high school student assistant had not submitted the required application to obtain volunteer status and would be barred from the classroom until her paperwork was completed. An unauthorized man had been seen in Ms. Brown's class. The man was an old classmate of Ms. Brown's and was helping her to plan a class reunion. Mr. Burkett informed Ms. Brown not to conduct personal business during the school day. A parent observed that Ms. Brown was "always on her cell phone." Ms. Brown had been repeatedly cautioned about cell phone use, and the letter of concern directed her not to have her personal cell phone on her person during the school day. Another parent observed that nap time appeared to last for two hours. Mr. Burkett instructed Ms. Brown that nap time should be only one hour long. The letter of concern also addressed the issue of parents dropping off students to Ms. Brown's class prior to the 7:15 a.m. start of the school day. Mr. Burkett told Ms. Brown that he would intervene on her behalf to stop the children from arriving early, but Ms. Brown stated that she was voluntarily arriving early to take the children and would voluntarily continue to do so. On the same day as the letter of concern, February 9, 2007, Mr. Burkett also issued a "written documentation of a verbal warning" to Ms. Brown. This warning concerned Ms. Brown's having left the campus from 11:30 a.m. to 12:05 p.m. on February 7, 2007, without permission from the school's administration. The letter stated that Mr. Burkett was forced to send the assistant principal, Ms. Neal, to Ms. Brown's classroom to assist with the supervision of the students in Ms. Brown's absence. Ms. Brown's excuse was that she had to take her niece to work at McDonald's. Mr. Burkett's letter of concern emphasized that, whatever the emergency, Ms. Brown was required to make arrangements with the administration before leaving the campus. On March 6, 2007, Mr. Burkett issued a written reprimand to Ms. Brown "for your continued use of your personal cell phone during student contact time." On March 1, 2007, Mr. Burkett observed Alice Staton, Ms. Brown's paraeducator, sitting on the swing set holding a child. Ms. Staton yelled across the playground, "Get back in that room." Mr. Burkett saw three of the ESE Pre-K students outside the classroom, running up and down the portable's ramp. The door and gate to the portable were open. Mr. Burkett "corralled" the three students back into the classroom, where he observed three other students in Ms. Brown's chair, swinging it in circles. Mr. Burkett then noticed that Ms. Brown was speaking on her cell phone. She did not notice that Mr. Burkett had entered until he walked all the way across the room toward the students in her chair. According to the written reprimand, Ms. Brown then "placed the phone down discreetly and proceeded to use a loud tone of voice instructing the class to clean up." Ms. Brown submitted a handwritten response to the letter of reprimand. She did not deny the facts as stated by Mr. Burkett, but offered her justification for this "unexpected" incident: A parent called my cell # at the time we were having issues with a student who was screaming & crying. Alice walked this student outside to make the room quieter. She accidentally left door & gate open. I thought she told me she would be outside. I didn't hear the "playground" due to the child screaming. I turned[,] was helping students clean when my cell phone rang. It was a parent checking on her child. I may have been on the phone 2-3 seconds. Mr. Burkett had walked in. Alice had eye contact with the outside students & I had eye contact with the ones in the room. At the hearing, Mr. Burkett testified that, although Ms. Brown's use of her personal cell phone violated the directive of his February 9, 2007, letter of concern, his overriding motivation in reprimanding Ms. Brown was the lack of supervision he observed during the incident. He believed that the children running on the ramp were out of the sightline of either Ms. Brown or Ms. Staton, and he observed that Ms. Brown was so engrossed in her telephone conversation that she did not even see him enter the portable. By letter dated March 14, 2007, Superintendent McKinzie suspended Ms. Brown without pay for a period of one day effective March 22, 2007.3 The grounds for this suspension were the events of March 1, 2007, as recited in Mr. Burkett's written reprimand of March 6, 2007, as well as the following, as stated in Superintendent McKinzie's letter: Later that same day [March 1], it was reported to the principal that not only did you use your cell phone again, but you asked the para assigned to your class to "keep watch" for you. This statement was provided for [sic] in writing by another employee and notarized. This action took place immediately after you had just left a conference with Mr. Burkett in which you were given a directive not to have your cell phone in class. The principal discussed with you his concerns regarding student safety and told you that you could not provide adequate supervision while on personal cell phone calls. By letter dated April 18, 2007, Superintendent McKinzie suspended Ms. Brown without pay for one day effective April 25, 2007. The grounds for the suspension were stated as follows in Superintendent McKenzie's letter: This action is based on an incident which happened on March 19, 2007. On that date, Principal Matt Burkett was notified that you had allegedly hit a high school student on the campus of Spook Hill Elementary. Your classroom paraeducator witnessed the altercation and attested that you had engaged in an argument during student contact time. She stated that you slapped the student in the face and that she saw you follow the student in your truck off campus. Principal Burkett spoke with you regarding the alleged incident. You admitted that you did slap the student in the face and that you did get in your truck and follow her off campus. By your own admission, you stated that there had been a prior altercation off campus with this particular student. Clearly, you allowed a personal situation to escalate into a violent confrontation on the school campus. Although you did apologize for your actions, your behavior was totally unprofessional and cannot be condoned. Your lack of judgment in this situation jeopardized the safety of the students in your charge. Please remember that teachers are role models for their students and should behave accordingly. On May 8, 2007, Mr. Burkett wrote a letter of concern to Ms. Brown to inform her of continuing inadequacies that Mr. Burkett was observing in Ms. Brown's job performance. The letter notes that on March 8, 2007, a Professional Development Plan ("PDP") had been established "to address the learning environment in your classroom." A PDP is a plan to help struggling teachers in areas of inadequate performance. A team of professionals is assigned to work with the teacher to aid in professional development and address the teacher's inadequacies. In his letter of concern, Mr. Burkett noted the following specific PDP items that were "in need of positive change": Circulate and monitor with appropriate proximity during all activities. (On 3/20 on your observation I marked you for remaining at desk. On 4/15, 4/26, 4/30, and 5/7 as I walked into your room you were sitting behind your desk.) Provide structured hands-on activities during outside play. (I have taken photos of your play area, as well as the equipment for outside play activities. They indicate a need to enhance and organize the learning environment.) Constantly engage and interact with students. (Please refer to item number one.) Daily schedule will be posted. (On 4/26 Mrs. Neal and I addressed the need to post your daily schedule and be certain that times are indicated.) IEP's must be in compliance.[4] (I showed you the report in which two of your students were listed as out of compliance.) Safety issues will be jointly addressed and teacher will comply with all administrative directives. (On 5/4/07 you called for the school resource officer. . . . I entered your classroom and observed you talking on your personal cell phone. You have also been tardy to work which is an issue we have addressed in the past.) On September 5, 2007, Mr. Burkett wrote a letter to Superintendent McKinzie recommending that Ms. Brown be suspended, based on "her history of jeopardizing the safety and welfare of her students" and in light of the following specific incident: On August 31st I went into Ms. Brown's Pre-K room and she was not present. I noticed a student tipped over strapped into a high chair. I asked the para-professional where the teacher was and she stated "I do not know." She said the teacher stated she "had to get out." The para also stated she did not place the child in the high chair. According to the para the teacher had been gone for about ten minutes. I was in the room for five minutes before the teacher returned. Ms. Brown sent me an email and stated she went to the restroom and laminated some things. I am very concerned because Ms. Brown has explained on several occasions the severity of the needs her students have and the need for more time to have in small group teaching. Therefore, while I understand the need for a bathroom break, I do not understand the need to choose this critical time to laminate. Secondly, she left a child in a high chair as a "time out" which is an inappropriate use of the chair. Furthermore, she left the child for an excessively lengthy time and in fact she left the classroom while the child was still restrained. As a result of her actions the child turned over in the high chair. At the hearing, Mr. Burkett conceded that the child's IEP stated that he could be strapped into the high chair for feeding. However, neither Ms. Brown nor Ms. Staton offered affirmative testimony that the child was in fact strapped into the high chair for feeding. Because no testimony or other evidence was presented to contradict the version of events set forth in Mr. Burkett's letter to Superintendent McKinzie and adopted by Mr. Burkett at the hearing, Mr. Burkett's version is credited. By letter dated September 10, 2007, Superintendent McKinzie suspended Ms. Brown without pay for five days effective September 17, 2007, through September 21, 2007, as a "result of your continued lack of attention to the safety and welfare of the students in your charge."5 In a letter dated January 25, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended "as a continuation of the progressive discipline section 4.4-1 of the Collective Bargaining Agreement." Mr. Burkett noted that Ms. Brown received a verbal warning on February 9, 2007, for leaving campus without permission, and was suspended on April 25, 2007, for an incident that included her leaving the campus. Mr. Burkett's letter described the current incident as follows: On January 17, 2008, Ms. Brown once again left campus without permission during her contact hours which extend to 3:15 pm. At approximately 2:25 pm transportation contacted the school to ascertain the whereabouts of a Pre-K child because they had a bus at Spook Hill waiting on a student. The teacher placed the child on another bus. However, transportation needed to confirm the child was placed on a different bus before they allowed the bus to leave. As a result of Ms. Brown leaving the campus without informing the administration there was an unnecessary delay in getting vital transportation information regarding what bus the child was placed on by the teacher. Furthermore, there was tremendous stress placed on the office staff as they tried locating and contacting Ms. Brown in order to confirm the child was safely on the bus. In our conference on January 23, 2008, regarding the matter Ms. Brown acknowledged she left campus for a personal matter and that her actions were incorrect and she apologized for the incident. Unfortunately, Ms. Brown chose not to follow clearly stated written instructions from her previous disciplinary actions. By letter dated January 30, 2008, signed by Mr. Ciranna, assistant superintendent for Human Resource Services, Superintendent McKinzie suspended Ms. Brown for five days without pay effective February 6 through February 12, 2008, based on Mr. Burkett's recommendation. In a letter dated February 11, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be suspended for failure to complete her students' progress reports as required by their IEPs. The letter stated, in relevant part: I met with Ms. Brown on January 31st, 2008, and asked if she completed progress reports for her students. She replied that she did not have time to complete them. I gave her a directive to complete her student's progress reports and I provided her coverage. On February 1st, 2008, Ms. Brown sent me a letter which stated: "Yesterday when we met you asked me about my progress reports. I spoke from memory and indicated that I was way behind because of the time it takes me to work with my one on one student. Because of the assistance you provided, I was able to review the information and found I was not as far behind as I had indicated." According to a report provided to me by Chris English (Network Specialist) not a single progress report was created by Ms. Brown prior to January 31st, 2008. To further understand the severity of this offense it should be noted that Ms. Brown is currently on a Professional Development Plan (PDP) and one of the strategies is written as follows: "All IEP's and IEP notices must be in compliance and correctly written. Teacher will provide a one week notice if coverage is needed so she can prepare the IEP." Prior to our meeting on January 31st, 2008, Ms. Brown has never requested coverage to complete progress reports as part of the student's IEP. In a written response, Ms. Brown stated that she had "asked at least twice in the past for assistance to complete IEP paperwork a week in advance and was not provided coverage." While she stated her general disagreement with Mr. Burkett's letter, Ms. Brown did not otherwise contradict any of the specific factual assertions made by Mr. Burkett. At the hearing, Mr. Burkett testified that prior to February 12, 2008, he had a discussion with the School Board's director of employee relations about terminating Ms. Brown's employment, but that Superintendent McKinzie decided to suspend Ms. Brown on this occasion. By letter dated February 12, 2008, signed by Mr. Ciranna, Superintendent McKinzie suspended Ms. Brown for one day without pay effective February 20, 2008, based on Mr. Burkett's recommendation. By letter dated February 29, 2008, Mr. Burkett recommended to Superintendent McKinzie that Ms. Brown be terminated as an employee with the School Board. This recommendation led to the suspension and termination letter of March 3, 2008, the relevant terms of which are set forth in the Preliminary Statement above. Mr. Burkett based his recommendation on "multiple issues extending over the course of the past year," as well as the following specific events occurring during February 2008: During Ms. Brown's recent suspension she acted insubordinately by coming on school campus during her suspension. I met with Ms. Brown on February 4, 2008, and I gave her a directive not to come on campus for any reason during her suspension days. Ms. Brown later called me on the phone and asked if she could come after the school day to do her lesson plans. I again stated to her that she could not be on school campus during her suspension days. On February 11, one of Ms. Brown's five suspension days, it was brought to my attention that she was on campus and delivered lunch to her paraprofessional. I have a statement from Ms. Brown in which she admits she delivered lunch. I also have a statement from the paraprofessional which states, "Yesterday, I called Ms. Brown about the Valentine's list. She called me back and asked if I wanted her to bring us lunch. I told her no and she is not supposed to be on campus. She said it was alright if she went to the office. She called me later again, and told me to come to the back of the lunch room door to get the lunch. . ." Additionally, I have a statement from my secretary in which Ms. Brown asked her "not to let Mr. Burkett know that she was here because she would get in trouble." Ms. Brown was previously suspended on March 22, 2007, in part for asking her paraprofessional to "watch out" for administration so she could insubordinately use her cell phone. Ms. Brown's actions depict an employee that has an established pattern of deliberate insubordination. Most concerning of all, in a four day span of time between February 19, 2008, and February 22, 2008, Ms. Brown continued to display a pattern of allegations [sic] of child endangerment. The following is a brief description of the incidents: On February 19, 2008, Mrs. Jenny Baker, a paraprofessional, was covering her classroom so I could serve her notice of suspension for February 20th. Mrs. Baker stated that upon Ms. Brown's return to class she asked if she could leave. Since the teacher did not respond Mrs. Baker left the portable to attend to her other duties and noticed three Pre-K students behind her and Ms. Brown was nowhere in sight. It was obvious that these students had left Ms. Brown's classroom without her supervision. Mrs. Baker waited for the other para to return from the buses to escort the kids back into the class. On February 19, 2008, I went to the classroom at approximately 2:30 (after Mrs. Baker had informed me of her concern). I noticed Ms. Brown at her computer behind her desk. The door to the portable was wide open and two students were sitting out of the teachers [sic] view behind the "cubby." These students could have readily left the classroom without Ms. Brown's knowledge. It was previously recommended by Ms. Sherwin (Educational Diagnostician) on February 5, 2008, that "in general, I think rearrangement of your classroom. . . may help. . . . I am particularly concerned with the arrangement that has the area between your door and shelving not visible to you at all times." On February 21, 2008, Mrs. Neal, the assistant principal, was walking through Ms. Brown's portable. Upon entering she noticed Ms. Brown getting up from her desk. The para was placing a band aid on another child. Ms. Brown stated that she was printing progress reports. Mrs. Neal stated the room was "a mess" and she began to straighten a piece of carpeting so the kids would not trip over it and hurt themselves. Mrs. Neal then counted the students and noticed one was missing. "Ms. Brown . . . looked puzzled." The paraprofessional and the teacher began to look for the missing child. She was found by Ms. Brown in the bathroom. The duration of time the child was missing was approximately five minutes. On February 22, 2008, at approximately 10:40 a.m. I was walking the exterminator to the classroom. As we walked up to the portable I noticed the front door wide open and two Pre-K students were on the ramp running. One tripped and fell. I rushed to the gate because I thought he was hurt, but he was already up and running down the ramp again. Clearly, these two students were not able to be observed by Ms. Brown and were not under her supervision or control. The exterminator and I entered the gated area and then Ms. Brown came out yelling for the boys to "get back in here." * * * I am entirely in favor of helping employees grow professionally as can be established by allowing Ms. Brown to create a second Professional Development Plan. However, she has established a pattern of allegations of child endangerment that results in disciplinary action. In addition, her multiple serious violations of school and district policies over the course of time have also established a pattern necessitating disciplinary action. It is for this reason that I am recommending termination pursuant to Article 4.4-1 of the collective bargaining agreement. As to the February 11, 2008, incident described in his letter, Mr. Burkett testified that Ms. Brown knew that she was not to come onto the campus while under suspension, because he had discussed the matter with her during one of her previous suspensions. Mr. Burkett testified that he was following School Board policy in prohibiting Ms. Brown from entering the campus during her suspension. Ms. Brown testified that as of February 11, 2008, she had never been told not to come on the campus while serving a suspension. Ms. Brown stated that she simply wanted to do something nice for Ms. Staton, her paraeducator, by way of bringing lunch. Ms. Brown had known Ms. Staton since the former was herself a student at Spook Hill. While Ms. Brown's good intentions may be credited, her testimony that no one had told her not to come on campus during a suspension is not credible. Her stealth in bringing lunch to Ms. Staton indicates that she knew she should not be there. Further, Mr. Burkett's letter quotes a statement from Ms. Staton in which she told Ms. Brown that she was not supposed to be on the campus. Ms. Staton testified at the hearing, and Ms. Brown had ample opportunity to question her about the events of February 11, 2008, and her statement to Mr. Burkett. However, Ms. Staton was questioned only about the February 21, 2008, incident. Mr. Burkett testified that the February 19, 2008, incidents were of greater concern to him because of the child safety issues involved. Mrs. Baker, the paraeducator who covered the class for Ms. Brown, testified that Ms. Brown was quiet when she returned from her meeting with Mr. Burkett. Ms. Brown sat at her computer. Mrs. Baker announced that she was now leaving the class, but Ms. Brown did not respond. Mrs. Baker walked out to the gate. When she started to close the gate, she looked behind her and saw three children who had followed her out of the class. Ms. Brown was still in the classroom, apparently unaware that the children had walked out. Mrs. Baker saw that Ms. Staton was outside placing another child on a school bus. On her way back into the classroom, Ms. Staton took charge of the three children who had followed Mrs. Baker out the door. Mrs. Baker returned to the main office. When Mr. Burkett asked how things had gone, she reported the incident to him. Ms. Brown testified that she did not recall the incident. Mrs. Baker's version of this incident is credited. After receiving the report from Mrs. Baker, Mr. Burkett was concerned for the children. He went to the class and saw Ms. Brown sitting at the computer behind her desk, and two students sitting out of her view though the door to the portable was wide open. Mr. Burkett testified that experts from the School Board had already come into the portable and discussed the room set-up with Ms. Brown, particularly the fact that there were obstacles to her having a clear line of vision from the desk to the door. A bookshelf that extended from the "cubbies" blocked her view of the doorway. Mr. Burkett noted that the two children could have walked out of the classroom without Ms. Brown seeing them. Ms. Brown testified that the two students in question rode the last bus from the school. Ms. Staton had already left the classroom to go on bus duty. Ms. Brown left the door open so that she could see the bus as it came around the side of the portable. The two students sat there playing as Ms. Brown worked at her desk. No one else was in the classroom. Ms. Brown could hear the children as she worked and testified that she could have heard them go out of the room because the front ramp squeaks. She also could have seen them through the windows. Ms. Brown was adamant that she knew the children in her class and she knew where these two children were, sitting there waiting on their bus. This was their daily routine, and there was nothing unusual about this day other than Mr. Burkett's entrance. Ms. Brown testified that Mr. Burkett said nothing about his concerns for the children's safety at the time. The only discussion was "something about the cubbies." Mr. Burkett came to the room the next morning and said the cubbies had to be moved. He and Ms. Brown moved the cubbies before the children arrived, making the door more visible from Ms. Brown's desk. Ms. Brown testified that the room had been arranged the same way since school started in August and that she was concerned because consistency is vitally important to students who are functioning at the level of 18 to 24 months of age. Any change to their environment can throw off their routines and cause them to have bad days. Ms. Brown did not believe that moving the cubbies was necessary. As to the events of February 21, 2008, assistant principal Sharon Neal testified that she went to observe Ms. Brown's classroom on that date. As she walked in, Ms. Neal saw Ms. Brown sitting at her computer. She asked Ms. Brown how many students were in the class, and was told that all the students were present. Ms. Neal counted the students, then recounted them. Then she told Ms. Brown and Ms. Staton that if everybody is here today, then someone is missing. Ms. Brown and Ms. Staton began to count, then began searching the room. After a minute or two of searching, they wondered if perhaps Student D. was in the bathroom.6 They opened the bathroom door and found Student D. Ms. Neal discussed with Ms. Brown and Ms. Staton what could have happened with the child going missing for a period of several minutes. Ms. Brown testified that when Ms. Neal stated that a child was missing, she responded that the child had to be somewhere in the classroom. She knew this because the front door was equipped with a buzzer that went off when the door was opened, and Ms. Brown's desk was next to the back door. She and Ms. Staton scanned the portable and quickly concluded that the child must be in the bathroom. Ms. Brown testified that Student D. was a very large child whose functional age was eight months. She wore pull-up diapers, though it was becoming difficult to find diapers to fit the child. Ms. Brown and the child's mother had been working diligently on potty training the Student D. This was the first time she had gone to the bathroom on her own. Ms. Staton confirmed their surprise at finding Student D. on the potty, because they did not believe her capable of going to the bathroom alone. Ms. Staton conceded that neither she nor Ms. Brown knew where the child was before Ms. Neal noted that a student was missing. As to the events of February 22, 2008, Mr. Burkett testified that there had been an insect problem in the portable, and therefore an exterminator had been called. As Mr. Burkett walked the exterminator down to the classroom, he noticed the door of the portable was "wide open." Two Pre-K students were running down the ramp, and one of them tripped and fell. Mr. Burkett was concerned for the student's safety, but the child popped up and started running again. Mr. Burkett estimated that another 30 seconds passed before Ms. Brown came out of portable, "yelling for the kid to get back inside." Mr. Burkett noted that this was yet another incident in which "the door was open, the kids were on the loose, and not properly supervised." Ms. Brown testified that the students were working at their regular daily schedules when the phone rang in the classroom. The school secretary was calling to tell Ms. Brown that Mr. Burkett and the exterminator were on their way to spray the classroom. The secretary told Ms. Brown that she needed to have the children out of the portable by the time Mr. Burkett and the exterminator arrived. Ms. Brown and Ms. Staton began trying to quickly move the students out of the portable. Ms. Staton secured the women's purses, then went outside to unlock the shed on the playground as instructed by the secretary. Meanwhile, Ms. Brown was lining up the children to proceed out the door. Ms. Brown turned momentarily to get diapers from the changing table. As she turned, two of the children took off and ran out the door. Ms. Brown testified that these were two boys who were prone to running away. She knew who they were because she could hear them laughing. She turned and ran to the door and called their names. When she got to the ramp, Mr. Burkett was helping one of them up from where he fell. Ms. Brown testified that it usually takes from five to ten minutes to line up the children, get the diapers and other supplies, and proceed out the door as a class even when the move is planned, and she has Ms. Staton to help with the children. In this situation, she was moving the children on short notice, and Ms. Staton was busy securing the purses and unlocking the shed. There is no real contradiction between Mr. Burkett's and Ms. Brown's versions of this incident, save for Mr. Burkett's estimate that 30 seconds passed between the time the student fell on the ramp and Ms. Brown appeared at the door of the portable. It is found that Mr. Burkett's estimate of the time is likely exaggerated due to his dismay at the situation and that Ms. Brown in all likelihood came out the door only a few seconds after the boys. Ms. Brown's version of events, while credible, calls her judgment into question. She described a somewhat frantic decampment from the portable, as if she believed Mr. Burkett would order the exterminator to begin spraying whether or not the children were out of the classroom. There is no reason to believe that Mr. Burkett would not have preferred a slow but orderly procession to the scene he encountered. Except where noted in the above findings of fact, Ms. Brown did not contest the factual allegations made against her. Ms. Brown's defense was twofold. First, the great majority of incidents cited as grounds for discipline were run of the mill occurrences in a Pre-K ESE classroom. Second, the sheer number of disciplinary actions establish a concerted effort by Mr. Burkett to build a record against Ms. Brown by seizing any opportunity to find fault with her job performance. As to her first defense, Ms. Brown testified as follows regarding the four incidents described in Mr. Burkett's letter recommending termination: Those are things that can happen at any moment at any time in an ESE Pre-K classroom. There's children that pull away from their teachers, their parents. These children are sent to our room to get some structure, and to help them to cognitively, socially, behaviorally develop, because they are delayed in all that development. Ms. Brown's point is valid as to some of the disciplinary incidents cited in the termination letter. The February 19, 2008, incident essentially involved a difference of opinion between Mr. Burkett and Ms. Brown. He believed that she should have the children in her line of vision at all times. She believed it was safe to be able to hear what the two children were doing and testified that this had been her daily practice all year. The February 21, 2008, incident was a matter of Student D. unexpectedly taking the initiative to go to the bathroom alone. The February 22, 2008, incident involving the exterminator was simply a matter of two students bolting for the door as soon as Ms. Brown's back was turned, something that could happen at any time with a group of Pre-K children. Ms. Brown is correct when she argues that the events of February 19 through February 22, 2008, standing alone, would provide slim grounds for the dismissal of a veteran ESE teacher. However, these events were not the sole factual basis for the School Board's decision to terminate Ms. Brown's employment. The termination letter makes clear that the School Board considered these events to be emblematic of a long history of Ms. Brown's "pattern of failing to properly supervise the students under your care." The termination letter references all of Ms. Brown's previous suspensions and, expressly, references Ms. Brown's insubordination in entering the campus during her suspension despite Mr. Burkett's directive that she was not to come onto campus for any reason during that time. Ms. Brown had been suspended five times between March 14, 2007 and February 12, 2008. The March 14, 2007, suspension was for insubordination regarding the use of her personal cell phone. The April 18, 2007, suspension was for a physical altercation with a high school student, followed by Ms. Brown's leaving the campus in pursuit of the student. The September 10, 2007, suspension was for the inappropriate use of a high chair for student discipline, resulting in the student's falling while strapped into the chair. The January 30, 2008, suspension was for leaving the campus for personal reasons, without permission or notice to the administration, resulting in confusion as to whether a student was on the correct bus. The February 12, 2008, suspension was for Ms. Brown's failure to complete student progress reports. The events of February 19 through February 22, 2008, must be viewed in light of Ms. Brown's disciplinary history since at least her first suspension on March 14, 2007. In that light, these relatively minor events indicated to Mr. Burkett and the School Board that Ms. Brown's performance showed no prospects of improving. A consistent theme throughout Ms. Brown's disciplinary history, in addition to her continuing insubordination, was her failure to adequately supervise the children in her care. The fact no child was seriously injured in any of these events was fortuitous, not a reason to minimize or overlook Ms. Brown's often casual approach to minding these very young ESE students. The School Board had taken every disciplinary action available to it under the Teacher Collective Bargaining Agreement, including multiple suspensions short of moving for termination. This last point addresses Ms. Brown's second argument, that the number of disciplinary events indicates a vendetta on the part of Mr. Burkett. No evidence was offered that Mr. Burkett bore any personal animus toward Ms. Brown. The evidence indicated that Ms. Brown was under additional scrutiny because of her disciplinary history. The evidence further indicated that Mr. Burkett made reasonable effort to assist Ms. Brown in improving her performance, including the establishment of a PDP and the appointment of a team of professionals to observe her class and offer advice. The number of disciplinary events indicates, if anything, forbearance on the part of Mr. Burkett and the School Board, imposing multiple suspensions rather than moving precipitously to the final step of termination. The evidence did not establish that Mr. Burkett was motivated by anything other than the desire to ensure the safety of the students at Spook Hill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating the employment of Deana Brown as a teacher at Spook Hill Elementary School. DONE AND ENTERED this 3rd day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2009.
Findings Of Fact At all times relevant hereto, Respondent has been employed by Petitioner as a classroom teacher serving pursuant to a continuing contract. At the time of the final hearing in this cause, she was 49 years old and had worked continuously as a teacher for the School Board of Dade County, Florida, from 1962 until her suspension on August 23, 1989, except for five maternity leaves. Respondent attended college in Greenville, North Carolina, on a "State Department" scholarship between 1958 and 1962. In 1962, she received a B.A. degree in French and English and passed the National Teachers' Examination. In 1962, she accepted a teaching position with the Dade County Public Schools, teaching a two-course basic education program in her earliest years. Thereafter and until the 1986-87 school year, she taught English. During the 1962-63 academic year Respondent experienced many changes in her life: she began her first teaching job, she married, and she experienced her first pregnancy. These events, taken as a whole, made the 1962-63 academic year an extremely difficult one for the Respondent. Respondent's teaching performance was evaluated during the 1962-63 academic year using the Petitioners evaluation instrument then in use. Under that evaluation instrument, the teacher's performance was evaluated and assigned an averaged score. An averaged rating of 3.5 indicated satisfactory performance. During that academic year, Respondent's annual evaluation averaged score was 3.3. For every year thereafter continuing through the 1985-86 academic year Respondent's annual evaluation rated her performance as a classroom teacher as being acceptable. Throughout that time, Petitioner used three different evaluation systems for rating classroom teachers, including the TADS evaluation system currently in effect. In 1984, the School Board encouraged its teachers to become computer literate. Because Respondent needed additional coursework to renew her State teaching certificate, she enrolled in a computer class and then in a word processing class. She was "intrigued" by computers. She continued taking computer courses at Barry University, eventually entering the master's program at Barry University, majoring in computer education. By June of 1988 she had completed 39 credits with an overall grade point average of 3.846. In 1986, Respondent decided to look for a position teaching computer classes. She learned of a vacancy for a computer teacher at Brownsville Middle School, a Chapter I school in Dade County. She sought a transfer from her then current school where she taught English to Brownsville. She was interviewed by both the outgoing principal and the incoming principal Patricia Grimsley. Grimsley hired her to teach computer courses and to develop and equip the computer lab. Grimsley admitted that the computer lab had "deficiencies" which she expected Respondent to overcome. Respondent began teaching computer courses at Brownsville Middle School during the 1986-87 school year. During the three academic years Respondent taught at Brownsville Middle School, her general ability to perform her duties was seriously impaired by the "deficiencies" in the computer lab and the lack of assistance from her supervisors regarding her problems with adapting the administration of computer classes to traditional requirements. When she began teaching at Brownsville during the 1986-87 school year the computer lab itself was not ready to be occupied. Instead, Respondent was required to use a converted teachers' work room as a classroom. This room contained an inner office which was used by the school security personnel. The passage through her classroom of school security personnel and other law enforcement officers frequently accompanied by disruptive students caused a serious and continuing class distraction. The computers installed at the school were Tandy machines, Style TRS 80, Model 3, commonly known to people who were computer literate as "trash 80 machines." These computers had a non-functioning network which prohibited saving in or retrieving data from the computer memory. Accordingly, a student working on a project would begin each day's class by programming into the computer everything that student had already programmed into the computer on the previous day before the student could move forward. There was not a functioning printer in the classroom so that no hard copies off anything could be printed. The few textbooks available were textbooks commonly used in college, not in a Chapter I junior high school. These were the conditions under which Respondent taught during the 1986-87 school year. By the 1987-88 school year Respondent and her students had moved into the new computer lab. State-of-the-art computers had arrived for use in the computer lab, but there was still no software or books. During the summer of 1988, the software-and books arrived. Respondent had requested permission to be able to use the software to teach it to herself during the summer when She was only teaching half days, but the administrative personnel stored the software instead. During the 1988-89 school year, Respondent and her students began learning the software and the books together. In the interim period, before all of the materials and equipment necessary to daily teaching were supplied, Respondent borrowed software from her friends, and began creating daily projects, lessons, and activity sheets to keep her students busy and learning. These efforts to generate daily classroom activity created a "lot of work" for this teacher. She did not have a bank of lessons and activities from which to draw as would any experienced teacher or even a beginning teacher teaching in an area where others had lessons and activities previously given to draw upon. She was also considered a "vital resource" at Brownsville during those three years, assisting other teachers and other school employees in setting up their computers and learning the programs they needed to use. She even set up the computer in Principal Grimsley's office and assisted Grimsley in learning the program. School year 1986-87, Respondent's first year as a computer teacher and first year at Brownsville, was also Principal Grimsley's first year as a principal and first year at Brownsville. It was also Assistant Principal Senita's first year as an assistant principal. During each of Respondent's three years at Brownsville, she experienced difficulty with Principal Grimsley whom she found to be "unreceptive" and "unsupportive." Grimsley's "mind would wander" during Respondent's discussions with her of the problems that Respondent was having. On October 10, 1986, near the beginning of Respondent's first year at Brownsville, she was formally observed in the classroom by Principal Grimsley and was rated acceptable in all categories. On November 26, 1986, Grimsley held a conference- for-the-record with Respondent. A conference-for-the-record is a formal meeting with the employee to put the employee on notice of problems. The subject matter of this conference-for-the-record was Respondent's failure to continuously submit lesson plans on a weekly basis as required by Grimsley's administrative directives. Respondent had been submitting her lesson plans on some occasions but not on a weekly basis. She was directed to submit her lesson plans on a weekly basis and was put on notice that if she did not do so, further disciplinary action would occur. Respondent wished to discuss at the conference-for- the-record the lack of materials and equipment for the computer lab and the unusual demands on her time occasioned by those deficiencies. However, Respondent had been given prior notice of the purpose of the conference, and the labor contract between the United Teachers of Dade and the School Board does not permit the person holding the conference to go outside the stated subject matter of the notice. Grimsley did not initiate any subsequent discussions with Respondent regarding Respondent's problems during the three years that Respondent taught at Brownsville. On March 9, 1987, Grimsley held another conference for-the-record with Respondent to discuss Respondent's failure to submit weekly lesson plans each week and the fact that Respondent had not called the school until 8:55 a.m. to say she would be late when she was due to begin work at 8:45 a.m. Respondent was again directed to submit her lesson plans every week, and was directed to call the school in a more timely manner to indicate her tardiness or absences. Grimsley further explained that if the problems were not remediated, Respondent would be rated unsatisfactory in Category VII, Professional Responsibilities, and would be put on prescription. A prescription is a formal plan given to the teacher to address deficiencies in the teacher's performance. It is a plan formulated to assist a teacher for whom a deficiency has been documented. However, once a prescription is established, it is obligatory upon the teacher to fulfill it. At the March 9 conference-for-the-record, Respondent explained to Grimsley that she could not keep up with all the demands on her time and requested a transfer to a different teaching assignment. Grimsley explained that she had no other computer teachers at Brownsville and no current vacancy in a different teaching area. Therefore, Respondent could not be transferred to a different teaching assignment. On April 22, 1987, Grimsley held another conference- for-the-record with Respondent to discuss Respondent's unsatisfactory performance in Category VII, Professional Responsibilities. Respondent had been absent on the day that grades were required to be turned in and for several days before that. She had made no provision for bringing her grades to school to turn them in on the days that she was out sick. Respondent was placed on prescription. She was directed to submit her grades within the school's guidelines, and Grimsley had her write a report on proper grading procedures. Respondent completed the prescription and indicated that she understood the directives as to submitting grade sheets. Respondent remediated her deficiencies and received an acceptable yearly evaluation for the 1986-87 school year in all categories. The 1987-88 school year commenced with the Respondent and her students located in the new computer lab using the new state-of-the-art computers and printers. Respondent, however, still did not have software and books for her students to use. On February 8, 1988, Grimsley held a conference-for- the-record with Respondent. The issues discussed were Respondent's leaving work early and not signing out, not completing grade sheets, and not submitting grade sheets by the end of the teacher workday on January 29, 1988. A teacher workday is a professional day when there are no students in school and the teachers generally complete grade sheets for the end of the grading period Respondent had been given the teachers' workday agenda prior to the workday, outlining the schedule of deadlines and the meetings that Grimsley had also scheduled for teachers to attend that day. In fact, Respondent had not left work early that day but had been late returning from lunch because she and other teachers from Brownsville had gone during the lunch period to another school to attend a celebration at that school. Further, teachers are not required to sign out for lunch on a teacher workday. Nevertheless, Respondent had failed to submit her grades at the end of that teacher workday. Under the procedures established in that school, Respondent's failure to submit her grades by the end of the day delayed the report cards for the entire school. Respondent was again placed on prescription for Category VII, Professional Responsibilities. She was directed to submit her grade sheets on time for the next two grading periods. She was also docked a half-day's pay for returning from lunch late on January 29., She was told that if her grades were turned in on time and completed, the prescription would be satisfied On March 7, 1988, Respondent was formally observed in the classroom by Assistant Principal Gail Senita. Respondent was rated unacceptable in preparation and planning and in assessment techniques. She was rated unsatisfactory in preparation and planning because she had no lesson plans. For her prescription, she was directed to develop weekly lesson plans and to include in them objectives, activities, a method of evaluation, add a provision for homework, as required by the labor contract. She was rated unsatisfactory in assessment techniques because there were no graded papers in student folders, and there were no grades in Respondent's gradebook. As a prescription, she was directed to maintain student folders with examples of graded student papers. School Board policy requires teachers to keep folders with samples of student works Respondent explained to Senita that she kept an electronic gradebook on the computer. However, she did not show that electronic gradebook to Senita. Respondent was next formally observed in the classroom by Senita on June 1, 1988. She was rated in assessment techniques because there were still no student folders with graded work and no gradebook with student grades. While Respondent did have computer spreadsheets with students' names, they contained no grades for the students. As a prescription, Respondent was directed to prepare folders for the students and to file samples of the students' classwork, quizzes, homework, and tests in those folders. She was directed that the folders should contain at least one paper per week and should show a progression of difficulty. Respondent explained to Senita that the students' work was on computer disks. Senita suggested that Respondent print out hard copies of the students' work to file in the students' folders On June 14, 1988, Grimsley gave Respondent her 1987- 88 annual evaluation. That evaluation rated Respondent as acceptable in all categories, meaning that Respondent had remediated all deficiencies during that school year. Respondent signed that annual evaluation as having been received by her on June 14, 1988. Three days later, Grimsley came to Respondent's classroom and told her to sign another annual evaluation form. Respondent did so. That second annual evaluation form indicated that Respondent was acceptable in all categories except for Category VI, Assessment Techniques. Respondent was rated unacceptable in that category and was given an overall rating of unacceptable. However, she was recommended for employment That second evaluation contained an end-of-the-year prescription directing Respondent to record at least one formal grade for each student in the gradebook each week, and, if she used a grade sheet, to show a hard copy to the assistant principal on a weekly basis, and to place graded samples of student work, including homework and tests, in the student folders. Grimsley did not tell anyone that she had determined that Respondent had remediated her deficiencies and achieved an acceptable 1987-88 annual evaluation in all categories. Rather, she turned in the second evaluation form to be made part of Respondent's personnel file. At hearing, Grimsley verified that the signature on the evaluation finding Respondent acceptable in all categories was her signature, but failed to tell the truth about the incident, saying only "that's strange." The second evaluation form cannot be declared to be the "official" evaluation form. Grimsley did not offer any explanation for why, or if, she had changed her mind. It, therefore, cannot be found that Respondent received an unacceptable evaluation for the 1987-88 school year. Respondent taught during the summer of 1988, keeping a computerized rollbook which she turned in to the administrators. No criticisms were given to her of her computerized gradebook. During that summer, the software and books for the students arrived although Respondent did not have access to them until the beginning of the 1988-89 school year. That school year began, and Respondent was next formally observed in the classroom by Senita on September 22, 1988. She was rated unacceptable in preparation and planning and in assessment techniques. She was rated unsatisfactory in preparation and planning because she had no lesson plan. Without a lesson plan, an administrator cannot monitor compliance with the School Board's curriculum. As a prescription, she was directed to prepare lesson plans and submit them weekly to the department chairperson. She was directed that these plans were to include objectives, activities, a way of monitoring pupil progress, and an indication of homework. She was further directed to review the school Board's curriculum for computer education and to indicate in her plans which standards and skills were being taught. She was rated unsatisfactory in assessment techniques because she did not have student folders with student work. There was no evidence of quizzes, classwork, homework, or a variety of test formats. As a prescription, she: was directed to develop a folder for each student and to file at least one graded paper per week in the files. The files were to include samples of homework, classwork, and tests. She was directed to submit her gradebook for review every Friday. Respondent was next formally observed in the classroom by Grimsley on November 16, 1988. She was rated unsatisfactory in assessment techniques because there was no evidence in her gradebook or in the student folders that she was administering tests or quizzes. As a prescription, she was directed to construct a sample test and to show it to the principal for discussion. She was directed to administer tests biweekly and to submit copies to the principal prior to administering them. She was directed to construct tests which reflected a variety of test formats and to read certain pages in the TADS Prescription Manual which deals with the construction of tests. She was directed to place grades in a traditional gradebook. Respondent began keeping two sets of gradebooks -- one computerized set which she used, and a traditional rollbook to satisfy Grimsley. A conference-for-the-record was held with Respondent on December 12, 1988. The purpose of the conference was to put Respondent on notice that if her deficiencies were not corrected, there was a possibility that she would be recommended for separation from the school system. Some lesson plans had been submitted by Respondent, but not every week as prescribed, and a traditional gradebook had not been submitted to the administrators. During the conference, Respondent asked permission again to use electronic spreadsheets rather than the standard gradebook, but Respondent was directed to keep a standard gradebook with attendance and grades. Grimsley did indicate that she would determine if an electronic spreadsheet was an substitute. Test formatting and homework were also discussed. Grimsley explained that the School Board requires teachers to give homework that relates to classroom activities and to note same in the gradebook. There was no indication that Respondent was giving homework. Respondent was put on notice that she needed three consecutive acceptable classroom observations in order to be continued in her employment. She was further advised that an external review would take place. An external review is an observation done by a non-school site administrator and a school site administrator simultaneously. Each one prepares an observation report, and these are combined by mathematical formula. Respondent was next formally observed in the classroom on February 2, 1989, by Assistant Principal Orlando Milligan and was rated unacceptable in assessment techniques. Although the School Board requires that students' work be retained throughout the school year and the school year was more than half over, Respondent still failed to maintain student folders with student work. There was no evidence of assessments such as quizzes, classwork, and homework so that administrators could assess whether pupil progress reflected the objectives in the curriculum. As a prescription, Milligan directed Respondent to maintain samples of student work in student folders and to maintain a decipherable traditional gradebook. She was given until March 3, 1989, to complete this prescription. A conference-for-the-record was held with Respondent on April 24, 1989, for not having complied with her prescriptive directives or showing the administration a computerized gradebook or a traditional gradebook. She was advised that an external review was scheduled for April 27, 1989, to be conducted by Milligan and Dr. Mildred Berry, a non-school site science supervisor. Respondent was also told that the external review would occur during her second period class. She was told that even if the first external review were satisfactory, another would be required in order to meet the requirement for two successful summatives. A summative is a combination of two observations. Therefore, it takes at least three acceptable observations to result in two acceptable summatives. Respondent was also advised that her future employment with the school system was in jeopardy At the conference, Respondent was still discussing a computerized method of keeping grades and attendance. She was again directed to maintain a standard gradebook and to keep sampled of students' work. The first external review took place as scheduled on April 27, 1989, by Milligan and Berry. Milligan looked at the folders for the class he was observing and found samples of student work in the folders. He did have difficulty correlating the work in the folders with the gradebook and found the gradebook difficult to understand. He was about to rate Respondent unsatisfactory in assessment techniques but Berry explained to him that the keeping of student folders does not relate to assessment techniques Because of her insistence, the two of them reviewed the TADS Manual and Milligan found that Berry was correct. The concerns that he saw did not come under Category VI, Assessment Techniques, but rather came under Category VII, Professional Responsibilities. Category VII is not reflected on the classroom observation reports and is not part, therefore, of the formal classroom observation Milligan and Berry individually each rated Respondent acceptable in all categories. Berry's observation report contained the remark that "all students were actively involved in class activities." In spite of finding out that he had misunderstood the TADS evaluation system, Milligan did not go back and correct his February 2, 1989, observation report on Respondent where he had erroneously marked Respondent unacceptable in the area of assessment techniques based upon her failure to have student folders. If Milligan had gone back and corrected his February 2, 1989, observation of Respondent once he correctly understood the TADS evaluation system, then Milligan's formal observation of Respondent on February 2, 1989, would have resulted in her being marked acceptable in all categories. A second external review was conducted by Grimsley and Nelson Diaz, Area Director, on May 24, 1989. Respondent was rated unsatisfactory in all categories except teacher-student relationships. She was rated unsatisfactory in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Grimsley and Diaz observed students walk into the classroom, walk over to their computers, load their computers, and begin working on their projects. Respondent sent a few of the students to the library to do some research and spent the remainder of the class period walking around the room stopping to talk individually and work individually with each student. At times, some of the students were observed making comments to each other or writing notes, getting out of their seats, or laughing. Neither Grimsley nor Diaz attempted to ascertain if the comments or notes were related to students working with each other on their programs or if the students left their seats simply to go to the printer to retrieve a hard copy of their work. They did observe Respondent work individually with each student throughout the class period. Diaz became confused. The TADS observation form requires that certain teaching behaviors be observed during the lesson in order that the form can be completed. Because of the type of class conducted by Respondent, the observers could not observe the required teaching behaviors in order to complete their forms. Since Diaz believes that teachers usually try to do their very best when they know there will be a outside observer, he became concerned that perhaps Respondent was ill. Diaz requested that a post observation conference be held immediately so that he could determine whether there were extenuating circumstances for what he had observed. Respondent was requested to bring her gradebook to the conference because Diaz was not able to correlate the grades in the gradebook with the work in the folders. When the gradebook was discussed at the conference, Respondent told Diaz that she kept a traditional gradebook to satisfy Grimsley. When asked why she did not give the students tests, Respondent told him that her students could not read. Respondent had previously determined that when she gave students tests, the grades they received from the written materials did not reflect their understanding or progress as was observed by her when they did their actual "hands-on" computer programming and activities. Diaz noted that the students were reading their computer screens and were reading a sheet that they were following. He did not, however, note whether the computer screens; and the sheets the students were following contained words or pictures. Although Respondent had a lesson plan for that day, Diaz and Grimsley determined that she did not follow the plan. They concluded that she gave no instruction to her class on that day. They further concluded that the lesson plan used by Respondent, although a form lesson plan picked up by teachers in curriculum offices at schools, did not comply with the labor contract provisions in that it did not list homework. Further, an administrator could not look at the lesson plan and know what the teacher would be doing in the classroom because the lesson plan contained a listing of potential activities but did not note which specific ones would occur. At the conference with Diaz and Grimsley, the suggestion was made to Respondent, for the first time in the three years that she had been teaching at Brownsville, that she consult with a computer teacher at another school in order to ascertain how other computer teachers had made provision for tests, homework, student folders, and gradebooks. Eights days later, on June 1, 1989, Grimsley finalized Respondent's annual evaluation for the 1988-89 school year by rating Respondent as acceptable in the areas of teacher- student relationships and professional responsibility. She rated Respondent as unacceptable in the areas of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. The overall summary ratings of acceptable and unacceptable were left blank; however, she checked the box marked "not recommended for employment." A conference-for-the-record was held by Grimsley on June 5, 1989, to discuss Respondent's performance to date, her unacceptable annual evaluations, and her future employment status with the Dade County Public Schools. Grimsley noted that at that time Respondent had still not remediated her deficiencies and was still on prescription. Prior to Respondent's suspension from her employment in August, 1989, there was no state teacher certification in computer education. There were also no other computer teachers at Brownsville to assist Respondent in the problems she was having. Although it was clear to Grimsley for three years that Respondent was having difficulties in conforming her computer class with a traditional academic class, Grimsley never suggested to Respondent that Respondent obtain assistance from other computer teachers to see how they had overcome such difficulties. That suggestion, withheld for three years, came during the conference among Grimsley, Diaz, and Respondent, just eight days before Grimsley recommended that Respondent's employment be terminated. Respondent maintained student grades and attendance on computerized spreadsheets. Further, Respondent maintained samples of student work on their computer disks. On at least one occasion Respondent showed copies of her grading and attendance spreadsheets to Grimsley, but Grimsley rudely brushed her hand across them and stated that she could not read them. Thereafter, Respondent did not show them to Grimsley. Cecelia Dunn, who served as Respondent's department head, saw Respondent's student records consisting of a file box with students' names, grades and attendance marked on cards and also Respondent's computer printouts with grades and attendance on them. She found Respondent'S records to be acceptable and thorough but suggested to Respondent that she also transfer this information to a traditional gradebook. There is no question that Respondent kept students' grades and attendance records; she did not keep them in a traditional gradebook. It is also clear that Respondent kept samples of students' work on computer disks. However, she did not consistently reproduce a hard copy of that work to maintain in the students' folders. Respondent does not know how to adapt the record keeping that is used in a traditional academic class to a computer class. In a traditional class all students work on the same assignments on the same day. In a computer class, students work on projects at their own speed over extended periods of time. She does not know how to give daily grades to a student working on a project over an extended period. Respondent does not know how to give homework in a computer class to students who do not have computers at home. Although Senita once suggested to her that she require her students to read newspaper articles about computers, Respondent's students do not receive newspapers at home and therefore cannot comply with such a requirement. Respondent agrees that Grimsley gave her a number of suggestions on a number of occasions as to how she could correct her deficiencies. However, the suggestions given by Grimsley, a former English teacher herself, would work in an English class but would not work in a computer class. No suggestion given by Grimsley during the three years that Respondent taught at Brownsville was tailored to a computer class. No suggestion was made during the first year as to how Respondent could comply with traditional requirements in a classroom with non-functioning equipment and textbooks written for college students. Similarly, Grimsley's conclusion on her last formal evaluation of Respondent that Respondent did not teach fails to take into consideration the fact that Grimsley observed Respondent giving individual instruction, the kind of instruction which is appropriate for a computer class. Grimsley never suggested to Respondent how Respondent could give lectures during her classes. The only computer teacher to testify in this proceeding also keeps his records of students grades by using electronic spreadsheets. However, he prints out those spreadsheets and places the sheets inside a traditional gradebook and prints out hard copies of the students' work for folders simply because his class does not always meet in the computer room but must meet on frequent occasions in a regular classroom. That teacher is a teacher on special assignment who runs the MAGNET program wherein students use computers for everything. He testified that it takes a lot more time to teach computers than other courses Respondent's colleagues hold her in high esteem as a very knowledgeable, excellent teacher. Her students always appear to be actively involved in their classroom work. They are always "on task." With their adherence to the formal evaluation instrument and traditional classroom techniques, Grimsley and Senita were not able to determine whether Respondent was following the School Board's computer curriculum or whether Respondent was providing her students with the minimal educational experience required by State Board rule. They admitted at final hearing that they could not say that she was not following the curriculum or that she was not providing her students with the minimum educational experience. There is no allegation that Respondent did not in fact assess her students or grade them appropriately although Respondent did not always keep records of those assessments in a traditional format. Similarly, it cannot be said that Respondent failed to prepare, keep, and submit all records and reports required by School Board rules. It can be said that she did not prepare, keep, and submit all records and reports required by administrative directives issued by Grimsley to her. On the other hand, it cannot be said that she knew how to do what Grlmsley instructed her to do, and it is clear that Grimsley referred her to no resources in the computer education field to assist her in learning how to do what Grimsley wanted her to do. It can only be said that Grimsley repeated the same prescriptions; it cannot be said that those things were helpful to Respondent in remediating her deficiencies. It is not suggested that Grimsley, Senita, or Dunn refused to assist Respondent in overcoming her record keeping deficiencies or in solving her problems with giving quizzes and homework assignments. There is no evidence that any of those persons knew how to assist Respondent in adapting a "hands-on" computer course to the standard record keeping requirements or all of the traditional assessment techniques. Respondent neither intentionally nor willfully disobeyed instructions given to her by her administrators. She was, however, unable to consistently comply with their directives due to the demands of day-to-day teaching, in a technical non- traditional subject area, without adequate resources and materials.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating the Respondent Patsy Moore to a teaching position in English education or computer education on a one-year probationary contract basis and providing that Respondent shall receive no back pay for the period of her suspension. DONE and ENTERED this 10th day of May, 1990, at Tallahassee, Florida. LINDA M. RIGOT 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 10th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4857 Petitioner's proposed findings of fact numbered 1-6, 8-15, 17-25, 27-40, 42- 46, 48, 51, 53, and 55 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues involved in this proceeding. Petitioner's ,proposed findings of fact numbered 16, 26, 47, 49, 50, 52, 56, and 57 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 41 has been rejected as being unnecessary for the determination of the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 54 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed findings of fact numbered 1-18 and 20-22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 19 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Madelyn P. Schere, Esquire Patricia Bass, Esquire School Board of Dade County Board Administration Building Suite 301 1450 Northeast Second Avenue Miami, Florida 33132 Lorraine C. Hoffman, Esquire DuFresne and Bradley 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Dr. Paul W. Bell, Superintendent Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues in these cases are whether Petitioner, Osceola County School Board (School Board or Petitioner), has just cause to terminate Respondents Mona Sagar and Kristie Gilmore from their employment contracts.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control, and supervise the public schools within Osceola County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. At all times relevant to this proceeding, Ms. Sagar and Ms. Gilmore were employed by the School District. Ms. Sagar has been in the education field for years. She attended “teachers college” in Trinidad and taught school there for ten years. She was hired as a paraprofessional (para) by the School District in 2011. Ms. Sagar was assigned to an autistic classroom at Discovery Intermediate School (Discovery) and later switched to an “intellectually disabled mild” (InD mild) classroom. She has not been subject to any prior disciplinary action. At the start of the 2013-2014 school year, Ms. Sagar was the para assigned to the “intellectually disabled severe” (InD severe) class. The InD severe class had a teacher and two paras,7/ and was composed of children who were mainly confined to wheelchairs or who needed special assistance to walk. Ms. Sagar completed the crisis prevention intervention (CPI) class, a class that instructs personnel on how to physically and verbally restrain, redirect, and prompt a child who is misbehaving. Ms. Gilmore became a para in exceptional student education (ESE) in 2005. She arrived at Discovery in August 2005. Ms. Gilmore worked with students with varying educational needs including: emotional behavior disorder (EBD); autism; InD mild; intellectually disabled moderate (InD moderate); intellectually disabled profound (InD profound); and regular educational students.8/ Ms. Gilmore had completed the CPI training twice before, but she was not re-certified at the start of the 2013-2014 school year. She has not been subject to any prior disciplinary action. Discovery had six self-contained ESE classrooms for the 2013-2014 school year. There were two autistic classrooms, one InD mild classroom, one InD moderate classroom, one InD severe classroom, and one EBD classroom. All six classrooms are located on the first floor of one of Discovery’s buildings, in close proximity to the office of the dean of students. Student safety is of paramount concern for School District employees. As such, every EBD classroom has a land-line telephone and a walkie-talkie for use to request assistance, to notify the appropriate office of a student’s unscheduled exit from the classroom and to provide other information. The telephone is primarily a school-based phone that has its own five-digit internal extension number.9/ In the event a walkie-talkie is not available, a teacher or para may use the telephone to communicate with other school personnel. The walkie-talkies are limited to the self-contained classrooms, guidance counselors, deans, school resource officer, administrators, principal’s secretary, academic coaches, athletic coaches, and maintenance staff. The walkie-talkies are on one channel or frequency, and when used, everyone who has a walkie- talkie can hear the conversation. Discipline referrals may be written by any adult at Discovery for any infraction in the student code of conduct. The referral form reflects the student’s name, identification number, the classroom, school, grade level, date of birth, race, sex, homeroom teacher, incident date and time, location of the incident, the problem or explanation of the problem, the action taken by the adult prior to the referral, the signature of the referring adult, and the date signed. The bottom of the referral form was for “administrative use only,” and reflects what if any action was taken. Ms. Gilmore, as the para in the EBD self- contained classroom, authored numerous discipline referrals for student J.G. During the 2013 summer, Ms. Chowdhary was notified that she would be re-assigned to Discovery’s EBD self-contained classroom for the 2013-2014 school year. Ms. Chowdhary did not want this assignment; however, Ms. Chowdhary contacted Ms. Gilmore and asked if she (Ms. Gilmore) would consent to be Ms. Chowdhary’s para in her EBD self-contained classroom. This request was based on their positive working relationship during the 2012-2013 school year in an autistic classroom. Ms. Gilmore agreed, the school administration concurred, and Ms. Gilmore was assigned to Ms. Chowdhary’s EBD self-contained classroom. At the beginning of the 2013-2014 school year there were ten male students in Ms. Chowdhary’s EBD self-contained classroom. This classroom had a walkie-talkie and telephone. Each student had an individual educational plan (IEP), a different EBD, and a medical condition. On the first day of school, each student was given a welcome packet that contained an emergency contact sheet and a health care report form. The parents are requested (but not required) to complete as much of the information as they wish, and return it to the classroom. Ms. Gilmore read the responses “thoroughly” regarding the medical conditions of students J.G. and J.C., as provided by their respective parents or guardians. In early December 2013, Ms. Gilmore was re-assigned to an InD moderate classroom as an accommodation for her pregnancy. Ms. Chowdhary requested a male para to replace Ms. Gilmore. Based on the support staff already engaged by Discovery, Ms. Sagar was transferred to work in Ms. Chowdhary’s self- contained classroom. Ms. Sagar observed and worked with Ms. Gilmore on two separate days for several hours prior to the actual transfer in mid-December. Approximately two weeks before the Christmas break, a female student, J.T., arrived in the EBD self-contained classroom. J.T. was taller and heavier than either Ms. Chowdhary or Ms. Sagar. J.T.’s language was loud and predominantly profanity-laced. J.T. did not complete her classroom assignments, and she did not follow the classroom rules regarding the use of her cellphone.10/ On January 9, 2014, Ms. Gilmore learned that Ms. Chowdhary was absent from school. Ms. Gilmore volunteered to be the substitute teacher in Ms. Chowdhary’s classroom.11/ In the early afternoon of January 9, two male students engaged in a physical altercation (Altercation No. 1) in the EBD self-contained classroom. J.T. took out her cellphone and recorded Altercation No. 1 (Petitioner’s Exhibit 6, Respondents’ Exhibit 21). That recording showed one student, J.G., standing over and taunting another student, J.C. J.G. called J.C. a “taco.” J.C. responded that J.G. should call J.C. “Taco Bell,” and added that J.G. was the dark meat in his taco. J.G. took J.C.’s remark to be a racist comment. J.C.12/ was crumpled on the floor behind a desk where J.G. grabbed J.C. by his warm-up jacket collar/shirt. J.G. pulled J.C. up by the collar/shirt and pushed J.C. into a chair at a computer cubby and small space near a wall. J.G. kept one hand on J.C. while pinning J.C. to the small space. J.G. continued to taunt J.C. and is heard to say: Next comment I’m gonna stomp on your [J.C.’s] heart, and I know you got a condition to where I stomp on it, you dead, and I don’t give a f . So you can’t keep making a racist joke. Ms. Gilmore and Ms. Sagar were both present and observed Altercation No. 1. Ms. Gilmore was sitting at the teacher’s desk in the front of the room when Altercation No. 1 started. When J.G. “dumped [J.C.] out of the chair,” [to start the altercation], [Ms. Gilmore] told J.G. to “knock it off,” and when J.G. had J.C. on the floor, she [Ms. Gilmore] “told him to quit.” Ms. Gilmore testified that she didn’t call for help because “It was over.” Her testimony is not credible because the recording shows that J.G. then pulled J.C. up to a standing position, and continued to taunt him. Further, Respondents’ Exhibit 16 is a discipline referral that Ms. Gilmore authored on January 9, the day of the altercations. Ms. Gilmore documented in this discipline referral the following “PROBLEM – EXPLAIN:” During Science class, 5th period, [J.G.] was talking about how he fights and got into an altercation with another student. Words were exchanged and [J.G.] didn’t like what the student [J.C.] said so he [J.G.] flipped him [J.C.] out of his chair, kicked him [J.C.] a couple times and threatened to kill the other student [J.C.] by stomping on his [J.C.’s] heart. Ms. Sagar was seated at a desk assisting another student, J.M., when Altercation No. 1 started. Ms. Sagar did not hear any loud shouting or threats at the beginning of Altercation No. 1, but it escalated to the point where she was “alarmed.” Ms. Sagar admitted that she got up to leave the room, then decided not to do so, telling herself: “I shouldn’t leave the class at this time.” The reason she did not leave the classroom was because the altercation “wasn’t settled like down, down, down. It still had like the talking and everybody, so I turned around and came back to my seat.” Ms. Sagar did not move to intervene or call for help. Neither Ms. Gilmore nor Ms. Sagar moved to intervene in Altercation No. 1, and neither used the walkie-talkie or the telephone to call for assistance or to alert the administration of the volatile situation. A few minutes later another altercation (Altercation No. 2) took place in the EBD self-contained classroom. J.T. also recorded Altercation No. 2 (Petitioner’s Exhibit 8) on her cellphone. J.G. was again taunting J.C. J.G. dared J.C. to “take a swing” at J.G. J.C. did not swing at J.G. J.G. proceeded to talk to the class about J.C. and other classmates. J.C. then expressed his desire to die because his life “sucks,” his father was dead, and his step-father didn’t love him. J.C. violently kicked/pushed a chair several feet away from himself, began to cry, stated that he’d be “happy if you [J.G.] kill me,” violently overturned a desk, and walked out of the EBD self- contained classroom. Again, Ms. Gilmore and Ms. Sagar were present in the EBD self-contained classroom, and observed Altercation No. 2. During Altercation No. 2, Ms. Gilmore was at the front of the class at the teacher’s desk. Ms. Gilmore confirmed that J.C. “flipped a desk and walked out of class.” Ms. Gilmore testified she “opened the door, . . . and put myself at the doorway to get the rest of the kids out of the class if I had to get them out.” Ms. Gilmore is briefly partially seen in the recording, and she is heard asking J.C. to pick up the desk before he left the classroom. J.C. did not pick up the desk. The recording shows Ms. Sagar seated at a work table with J.M. At one point Ms. Sagar rises from her seat, walks to a counter with a microwave, stays at the counter for a short time, returns to her seat, and then eats something while Altercation No. 2 is on-going. Neither Ms. Gilmore nor Ms. Sagar used the walkie- talkie or telephone to obtain assistance or alert the administration of the continuing volatile situation. J.C. went to the dean of students (Ms. Rice’s) office after he walked out of the EBD self-contained classroom. Once there, he screamed at Ms. Rice about the events that had just taken place in his classroom. Ms. Rice observed J.C. to be distraught and angry. Based on J.C.’s comments, Ms. Rice understood that a recording of the classroom events was made. Ms. Rice requested the principal to obtain the recording. Between when J.C. left the EBD self-contained classroom and when the principal arrived at the EBD self-contained classroom to retrieve the recording, yet another altercation, Altercation No. 3, occurred. J.T. started recording Altercation No. 3 (Petitioner’s Exhibit 10) on her cellphone. Student W.F. held a chair over his head and threatened to throw it at another student, D.S. The other students in the classroom can be heard urging W.F. to throw it, but W.F. did not. J.G. can be seen standing behind D.S., and heard to say he’ll “make sure it hit[s] you [D.S.].” When it became apparent that W.F. was not going to throw the chair, J.T. handed her phone to W.F., who continued to record the action, and J.T. threw the chair. J.T. testified that she did not intend to hurt D.S., but she was not “play acting.” Ms. Gilmore testified she did not remember much of Altercation No. 3. She thought she might have been writing a referral at her desk, and did not call for help because the altercation was over so quickly. Again, Ms. Gilmore and Ms. Sagar were present in the classroom, observed Altercation No. 3, and did nothing to radio or call for assistance or alert the administration of the volatile situation. There is no credible evidence that any of the altercations were pretend fights, or that they were staged for the benefit of the other students. Ms. Gilmore’s contention, that the altercations were staged, is not credible. This EBD self-contained classroom is a challenging class, one that should be closely monitored and adequately staffed to ensure learning can occur, and safety maintained. Respondents never attempted to gain control of the classroom or students. They never called for help or removed the other students from the area. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate the employment of Ms. Gilmore and Ms. Sagar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Osceola County School Board, enter a final order finding that just cause exists for terminating the employment of Ms. Sagar and Ms. Gilmore. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
The Issue This case has been presented for hearing in accordance with the provisions of Subsection 120.57(1), Florida Statutes. The substance of the case concerns an amended petition for the revocation of the Respondent's teacher certificate before the State Board of Education of Florida, Case No. 78425-M. That case was investigated after receipt of a report from the Duval County School Board, Duval County, Florida. Subsequent to the receipt of that report and in accordance with the provisions of Rule 6A-4.37, Florida Administrative Code, inquiry was made into the details of the Duval County report and, subsequently, the Commissioner of Education of the State of Florida found probable cause on November 28, 1978, to file the Amended Complaint. The material allegations of the Complaint are that the Respondent, Johnnie M. Bennett, is incompetent to teach because: Respondent has proven incapable of keeping clearly defined records for student attendance, participation and grades. Respondent has failed to analyze individual needs and individual potential of students assigned to her and to provide instruction to students in accordance with their needs and potential. Respondent has proven incapable of creating a classroom atmosphere which fosters interest and enthusiasm for learning. Respondent has failed to provide clear, understandable instructions to her students, resulting in confusion as to the students' assignments. Respondent has failed to create student interest in her classroom by failing to use materials and teaching techniques appropriate to the abilities and backgrounds of her students. Respondent has proven incapable of interpreting student work and providing accurate feedback to her students. Based upon these allegations, the Petitioner contends that the Respondent has violated the provisions of Section 231.28, Florida Statutes.
Findings Of Fact This cause comes on for consideration based upon the allegations set forth in the amended petition for revocation of the Respondent's teacher's certificate spoken to in the issues statement of this Recommended Order. Those comments made in the issues statement are hereby incorporated into the Findings of Fact. The Respondent, Johnnie M. Bennett, holds Florida Teacher Certificate No. 88299, Graduate, Rank III, which is valid through June 30, 1982. That certificate covers the area of business education, vocational office education and cooperative business education. The evidence adduced in the course of the hearing directed to the proof of the allegations made, concerned the Respondent's teaching performance while she was employed at Sandalwood Junior/Senior High School in the academic year 1976-77, and at Edward H. White Senior High School during the academic year 1977-78. Both of those schools are located in Duval County, Florida. Various employees of the Duval County School Board and students from that system testified for the Petitioner and certain documents were presented as items of evidence. In addition, testimony was presented through witness Elizabeth Seitz, an outside consultant with an expertise in conducting teacher performance evaluations. Respondent testified in her own behalf and presented witnesses who spoke to her performance at the aforementioned schools and her performance prior to the occasion of being assigned to those schools. In the academic year 1976-77, the Respondent was assigned to the Business Department at Sandalwood Junior/Senior High School. During that school year, several members of the staff of the school had an opportunity to observe the Respondent's instruction on a number of occasions. One of those persons was James C. Roberts, the principal of Sandalwood. He observed the Respondent using a technique which would involve instructing one student while other students were left out of the discussion and those neglected students directed their attention to matters other than the subject matter of the class discussion. There were also several occasions when the principal observed that the Respondent had left her classroom unattended while class instruction was scheduled for presentation and she took her leave without making the necessary arrangements to have someone conduct her classes in her absence. In addition, as a part of the evaluation process, Mr. Roberts collected the Respondent's class roll book which reflects the attendance and grades of the students. This may be found as the Petitioner's Exhibit No. 8 admitted into evidence. The roll book, as pointed out by the witness, Roberts, fails to have a sufficient number of entries in the first nine weeks period of the school year 1976-77, by which someone could determine how the grades that were processed at the end of that term were arrived at. When confronted with this fact, Mrs. Bennett was unable to explain the deficiency. Mr. Roberts had also received complaints from parents that the Respondent had used profanity in the presence of students while classes were being conducted. These complaints were verified by testimony offered through students who attended the hearing. Some of the remarks made were comments such as, "Oh, shit", at a time when the Respondent was frustrated at an attempt to thread film in a movie projector; "Get the hell out of here" at a time when a student was being sent to the Dean; and another occasion using the expression, "Pissed off". A further incident at Sandalwood reported and established through the testimony was an incident in which the Respondent said that a student was "nutty as a fruitcake" and made those remarks in the presence of other students in a way that embarrassed the student to whom the remark was directed. There was an allegation investigated by the principal dealing with the destruction of classroom furniture, in which the claim was made that Mrs. Bennett allowed the members of the class to destroy the furniture during the conduct of a class; however, the testimony offered is not of the quality that would establish responsibility on the part of Mrs. Bennett for the alleged vandalism. Doris Moon, the Department Chairman of the Business Department at Sandalwood Junior Senior High School in 1976-77, offered testimony. Her testimony established that at the end of the first semester of the school year, from her observation, the students in Mrs. Bennett's class were not listening. Mrs. Moon also established that Mrs. Bennett's papers for aiding in instruction directed to the students, were not in good order. She made the same observations about Mrs. Bennett's grade book that was made by Mr. Roberts and those observations were valid. This concerns the insufficiency of entries in the grade book dealing with a method and arriving at a grade from the nine-week term. Mrs. Moon observed that on at least five occasions the Respondent left her classes unattended without pursuing the necessary procedures for such an absence. Mrs. Moon's remarks established that the class members were too noisy, thereby creating a problem for those class members in adjacent classrooms. Finally, Mrs. Moon's testimony revealed that the lesson plans of the Respondent were not adequate to apprise a substitute teacher of the nature of the class to be taught and the objectives to be pursued, and this lack was contrary to school procedures. Dr. Margaret Griffin, who was the Assistant Principal at Sandalwood Junior/Senior High School in 1976-77, gave testimony. She observed that the instruction given by the Respondent in the second semester was principally visual aids, other graphic aid materials and handouts, without defining lesson objectives adequately. The students were not participating at the time that Dr. Griffin observed the class; they were merely sitting around talking. She also observed Mrs. Bennett speak to four or five students amount remarks that the Principal had made to Mrs. Bennett, while other students were left out of the conversation. This conversation was not directed toward the realization of educational goals. Dr. Griffin also viewed the Respondent's classes at a time when the Respondent had left the classroom unattended without following the necessary procedures for leaving the classroom and at a time when the Respondent had been instructed on the technique for signing out of the classroom. All these matters led to unsatisfactory evaluations of the Respondent which were made by the Principal, Mr. Roberts. The routine evaluation was made on March 9, 1977, and a follow-up evaluation was made on May 17, 1977, in view of the unsatisfactory nature of the initial evaluation. These evaluations may be found as Petitioner's Exhibits 5 and 6, respectively, admitted into evidence. Due to the difficulty which the Respondent had experienced at Sandalwood Junior/Senior High School, she was afforded the chance to return to that school or to be placed in another school. She elected to be placed at Edward H. White High School for the year 1977-78. When the Respondent arrived at Edward H. White High School, she was assigned to teach courses to business math and typing. There ensued the same pattern of conduct on the part of Mrs. Bennett that had been evidenced in the year at Sandalwood. The Principal of White High School, John Thombleson, testified at the hearing about his observation and evaluation of the Respondent. This testimony established that the class members had a very negative attitude toward her and Mrs. Bennett's teaching performance in terms of techniques and rapport with the students was not satisfactory. Thombleson noted that there was a lack of class discipline and control and a lack of guidance for the students in the course work. In addition, Mrs. Bennett was not punctual in arriving at her classes. Mrs. Bennett also had problems maintaining a proper grade book and Mr. Thombleson was aware of that difficulty. As with the circumstance at Sandalwood, the grade book was deficient in a number of entries, thereby making it difficult to conclude how the Respondent had determined the grade for the respective students. Excerpts of the grade book which are in question may be found as part of the Petitioner's Composite Exhibit 18 admitted into evidence. Mr. Thombleson sat in on a parent-teacher conference between Mrs. Bennett and the parents of a student. In the course of that conference Mrs. Bennett was overly emotional and did not handle the situation appropriate. Mrs. Bennett's difficulties led to an unsatisfactory evaluation in the period covered by an evaluation of October 31, 1977, and March 15, 1978. These evaluations may be found as Petitioner's Exhibits 12 and 13, respectively, admitted into evidence. Grace Hinson was the head of the Business Department at Edward H. White High School in 1977-78. She observed Mrs. Bennett's performance as a teacher and her analysis of Mrs. Bennett's performance establishes that Mrs. Bennett did not promote the proper discipline in the classrooms and lacked organization. In particular, the students were loud and disruptive of other adjacent classes. At times, students were asleep in Mrs. Bennett's classrooms and at times the students were openly cheating. In the typing classes students did not understand the instructions and, consequently, did not know what they were required to do. The students in the math classes of Mrs. Bennett were unruly. Ms. Hinson's observation of the Respondent's grade book in terms of the adequacy of the grade book was the same as that noted by Mr. Thombleson. Sally Griner, the Curriculum Assistant at Edward H. White High School in 1977-78, testified. Her testimony established that the business math objectives in the classes taught by Mrs. Bennett were not covered. Her observation of Mrs. Bennett's classes also established there was a lack of discipline in the classroom and the students were not involved in the classroom activities and were asleep at times. Ms. Griner saw students reading newspapers in the personal typing class. Ms. Griner's analysis of the teacher performance of Mrs. Bennett pointed out that Mrs. Bennett had the capacity to work with one or two or three students, but not with the overall class. Efforts were made by Ms. Griner and others to improve Mrs. Bennett's performance, but those efforts were not successful. Upon agreement with Mrs. Bennett, the witness, Griner, administered a Flanders Interaction Analysis, which is designed to reveal the amount of time spent in lecture and the amount of time spent in student participation. This analysis revealed that 86 percent of Mrs. Bennett's time was lecture and 14 percent student participation, which revelation showed the distribution of time to be too heavily weighted in favor of the lecture method. In view of the problems that Respondent was having at Edward H. White High School, the Principal, Mr. Thombleson, asked that the Professional Practices Council assign a professional reviewer to check the quality of Mrs. Bennett's teaching performance. The Respondent agreed to this review and on December 6 through 8, 1977, Elizabeth Seitz performed such a review. The details of Ms. Seitz's evaluation may be found in the Petitioner's Composite Exhibit 18. Summarizing Ms. Seitz's findings, she concluded, it is established through her concluding remarks that Mrs. Bennett did not maintain clearly defined records in the classroom; that Mrs. Bennett was not aware of the different levels of the business math classes; that Mrs. Bennett did not create an atmosphere conducive to learning; that Mrs. Bennett's directions created confusion as to what the students were to do; that Mrs. Bennett was inconsistent in dealing with students; and that Mrs. Bennett did not interpret work to provide accurate feedback. Finally, the Respondent engaged in open profanity in other classes at Edward H. White, using the words, "damn", "hell" and "bitches". All of these words served to embarrass the students. Mrs. Bennett also referred to pregnant students in the class as "OBW's", an abbreviation for "old big-bellied women" Other comments to the class members included the comments that a student was "dumb" and a "smart mouth".
Recommendation It is recommended that the Florida Teacher's Certificate No. 88299, Graduate, Rank III, held by the Respondent, Johnnie M. Bennett, be PERMANENTLY REVOKED. DONE AND ENTERED this 13th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact The Respondent holds Florida teaching certificate 195597 covering the area of industrial arts. During the school years of 1973-1974 to 1983-1984, Respondent had no persistent pattern involving professional incompetency or unprofessional conduct. The Respondent was employed as a teacher of industrial arts at Vero Beach Junior High School in the Indian River County School District during the 1983-1984, 1984-1985, and the first three weeks of the 1985-1986 school years, until his suspension effective September 16, 1985. During 1983-1984, he also apparently taught mathematics. At various times, the classes Respondent taught at Vero Beach Junior High School included some classes directed to regular students and others directed to exceptional students, including the educable mentally handicapped (EMH). EMH students have intelligence quotients (IQs) of less than 70. At all times, all of the industrial arts classes taught by Respondent were elective. THE 1983-1984 SCHOOL YEAR Mr. Marion Bass was the Respondent's supervising principal at all times material to the administrative complaint. As the Respondent's supervising principal, Mr. Bass observed and evaluated the Respondent's teaching performance. Prior to evaluating the Respondent's teaching performance, Principal Bass received formal training in the evaluation of teachers and had 12 to 13 years of practical experience in conducting teacher evaluations. Principal Bass observed the Respondent's teaching performance informally on two or three occasions during the 1983- 1984 school year and twice formally at the end of that school year. In his observations and evaluation of Respondent, Bass found the Respondent's performance to be unsatisfactory. Specifically, Bass observed that the Respondent did not satisfactorily control students in his classroom, his planning was not as complete as it should be, implementation of his lesson plans was not acceptable, and Respondent's "voice procedures" (i.e., diction and volume) were unsatisfactory. Bass opined that the Respondent did not have a specific structure to his industrial arts class. Even if students were knowledgeable of their assigned task on a given day, the students were not always on-task. Instead, they would be out of their seats, moving around the room and discussing topics unrelated to class work. In Bass' view, Respondent failed to provide proper supervision of the students, and as a result, the students did not appear to respect the Respondent's instructions. Bass observed that students ignored Respondent's instructions to sit down and be quiet. On other occasions, he observed that the Respondent ignored some students' off-task behavior while he was involved with others. However, none of Bass' observations in the 1983- 1984 school year were reduced to writing nor formally discussed with Respondent, and the formal year-end evaluation of Respondent of March 16, 1984, by Laurent Smith, Assistant Principal, rated Respondent as overall satisfactory and his contract was subsequently renewed for the 1984-1985 school year. On or about May 15, 1984, Bass inadvertently discovered that the Respondent was not knowledgeable of his mathematics students' progress in their skills continuum. This was particularly disturbing to Bass in that each student is required by the Indian River County School Board to accomplish at least 70 percent proficiency in state-mandated skills in order to be promoted to the next higher grade. Thereafter, Bass made an attempt to ascertain the level of skills accomplishment by the students in Respondent's classes. While doing so, Bass questioned Respondent about the matter. The Respondent indicated that certain students were in the Compensatory Education Program. Bass subsequently learned that those students were not compensatory education students but were Level Two students. It alarmed Bass to discover that the Respondent did not even know what level of students he had been teaching for seven months. THE 1984-1985 SCHOOL YEAR On September 17, 1984, Bass prepared a memorandum to Dr. Douglas King, Director of Personnel for the School Board. In that memorandum, Bass outlined his concerns regarding Respondent's teaching performance. The memorandum addressed seven general areas of deficiency: failure to control students' behavior; failure to provide meaningful structure and direction and failure to support an enthusiasm for learning; failure to demonstrate the ability to plan a course of study with overall goals and objectives providing direction and continuity in the subject matter; difficulty in implementing what lesson plans the Respondent did develop; addressing only a small percentage of the students in his class when presenting a lesson; difficulty with proper grammar and diction; and a demonstrated lack of understanding for the basic academic and social skill needs of his students. Following preparation of his September 17, 1984 memorandum, Bass continued to make observations of the Respondent's teaching performance. Bass observed the Respondent's teaching performance on October 15, 1984 and completed a Classroom Observation Instrument containing his notes of that observation which rated the Respondent's performance in the classroom as "extremely poor, one of great concern." The notations on the Classroom Observation Instrument itself indicate that the Respondent gave directions to a limited number of students, assisted only a small number of students, engaged in very little class communication, did not enunciate well, used poor diction, utilized "very poor" classroom management, and failed to keep the students on task. Following Bass' observation of the Respondent on October 15, 1984, he prepared a written memorandum of his concerns and his suggestions for improvement. He met with the Respondent and discussed both his concerns and suggestions for improvement. The Respondent received a copy of the memorandum. During this conference, Bass told the Respondent that he was there to help him in any way that he knew how to help. Bass expressed similar sentiments in other conferences with Respondent regarding Respondent's teaching performance and offered to allow Respondent to visit other schools and other teachers both in and out of the school district in an effort to help Respondent remediate his observed deficiencies. On September 13, 1984, Theresa Wagner, chairperson of the vocational department of Vero Beach Junior High School, sent all teachers within that department a memorandum establishing dates for computer usage. One of the components of the Respondent's industrial arts curriculum was demonstration of computer literacy. Respondent received a copy of the memorandum. On October 15, 1984, the first day of the Respondent's assigned time block for use of the computers, the Respondent advised Ms. Wagner that his class was not ready to use the computers and would probably not be ready the following week. However, until that date, Respondent had expressed no problem with the time block assigned to him and had requested no assistance in preparing for this new function of the curriculum. When Ms. Wagner reminded him that computer skills were a part of his required curriculum at that time, Respondent replied that he could not understand why he had to teach something he did not know anything about. Further, he stated that he could not learn it. Respondent apparently made two attempts to learn the computer and gave up. Respondent's failure to adapt himself to the new computer programming time blocks inconvenienced Ms. Wagner and others who were required to share the single computer during the finite time available in a school day/school year. At hearing, Respondent advanced the theory that because his major was in TIE (Trade Industrial Education), he ought not to be required to adapt to teaching manufacturing, woodworking, and computer literacy, which are outside of his expressed field of interest, but which apparently are very much contemplated within the general field of industrial arts. Additionally, he felt he certainly should not be required to adapt to teaching all these "new" areas at one time. However, it appears he had been teaching woodworking for some period of time anyway. Overall, Respondent made it clear he did not want to teach the curriculum assigned to him. As a part of her assigned responsibilities as department chairperson, Ms. Wagner was required to observe each of the teachers within the vocational department. On October 10, 1984, she observed the Respondent. Her memorandum to the Respondent dated October 10, 1984, outlined her observations as well as her suggestions for his improvement. Ms. Wagner had difficulty understanding the Respondent when he was teaching. She suggested that he talk louder and make a special effort to enunciate clearly. She observed that the Respondent failed to provide a handout for one girl in the class. The girl raised her hand and had it up for five minutes before the Respondent noticed the student and gave her the handout. Ms. Wagner observed a lot of non-essential, non-productive movement of students in the classroom. Finally, she noted among other things that the last lesson plans which the Respondent turned in were for the week of September 17, 1984, although he was on notice that he was supposed to turn in lesson plans weekly. Ms. Wagner observed little, if any, instruction being provided by the Respondent. The students failed to respond to the Respondent's directions and did not pay attention to him or obey his directions. In fact, the majority of the students ignored the Respondent during this observation by Ms. Wagner. Lesson plans were an on-going problem between Ms. Wagner and Respondent. Only when Ms. Wagner specifically asked the Respondent for lesson plans did she receive them. Those which she did receive from the Respondent were not satisfactory. In her opinion, any substitute teacher would have had a very difficult time teaching effectively based upon the plans which Respondent did submit to her. Although other departmental personnel sometimes missed turning in lesson plans timely, everyone except the Respondent eventually "caught up" with their lesson plans. Ms. Wagner later observed Respondent on several other occasions. Those observations of the Respondent's teaching performance were consistent with her observations on October 10, 1984. On September 14, 1984, Richard Thomas, Vero Beach Junior High School Dean and Assistant Principal, observed the Respondent's classroom performance. Mr. Thomas is trained for such evaluations. Using the teacher evaluation form containing 39 observable "behaviors," Thomas rated the Respondent as "needs improvement" in 14 of the 39 categories based upon his observations on September 14, 1984. Thomas categorized the Respondent's performance on that date as incompetent. On September 20, 1984, Thomas became aware that the Respondent was sending a large number of student referrals to the Guidance Department for the purpose of having the students seek reassignments from his classes to other classes. Respondent's action was creating problems for the Guidance Department, the students, and the Respondent himself because by that point in the school year, a change of classes under the circumstances was impossible. Thomas prepared a letter dated September 20, 1984 to Respondent requesting that he refrain from such conduct. In the letter, Thomas offered to discuss the matter with the Respondent. Respondent's reasons for his acceleration of referrals was never made entirely clear. However, one explanation offered by the Respondent at formal hearing was that when he had behavioral problems with students in his classes and was not permitted to lock them out of the class (see findings of fact 21, 32, and 33 infra.) and was not otherwise "backed up" by Principal Bass and Assistant Principal Thomas, Respondent felt justified, as a strict disciplinarian, in referring those students whom he viewed as troublemakers to the Guidance Department either to be dealt with by Thomas or for reassignment elsewhere. Under the circumstances, this explanation by Respondent of strict discipline is flawed and unreasonable and evidences lack of classroom control. At hearing, Respondent expressed his objection to having exceptional and special education students in his classes due to their low IQs, even though he admittedly had taken courses in this area. Although all school and School Board personnel assumed Respondent was certified for EMH students, Respondent was not specifically so-certified. He maintained that because of their low IQs, EMH students created special discipline problems, which fact was confirmed by Mr. LaPointe and Mr. Bass. However, Mr. LaPointe, a specialist in the field, also opined that an industrial arts certificate should qualify Respondent to teach industrial arts to EMH students. Respondent attributed much of his professional troubles to the inability of the exceptional education students to learn as opposed to his own inability to teach. At first, Respondent further suggested Bass and Thomas had also assigned students with disciplinary problems to both his regular and exceptional classes. However, he could not substantiate this premise in light of the elective nature of all industrial arts classes. Overall, Respondent only made it clear that he did not want to teach the students assigned to him. On October 17, 1984, as a follow-up to his September 14, 1984 visit, Thomas observed Respondent teaching and prepared a Classroom Observation Instrument. He concluded that the Respondent's "with-it-ness" was poor because Respondent was oblivious to a fight which was about to break out between students in the back of his classroom and because a student had to approach the Respondent and almost physically pull on the Respondent's arm to get his attention. Thomas observed that the Respondent was not in control of his class and that he failed to maintain the attention of all students. Thomas observed no improvement in Respondent's performance on his October 17, 1984 return, except that on that particular date, the Respondent did attempt to implement some organizational structure through the use of an overhead projection covering four items. On November 9, 1984, Thomas wrote the Respondent a letter in regard to the manufacture of weapons by students in the Respondent's manufacturing class. Prior to that date, Thomas had verbally cautioned the Respondent about the manufacture of weapons by students in his class. No direct competent substantial evidence nor any corroborated hearsay supports a finding of fact that "weapons" per se were in fact created in Respondent's class with his knowledge. It was, however, demonstrated that various lathe-produced wooden objects, possibly intended by Respondent for use as chair legs, were smuggled out of his class by students. Although Respondent denied certain items described as "swords" and "paddles" were weapons and even that some of the "chair legs" were made in his class, the fact that he admitted that a paddle and certain "chair legs" could have been smuggled out by students indicates an appalling nonchalance for his duties of supervision of young people. It was further demonstrated that a sign bearing the expression "I LOVE SEX" and that a paddle bearing the expression "DUCK BUT!" [sic] were manufactured in Respondent's class without his disapproval. On October 16, 1984, Jean Carter, the Director of Vocational Adult and Community Education for the Indian River County School District, observed the Respondent's second period class. Ms. Carter is a qualified observer with the Florida Performance Measurement System. During her observation on October 16, 1984, Ms. Carter noted that the Respondent did not begin his class promptly. Students talked in loud voices and milled around the room. The Respondent had difficulty communicating with his students. Most of his comments were inaudible. The Respondent turned his back on some students when he spoke to other students. Few students attempted to write the notes shown on the overhead projector as the Respondent ordered. Other students never faced the projector, and the Respondent seemed to be unaware that they were not taking notes. Ms. Carter observed several students off task. Four or five students were throwing paper and spitballs around the room. The word "important" was misspelled on the transparency. Respondent exhibited no enthusiasm for the subject matter, never praised the students, spoke positively, or smiled. He did not appear to enjoy teaching. In November 1984, a request was made to the Florida Department of Education to provide an assistance review of the Respondent's teaching performance. The purpose of the assistance review was to provide the Respondent with assistance in becoming a more proficient teacher. Following the assistance review, a very lengthy, detailed report was prepared by the reviewer and submitted to the Indian River County School District. On February 7, 1985, a conference was held involving Superintendent Burns; Principal Bass; Dr. Eddie Hudson, Personnel Coordinator; Mrs. Shirley Hanawait, Assistant Superintendent; Ms. Carolyn Sheppard, CEA President; Jean Carter, Director of Vocational Education; Dr. Douglas King, Director of Personnel; and the Respondent. The purpose of the conference was to review the report prepared by the Department of Education assistance reviewer and to make arrangements to provide Respondent with additional help and assistance as needed. In that conference, Respondent's supervisors made arrangements to correct, repair, or adjust equipment in Respondent's classroom; to have another industrial arts teacher assist Respondent; to provide Respondent with relief time to observe other professional teachers in the same vocational area; to send the Respondent to two professional conferences; to provide Respondent with professional journals; to provide Respondent with assistance through the department head; and to provide assistance from Mr. Bass in the areas of grading, lesson plans, supervision, management, and organization. Mr. Bass, Superintendent Burns, and Dr. King emphasized to Respondent that he must begin to show improvement in his performance immediately. Respondent was advised that if no improvement were demonstrated immediately, Respondent could be removed from continuing contract status or dismissed altogether. The Respondent received a copy of the conference summary prepared by Dr. King as a reminder of the action Respondent was expected to take to improve his classroom performance. Ms. Carter participated in the conference held with the Respondent on February 7, 1985, to review the assistance review report and to provide the Respondent with help. Her purpose in attending the conference was to provide the Respondent with assistance in any way possible to improve his performance. Ms. Carter later made sure that all of the Respondent's equipment was in proper working order, that he had copies of the performance standards mandated for the courses he taught, that he received professional journals, and that he was authorized to attend two conferences relating to his subject matter area. Respondent did not, however, attend either conference. Subsequent to the February 7, 1985 conference, Bass conducted five classroom observations of the Respondent's teaching performance. On each occasion, Bass completed a Classroom Observation Instrument. On March 8, 1985, Bass observed the Respondent's class and found that no valid learning activity was going on in the classroom. On March 12, 1985 at 7:35 a.m., Bass observed the Respondent's industrial arts class for exceptional education students. There were seven or eight students in the class. Bass observed that the Respondent gave the students approximately 15 vocabulary words to look up while the Respondent straightened up the classroom. In Bass' opinion, such an assignment for exceptional education students was inappropriate due to their limited intelligence, attention span, and the purpose for which such students were enrolled in the course. Mr. Bass characterized Respondent's performance on that date as poor. Subsequently, on the same date, Bass observed the Respondent teaching manufacturing to a regular class of about 17 students. Although Bass characterized Respondent's performance in this class as better, he still gave it an overall score of poor because Respondent's presentation lacked continuity and his discourse was "disjointed." Bass continued to note that the Respondent had difficulty with grammar, enunciation, and projection of an enthusiasm for the subject matter. On March 18, 1985, Bass again observed Respondent's manufacturing class for exceptional students. Although Bass also termed this observation better than those he had made of Respondent in the past, he still considered it a below average observation. On the observation instrument itself, Bass noted that the Respondent was late to class, wasted time by marching the students to a film which was set up in a classroom in a separate building, provided no orientation or preview prior to showing the film, and conducted no discussion of the film after it had been shown. He further noted that the Respondent performed much of the project work himself, thereby limiting the hands-on experience that the students were in the class to receive. That same day, Bass observed the Respondent's manufacturing class for regular students, which viewed the same film as had been shown to the exceptional education students. The content of the film would have been acceptably pitched for both types of classes if Respondent had appropriately introduced the film and had led post-film discussions appropriate to each level, which he did not. Bass felt that once again a lot of time was wasted, there was scant review of the film's content, and there existed the same problems with diction and discourse by the Respondent. Bass concluded that the Respondent's teaching performance remained virtually unchanged from what it had been prior to the assistance review. Bass' March 27, 1985 Annual Teacher Evaluation for Respondent's 1984- 1985 school year resulted in a rating of "needs improvement" in 23 of the 39 "behaviors" evaluated on the form. Bass met with Respondent on March 28, 1985 to review the evaluation and discuss it with him. Before Bass could begin discussion of the evaluation, Respondent stated, "Let me make a long story short, Mr. Bass, I am not going to sign my evaluation even if we talk all week. You're 100 percent right on what you wrote, but I'm still not signing it." On more than six occasions, Thomas found the Respondent's students out of class when they were supposed to be in his room. On certain occasions Respondent locked them out. When the Respondent locked students out of his classroom, those students were free to roam the halls with the excuse that they had been locked out of their classroom. On one occasion, school staff members caught one of the Respondent's students committing a theft at a time when he was supposed to be in Respondent's class. Although the theft incident was not conclusively tied to a date Respondent locked students out of his classroom, Respondent was still responsible for indicating to the administration that the student was "cutting" and had not done so. On June 4, 1985, Bass learned that the Respondent was locking his students out of his classroom. Final examinations were being conducted at the time. The Respondent told Bass that he could not make the students stay in class without this procedure, which he had designed to catch students when a student still in the classroom tried to let those who had left the classroom back into the classroom from the outside. Respondent also told Bass he could not give an examination and control the students if the door were not locked. Respondent repeated this explanation from the stand at formal hearing as if his plan were designed to catch those who "cut" class, but Respondent also maintained it was a method of timing the number of minutes students remained out of class so that Respondent could tell their parents why he would not permit them ever to leave the room again, apparently even for reasons as mundane and urgent as using the bathroom. Such reasoning process is flawed and unreasonable, if not downright silly. The Respondent refused to sign the incident report resulting from this incident and further refused to discuss the incident report with Mr. Bass. As a vocational education teacher, Respondent was required to submit end of the year reports to Ms. Carter as a part of state and federal funding requirements. Ms. Carter had informed Respondent of the requirement that he prepare and submit the reports prior to leaving school. Respondent testified he submitted the required reports at the end of the 1984-1985 school year by placing them in the school office mail box of Ms. Wagner. Ms. Carter testified that she did not receive them. The problem with transmittal of the reports appears to be one that could have been resolved by Ms. Wagner or someone notifying the Respondent immediately by telephone that they had not been received. This was not done, although Ms. Carter and Dr. King followed up with written reproofs. Such an infraction under these circumstances will not support discipline of Respondent. Respondent's annual evaluation for the 1984-1985 school year, dated March 27, 1985 and referenced above, was not satisfactory, but Respondent's contract was subsequently renewed for the 1985-1986 year. THE 1985-1986 SCHOOL YEAR On September 3, 1985, Howard LaPointe, then a staff associate in the Exceptional Education Program of the Indian River County School District, observed Respondent teaching exceptional students in his manufacturing class. Although school had begun on August 17, 1985, Respondent took his class on a tour of the other building on September 3, 1985. Mr. LaPointe observed numerous deficiencies during his observation and noted that the Respondent needed assistance in the areas of classroom management, instructional materials, orientation to class work, utilization of student notebooks, and competency based upon the curriculum guide. On September 13, 1985, the Respondent met in Principal Bass' office with Bass, LaPointe, Carolyn Sheppard (president of the teachers' union) and Dr. King to review LaPointe's observation conducted on September 3, 1985 and to discuss suggestions for Respondent's professional improvement. As Mr. LaPointe began to present his plan for providing assistance to the Respondent, Respondent became angry and upset. After a sharp exchange between LaPointe and Respondent, wherein LaPointe asked Respondent "What the hell do you expect the children to do?" or some similarly-phrased question, Respondent left the meeting and did not return. Bass and Dr. King walked down to the Respondent's office, a glass- enclosed room. They could see Respondent was in a highly emotional, agitated state. The Respondent had knocked his personal television set onto the floor. It was not demonstrated that Respondent damaged a projector or any other school property or that two obscenities uttered by Respondent were heard by anyone other than a fellow teacher, Mr. Humphrey, who had entered the enclosed room as a friend to calm down the Respondent. Had Bass and King not followed Respondent to his own office they would not have even observed his agitated state. Respondent was excused for the remainder of the school day after Mr. Humphrey calmed him down. Later that day, Superintendent Burns suspended the Respondent without pay. Respondent was subsequently terminated by the School Board for incompetence, misconduct, and gross insubordination. On December 12, 1985, Dr. King notified the Florida Department of Education that the Respondent had been dismissed from his position of employment. Dr. King recommended that the Respondent's teaching certificate be permanently revoked. Based upon Bass' observations and evaluations of the Respondent's teaching performance over a period of more than two years, Bass holds the professional opinion that the Respondent is an incompetent teacher. Bass would not recommend the Respondent for employment in Indian River County or any other school district. In Bass' professional opinion, students in the Respondent's regular classroom did not receive even a minimal educational experience and the exceptional students received only a minimal educational experience. No evidence whatsoever supporting the allegations of unprofessional conduct at Clemans Elementary School was offered and no such unprofessional conduct is found. No direct competent substantial evidence nor any corroborated hearsay supports the allegation that Respondent used profanity in the presence of students and no such conduct is found. Respondent's pre-1983-1984 school year evaluations are technically irrelevant to the charges at bar but were admitted to give Respondent every opportunity to "prove up" his allegations that his current problems arose from personal or personality conflicts with Bass and Thomas. Unfortunately for Respondent, these exhibits show some of his deficiencies are long-standing but were sporadic as opposed to forming a consistent pattern early on. Otherwise, these exhibits are too remote in time to have great weight. Respondent also defended, pursuant to Rule 6B-4.08(2), Florida Administrative Code, upon the premise that after a bombardment of evaluations and conferences he felt he was being harassed rather than given corrective assistance and that he was given too little time in which to make the adjustments required. Rule 613-4.08(2) requires Respondent's immediate supervisor to make all efforts possible to aid Respondent to correct the matter which caused his dismissal. Although this is a questionable defense when, as here, Petitioner and the School Board are not one and the same entity, some of Respondent's allegations have a mitigating effect. There is some merit to his allegations with regard to the timeframe and limited assistance provided but none as to the allegation of harassment. Respondent did unsuccessfully apply for transfer and volunteer to accept a custodial job at the same pay in order to avoid his problems with Bass and Thomas, but he could not demonstrate at formal hearing any reason other than his own attitude and teaching performance for Bass' and Thomas' poor evaluations and refusal to transfer him. Moreover, the consistency of the other observers' analyses belies any conspiracy or vendetta against Respondent on the part of Bass and Thomas. There is some evidence that Respondent made some minimal improvements in technique after assistance was provided by the professional reviewer, which assistance Mr. Bass characterized as the only significant remediation provided the Respondent. Upon his superiors' advice, Respondent also conferred with at least one other teacher in his field who came to his school. Ms. Carter testified that Respondent was authorized to attend two professional conferences and he did not, in fact, attend, but it is unclear from her testimony and the supporting documentary evidence whether federal grant monies were ever authorized for Respondent's attendance at either of these conferences. Mr. LaPointe's evidence that special assistance with regard to exceptional students was offered by him but rebuffed by Respondent is indicative of Respondent's poor attitude. There is evidence that equipment was repaired for Respondent and although not stated by any one witness in so many words, it may be inferred from the collective testimony of several witnesses that Respondent could have requested time off to observe other industrial arts classes and confer with other industrial arts teachers outside his own school but failed to do so. In light of Respondent's satisfactory rating in the 1983-1984 school year, the fact that significant efforts to assist Respondent did not commence until November 1984 (reviewer visit) and that internal assistance did not begin in earnest until the February 7, 1985 conference, I find Respondent had really only from February to March 1985 to avoid an initial unfavorable annual evaluation. From March 1985 to school's closing in June and part of August and September in the 1985-1986 school year was all the time permitted Respondent for remediation because he was dismissed in mid-September 1985. Even so, he showed some minimal improvement which has been considered.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's Florida teaching certificate be suspended for three years with provision for reinstatement as provided by statute. DONE AND ORDERED this 22nd day of June, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4101 The following constitute rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF). Petitioner's Proposed FOF: Covered in FOF 1. Covered in FOF 3. Covered in FOF 5. 4-5 Covered in FOF 6. 6-8 Covered in FOF 7 but amplified to conform to the record as a whole. Covered in FOF 8. Covered in FOF 9. Accepted that there were such reports but rejected as set forth in FOF 41. Covered in FOF 10. Covered in FOF 11 except as to the subordinate and unnecessary. 14-15. Covered in FOF 12 except as to the subordinate and unnecessary. Covered in FOF 25. Covered in FOF 26. 18-19. Covered in FOF 27. 20. Covered in FOF 29. 21-23. Covered and amplified in FOF 30 to conform to the record, but eliminating the legal argument from proposal 23. 24. Covered in FOF 31. The commentary about the presence of a secretary and Respondent's mood are rejected as immaterial in light of no charges of insubordination. Further, mild anger in the presence of the Principal's secretary is hardly likely to impair Respondent's effectiveness. 25-26. Covered, modified and amplified as necessary in FOF 33 to convey the full scope of the material facts of record. That which is cumulative, subordinate and unnecessary has been rejected. 27. Covered in FOF 36; what is rejected is subordinate and unnecessary. 28-29. Covered in FOF 39; what is rejected is cumulative. 30-31. Covered in FOF 13-14 and amplified to more accurately convey the evidence of record as a whole. Covered in FOF 16 but modified for clarity. Covered in FOF 18. Except for elimination of the cumulative, covered in FOF 17. Except as cumulative, subordinate and unnecessary, covered in FOF 19. Covered in FOF 19. 37-38. Covered and amplified in FOF 20 to more accurately reflect the evidence of record as a whole. 39-42. Except as cumulative, subordinate or unnecessary, covered in FOF 22. 43-46, and 49 Rejected as not supported by the direct, credible competent substantial evidence of record as a whole. 47-48. Accepted that reports were written but rejected on the basis of uncorroborated hearsay, unsupported by direct credible competent substantial evidence in the record as a whole as covered in FOF 41. 50. Covered and amplified to more accurately reflect the record evidence as a whole in FOF 32. See also FOF 33. 51-53. Except for the cumulative, subordinate and unnecessary, covered in FOF 24. Covered in FOF 28 and 42. Rejected as not supported by the record as a whole. All witnesses are entirely credible on this point and Respondent's testimony is not truly contrary to other testimony. The benefit of the doubt must be resolved in his favor in this penal procedure. 56-58. Rejected as stated as not supported by the credible competent substantial evidence of record as a whole which is set out in FOF 37. 59. Covered in FOF 38. 60-61. Rejected as subordinate and unnecessary except as covered in FOF 38. 62. Covered in FOF 38. 63-65. Rejected as irrelevant except as covered in FOF 42. Rejected as cumulative. See FOF 20, 21, 32 and 33. Accepted but covered as set forth in FOF 23 since the proposal does not constitute an ultimate, material fact. Rejected as legal argument except to the extent it is peripherally covered in FOF 42. Respondent's Proposed FOF: 1-3. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. 4. Rejected as stated in that it constitutes argument but the topic is covered in FOF 7, 21 and 42, as supported by the record as a whole. 5-8. Accepted but cumulative upon the acceptance of similar proposals by Petitioner. This proposal is not a sentence and is therefore rejected. Accepted that Respondent had the feelings and made the statement but rejected as stated as misleading of the record as a whole. See FOF 37. Except as covered in FOF 4, rejected as irrelevant, although true. Accepted but this goes to Respondent's overall incompetency and is not an ultimate material fact and therefore not adopted. See FOF 21. Rejected as some of these were not admitted in evidence and those in evidence do not support the proposal, neither does the record evidence as a whole. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Charles L. Hendley, Esquire 1500 Delaware Avenue Fort Pierce, Florida 33450 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 =================================================================
The Issue Whether just cause exists to suspend Respondent's employment with the Broward County School Board for three days without compensation.
Findings Of Fact Introduction Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. Respondent began her teaching career with the Broward County School District in or around 2005. Respondent has taught reading and math, and at all times pertinent to this proceeding was employed as a specialized varying exceptionalities ("SVE") teacher at MacArthur High School, a public school in Broward County. Respondent was assigned to a SVE classroom for the 2011-2012 school year. The SVE program is designed to prepare high school students with varying disabilities for the transition to adulthood. The intended goal is to teach skills needed to ensure the most independence for each student. Functional academics, social and communication skills, independent living, and employability skills are contained within the SVE program. At the beginning of the 2011-2012 academic school year, Respondent was provided with a document titled, "Transition Process Implementation Steps & Expectations" (hereinafter "Steps").1/ Sheneka President, a transition teacher assigned to provide support to SVE teachers within the district, described the Steps as a means to "break down" the SVE high school standards into "doable pieces," such that if a teacher follows the Steps, he will also be in compliance with the standards. Alona DiPaulo, Assistant Principal at MacArthur High School, described the purpose of the above-referenced Steps as follows: "There are seven steps. The steps is basically part of the curriculum in which the SVE students are required to go through on a daily basis. The idea and concept behind steps is that this is really the last ditch effort for students in order to become competent human beings out in the real world, whether it's in the world of work, whether it's home for personal living, social skills, this gets them to function independently." The school district did not simply disseminate the document to Respondent and leave her to her own devices to implement the Steps. To facilitate the implementation process, Respondent was required to attend formal PASS training from the school district.2/ The PASS training is conducted over four sessions. Each session provides instruction, examples, and guidance on completing certain steps (for example Steps 1 and 2), as well as visits to classroom settings that have implemented the Steps. After attending each session, the teacher returns to the classroom and implements the steps learned to date. The process repeats until the teacher has been trained on the implementation of all seven steps. Respondent was also provided with significant personnel support throughout the 2011-2012 school year. Ms. President observed Respondent's class approximately once per week. If Respondent, in Ms. President's opinion, was not in compliance with the Steps, Ms. President would give instruction on how to become complaint.3/ Ms. President would then confer with Respondent concerning a reasonable time to implement the suggestions and expectations de jure.4/ Ms. President's suggestions, expectations, and the agreed timeframe for completion were subsequently memorialized in the form of summary emails. Respondent acknowledged receipt of the summary emails. Although Ms. President was not Respondent's supervisor, as early as January 3, 2012, Ms. DiPaolo advised Respondent that Ms. President's suggestions and expectations were to be considered "written directives." Respondent fully acknowledged that the suggestions and expectations of Ms. President were to be construed as directives. Ms. DiPaolo conceded that Respondent was not expected to be able to implement the Steps prior to attending the PASS training; however, once she began the training she was expected to implement the steps learned to date. Unfortunately, Respondent did not begin PASS training until December 2011, despite the availability of a September 2011 class.5/ Respondent completed the PASS training on or about January 30, 2012. The alleged implementation shortcomings specifically set forth in the Administrative Complaint, therefore, coincide with Respondent's completion of the PASS training. The Charges Petitioner alleges that Respondent was insubordinate in failing to complete the requisite Steps, despite clear directives. Specifically, Respondent alleges that: On January 31, 2012, Ms. Clarke agreed that her tasks would be completed by February 2, 2012. However, on February 2, 2012, Steps 1, 2, 4 and 5 were not complete. At that time, Ms. Clarke agreed that the tasks would be completed by February 9, 2012. However, on February 10, 2012, Steps 2, 3, and 4 were not complete (one day after the due date). At that time, Ms. Clarke agreed that her tasks would be complete by February 14, 2012. However, on February 14, 2012, Steps 3 and 6 were not complete. On February 16, 2012, Step 4 was still not complete. On February 23, 2012, Ms. Clarke agreed that her tasks would be complete by February 27, 2012. However, on February 27, 2012, Steps 4, 5, and 6 were not complete. On February 28, 2012, Steps 4 and 6 were still not complete. Petitioner further alleges that on March 1, 2012, Principal Todd LaPace held a pre-disciplinary meeting with Respondent to address her insubordination for failing to complete the above-referenced steps, and upon receiving an unsatisfactory response, recommended Respondent be placed before a three-day suspension without pay. On March 19, 2012, Respondent was placed on notice of the recommendation. The Steps On January 30, 2012, Respondent completed the final installment of PASS training. The following day, Ms. President observed Respondent's classroom. On that date, Ms. President thanked Respondent for presenting tasks with task instructions (Steps 4 and 5); however, she suggested that Respondent revise the instructions to use "less words." She also noted that previously agreed upon zone labels were not available (Step 1), and requested that same be printed for review by the next visit. Respondent agreed to have the master schedule, staff schedules, and individualized student schedules printed and implemented by the next visit (Steps 2 and 3). On February 2, 2012, Ms. President observed that the labels were not posted, as previously requested (Step 1); the schedules were completed, but not posted (Step 2); individualized student schedules were still needed (Step 3); and that Respondent had agreed to revise the tasks and task instructions (Step 4) by February 9, 2012. Ms. President's next observation of Respondent's classroom occurred on February 10, 2012. On that date, there were no discrepancies concerning Steps 1, 5, 6, or 7. Concerning Step 2, Ms. President noted that Respondent's schedule needed to be posted, but she was otherwise in compliance. The individualized student schedules (Step 3) still needed to be completed, posted, and implemented. Additionally, the previously agreed upon modified tasks and instructions were still not available. Again, Respondent agreed to make the requisite modifications. Ms. President then observed Respondent's classroom on February 14 and 16, 2012. By those dates, Respondent had succeeded in implementing Steps 1 and 2. Concerning Step 3, Ms. President opined that Respondent still needed to complete individual student schedules for "a few" of the students. Ms. President acknowledged that, concerning Steps 4 and 5, Respondent had created new tasks and instruction upon the completion of the PASS training; however, she had been instructed to revise some of them because they had "too many words and/or steps." Ms. President noted that if Respondent had indeed revised them, they were not available for her review. Ms. President further instructed Respondent that, "[i]f you are comfortable with what you have, please print so the students will have tasks to complete in the zones." For the first time, Ms. President noted that Respondent was not collecting data for every assigned task in every zone, as required by Step 6. In the follow-up visits of February 21 and 23, 2012, Ms. President documented that Steps 1, 2, and 3 were now in compliance. Respondent had, as directed, revised some of her previously completed tasks for Step 4. At this time, it was merely noted that "suggestions were made to improve the tasks." Ms. President did, however, direct Respondent to place the now acceptable tasks in a binder for utilization by the students. Again, Respondent was admonished to collect data for every assigned task in every zone, every week, for every student. On the final pertinent observation period of February 28, 2012, Respondent was compliant with Steps 1, 2, and Concerning Steps 4 and 5, according to Ms. President, Respondent had yet to place the acceptable task instructions in binders. Additionally, she continued to be deficient in data collection as previously requested. Respondent was most notably unsuccessful in the creation of tasks, as required by Step 4. Step 4, in essence, required Respondent to develop and implement tasks for a minimum of 5 separate zones or areas within the class. Respondent was required to create and implement at least three to five tasks in each zone based on individual needs. If Respondent failed to properly execute Step 4, it logically follows that she would also fail in the execution of Steps 5 and 6, which, respectively, required task binders and assessments of the student's performance of said tasks within a particular zone. To this point, Respondent testified, and there was no evidence to the contrary, that the PASS training did not include a textbook or other standard materials that a teacher may reference for the implementation of the Steps. In regard to the Step 4 creation of tasks, Respondent's unrebutted testimony was that a predetermined or preapproved set of tasks had not been endorsed by the district. As such, Respondent had some discretion in the creation of said tasks. Online resources were at her disposal, to a degree, for sample tasks. Respondent testified, however, that the sample online tasks, primarily composed of stick figures, were inconsistent with competing directives to make the tasks individualized and consistent with the student's environment. Respondent credibly testified that this perceived inconsistency was a recurring cognitive stumbling block to her timely implementation of tasks deemed acceptable by Ms. President. Ultimate Factual Determinations Ms. President's suggestions and/or expectations provided to Respondent after January 3, 2012, for the proper implementation of the Steps, were direct orders that were reasonable in nature and given by and with proper authority. Respondent was provided with a reasonable period of time to implement the Steps and was provided significant training and support to enhance her likelihood of success. On multiple occasions, Respondent was unsuccessful in executing Ms. President's directives, particularly Step 4. As noted above, Step 4 was a condition precedent to the successful implementation of Steps 5 and 6. Respondent's credible testimony that she was continually striving to be in compliance was buttressed by the testimony of Ms. President. Indeed, Ms. President testified that Respondent never refused to comply with her suggestions or time deadlines. As such, the undersigned finds that Respondent did not constantly or continually and intentionally refuse to comply with the directives.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 6th day of May, 2013.
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates, as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2017). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 21st day of November, 2017.
The Issue The issue in this case is whether there is just cause to terminate Tangela Smith’s employment with the St. Lucie County School Board based upon the allegations made in its Petition for Termination.
Findings Of Fact During the 2018-2019 school year, Smith was a facilitated support teacher that had various days where she either was late or missed her scheduled classroom time. When Smith missed classroom time, those ESE students assigned to her did not receive their specialized instruction. Smith missed classroom time because she was unable to fulfill all her facilitated support job responsibilities because her job duties had conflicting times. In addition to her scheduled classroom time, she was also assigned other duties such as ESE testing or IEP preparation, which were sometimes to be performed at the same time she was to provide push-in services. Smith’s tardiness was directly attributable to her daily schedule of multiple 30-minute classroom segments of time without even a minute break between each 30-minute allotted block before Smith was to be in the next classroom providing push-in services to ESE students. No time was scheduled for Smith to walk between classes or set up for the next class. At hearing, Smith credibly testified, “I don’t have sufficient time to fulfill [the] schedule.” All Smith’s duties she performed benefitted ESE students. ESE Department Chair Spies told Smith what to do related to ESE services, and she was expected to follow his instructions. No evidence was presented at hearing that Smith misused her work time. Instead, the record only showed Smith had conflicting duties to perform at the same time. She was expected to attend her daily classroom schedule and provide ESE testing or work on IEP-related assignments at the same time. At hearing, Smith testified credibly and persuasively, “I couldn’t be in two places at one time. So, I just tried to make up the time with the students I missed.” At times, when Smith was scheduled to be with students in a teacher’s classroom, the ESE department chair instructed Smith to complete FTE forms in his office to secure payments for the District. Other times, Smith would test ESE students, and, because most ESE students had no time limits for testing, Smith would still be testing when she was supposed to be providing push-in services. When Smith was unable to make scheduled classroom times, because she was performing other job duties, she attempted to try to make up for some of her push-in services missed. However, most of the time Smith was not able to make up the time because either the teachers or her ESE students were unavailable at the new time. At hearing, Smith testified compellingly that, “I did the best I could when testing was over to try to make up time.” Smith’s schedule was so tight that she did not even have time to talk to teachers about her students. On September 11, 2018, Smith acknowledged her scheduling challenges and tried to resolve them by notifying Principal Logue that she was having problems performing her push-in duties. Smith specifically expressed her inability to talk to the teachers to get a handle on what her students were doing. By email the next day, Logue pointed to times before and after school or Smith’s planning periods, where the ESE chair scheduled Smith to attend IEP meetings, as time periods Smith could meet with other teachers. Logue also dropped in the same language from her 2017-2018 evaluation regarding his expectation that she follow a strict schedule. After Smith notified Principal Logue of her time challenges, besides the email, he did not suggest or provide Smith any extra time or adjust or change her unmanageable work schedule in order to meet with the teachers and complete her scheduled duties. Smith could not have met Principal Logue’s expectations because the strict schedule had no breaks to get from one classroom to the next classroom, and Smith also had numerous conflicting duties to perform at the same time. At hearing, Auciello testified that it was not unreasonable for Smith to arrive late to class because of the way the schedule was structured and the fact that Smith had to travel from classroom to classroom. After addressing her challenges with Principal Logue, Smith continued to try to juggle her schedule and complete all her job duties that oftentimes had time conflicts. Smith prioritized third-grade testing following the instructions of the ESE department chair who told her to make that her work priority. Principal Logue was well aware that Mariposa ESE students were missing specialized instruction because teachers were reporting and complaining to Logue that Smith was either late or failed to show up to provide ESE facilitated support. He also received complaints that Smith was testing other students at various times when Smith should have been in a particular teacher’s classroom. Auciello specifically complained to Principal Logue on two occasions that instead of Smith being in her room providing her students push-in specialized instruction, Smith was testing elsewhere. After receiving the teacher complaints about Smith, Logue never notified nor addressed the no show allegations with Smith, took any action to remedy the missed services or did anything to rectify Smith’s time conflicts to prevent any further recurrences. Logue did not even issue any orders or directives regarding her failure to show up for facilitated support. Logue’s first action regarding the allegations against Smith was to report her to human resources on September 25, 2018. Logue’s chart outlining Smith’s alleged hours of missed instruction totals 42.5 hours after removing N.G.-R. and D.H., the two students included in the original calculations not assigned to Smith. Smith has never been warned, reprimanded verbally or in writing, or suspended during her tenure with the School Board. On September 26, 2018, Smith received her first discipline when she was placed on leave while Clements investigated the allegations of her failure to follow her schedule.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED that the St. Lucie County School Board enter a final order (1) rescinding its previous decision to suspend Smith without pay pending dismissal and (2) awarding Smith the back salary, plus benefits, that accrued during the administrative proceedings. DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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, 2020. COPIES FURNISHED: Barbara L. Sadaka, Esquire St. Lucie County School Board Legal Department 9461 Brandywine Lane Port St. Lucie, Florida 34986 (eServed) Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 (eServed) E. Wayne Gent, Superintendent St. Lucie County School Board 501 Northwest University Boulevard Port St. Lucie, Florida 34986 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 2013.
The Issue Whether Respondent violated (1) section 1012.795(1)(g), Florida Statutes (2017),1/ (committing conduct seriously reducing her effectiveness as an employee of the district school board); Florida Administrative Code Rule 6A-10.081(2)(a)1. (failure to make reasonable effort to protect students from conditions harmful to learning and/or to students’ mental and/or physical health and/or safety); or (3) Rule 6A-10.081 (2)(c)1. (failure to maintain honesty in all professional dealings), when she provided a “Graphic Organizer” to certain Exceptional Student Education (ESE) students during the 2017 Florida Standards Assessment test (FSAT); and if so, what is the appropriate disciplinary action.
Findings Of Fact Parties and People The Department is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Ms. Quinn holds Florida Educator’s Certificate 1110154, which is valid through June 30, 2023, covering the areas of English for Speakers of Other Languages, ESE, and Middle Grades Integrated Curriculum and Reading. (Jt. Stip. Fact, ¶ 2). During the 2016-2017 school year, Ms. Quinn was employed as a Varying Exceptionalities (VE) Specialist at Pinellas Park Middle School (PPMS) in the Pinellas County School District (District). (Jt. Stip. Fact, ¶ 3, as amended at the hearing).5/ At the time of the allegations in the Complaint, Respondent had approximately eleven years of experience as an educator with the District beginning in 2008 as a VE Teacher at District middle schools, up to December 2015, when she started her present position of VE Specialist at PPMS. (Jt. Stip. Fact, ¶ 3, as amended at the hearing). Kathleen Visconti is the accommodation specialist for the Bureau of K-12 Subset at the Department. Her duties include communicating with Florida school districts about disability accommodations, and reviewing and editing test administration manuals. Scott Eline is the Assessment Specialist for the District. He coordinates the administration of the FSAT in the District, as well as course exams. Dave Rosenberger has been the PPMS principal since 2014. Kim Vongsyprasom has been an assistant principal at PPMS since December 2014. As part of her duties, Assistant Principal Vongsyprasom supervises the ESE Department at the PPMS. Prior to becoming an assistant principal, she was the VE Specialist at PPMS (the same position currently held by Ms. Quinn) for twelve years. During the 2016-17 school year she was Ms. Quinn’s direct supervisor. Joanna Bernal has been an assistant principal at PPMS since July 2015. Assistant Principal Bernal served as the Testing Coordinator for PPMS for the 2016-2017 FSAT. At PPMS the assistant principals may have overlapping duties. As explained by Assistant Principal Bernal, each assistant principal had “big rocks” or areas of supervision. For example, Assistant Principal Bernal was the administrator in charge of assessment testing for all of PPMS, but she also had other duties such as supervision for all of eighth grade. Assistant Principal Vongsyprasom was in charge of transportation for all of PPMS, and another assistant principal was in charge of scheduling for all PPMS students. The ESE department was not a “big rock,” because one administrator was not responsible for all ESE students – it had multi-person oversight. Assistant Principal Bernal’s oversight of the eighth grade, for example, included responsibility for eighth grade ESE students, even though Assistant Principal Vongsyprasom was over the ESE Department. Ms. Quinn’s Duties and IEP Responsibilities Ms. Quinn serves as the Chair of the ESE Department, and is supervised by Assistant Principal Vongsyprasom. Ms. Quinn works with all the ESE teachers and staff to determine what accommodations are needed and appropriate for each ESE student. Ms. Quinn is responsible for overseeing compliance with accommodations requirements for students with disabilities at PPMS, including those who have Individual Education Plans (IEPs). As background, an IEP is a legal document required by the Individuals with Disabilities Education Act, a federal law which requires schools to provide special education and related services to children with disabilities. § 20 U.S.C. § 1400. Failure to adhere to an ESE student’s IEP can result in the District’s liability for violations of state and federal laws. The IEP provides directions for accommodating an ESE student so that he or she can be as equal as possible to a non- ESE student in an educational setting. Accommodations can be provided both in the classroom and for assessment testing situations. Ms. Quinn is not a classroom teacher and does not have students assigned to her. Rather, she has a caseload of students with disabilities for which she manages their paperwork, including drafting IEPs. She, however, does not have final authority regarding what accommodations are listed in an IEP. Rather, each IEP is individualized and specifically created for each ESE student based on that student’s needs. This is done through an interactive process made up of a team (IEP team) of individuals that meet and review the ESE student’s performance, progress, attendance, behavioral issues, and other relevant data in order to fashion appropriate accommodations for classroom learning and testing. The IEP team determines the ESE student’s ability to function in the real world and the classroom. Each IEP team includes required participants including the parent, the student’s case manager, an ESE teacher, a general education teacher, and an interpreter for the evaluations. Sometimes a local education agent (LEA) is also involved to ensure all parties involved with that child get the appropriate information regarding that student’s IEP. The LEA serves as a liaison between the family and the District to make sure the school is adhering to the IEP in accordance with legal requirements. The IEP document containing the accommodations is drafted using a computer system known as “PEER.” Although there was a suggestion by counsel that PEER is an acronym for “Portal to Exceptional Education Resource,” there was no evidence at the hearing supporting this definition. Regardless, each IEP may contain standard accommodations and/or “unique accommodations.” Once the IEP team checks certain boxes on the IEP, PEER provides a drop-down menu populated with suggested standard accommodations. The IEP team can then select which accommodations are required for that ESE student. Anyone on the IEP team can recommend an accommodation, but the team must come to an agreement to finalize the accommodations listed on the IEP. Unique accommodations must be approved by the District and/or the Department. The IEP has one section for accommodations in the classroom, and a separate section for accommodations for assessment testing. The IEPs presented at the hearing were each slightly different for each student, but each IEP had a section marked “Assessment Accommodations” or “For Students Participating in Assessments with Accommodations.” This section has accommodations related to the following four categories: Presentation, Responding, Scheduling, and Setting. Most relevant to the allegations made by the Department against Ms. Quinn is the section titled “Responding.” All of the IEPs provided at the hearing, except for one, allowed the accommodation of “Organizers, outlines, checklists and other writing supports.” This accommodation was one of the standard accommodations listed in the drop-down menu in the PEER system.6/ FSAT Testing The FSAT is the state-wide student assessment program examination that is administered in Florida public schools. § 1008.22, Fla. Stat. The District is responsible for administering the FSAT in public schools in Pinellas County. Id. The FSAT is made up of multiple testing areas including an English Language Arts (ELA) component. The ELA portion of the FSAT is made up of a reading section and a separate writing section. Mr. Eline, as the District Assessment Coordinator, was responsible for administering the FSAT in the District. He described the FSAT as “the standards by which students are measured for adequate yearly progress to determine whether they’re performing at grade level proficiency above or, perhaps, below.” Assistant Principal Bernal was responsible for administering the FSAT at PPMS. Ms. Quinn was responsible for providing appropriate accommodations during the FSAT to ESE students at PPMS that required such accommodations. She did not proctor the exam. The test is graded on a range from one through five, with one being the lowest and five being the highest. All students taking the FSAT must score a three or higher to be considered proficient in that area. This includes the ESE students at PPMS that were required to take the exam. There is a strict protocol for administering the FSAT. For a student whose test is invalidated, the school would have no data as to the proficiency regarding that testing area for the next school year. All District schools must participate in the FSAT. The Department bases school accountability, in part, on FSAT scores. FSAT scores also factor into teacher evaluations, and potentially teacher pay. Teachers who can show significant growth of their students’ test scores may be entitled to a bonus. All teachers involved in proctoring of the FSAT must attend a training presentation. Assistant Principal Bernal was in charge of the training during the 2016-17 school year. There is a dispute as to whether Ms. Quinn attended this training. There is no credible evidence Ms. Quinn attended the training. Although the Department offered into evidence a sign- in sheet for those who attended a training session, Ms. Quinn’s name was not on it. The sign-in sheet only had Assistant Principal Bernal’s signature as having attended for PPMS. Likewise, there is no evidence Ms. Quinn had signed (or was required to sign) the security agreement form required by those who are involved in the chain of custody of the FSAT booklets, or for those who are proctoring of the exam. See FSA Manual, Appendix D, 289-295. Ms. Quinn is also not listed as one of the recipients in the email sent by Mr. Eline on December 6, 2016, to FSAT test coordinators. This email contains a slide presentation on “Spring 2017 Florida Standards Assessments Training Materials for Paper-Based Assessments - Grades 4-7 ELA Writing; Grade 3 ELA Reading.” The only testimony that Ms. Quinn had FSAT training was supposition from Assistant Principal Bernal who testified all PPMS teachers and FSAT proctors were required to take the training. Those who attended the training were provided a FSAT manual with their name written on it. After the training, Assistant Principal Bernal had the manuals for those who did not attend the training. She concluded that Ms. Quinn must have attended the training because after the training she did not have a manual with Ms. Quinn’s name on it. But Ms. Quinn was neither a teacher nor a proctor. The conclusion that if a teacher missed the training, then Assistant Principal Bernal would still have that teacher’s manual, assumes Ms. Bernal had a manual with Ms. Quinn’s name on it--a fact not established at the hearing. As such, the undersigned finds Ms. Quinn did not attend the FSAT training for the 2016-17 year. Accommodating the ESE Students at PPMS for the FSAT Because of the low rate in FSAT proficiency scores for ESE students at PPMS, Ms. Quinn began researching a possible solution or accommodation that would assist the ESE students during the FSAT testing period. She began looking into possible aids for the ESE students at the beginning of the 2016-17 school year. The unrefuted evidence establishes Ms. Quinn reviewed all aspects of the ESE student testing experience, including physical placement (grouping) during the test, anxiety levels of students, testing dates, and student deficits. She reviewed all of the listed accommodations in the PEER system for assessments. She reviewed various databases and federal sources for disability accommodations to find an accommodation for ESE students so that they might obtain scores more in line with their non-ESE peers. Based on her research, she began exploring the use of “organizers, outlines, checklists, and other writing supports” which was a listed accommodation on the IEPs of some of the ESE students for assessments. In October 2016, Ms. Quinn emailed District personnel including Debbie Thornton with questions regarding FSAT accommodations. In response she received the 2015 Accommodations for Florida’s Statewide Student Assessments (2015 Accommodations Manual). The manual was issued by the Department’s Bureau of Exceptional Education and Student Services. The entire manual focuses specifically on accommodating ESE students on statewide assessments. Contrary to Ms. Visconti’s testimony that the 2015 Accommodations Manual is outdated, it is still available on the Department’s website. See Fla. Dep’t of Ed., 2015 Accommodations for Florida’s Statewide Student Assessments, http://www.fldoe.org/core/fileparse.php/7567/urlt/ statewideassessmentaccommodations.pdf (last visited May 23, 2019). Moreover, there is no convincing evidence the District or Ms. Quinn knew the 2015 Accommodation Manual was outdated. In fact, there is no evidence anyone at the Department, the District level or PPMS (including Assistant Principal Vongsyprasom), advised Ms. Quinn that the Accommodations Manual was invalid.7/ The undersigned finds Ms. Quinn’s reliance on the 2015 Accommodations Manual was reasonable under the circumstances. The 2015 Accommodations Manual provides in relevant part: MAKING DECISIONS ABOUT STATEWIDE ASSESSMENT ACCOMMODATIONS The IEP [ ] team makes decisions about accommodations for an individual student with a disability when they evaluate the impact of the student’s disability and need for accommodations in classroom instruction and assessment activities. The content and format of the statewide assessments are important considerations in the decision- making process. The following guidelines are recommended for making decisions about accommodations for statewide assessments: Accommodations should facilitate an accurate demonstration of what the student knows or can do. Accommodations should not provide the student with an unfair advantage or interfere with the validity of a test; accommodations must not change the underlying skills that are being measured by the test. Accommodations must be the same or nearly the same as those needed and used by the student in completing classroom instruction and assessment activities. Accommodations must be necessary for enabling the student to demonstrate knowledge, ability, skill or mastery. * * * Classroom accommodations are used by the student regularly for academic work and assessments. In accordance with testing guidelines, these same accommodations – if proven successful in the classroom and if allowable-may be used during the administration of statewide assessments. * * * Accommodations are documented on an IEP [ ] based on the needs of the student and should not be dictated by testing dates or deadlines. Accommodations should be determined necessary by the IEP [] team for regular use by the student in the classroom as well as on assessments. If a student uses accommodations for classroom instruction that are not permitted on the statewide tests; the parent must be notified. 2015 Accommodations Manual, 11. Ms. Quinn understood the above guidelines to mean that accommodations utilized in the classroom should be utilized, when allowed, in the assessment setting. Ms. Quinn, however, was unsure as to what would constitute an allowable FSAT accommodation. On October 4, 2016, Ms. Quinn contacted Mr. Eline at the District level, in preparation for the 2017 FSAT. She asked questions about different accommodations and how to provide them for the FSAT without giving the ESE students an unfair advantage. Eventually, the emails focused on the standard accommodation listed in the IEPs as “organizers, outlines, checklists and other writing supports.” There is no evidence that Mr. Eline told Ms. Quinn to address the issue with the administration at PPMS. Rather, initially, Ms. Quinn’s questions were forwarded to Debra Helton- Boza, who was in charge of ESE compliance for the District. Ms. Quinn did not receive an answer to her questions. Instead, Ms. Helton-Boza provided Ms. Quinn with excerpts from various sources including: the 2010 edition of “Accommodations, Assisting Students with Disabilities,” the 2014-2015 edition of the “FCAT/FCAT 2.0. NGSSS EOC Assessment Accommodations,” the 2015 Accommodations Manual, and online resources. Ms. Quinn still did not have a clear answer from the District regarding “allowable” accommodations for the FSAT, so she emailed Mr. Eline again on October 25, 2016. On the morning of November 30, 2016, Mr. Eline forwarded the questions to the Department. At 1:38 p.m. on November 30, 2016, Kathleen Visconti of the Department responded that the mathematics grids/guides were an acceptable accommodation for the FSAT, but that she needed more information about using “sample problems and tasks” and “organizers, outlines, checklists, and other writing supports” as testing accommodations. Mr. Eline forwarded Ms. Visconti’s response to Ms. Quinn. When Ms. Quinn asked Mr. Eline if she should contact Ms. Visconti, he told her that all communications with the Department should go through him. Ms. Quinn complied by emailing Mr. Eline more information about her questions. At no time did Ms. Quinn have direct contact with anyone at the Department. An email conversation between Mr. Eline and Ms. Quinn ensued on the afternoon of November 30, 2016, and lasted into the evening. During this exchange, Mr. Eline (who was not in charge of ESE students or accommodations for ESE students) opined he did not think an organizer would be allowable, but that he would ask the Department. (emphasis added by Petitioner) (the 4:14 p.m. email). In a separate email exchange, Mr. Eline and Ms. Visconti discussed Ms. Quinn’s questions regarding an organizer. (emphasis added by Petitioner). The parties dispute whether Ms. Quinn received this email. Although there is an email from Mr. Eline to Ms. Quinn at 5:10 p.m. on November 30, 2016 (5:10 p.m. email), it simply states “FYI.” It does not indicate there is an attachment, nor does it contain any of Ms. Visconti’s 4:14 p.m. email message. Based on Ms. Quinn’s demeanor and testimony, coupled with the appearance of the 5:10 p.m. email, the undersigned finds Ms. Quinn did not receive this message and did not know that Ms. Visconti said “no” to the use of an organizer as an accommodation for the FSAT. The email exchange between Ms. Visconti and Mr. Eline establishes the District had no definite answer to Ms. Quinn’s question as to whether an organizer was an “allowable” accommodation until 4:14.p.m. on November 30, 2019. Ms. Quinn continued her email conversation with Mr. Eline. These emails establish Ms. Quinn’s intent was to know how to abide by the IEPs assessment accommodations without “getting ourselves into trouble.” The email conversation between Mr. Eline and Ms. Quinn ended on December 1, 2016, at 8:51 a.m., when Ms. Quinn stated that she sent several pictures from PEER showing what the drop- down menus contained as accommodations, including one regarding organizers. Based on the emails she received, Ms. Quinn did not think Mr. Eline had given her a definitive answer to her question about using an organizer as an accommodation. During their email exchange, Mr. Eline also referred Ms. Quinn to the Spring 2017 FSA Paper-Based Test Administration Manual (2017 FSAT Manual). The 2017 FSAT Manual addresses the process for administering the FSAT to all students. The 2017 FSAT Manual says nothing about replacing the 2015 Accommodations Manual, nor does it allow someone in Ms. Quinn’s position to ask the Department questions directly about specific accommodations. Rather it instructs in relevant part: School personnel should communicate with their district offices about any questions or concerns prior to test administration; district personnel should contact FDOE if guidance or clarification is needed. 2017 FSA Manual, 1. Ms. Quinn complied with this instruction. The 2017 FSA Manual does not define what kind of organizer was an allowable accommodation during the testing process, but does address assessment accommodations in general. It states in relevant part: Students with Disabilities Students with disabilities participate in the statewide assessment program by taking one of the following: FSA without accommodations, FSA with accommodations, or Florida Standards Alternate Assessment. All determinations regarding participation in the statewide assessment program must be documented in the student’s IEP or Section 504 plan. * * * General Information about Accommodations Appendix A provides information concerning allowable accommodations for students with disabilities and for ELLs. The test administrator and the school assessment coordinator are responsible for ensuring that arrangements for accommodations have been made prior to the test administration dates. * * * If students with current IEPs, Section 504 plans, or . . . plans have allowable accommodations documented, test administrators may provide accommodations as described in Appendix A and may modify the script as necessary to reflect the allowable accommodations. Appendix A does not address the use of “Organizers, outlines, checklists and other writing supports.” Rather it repeats the guidelines in the 2015 Accommodation Manual, including: 3. Accommodations must be the same or nearly the same as those needed and used by the student in completing classroom instruction and assessment activities. 2017 FSA Manual, 62. On January 24, 2017, Ms. Quinn advised Mr. Eline that the 2017 FSA manual was not helpful in answering the question about using an organizer as an accommodation. She also told him that the Department had not yet answered her question about the organizer accommodation. She then asked Mr. Eline if an organizer would be considered a “unique accommodation.” Again, Mr. Eline did not say “yes” or “no.” Instead he stated it was his “inclination” that it was not allowable, but he would defer to Deb Thornton at the District. It is unclear whether Ms. Thornton ever responded to Ms. Quinn. Although Ms. Quinn was aware there was a process for requesting “unique accommodations,” she did not believe the use of an organizer was “unique” for numerous reasons. First, the use of organizers was one of the standard drop-down accommodations listed in PEER, not requiring special approval by the Department. Second, because numerous ESE students had this accommodation listed on their IEPs, any organizer would not be unique (i.e., an exclusive or individual accommodation aid). Ms. Quinn’s conclusion that the use of an organizer was not a “unique accommodation” was reasonable under the circumstances. Not having a concrete answer as to whether the use of an organizer was an allowable accommodation, or what that organizer would look like, Ms. Quinn raised the issue during an ESE Department meeting in early 2017. This meeting was attended by an ESE ELA teacher, Stacy Christian; a behavioral specialist, Richelle Turner; and Assistant Principal Vongsyprasom. During that meeting the participants discussed whether an organizer type accommodation could be provided to ESE students for use during the 2017 FSAT. There is a dispute as to what Ms. Quinn relayed to the group about her conversations with Mr. Eline. Ms. Quinn’s version of events is supported by that of Ms. Christianson and Ms. Turner. The undersigned finds Ms. Quinn did not imply or state at the meeting that she had received approval for using a graphic organizer. Rather, at that meeting she voiced frustration that she could not get clear direction from the District or the Department regarding the use of such an accommodation. She then asked the team members for input. None of the team members, not even Assistant Principal Vongsyprasom, questioned providing some type of organizer as an accommodation for the ELA portion of the FSAT to those students who had IEPs referencing such an accommodation. The group at the meeting then discussed the form this type of accommodation might take. Ms. Turner advocated using an accommodation that mirrored the type used in the classroom. Ms. Christian relayed to the group that she used a chart that hung on her classroom wall to accommodate students with the “organizers, outlines, checklists, and other writing supports” accommodation on their IEPs. That chart was not in the room during the meeting, nor did Ms. Christian provide the team with a copy of the chart. It is unclear who, if anyone, at this meeting was familiar with Ms. Christian’s chart. After the meeting Ms. Christian reduced the wall chart to the size of a letter sized hand-out (Graphic Organizer). The Graphic Organizer was a two-sided sheet, with a flow chart titled “Argumentative Essay Planner” on one side and another flow chart titled “Explanatory Essay Planner” on the other side. The top bubble on each flow chart describes an “introduction paragraph” with an arrow to two or three bubbles titled “body paragraphs,” and then an arrow to a bubble titled “conclusion paragraph.” Each bubble describes the types of sentences or thoughts that should be included in that paragraph. Ms. Christian initially showed the Graphic Organizer to Ms. Quinn. Ms. Quinn did not approve its use, rather she asked Ms. Christian to show it to Assistant Principal Vongsyprasom. Assistant Principal Vongsyprasom’s testimony was that she was shown something by Ms. Christian, but did not review it. She also testified she was not authorized to approve FSA Accommodations. Ms. Christian’s credible and convincing testimony established she showed the Graphic Organizer to Assistant Principal Vongsyprasom, and told her Ms. Quinn wanted her approval. Assistant Principal Vongsyprasom reviewed the Graphic Organizer. When asked by Ms. Christian whether it was okay, Assistant Principal Vongsyprasom replied, “yes.” The undersigned finds the testimony of Ms. Christian more believable. Even if Assistant Principal Vongsyprasom’s testimony that she did not look at what was shown to her by Ms. Christian is true, the undersigned finds the members of the ESE meeting, including Ms. Quinn, reasonably believed Assistant Principal Vongsyprasom approved the use of the Graphic Organizer for use as an accommodation on the ELA portion of the FSAT. 2017 FSAT After Ms. Christian received approval from Assistant Principal Vongsyprasom regarding the Graphic Organizer, Ms. Quinn made copies of the reduced version of the chart/organizer she obtained from Ms. Christian for each of the students who had listed on their IEP “organizers, outlines, checklists, and other writing supports” under accommodations for testing assessments. Ms. Quinn wrote each ESE student’s name on the top of his or her copy of the Graphic Organizer, placed the documents in a manila folder with that student’s test proctor’s name on the folder, and distributed the folders to the appropriate proctor the morning of the ELA portion of the FSAT. On February 28, 2017, PPMS administered the ELA portion of the FSAT. In total, 37 ESE students received a copy of the Graphic Organizer with their testing materials. Of these, all but one had on their IEPs listed “organizers, outlines, checklists, and other writing supports” as an assessment accommodation. Ms. Quinn did not collect the Graphic Organizers after testing. Rather, each document was either taken home by the student or turned in with all other testing materials. Ms. Quinn made no attempt to hide her distribution of the Graphic Organizer. On the day of the testing, or shortly thereafter, an ESE student’s parent (who coincidentally was a District employee) discovered the Graphic Organizer and sent it to Principal Rosenberger’s attention. Assistant Principal Bernal also discovered copies of the Graphic Organizer in the testing materials being collected back from the proctors. She raised concerns with Principal Rosenberger, who in turn questioned Ms. Quinn. Contrary to Petitioner’s position that Principal Rosenberger “knew immediately that the graphic organizer was not allowed,” see Pet’r PRO, ¶37, the emails show otherwise. Principal Rosenberger emailed Ms. Quinn at 7:14 p.m. on February 29, 2017, indicating he had been contacted by a parent, who was worried there was cheating going on during the FSAT. He noted, “So far, only ESE students appear to have them. I will need to know the source, and can I justify their use as an acceptable type of support, as a reasonable accommodation for ESE students on a standardized test? Your thoughts please, I need to nip this quickly.” In response, Ms. Quinn provided a lengthy explanation for the use of the Graphic Organizer. This response was prepared in collaboration with Ms. Turner and contained citations to various sources. Principal Rosenberger cut and pasted the explanations Ms. Quinn had provided in an email he sent to Mr. Eline, noting “Ms. Quinn made a valid point that the graphic organizer viewed in isolation clearly paints the school in a poor light. She has requested that we include a rationale for its use. The reader should be reminded that only ESE students with testing accommodations indicated on their IEP had access to the document.” There is no indication how Mr. Eline responded to Principal Rosenberger, or that Mr. Eline informed Principal Rosenberger that any kind of organizer was an unacceptable accommodation. The Department alleges Ms. Quinn was dishonest in her conversations with Principal Rosenberger after the 2017 FSAT. Principal Rosenberger testified that Ms. Quinn implied Mr. Eline had given her permission to use the Graphic Organizer, but her emails to him showing her explanation do not indicate she received permission from anyone. Rather, they indicate, as did the testimony at the hearing that Mr. Eline did not give Ms. Quinn a firm “no.” Even Principal Rosenberger admitted, “the recommendations from the district never specifically said ‘no,’” although he inferred a “no” from the email Mr. Eline sent to Ms. Quinn at 3:50 p.m. on November 30, 2016. On March 2, 2017, Principal Rosenberger notified Ms. Quinn the District office had rejected the use of the Graphic Organizer. He noted, “Basically the blank graphic organizer might have passed . . . however what was provided was so detailed that it appeared to be directions on how to complete the test. The [District] ESE office up here was consulted and they immediately declined it. Without a special review by [the Department], I do not think it was truly reviewed in detail, if nothing else we failed to follow the process[,] thus it is a violation.” Ultimately, the Department ruled the Graphic Organizer was not an appropriate accommodation for the ELA portions of the FSAT. The District invalidated the ELA test scores for all 37 ESE students who received a copy of the Graphic Organizer. Upon further investigation, the District learned that 36 of the 37 ESE students were eligible for an “organizer” as an “approved” accommodation during an assessment test. The remaining ESE student did not have that accommodation listed on his or her IEP. On or around April 6, 2017, Ms. Quinn was notified she would be questioned by John Frank, the administrator for the District’s Office of Professional Standards. Although Mr. Frank’s testimony and notes are largely hearsay, it is clear from the evidence at the hearing that Ms. Vongsyprasom was unwilling to take any responsibility for the use of the Graphic Organizer. Ms. Quinn, on the other hand, acknowledged her role and fully cooperated with Mr. Frank’s investigation. The District and Ms. Quinn entered into a stipulation regarding the use of the Graphic Organizer, and Ms. Quinn was suspended for one day without pay.8/ The matter was referred to the Department’s Education Practices Commission (EPC). Although the evidence established that invalidation of FSAT scores are “a big deal” and “serious business,” there is insufficient evidence to determine, what effect, if any, this had on the individual ESE students or their educational plan. Although there was testimony the ESE students with invalidated tests would require additional reading and writing instruction, it is unclear that the results would have been different had the test scores not been invalidated. The IEPs of the 37 students involved reflect that most, if not all, had not been deemed proficient on the ELA portion of the FSAT (i.e., their past scores were below a 3). Only ten percent of all ESE students showed grade level proficiency in ELA in the previous school year. The Department argues, “Mrs. Quinn’s defense and demeanor clearly indicated she has not taken ownership of what she did wrong.” (Pet’r PRO, ¶52.) The evidence establishes otherwise. Ms. Quinn made no effort to hide the use of the Graphic Organizer from anyone. She immediately responded to Principal Rosenberger’s request for her reasoning behind the use of the Graphic Organizer. She accepted the District’s discipline without dispute. She admitted that the inclusion of verbiage inside the flow chart bubbles was, in retrospect, an error. Moreover, during her testimony at the hearing she did not try to blame anyone else for the use of the Graphic Organizer. Ms. Quinn has two other disciplines from the District, but neither involves testing violations. She has no previous violations brought by the Department or the EPC. Ms. Quinn remains the chair of the ESE Department at PPMS. She continues to serve ESE students, parents and teachers. Although there was testimony Ms. Quinn is not allowed to proctor FSAT, she had not been proctoring the test previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the charges against Respondent. DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 28th day of May, 2019.
