The Issue Whether Respondent (a) pushed a ten-year-old student against a wall and struck his arm with a closed fist; and/or (b) falsely answered a question on the application for renewal of her educator certificate, as Petitioner alleges; if so, whether (and what) disciplinary measures should be taken against Respondent's educator certificate.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates who are accused of violating section 1012.795, Florida Statutes, and related rules. Respondent holds Professional Educators Certificate 730057 (certificate). Valid through June 30, 2018, the certificate covers the areas of Mathematics, Business Education, Teacher Coordinator of Cooperative Education, Teacher Coordinator of Work Experience Programs, and Exceptional Student Education (ESE). At all times material to this proceeding, Respondent was employed as an ESE teacher at WHGES in the Miami-Dade County School District (District). Respondent has been employed by the District in a variety of capacities for a total of 25 years and in a teaching capacity for the last 17 years. The charges against Respondent arise from an altercation Respondent had with a then 11-year-old fourth grade ESE student, E.A., on September 27, 2011. On that date, E.A. returned to Respondent's classroom after an in-school appointment with his therapist. Rather than entering the classroom, E.A. stood outside the closed door and knocked on the door intermittently for approximately five to ten minutes. Several students in the classroom went to the door to tell E.A. that the door was unlocked and to come in. When E.A. continued to knock on the door and disrupt the classroom, Respondent went to the door. Respondent was able to open the door part of the way and get her hand and part of her body in between the door and the door frame when E.A. pushed the door closed on Respondent and held it shut with his foot. Respondent shouted at E.A. to open the door and said repeatedly, "it's the teacher, open the door!" When E.A. removed his foot from the door, the door swung out towards the wall, trapping E.A. in a corner between the open door and the wall. Respondent yelled at E.A. to get into the classroom and struck him on the upper arm at least two times. Respondent also picked up E.A.'s backpack and threw it in the classroom. According to Respondent, she made physical contact with E.A. when he raised his arm and she believed he was about to hit her. Respondent claims she used a "defensive move" to prevent E.A. from striking her. Respondent's testimony is inconsistent with that of E.A. and several students who witnessed the event, and deemed not credible by the undersigned. According to E.A., Respondent definitely meant to hit him although he was not hurt physically by the contact. E.A. entered the classroom crying because he was very embarrassed that this occurred in front of his fellow classmates. This altercation was witnessed by another teacher who reported it immediately to administration. Assistant Principal Mary Pineiro (Pineiro) was sent to the classroom to determine what happened. Pineiro observed E.A. crying and holding his arm. Pineiro heard another student say, "I cannot believe you did that to my friend," to Respondent. Respondent refused to answer Pineiro's questions regarding the incident. The teacher and other students who witnessed the event were sent to the office and asked to provide written statements of what they observed. The statements were provided independently and students were separated when they wrote their statements. They were not told what to write and their statements were not edited. The statements corroborated E.A.'s version of events that he was playing around outside the door when Respondent came out and struck him on the arm several times. On February 15, 2012, Respondent was suspended without pay from her teaching position for 25 days which was later upheld after a formal hearing (DOAH Case No. 12-0808TTS). By certified letter dated March 14, 2012, Petitioner informed Respondent that PPS opened a case to investigate her use of inappropriate discipline.2/ On August 9, 2012, another certified letter was sent from Petitioner to Respondent advising that Petitioner had "concluded its preliminary investigation" and wanted to provide Respondent an opportunity to review the materials and respond to the allegations. The letter states that Respondent is not required to respond and that an informal conference was scheduled for August 29, 2012. Respondent wrote back to Katrina Hinson (Hinson) with PPS on August 31, 2012, thanking PPS for "putting me on this pedestal of honor" and giving her the opportunity to refute the allegations of misconduct. Respondent asserts in this letter that she is the victim of a "mafia-type, posse ring" and the victim of a conspiracy including Pineiro and others at WHGES. Rather than respond to the allegations of misconduct, Respondent's three-page letter appears to be a plea for help from Respondent to protect her teaching position from the "obsessive hate" of the alleged conspirators. Petitioner sent a memo to Respondent on August 30, 2012, enclosing a copy of the materials assembled during the preliminary investigation conducted by PPS. The purpose of this memo appears to be to notify Respondent to keep the materials confidential during the proceedings. This memo and the materials were received by Respondent on September 8, 2012. On September 17, 2012, Respondent wrote another letter to Hinson at PPS in which she states, "to be in compliance with your office's investigation, I am writing for professional guidance in regard to curtailing the constant bare-faced humiliation and bait-and-switch torture by Dade County Public School's [sic] employees, as my soul is longing for peace to have solace to grieve my loss in every respect of life fulfillment." Respondent asks whether PPS is part of the DOAH process, complains about the union attorney and the school board attorney and asserts that the "mafia-type posse wants me to be on an accelerated program for homelessness and malnutrition." This letter, and its reference to an "investigation," is not a response to allegations of misconduct but rather appears to be Respondent's attempt to seek help from PPS with regard to the DOAH proceeding. The final hearing in the DOAH proceeding regarding Respondent's suspension without pay occurred before Administrative Law Judge Stuart M. Lerner on September 24, 2012. On October 1, 2012, Respondent wrote another letter to Hinson which states in the opening paragraph: To be in compliance with your office's investigation, I am writing for professional guidance in regard to my mental faculty due to my mild malnourished and homeless states, as I am constantly being deprived of rightful income due to a group of vicious, hateful, and jealous so-called professional educators and so-called professional administrators of Dade County public schools. This letter states, "I am being sanctioned (mentally slaved [sic]) that if I return to employment of Dade County Public Schools. I cannot communicate further with your office, neither through writing or telephone." In this letter, Respondent asserts that E.A. and the student witnesses were "coached to give false witness against me." Regarding the incident with E.A., Respondent states, "the student kidnapped me between the door and the door jamb, and battered me with the door to my head and upper torso, that left me with a mild head trauma." A similar letter was written by Respondent to Hinson on October 5, 2012. Respondent does not mention any "investigation" but again asks for help from Hinson stating: May you please go another extra mile to help me? I beg of you. My grasp to hope is weakening as my resilience to these evil ones has been for many, many years. They have cornered me by attacking my every phase of bottom line. Please, do not allow evil to have dominion over good. A final letter by Respondent to Hinson was written on October 19, 2012, in which Respondent complains that she is being unfairly harassed by the principal at her new assigned school, Aventura Waterway K-8 Center. Notably, Hinson did not reply to any of the correspondence from Respondent. According to Hinson, PPS has no authority to address concerns or complaints about harassment or discrimination. This information was not communicated by PPS to Respondent. What is clear from these letters is that Respondent had no understanding that she was under investigation by DOE. Rather, Respondent erroneously believed that PPS would intervene on her behalf with regard to her then-pending matter before DOAH or with her assigned schools. The final order upholding Respondent's suspension without pay was issued by the District on February 13, 2013. Respondent alleges that, at that time, she was advised by her union representative that the matter was concluded and that she did not have to worry about this incident any further. On March 18, 2013, Respondent filed her annual application for renewal of her educator's professional certificate with the District. In response to the question, "Do you have any current investigative action pending in this state or any other state against a professional license or certificate or against an application for professional license or certificate?" Respondent answered "No." Respondent certified by her application signature that all information provided in the application was "true, accurate and complete." When the District received and reviewed the application, a computerized alert was received from Petitioner indicating that an investigation was pending with PPS. Jose Garcia, Certification Officer for the District, notified Respondent by memorandum dated April 17, 2013, that Respondent needed to return a corrected application. Respondent did not believe she was under investigation and thought that by indicating "yes" on the form, she would be incriminating herself. Respondent wrote Governor Scott an email on May 17, 2013, alleging that PPS and the District Certification Office were wrongfully preventing the renewal of her application in an attempt to prevent her from working with children with disabilities. As a result of this email, the alert was removed from Respondent's certificate and it was reissued by the District. Respondent never acknowledged the DOE investigation in her application for renewal. Petitioner considers Respondent's refusal to acknowledge the pending PPS investigation as an attempt to renew her certificate by fraudulent means. The Administrative Complaint charges Respondent as follows: STATUTE VIOLATIONS COUNT 1: The Respondent is in violation of Section 1012.795(1)(a), Florida Statutes, in that Respondent obtained or attempted to obtain a teaching certificate by fraudulent means. COUNT 2: The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. COUNT 3: The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. COUNT 4: The Respondent is in violation of Section 1012.795(1)(j), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. RULE VIOLATIONS COUNT 5: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. COUNT 6: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6A- 10.081(5)(a), Florida Administrative Code, in that Respondent has failed to maintain honesty in all professional dealings. Respondent filed a Motion for a Formal Hearing on December 26, 2013, with the EPC in which she disputed all of the allegations of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding Respondent for the incident with E.A., with a copy to be placed in Respondent's certification file, and placing Respondent on probation for a period of 90 school days. DONE AND ENTERED this 22nd day of January, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 22nd day of January, 2015.
The Issue Whether Respondent should be dismissed from her employment as a teacher in the Orange County Public Schools based on charges of incompetency and gross insubordination, as set forth in the letter of L. Linton Deck, Jr., dated August 16, 1977.
Findings Of Fact Respondent Ethel R. Jones has been an elementary school teacher for twelve years. She taught a year in Georgia before obtaining her degree in commercial education at Bethune-Cookman College at Daytona Beach, Florida, in 1960. After teaching for one year at Hungerford Elementary School in Eatonville, Orange County, Florida, in 1963, she pursued further studies and received her certification in elementary education. After teaching several years in various Orange County and Highlands County public schools, she became employed at Ocoee Elementary School, Ocoee, Florida, in 1970 and taught there for seven years through the 1976-77 school year. She was on annual contract for the first four years and then was granted a continuing contract the following year. She taught a sixth-grade class her first year at Ocoee and then became a fourth-grade teacher until the 1976-77 year when she again instructed a class of approximately 31 sixth-grade pupils. (Testimony of Respondent) Respondent served under three principals at Ocoee from 1972 to 1977. School records reflect that from 1973 two of the principals each rendered two annual performance reports on respondent termed "Assessment of Instruction." During the first year of each of these periods, the principals noted that respondent needed improvement in maintaining good rapport with students, parents and co-workers. During the second year of each period, each principal rated the respondent satisfactory in all respects. The third principal, Maxie Cinnamon, assumed her duties at Ocoee during the 1976-77 school year. (Petitioner's Composite Exhibit 1) During the first month of the school year, Principal Cinnamon received approximately twelve-complaints about the respondent from parents of children in her class. Most of these complaints dealt with apprehensions concerning respondent's teaching ability based on her prior performance with fourth-grade students. As a result, Cinnamon visited the respondent's classroom on September 9, 1976, and observed class instruction for several hours. She noted a number of deficiencies in the quality of respondent's teaching. These included unfamiliarity with the definitions of common words, inadequate preparation and lesson plans, inappropriate grouping of students and poor communication with students. These observations were set forth in great detail in a written document, dated September 14, 1976, which was provided to respondent as recommendations for improvement. Additionally, an unofficial "Assessment of Instruction" was rendered by the principal that indicated need for improvement in various areas. (Testimony of Cinnamon, Petitioner's Composite Exhibits 1, 7) During the course of the school year, the principal continued to receive complaints from parents and requests that their children be transferred from respondent's class. These complaints included reports that respondent was an inadequate teacher and that her disciplinary methods were inappropriate. In addition, no improvement in the previously-noted areas of deficiency had been observed by the principal. A number of conferences between Cinnamon and the respondent transpired in the fall of 1976 in an attempt to resolve these continuing problems, but achieved little or no success. Cinnamon directed a number of memorandums to respondent pointing out problem areas and suggesting remedial steps. She also suggested special courses and seminars that respondent could attend to improve her classroom instruction and to achieve a better relationship with parents and students. The respondent referred students to the principal's office on disciplinary matters some 35 times during the school year. For the most part, these referrals involved male students who were low achievers and either disrupted the classroom or failed to complete lesson assignments. (Testimony of Cinnamon, Respondent, Petitioner's Exhibits 8,9, 11-14) In December, 1976, Principal Cinnamon requested the Professional Practice Council of the State Department of Education to make a professional reviewer available to observe respondent's classroom performance and provide any necessary suggestions or recommendations for improvement. Thereafter, on January 31 and February 1, 1977, Mrs. Gretchen M. Olcott, a classroom teacher from Pinellas County, was sent to Ocoee Elementary School and conducted a "remediation review" concerning respondent. She rendered a report of her observations which was furnished to the respondent on March 11, 1977. The report contained many critical remarks concerning the quality of respondent's teaching ability and included detailed recommendations and suggestions for improvement. Most of Olcott's observations paralleled closely the previous deficiencies noted by Cinnamon and dealt primarily with inadequate lesson plans, lack of organization, poor student behavior patterns, lack of effective use of teaching materials and equipment, and the need to establish clear objectives and long-range goals. Also on March 11, Cinnamon wrote a letter to the respondent again listing her deficiencies and providing recommendations in that regard. The letter informed the respondent that unless she showed substantial improvement in all the noted areas by May 1, 1977, it would be necessary that she be recommended for dismissal to the Superintendent of the Orange County Schools. (Testimony of Cinnamon, Petitioner's Exhibits 3-5) During the ensuing weeks, Cinnamon was of the opinion that respondent had not materially improved her shortcomings despite efforts to assist her. At a conference in March, she told respondent that if she made no substantial improvement by May 23, she would recommend dismissal. She also requested that another reviewer be provided by the Professional Practices Council. Mr. Richard Svirskas visited respondent's classroom from May 11 to 13, 1977, for the Professional Practices Council. His report was similar to that of the previous reviewer and it concluded that respondent was far below average in ability in comparison with the majority of teachers known to the reviewer. (Testimony of Cinnamon, Petitioner's Exhibit 6) As a result of the reviewers' reports and respondent's failure to show improvement, Principal Cinnamon, on June 7, 1977, recommended to the Superintendent of Orange County public schools that she be dismissed from employment. Based on this recommendation, the Superintendent, by letter of August 16, 1977, charged the respondent with 14 areas of incompetency and three instances of gross insubordination. On August 18, 1977, the Superintendent recommended to the School Board of Orange County that respondent be suspended without pay pending a hearing on the charges if requested. The school board approved the recommendation and suspended the respondent without pay. Respondent thereafter requested a hearing in the matter. (Testimony of Cinnamon, Case File) Respondent testified as a witness and maintained that she had received no support during the year from the school administration and that she could not please Principal Cinnamon in any respect. She feels that she was the victim of a conspiracy between Cinnamon and parents of her students, and that the independent reviewers sent to assess her classroom performance were "against" her because they had met with Cinnamon in private during their visit. The respondent further implied that Cinnamon had a dislike for her because she was the only black teacher in the intermediate level. No black students were enrolled at Ocoee Elementary School during the 1976-77 school year, but there were five black teachers including the respondent. The respondent further claimed that she had done her utmost to follow the recommendations for improvement made to her by Cinnamon and the reviewers, but that she received no assistance from the administration in this regard. Further, she claimed that she was unable to enroll in certain reading, student discipline, and teacher effectiveness courses for various reasons; however, she did take a mathematics course at her own expense and attended several seminars. Although Cinnamon had testified that she had instructed respondent not to set up learning centers in her classroom because of her lack of organizational ability, the respondent denied that she was given such instructions. She testified that she established this system of instruction because Cinnamon had recommended it to her. She also denied that she had placed children in the halls for disciplinary reasons, or deliberately omitted to teach reading and math on each school day, contrary to instructions, as claimed by Cinnamon. (Testimony of Jones, Cinnamon) Based on the evidence presented at the hearing, it is found that during the 1976-77 school year: Respondent failed to make adequate plans and set definite objectives for her class- room instruction. Respondent failed to provide learning situations consistent with students' abilities. Respondent failed to exhibit adequate command of the subject matter that she taught. Respondent failed to communicate clearly and effectively with the students. Respondent failed to control the class so that a positive learning environment was created and maintained. Respondent failed to adequately pursue her professional growth and to seek ways of correcting identified deficiencies. It is further found that there is insufficient evidence to establish that the respondent committed the following alleged acts of gross insubordination: Suspended children from class by placing them in the hall and otherwise leaving them unsupervised after being specifically told not to do so. Failed to teach reading and math on each school day as specifically instructed to do. Failed and refused to maintain and utilize a plan book as instructed by the principal. It is further found that insufficient evidence was presented to establish that the respondent was a victim of a conspiracy by the principal of Ocoee Elementary School or anyone else, or that any racial discrimination was practiced against her.
Recommendation That respondent Ethel R. Jones be dismissed from employment by the School Board of Orange County, Florida, for incompetency, pursuant to Section 231.36(6), Florida Statutes. Done and Entered this 5th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph W. DuRocher, Esquire 326 North Fern Creek Avenue Orlando, Florida 32803 Howard W. Cooper, Esquire 101 South Lake Avenue Orlando, Florida 32801 John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801
The Issue By petition for the revocation of teacher's certificate dated August 5, 1980, the Professional practices Council alleged that respondent "violated Section 6B5.03(1)(a), Rules of the State Board of Education [RSBE], in that he failed to keep records"; "violated Section 6B5.03(2)(a) [RSBE], in that he failed to utilize available instructional materials and equipment necessary to accomplish the designated task"; "violated Section 6B5.05(1)(a) [RSBE], in that he failed to provide frequent and prompt feedback covering the success of learning and good achievement efforts"; "plead[ed] guilty to driving while intoxicated" on or about March 29, 1979; "plead[ed] no contest to driving while intoxicated" on or about August 19, 1974; "was found guilty of driving while intoxicated" on or about April 22, 1967; "committed personal conduct which seriously reduces his effectiveness as an employee of the School Board, . . . committed acts which are not a proper example for students, and . . . failed[ed] to meet the minimum standard of competent professional performance"; "all in violation of Florida Statutes Section 231.28, Section 231.09 and Section 6B5."
Findings Of Fact The parties stipulated that respondent holds Florida Teacher's Certificate No. 039140, Graduate, Rant III, in the areas of physical education and social studies, due to expire on June 30, 1982. In the fall of 1967, after obtaining the B.S. degree from Florida Memorial College in St. Augustine, respondent, who was 57 years old at the time of the hearing, began working for the Duval County School Board. He first taught American history at Standard Vocational High School. After two years at Standard Vocational, he began at Fort Caroline Junior High School in 1969, where he taught ninth grade civics for two months, then physical education, after which he left off teaching and worked as an administrative assistant, with responsibilities for discipline and supervision of students in the cafeteria and bus loading area. Respondent then worked at Darnell Cookman as an administrative assistant until that school closed, when he returned to Fort Caroline Junior High School, as an administrative assistant. In the fall of 1974, Mr. Richardson began as an administrative assistant at Andrew Jackson, a position he held through the end of the 1976-1977 school year. In the fall of 1977, he began teaching geography and American history at Landon Junior High School. The next school year Mr. Richardson received an unsatisfactory evaluation from his principal, the first such evaluation in his career. In accordance with school board policy in such circumstances, his request for a transfer was honored and he began teaching in the fall of 1979 at Oceanway Seventh Grade Center (hereinafter "Oceanway"). On June 8, 1974, a Saturday, respondent was arrested and charged with driving while intoxicated. On his plea of nolo contendere, he was found guilty as charged on August 23, 1974. Respondent was again arrested on March 10, 1979, also a Saturday, and charged with driving while intoxicated. He was adjudicated guilty on his plea of guilty on March 20, 1979. Judith Poppell began as principal at Oceanway in the fall of 1979. Before she met respondent, she received a letter informing her that his work the preceding school year had been evaluated as unsatisfactory and asking her to evaluate respondent no later than October 31, 1979. At all pertinent times, only the Oceanway principal, the dean of boys, and the dean of girls had authority to administer corporal punishment. Any teacher, however, was authorized to use reasonable force to break up a fight or in self-defense. On the morning of September 26, 1979, Mr. Richardson had responsibility for supervising students in the area where they were disembarking from buses. He directed the students to stand clear of the bus ramp and placed his hand on a 15-year-old boy who hung back. The student called respondent a "motherfucker" and threw his books at Mr. Richardson, breaking his glasses. Respondent then pushed the student to the ground. Ms. Poppell asked respondent and the other teachers at Oceanway to furnish her copies of lesson plans weekly. Respondent furnished Ms. Poppell copies of lesson plans, but some were late or incomplete or, in Ms. Poppell's opinion, unrelated "to the minimum skill objectives." (T. 121) It appeared to her "that what in fact [respondent] was doing was going sequentially in the textbook" (T. 125) rather than teaching what would be tested on the minimum level skills test, a standardized achievement test administered county wide. On October 3, 1979, Ms. Poppell observed respondent teaching his Man and Society class at which time "the students were involved in a discussion of values and beliefs and needs, which is part of the course material." (T. 127) During this class, respondent lectured and, in Ms. Poppell's opinion, "did make some very good points" although eventually the students "began to get wiggly." (T. 127) On October 17, 1979, Ms. Poppell was in or near the gymnasium "getting together a candle order to be filled" (T. 128) when she heard respondent lecturing on softball to a physical education class which included "some children . . . who were disciplinary problems." (T. 129) While Ms. Poppell was listening, respondent shouted to a student, "Shut up. I'm not talking to you." (T. 129) During the 1979-1980 school year, Wade Randall Godfrey, a seventh grade student in Mr. Richardson's physical education class, complained to Joseph H. Fowler that Mr. Richardson had hit him with an aluminum baseball bat. After looking into this allegation, Mr. Fowler "could not find any evidence that [Godfrey] was actually struck by a baseball bat." )T. 43) Neither did the evidence adduced at hearing establish that respondent struck the student Godfrey with a baseball bat. On October 31, 1979, Ms. Poppell evaluated respondent's work as unsatisfactory based on her observations and those of Dr. Beyerle and Mr. Kitchens, which she related to respondent. At that time she suggested that respondent join ten other Oceanway teachers for an after school seminar (1.5 hours for each of six successive days) "designed to help teachers deal with disruptive students." (T. 130) Respondent did not avail himself of this opportunity because he coached soccer after school Respondent did attend two days of observation of physical education programs, at the behest of school administrators. Ms. Poppell asked the head of the social studies department at Oceanway, Mrs. Wiggins, to assist respondent in the preparation of lesson plans. At Mrs. Poppell's instance, Mrs. Wiggins spoke to respondent in November of 1979 about the failure of respondent's lesson plans to "follow the minimum level skills booklet." (T. 63) She began preparing respondent's lesson plans for him and continued preparing them for four or five weeks. In mid December, Mrs. Wiggins complained to the principal that a classroom she used the period after respondent had taught a class in it was littered with paper. Mrs. Poppell wrote respondent a note about the incident which Mrs. Wiggins took from respondent's mail box. Mrs. Wiggins meant to intercept the note to avoid hard feelings on respondent's part, but did not realize that respondent had already read and replaced it. After this episode, respondent prepared his own lesson plans, unassisted. While Mr. Richardson taught at Oceanway, Richard Edward Chandler was a student in his first semester Man and Society class. Mr. Richardson gave this class several tests. In one instance, he passed out only three to five copies of a test to the entire class. On that occasion, he instructed the recipients to pass the test copies on to other students after copying the test questions. As a result, the student Chandler did not have enough time to finish the test. According to respondent, he meant for the students to work in groups on the test, a technique he has concededly never used before or since. At the end of the first grading period in the fall of 1979, respondent was one of a number of teachers to whom John A. Beyerle sent messages because all of their students' grades had not been reported on time. Mr. Richardson was late with grades for eleven students, at the end of the first grading period. At the end of the second grading period, he was late with grades for seventeen students. James Kitchens, a physical education supervisor for the Duval County School Board, observed respondent teaching on two occasions. The first time was incidentally in October of 1979 when he was evaluating the physical education program at Oceanway as a whole. On one visit or another, Mr. Kitchens observed some students "running loose," (T. 173) and probably on the second visit, remarked the inefficient use of tumbling mats: single lines of students crossed mats longitudinally instead of double lines crossing the widths of the mats. Mr. Kitchens agreed that respondent had "some basic competence and skills in physical education management" (T. 180) but detected "some rustiness." (T. 180) On December 5, 10, and 11, 1979, Maurice Shuman, Duval County School Board's supervisor for social studies, observed respondents teaching his social studies classes. Mr. Shuman testified, "If I were going to evaluate Mr. Richardson certainly I would need, you know, a greater number of visits" (T. 197) and offered various suggestions and comments he felt would be helpful to respondent in his teaching. Dr. Beyerle observed respondent teaching two classes. On the first occasion, respondent spent the hour reviewing and, although Dr. Beyerle perceived certain "weaknesses," he really c[ould]n't say it was a bad lesson." (T 190) On the second occasion, respondent taught "a pretty good lesson." (T. 90) On at least one occasion, respondent failed to call the roll in a social studies class. At various times, respondent lectured, engaged students in "well paced" questions, used a globe, cassettes, and ditto sheets. Under the Duval County School Board's policies, no student could pass either the seventh grade geography or Man and Society courses, if he failed a standardized test administered at the end of the course, regardless of his performance in class or on other tests. In violation of this policy, respondent gave passing grades to two students, Carmella Scott and Anthony Watts, who had failed the minimum level skills test (MLST). Of approximately 36 students in respondent's first semester Man and Society class, eight failed the MLST, including students who had received "B"s for the 9- and 18-week grading periods and who had done well on a final exam respondent prepared.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that petitioner suspend respondent's teacher's certificate for one (1) year. DONE AND ENTERED this 3rd day of February, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1981.
The Issue The issue to be determined is whether Petitioner has sufficient grounds to support dismissal of Respondent from employment.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher by the School Board and currently holds a professional services contract. He began working for the School District on or about March 2007, in the middle of the 2006-2007 school year. His first assignment was at Holmes Elementary School where he worked on a “waiver,” since he did not have an elementary education certification. The principal asked him to get his certification in elementary education, which he did. According to Respondent, he was asked to start working early because the principal did not have enough teachers. During that year, he was evaluated as meeting standards in all areas of evaluation and was rehired for the 2007-2008 school year. Prior to becoming a teacher in Miami-Dade County, Respondent served in the United States military from 1978-1985, and had worked as a registered nurse. He holds an associate’s degree from Miami-Dade College, a bachelor’s degree from Florida International University (“FIU”), two master’s degrees from FIU, an academic certificate in gerontological studies from FIU, and an academic teaching certificate from FIU. For the 2007-2008 school year, Respondent worked at Little River Elementary School (“Little River”). The principal at Little River asked Respondent to work on another “waiver,” this time for teaching English as a Second Language students (“ESOL”). After completing the necessary coursework, Respondent received an ESOL certification. Respondent remained at Little River through the 2008-2009 school year until he was involuntarily transferred to Scott Lake Elementary School (“Scott Lake”) for the 2009-2010 school year. During the latter two years at Little River, he was evaluated as meeting standards in all areas. According to Respondent, he was transferred to Scott Lake because the administration of Little River objected to the number of student discipline referrals (“SCMs”) he was writing on students. Respondent reports having written somewhere between 600 and 700 SCMs on students over the years. Respondent freely admits he wrote many SCMs at every school he worked at and highlights that fact as an excuse for why he performed poorly. During Respondent’s first three years of employment at Holmes Elementary and Little River, he was evaluated across the board on his annual evaluations as “Meets Standards.” During this period of time, the only other rating an employee could receive was “Does Not Meet Standards.” During the 2009-2010 school year, Respondent’s principal for his first year at Scott Lake was Valerie Ward. During the 2009-2010 school year, the School District made changes to the teacher performance evaluation system. Use of the Instructional Performance Evaluation and Growth System (“IPEGS”) was implemented. The IPEGS Summative Performance Evaluations (“SPEs”) were now comprised of eight Performance Standards, where a teacher could be rated “Exemplary,” “Proficient,” “Developing/Needs Improvement,” or “Unsatisfactory.” In her first year with Respondent, Ms. Ward rated him “Proficient” in all eight standards. At the end of the 2009-2010 school year, Ms. Ward placed Respondent on a 90-day performance probation pursuant to section 1012.34. During this 90-day probation process, he was observed by administration on at least five different occasions, was put on several improvement plans, and had several meetings with administrators. The 90-day probation process is very time- consuming for both the subject employee and the employee’s administration. In other words, it is not the preferred task of a busy principal, unless he or she must, and then only when it is warranted by poor performance. Respondent believes Ms. Ward placed him on performance probation to retaliate against him because he complained about the temperature in his classroom. This is the first of many excuses and justifications Respondent has offered to explain criticisms of his performance by administrators. For the 2010-2011 school year at Scott Lake, Respondent was again evaluated as proficient in all areas. On or about April 2012, Principal Lakesha Wilson- Rochelle assumed Ms. Ward’s role at Scott Lake. Principal Rochelle signed off on Respondent’s summative evaluation during the 2011-2012 school year, but did not fill it out, since it had already been completed by someone else. The score placed Respondent in the “needs improvement” category. She signed it only because she was required to do so, and the summative evaluation rating she gave him for the next school year was even worse by several points. It was also during the 2011-2012 school year that IPEGS underwent another change. Now there were seven professional practice standards on which teachers were evaluated and one standard that was based on actual student data. Use of IPEGS IPEGS was approved by the Florida Department of Education (“FDOE”) for all years relevant to this case. The IPEGS processes from the 2013-2014 school year forward consisted of the following: Each teacher that had been teaching for more than two years received one formal observation. If during that observation the teacher’s performance was sufficient, nothing more need be done, outside of a summative evaluation at the end of the year. However, informal feedback is given to teachers throughout the year after classroom walkthroughs and through other means. If a teacher was observed to be deficient in one or more standards during the formal observation, the teacher and administration would engage in something called “support dialogue” in which support in various forms is provided to the teacher, so that the deficiencies can be remediated. If the teacher still exhibits performance deficiencies after the support dialogue, they are placed on the 90-day performance probation. While on performance probation, the teacher is observed another four times after the initial observation. After the second, third and fourth observations, if the teacher has not remediated, the administration develops an improvement plan, which must be followed. The improvement plan gives the teacher assignments and assistance to aid him or her in remediating any deficiencies. Also, each teacher, regardless of whether placed on performance probation, receives an SPE, as well as a Summative Performance Evaluation Rating (“SPE Rating”) of either “Highly Effective,” “Effective,” “Developing/Needs Improvement,” or “Unsatisfactory.” In addition to the seven professional practice standards, a data component is also factored into the SPE Rating known as the VAM. The VAM As explained by Director of Research Services Dr. Aleksander Shneyderman (“Dr. S”), the VAM is a statistical model that attempts to measure a teacher’s impact on student learning growth through the use of a multi-level lineal regression. Dr. S has been working with the VAM, since its inception in 2010-2011. He has studied it and keeps abreast of Florida’s rules and regulations of how to calculate it. Dr. S and his office calculate what is called “Local VAM” for the School District. He also provides trainings to School District employees on the use of the VAM. Dr. S was tendered and accepted in this proceeding as an expert in VAM calculation. Local VAM is usually calculated in September/October by his office after the previous year’s testing data become available. Various assessments are used to create the Local VAM. It is calculated in compliance with state statutes, and the methodology is approved each year by FDOE. Also, the methods for calculating the Local VAM are bargained for and ratified by the United Teachers of Dade (“UTD”) teacher’s union. The Florida VAM is calculated by the State using a model that is approved by the Florida Commissioner of Education. The results of the Florida VAM are given to Dr. S’s office by the State. The Florida VAM is created using the Florida Standards Assessment (“FSA”). In the 2013-2014 and 2014-2015 school years, Respondent’s Local VAM scores were calculated by Dr. S’s office and based upon his students’ results on the Stanford 8 Achievement Test, 10th edition. UTD approved the methodology in VAM calculation for both of these years. For the 2015-2016 school year, Respondent’s VAM score was the Florida VAM in English language arts for fifth grade. The goal of the VAM is to measure a teacher’s effectiveness on student learning growth. In order to do this as accurately as possible, students are compared to similar students for an “apples to apples” comparison. Only students with the same demographic characteristics, as well as the same prior year’s test scores are compared to one another. The demographic factors considered are English Language Learner (“ELL”) status, gifted status, disability status, relative age (which considers whether a child was retained in a previous grade), and attendance (which was added in 2014-2015). Student demographics and the prior year’s test scores must be exactly the same. Based on these demographics and past scores, an expected score is created for each student. If the student exceeds that score, the credit for that success is given to the teacher. The School Board and Dr. S concede that the VAM does not account for every possible student performance variable, because, simply put, this would be impossible, since there are a limitless number of factors that could be considered. Moreover, certain factors are forbidden to be used by the Legislature, including socioeconomic status, race, gender, and ethnicity. (See § 1012.34, Fla. Stat.). Respondent argues that because not every imaginable factor that might affect a student’s grade is captured, that the VAM is not useful. Respondent claims that factors beyond the teacher might be causing poor performance, for example: lack of parental engagement. While levels of parental engagement could impact student performance, the School Board states that it is following state statutes to the letter and doing the best it can within the applicable statutory framework. Moreover, just as factors outside of consideration might hurt student performance, other factors might enhance performance, and the teachers receive those possible benefits as well--for example, if parental engagement is good. Those benefits would flow to the teacher, despite not having earned them through his or her personal efforts. Moreover, the VAM score ranges that are used to classify teachers are bargained for with UTD. The ranges have confidence intervals developed through the application of margin of error calculations that mitigate uncertainty to protect and “safeguard” teachers from unfair classifications. In many instances these safeguards give the teachers the benefit of the doubt to make sure they do not fall into the lowest category, which is “unsatisfactory.” Noticeably absent from these bargained for “safeguards” is any mention of how much instructional time a teacher must have with a class before those students’ data can be used to calculate a teacher’s VAM score. UTD has not bargained for any special rules designating when teachers can and cannot be held accountable for their class’ data based on the time they have instructed that class. As such, the only relevant inquiry is whether those students are with that teacher during the FTE period in February. Also, the law (see § 1012.34, Fla. Stat.) makes no mention of any minimum length of instructional time necessary to hold a teacher accountable for his or her students. The 2013-2014 School Year at Scott Lake Refusal to teach basic Spanish In May 2013, near the end of the 2012-2013 school year, Principal Rochelle advised Respondent that he would be teaching a kindergarten class for the 2013-2014 school year and that he would be required to teach them one hour of introductory Spanish. In an email to Principal Rochelle, Respondent asserted that he believed he was being assigned to teach Spanish to the kindergarteners in retaliation for his extensive reporting of student SCMs. In that same email, he advised her that he did not want to teach Spanish. Prior to being advised of this assignment, the School District conducted a language proficiency assessment for Respondent with both a written and verbal component, which he passed. Principal Rochelle had personally seen Respondent speak fluent Spanish to her school secretary and the art teacher. Because Respondent spoke fluent Spanish, or, at least, “conversational” Spanish (as admitted by Respondent’s counsel in his opening), she gave him the assignment. Moreover, as a principal, she had the right to assign Respondent as she saw fit. School Board Policy 3130 - Assignments reinforces this assertion stating, in relevant part, “Instructional staff members may be reassigned to any position for which they are qualified in order to meet needs of the District and pursuant to the collective bargaining agreement.” In order to teach the one-hour basic Spanish component of the class, Respondent did not need to be certified to teach Spanish. He only needed an elementary education certification, which he had. He even attended a training class on the implementation of the Spanish program. Respondent admits he can speak Spanish, write basic Spanish, has taken Spanish classes and passed the School District’s proficiency exam. Curiously, he objected to them giving the proficiency exam to him based on the grounds he was “singled out” for having a Hispanic last name, having been overheard speaking the language, and because he is not from a Spanish-speaking country. These are not reasonable objections when the School District explained the objective reasons listed above regarding Respondent’s qualifications to provide the basic- level Spanish instruction. Respondent persisted in his belief that he is “not qualified” to teach kindergarten Spanish despite all the evidence to the contrary. Respondent simply refused to do something that he was entirely capable of doing and that was within his ambit of responsibilities. He described one of the lessons he was allegedly incapable of teaching as follows, “You put a CD in the player. The kids sing songs in Spanish. The kids cut out pictures of objects and match them to a picture with the word in Spanish.” The kindergartners in his class did not speak Spanish; they spoke English. The Spanish component of the class was very basic and involved things like vowels, colors, puppets, basic books, and vocabulary words. Contrary to Respondent’s assertions, no complex grammar or sentence structure was involved. Such things are not even part of ordinary English kindergarten instruction, as admitted by Respondent. Moreover, he was provided with materials from which to draw the instruction. Principal Rochelle does not speak Spanish herself, yet believes she could teach the Spanish component, as it is a “piece of cake.” Respondent filed a grievance regarding the Spanish assignment. In order to appease and accommodate Respondent, Principal Rochelle eventually sent a Spanish teacher to his room to teach the Spanish component. However, Respondent then complained that the grades she was entering still had his name attached to them in the computerized grading system. Finally, the principal decided to move him to a first-grade class in early November 2013. Undoubtedly, the requests of Respondent led to this assignment change. Formal IPEGS observation On March 11, 2014, Principal Rochelle performed her formal observation of Respondent pursuant to IPEGS. On that day, no performance deficiencies were noted. However, throughout the year, Principal Rochelle had conducted many informal observations and walkthroughs of his classroom and had already provided him feedback regarding his performance and her expectations. Examples of that feedback can be found in an August 27, 2013, email from Principal Rochelle to Respondent. Moreover, according to Principal Rochelle, teachers tend to be on their best behavior during these observations–-which makes sense, because they know the boss/evaluator is watching. The formal observation is also only a snapshot in time of the teacher’s performance on a particular lesson; it is not a reflection of the entire year’s performance. Respondent has argued that Principal Rochelle has retaliated against him. If that were the case, this observation would have been a perfect opportunity to retaliate against him. However, she found no deficiencies in his performance on this day. Scott Lake SPE—Professional Practice Throughout the rest of the school year, Principal Rochelle made other credible observations regarding Respondent’s performance. Despite her counseling that he meet with parents, he refused to do so. He refused to participate in activities, including field trips, school celebrations, and award ceremonies. Other teachers actually had to hand out awards for him at the ceremony. He refused to implement group instruction techniques and did not take advantage of the presence of reading and math coaches. He refused to implement progressive discipline and “red, green, yellow” behavior management techniques. He refused to implement various discipline strategies laid out in the Student Code of Conduct and school-wide discipline plan prior to writing SCMs on students. Principal Rochelle recalls that he wrote approximately 25 SCMs on one student within the first nine weeks of school and made no attempt to address the behavior issues with the student’s parents. At one point Principal Rochelle accommodated his request to have a student removed from his class. Since this was only Principal Rochelle’s first full year as principal of Scott Lake, and she was still new to the school, she tended to give the teachers the benefit of the doubt when completing their SPEs. She also had a few teachers who had to be terminated for lack of professionalism that were more of a priority for her than Respondent. As such, she rated Respondent as “effective” in six standards on his SPE and as “developing/needs improvement” for the Communication standard. In her view, “effective” is akin to a “C” grade, whereas “highly effective” is “A plus/high B” status, “developing/needs improvement” is a “D,” and “unsatisfactory” is an “F.” When asked what Respondent would have rated himself in these seven standards, he testified he would have given himself five “highly effectives” and two “effectives.” He believes Principal Rochelle rated him lower than she should have as a result of retaliation against him for him not wanting to teach Spanish. This is Respondent’s second claim of retaliation against Principal Rochelle, and third claim of retaliation overall. Principal Rochelle’s denial of such retaliation is credited based upon her testimony at hearing and the exhibits offered in support. Despite the fact that Respondent’s 2013-2014 SPE seemed adequate to a casual observer (with the only obvious blemish being the “developing/needs improvement” in the Communication standard), when compared to his peers, a different story emerges. His professional practice points total put him in the bottom .8 percentile for all teachers district-wide and in the bottom 2.6 percentile for all first-grade teachers district-wide. Without belaboring the data, Respondent’s professional practice scores are at the bottom of the barrel, regardless of how you spin them. Scott Lake VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 12.5 points–-the lowest possible score. He was one of 11 first-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2013-2014 school year was “Needs Improvement.” Only 29 percent of his first-grade students met or exceeded their performance expectations. Respondent’s VAM was based on the performance of his first-grade students. Respondent believes that, since he was moved to the class in early November 2013, and the SAT exam was given in April, he should not be held accountable for their performance. In order for him to have a fair shake, he claims he would have had to be there instructing the students on week one. Respondent says the amount of time he was given was not fair because, “if I’m the lowest teacher in Miami-Dade County, and here for termination, no, sir, I don’t think it was fair.” If the rule Respondent proposes were implemented as policy, any teacher could simply avoid responsibility for their student’s performance by requesting a transfer sometime after the first week of the year. It is also not uncommon for teachers to have students added or subtracted from their classes throughout the year for a multitude of reasons. This is a fact of life that teachers have to be able to cope with in the ordinary course of business for the School District. Moreover, and somewhat ironically, if another teacher had been teaching Respondent’s students for a portion of the year, based on his SPE Ratings and student achievement data, Respondent probably would have had better scores. The students would likely have been getting a more effective teacher than he. Respondent also claims Principal Rochelle gave him a lower functioning group of students, who were behind in their learning. He explained that he knew they were low-functioning because he gave them “STAR tests” to gauge their ability levels. When pressed on cross-examination, Respondent admitted that he only tested his own students and never anyone else’s. Therefore, it would be impossible for him to know whether his students were any lower-functioning or further behind than any other teachers’ students. Respondent’s doubtful claim is further undercut by Principal Rochelle’s credible testimony that she selected the members of his first-grade class at random from overcrowded classrooms. Respondent’s claims that he was robbed of instructional time by field trips and fundraising activities, matters that are required of all teachers, are unconvincing excuses for his students’ poor performance. The 2014-2015 School Year at Norwood Shortly after the start of the 2014-2015 school year, Respondent requested a hardship transfer to Norwood Elementary School (“Norwood”) because the school day at Scott Lake was going to be increased by one hour. Despite the fact that he would have been compensated approximately $4,500.00 for this time, he chose to transfer schools. Principal Kevin Williams (or Dr. Williams) had a teacher on leave so he assigned Respondent to fill that gap. Respondent started teaching a kindergarten class, but was moved to a second-grade class during the first week of school. Prior to conducting a formal IPEGS observation of Respondent, Dr. Williams had performed several walkthroughs of his classroom. Based on these walkthroughs, Dr. Williams advised Respondent that he was not properly implementing the school discipline plan. Respondent also refused to implement “grouping” of the students during instruction time. Dr. Williams also had a reading coach model lessons for Respondent and assigned him a teaching assistant. Respondent was the only teacher who received this level of assistance. Dr. Williams even went so far as to have two meetings with UTD prior to his formal evaluation of Respondent in order to help him. By October 2014, Dr. Williams had already explained his expectations to Respondent. Formal IPEGS observation On October 1, 2014, Principal Williams performed the formal IPEGS evaluation of Respondent. Principal Williams noted no deficiencies on that day. Generally speaking, Principal Williams does not view these observations as punitive. Over the years, Dr. Williams has conducted approximately 240 observations of teachers, and, generally, the employees are “on point” when being watched. Moreover, like Principal Rochelle, Dr. Williams views these observations as a snapshot of teacher performance while the SPE captures the year- long performance. In the report of the observation, Dr. Williams suggested that Respondent promote interactions with students, encourage more student participation, connect to prior student knowledge and interests, and present concepts at different levels of complexity, among other items. Norwood SPE—Professional Practice After the formal observation, Dr. Williams continued to conduct walkthroughs of Respondent’s class. He observed the same issues with refusing to use “grouping” and refusing to properly implement the discipline plan. Respondent never took advantage of the modeling techniques that were provided for him. He also was not implementing differentiated instruction. Dr. Williams himself held a professional development class on campus for the school discipline plan, which, instead of attending, Respondent attended a social studies class off campus. Instead of following the prescribed discipline plan, Respondent was trying to control the behavior of his students with treats. Similar to his time at Scott Lake, he refused to participate in field trips, staff gatherings, award assemblies, and student activity days. Respondent had lesson plans, but did not always follow them. He would spend an inordinate amount of time on vocabulary. He gave some tests, but would refuse to grade other tests. The pattern of his teaching was inconsistent, at best. On his SPE, Principal Williams rated Respondent as “effective” in five standards, “highly effective” in one, and as “developing/needs improvement” for the Learning Environment standard. Dr. Williams’ rating for Learning Environment was lower because Respondent failed to implement appropriate discipline strategies despite being told to do so. In eight years of being a principal, this was the first time he had ever given a teacher a “needs improvement” rating. He mostly gives his teachers combinations of “highly effective” and “effective,” if they do what they are supposed to do. Nevertheless, Dr. Williams testified he still went easy on Respondent because he was new to the school. In terms of his SPE professional practice points, Respondent scored in the bottom two percentile for second-grade teachers district-wide and was the worst rated second-grade teacher at Norwood. Instead of following the discipline plan, Respondent was using the emergency call button, writing SCMs, and writing to the superintendent to have ten students removed from his class. Another teacher at the school, Mr. W, had the exact same set of students as Respondent, only he taught them in the afternoon and not in the morning. He had none of the same behavior management issues Respondent had with this same group of children. Respondent claimed that Mr. W was able to manage the children better because, like the students, he was African-American. When asked how Respondent would have rated himself in these seven SPE standards, he would have given himself six “highly effectives” and one “effective.” He believes Principal Williams rated him lower than he should have as a result of retaliation against him for writing SCMs and because he complained about the size of his initial kindergarten class. This marked Respondent’s fourth claim of retaliation overall. Principal Williams credibly denied such retaliation at the hearing. Norwood VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 8.75 points-–the lowest possible score, again. He was one of 50 first-grade teachers district-wide who scored the bare minimum putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only six percent of his second-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from Norwood should not be considered because of his students’ behavioral issues. He also stated he did not have enough textbooks to send home with students. Much like at Scott Lake, he believes he was intentionally given bad students. This is peculiar for two reasons. First, Dr. Williams first tried to assign Respondent another class, but Respondent complained that one was too big. To accept this argument, the viewer would have to believe Dr. Williams knew Respondent would reject the larger class, and the principal had another one in the wings filled with “bad” students to make Respondent look ineffective. Second, Mr. W had none of the same problems Respondent did with this same group of students in the afternoon. To accept this contention, Principal Williams’ plan only “worked” on Respondent, since he was singled out for retaliation. This line of argument is nonsensical, at best. The 2015-2016 and 2016-2017 School Years at Aventura Waterways K-8 In looking for the right fit, Respondent was sent to Aventura Waterways K-8 (“AWK8”) for the 2015-2016 school year. He remained there for the 2016-2017 school year until he was dismissed from his employment in March 2017. As at his previous school assignments, the administrators at AWK8 tried to work with Respondent and the UTD to let him know their expectations prior to the formal observations. During these two school years Respondent was observed formally by Principal Luis Bello and Assistant Principal Ileana Robles on no less than nine occasions. In both years, during his initial observations, his performance was found to be deficient; and he was immediately placed on support dialogue and, eventually, 90-day performance probation. During these two probationary periods, he was provided assistance through improvement plans and completed all his improvement plan assignments. The goal was to help him remediate his deficiencies. The only change he ever implemented was switching from block to weekly lesson plans. Both his instructional delivery and the learning environment never improved. During these observations, Principal Bello and Assistant Principal Robles both observed the same repeated deficiencies, which they described in meticulous detail at the hearing. Summarizing their testimony, the issues concerning Respondent were: Pacing. Respondent spends too much time on issues and did not complete entire lesson plans. Questioning students. Respondent only uses basic, easy to answer questions; does not ask enough questions; or is dismissive of questions. Failing to properly explain concepts to students or to activate prior knowledge. Respondent fails to prompt students in order to generate interest in the subject matter and holds no conversations about the material in class. Not using challenging enough material. Respondent’s material was so basic that parents were concerned their children were getting grades they did not deserve and not learning grade- appropriate material. Principal Bello described Respondent’s instruction as “robotic” and lacking any semblance of “passion.” AWK8—Professional Practice On his SPE, Principal Bello rated Respondent as “effective” in two standards, and “unsatisfactory” in five standards. Principal Bello’s ratings were in line with the repeated deficiencies discussed above. He awarded Respondent “unsatisfactory” ratings because Respondent never remediated his deficiencies. Principal Bello credibly stands by his SPE Ratings as honest and admits to spending a great deal of time on them. In terms of his SPE professional practice points for 2015-2016, Respondent scored in the bottom (0) percentile for fifth-grade teachers at AWK8, all teachers at AWK8, fifth-grade teachers district-wide, and all teachers district-wide. When asked what Respondent would have rated himself in these seven standards, he would have given himself seven “highly effectives.” He believes Principal Bello rated him lower than he should have been rated, but could not say why. AWK8 VAM and overall SPE Rating Respondent’s State VAM score for learner progress points was 8.5 points-–the lowest possible score, for the third year in a row. He was the only one of 98 fifth-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only 32 percent of his fifth-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from AWK8 are not legitimate for a variety of reasons, none of which relate to his own shortcomings. Respondent’s excuses and the reasons not to credit those excuses are as follows: Respondent argues that his VAM cannot be counted against him because his afternoon class of fifth graders were ELL, and they spoke a variety of languages, including French, Russian, Hebrew, Portuguese, Spanish, and Turkish. His theory was that they performed poorly because of their poor grasp of the English language. For VAM scoring purposes, this excuse should not be credited because the VAM already takes into account their ELL status by comparing them only to other ELL students with identical demographics and prior test scores; and they are not expected to perform as well as non-ELL students. However, by Respondent’s own admission his afternoon ELL class was the best class he had had in ten years of teaching. He said they had emotional balance, presence of mind, and good parental engagement. He even explained how his ESOL certification assisted him in understanding how to teach them. According to him, by the end of the year, the students were at the level where they would be having conversations. Respondent also had another ESOL-certified teacher assist him for a portion of the year, which was a standard practice. Finally, ELL students, who are brand new to the country, are not calculated into the VAM because there are no prior year scores for which they can be compared “apples to apples.” Respondent himself testified that the lowest level ELL students did not get graded. This makes sense because Respondent testified that his afternoon ELL class was 31 students-–yet only 15 ELL students were factored into the data used to calculate his VAM score for 2015-2016. In sum, the grades of the lowest English language functioning students were not even held against him. Respondent next argues that the numbers of students in both his morning and afternoon classes at AWK8 exceeded class size restrictions. Respondent “believes” his morning class had 24 or so students, but only 18 after the special education students were removed. When the student data is examined, it appears that Respondent only had 15 non-ELL students factored into his VAM score. As for the afternoon ELL class, otherwise considered by him the best class he has ever had, Respondent claims there were 31 in that class. Even assuming Respondent’s numbers are accurate (and they do not seem to be, given the VAM data), these class sizes do not run afoul of class size restrictions and are commonplace at AWK8. The School District operates on averages for class size compliance and everyone teaching fifth grade at AWK8 had similar class sizes. None of those other teachers had the same problems Respondent did. Moreover, Respondent reported the alleged class size violations to the FDOE, and they did nothing about it. Respondent further argues that his morning group of students was once again a “bad” group that did not give him a “fair shot.” According to Respondent, he had a student who would sit in a garbage can and another that would tell him “F_ _k you” every day. He had behavior concerns with four to five students in the morning class. Eventually, the student who sat in the garbage can was removed from the class. Respondent then testified that these behavior issues were exacerbated by his absence from the classroom when he was performing his improvement plan activities. He now appears to be placing his behavior concerns on the administration for doing their job by trying to assist him and by remediating his deficiencies. Behavior management is integral to being a teacher. A teacher must not be allowed to escape his or her own responsibility for performance shortcomings by blaming it on the students. At every school where Respondent has taught, he has admittedly written a large number of SCMs, had behavior issues with his students, and believes he was purposely given “bad” students. The only common thread among these schools is Respondent. Nevertheless, he refuses to acknowledge that he might possibly be even a part of the problem and believes he has done nothing wrong. Respondent also blames his poor VAM on the fact that fundraising activities, book fairs, student activity days, and dances all detracted from instructional time at AWK8. This is the same excuse he used for his poor VAM at Norwood and holds no weight, since these are activities that all teachers at all schools must cope with as part of the instructional process. Respondent’s Termination by the School Board Respondent’s case was the first of its kind brought pursuant to section 1012.33(3)(b) (“3-year provision”), since this was the first time the School District had the requisite number of years’ data available. Of the thousands of teachers working for Miami-Dade County Public Schools, Respondent was part of a singular group of seven to nine teachers who fell into the three-year provision of the statute having the necessary combination of “needs improvement” or “unsatisfactory” final overall SPE Ratings. Of that handful of teachers, Respondent was the single worst. Respondent’s performance actually declined each year despite the assistance provided for and made available to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 15th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of March, 2018. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board Suite 912 1450 Northeast Second Avenue Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 24th day of May, 2006.
