The Issue The issue is whether Petitioner properly determined that Respondent's employment should be terminated.
Findings Of Fact At all times material here, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Taylor County, Florida. A Master Teacher Contract between Petitioner and the Taylor Education Association governs relations between Petitioner and its teachers. Respondent is an educator, with 35 years of teaching experience. She is certified by the Florida Department of Education to teach students enrolled in the Exceptional Student Education (ESE) program. Respondent has at least 20 years of experience in teaching ESE students. During the 2009-2010 school year, Petitioner employed Respondent as an annual contract teacher at Perry Primary School. Pursuant to the contract, Petitioner hired Respondent to work from August 17, 2009, to June 9, 2010. Respondent’s class during the 2009-2010 school year was made up of students with varying exceptionalities. The exceptionalities included handicaps such as specific learning disabilities, attention deficit disorder, autism, or emotional or physical handicaps. The class consisted of students in kindergarten, first, and second grades. At the outset of the 2009-2010 school year, Respondent was assigned eight students, two of which had a full-time personal assistant. Just prior to the Christmas break, Respondent was assigned another ESE student with a full-time personal assistant. The primary responsibility of the personal assistants was to help their designated students function successfully and safely in the classroom. Additionally, the personal assistants were supposed to support the classroom teacher as needed. In addition to the personal assistants, Respondent’s class utilized the services of Behavioral Management Center (BMC). The BMC consultants visited Respondent’s classroom frequently to develop and monitor the implementation of behavior modification plans for certain students. The school psychologist also visited the classroom frequently to assist the teacher and students. Petitioner uses many computer software programs for the testing and monitoring of student progress. The computer programs are necessary in order to comply with Florida Department of Education requirements. The computer programs are used throughout the state and require data entry and transmission at several points in the academic year. Gradequick is a program that enables teachers to electronically enter student grades. Among other tasks, the program calculates grade point averages. The grades and averages are then entered in the Edline program that is accessible by both parents and students. Administrators can access these programs to ascertain the level of progress by a particular class or student. For the 2009-2010 school year, the initial Gradequick and Edline training was conducted the first week of September 2009. Respondent attended the training session. Tienet is a computer program used to assist with the drafting of individual education plans (IEPs) for ESE students. It is a web-based program that also is used to monitor a student’s progress in accomplishing the goals and objectives on the student's IEP. Tienet generates a parent report that goes out with report cards. All students in Respondent’s 2009-2010 class were learning in accordance with an IEP. Aimsweb is a computer program that monitors compliance with state and federal guidelines regarding student achievement and progress in reading and math. Aimsweb requires that all students be tested at the beginning, middle and end of the school year. The teacher uses the initial test or “probe” to determine the child's baseline. Other probes are performed on a weekly basis throughout the school year. Petitioner can use the data to determine if a child is academically at risk and, if so, to implement interventions to address any deficiency. FAIR is a state-mandated assessment test in reading that also is given three times a year. FAIR provides for an exemption for students who are severely limited academically. However, Petitioner always completes the initial FAIR test for all students, regardless of academic ability. After assessing the results of the first probe, Petitioner can then determine whether students will be exempted from further testing. In the 2009-2010 school term, Jack Palaio was an ESE resource teacher and the Perry Primary School technology coordinator. As technology coordinator, Mr. Palaio had to make sure the teachers’ and students’ computers were up and running. He also trained staff and teachers on the use of the computer software programs referenced above. Mr. Palaio’s responsibilities included monitoring data collection and data transmission from the classrooms. On or about September 2, 2009, Mr. Palaio requested that Respondent provide him with a list of her students. Mr. Palaio needed the names to made sure the students were placed in the proper Gradequick files. As of September 14, 2009, Respondent still had not provided Mr. Palaio with the list of names. In addition to the training sessions taught when school began, Mr. Palaio offered to assist Respondent on several occasions starting at the beginning of the year. At times, Respondent sought help from Mr. Palaio in person or by email. By mid-year, it should not have taken Respondent but a few minutes per student to enter weekly data on Gradequick. Aimsweb should have required no more than five minutes per student on a weekly basis. The FAIR data requires very little time because the teacher enters it while testing the students. Tienet data entry takes even less time because it requires formulation of IEPs only once a year and review and maintenance quarterly. Pam Padgett was the assistant principal at Perry Primary School. On September 15, 2009, Ms. Padgett advised Respondent to provide Ms. Padgett with a copy of Respondent’s class schedule. The schedule was necessary to show the times that Respondent intended to teach specific subject areas. On September 15, 2009, Ms. Padgett also informed Respondent that her students would need to take the initial FAIR and Aimsweb probes in order to establish baselines. Ms. Padgett advised Respondent that other staff members would do this testing for Respondent. In September 2009, two of Respondent’s students were exempt from taking the initial FAIR reading probe because of their disabilities. The two students were supposed to be tested using an alternative assessment known as the Brigance. Petitioner’s staff decided to test the two students on the FAIR material, using a paper test, in addition to the Brigance test. The Brigance test, in booklet form, was supposed to be given three times a year. Teachers used a different color to score students’ tests each time it was administered. On September 17, 2009, Mr. Palaio requested Respondent to see him about testing her students using the Brigance. Mr. Palio also offered to help Respondent set up Edline for her class. Alise Thompson is the Intervention Resource Compliance Specialist at Perry Primary School. In the 2009-2010 school year, she was responsible for ensuring that teachers properly drafted IEPs using Tienet and for scheduling IEP meetings. On September 21, 2009, Ms. Thompson instructed Respondent to prepare the IEP (goals and objectives) for a student. She reminded Respondent that the IEP meeting for the student was scheduled for September 25, 2009. On September 22, 2009, Mr. Palaio advised Respondent that her class was set up in Gradequick so that she could start adding weekly grades. Mr. Palaio asked Respondent to see him for information about entering the grades in Gradequick. On September 29, 2009, Mr. Palaio again reminded Respondent that she needed to enter her grades in Gradequick so that she could send home midterm progress reports the next day. On September 30, 2009, Mr. Palaio advised Respondent that her kindergarten student needed to have grades entered in the computer on a weekly basis for reading now and for reading, spelling, and math beginning in January. He also reminded Respondent that her first and second grade students needed grades for reading, math, and spelling. As of September 30, 2009, Mr. Palaio had prepared the midterm reports for Respondent’s first and second grade students. He also offered to do the same for the kindergarten student if Respondent would send him the necessary information. Mr. Palaio reminded Respondent that she had been provided with additional computer training in Edline and needed to post her grades in Gradequick on a weekly basis. The September 30, 2009, email to Respondent told her to put her Brigance booklets back in the students’ cumulative folders in the school office. This was necessary in order to ensure their safekeeping. On October 26, 2009, Perry Primary School was preparing to send report cards home for the first nine weeks. Mr. Palaio offered to help Respondent in this regard if she encountered any difficulty. On October 28, 2009, Mr. Palaio offered to help Respondent with entering grades in Gradequick because she was late in doing so. Mr. Palaio advised Respondent that he had corrected some of her inconsistencies, but that he was more concerned with her failure to enter all required grades for her students. Specifically, Mr. Palaio noted that Respondent had not entered grades for some children for over two weeks. George Clayton was the principal of Perry Primary School for the 2009-2010 school year. Around the end of October or the beginning of November 2009, Mr. Clayton sent Respondent a reminder that she was two weeks behind in posting her grades to Edline and entering grades to Gradequick. Mr. Clayton told Respondent to "take care of this matter." Anne Sesock, as the Response to Invention (RTI) Specialist for the 2009-2010 school term, was responsible for monitoring teachers’ data for FAIR and Aimsweb testing at Perry Primary School. Over time, Ms. Sesock became aware that Respondent was behind on her FAIR and Aimsweb testing and/or data entry. On October 29, 2009, Ms. Sesock reminded all teachers that Thursday was the day they should monitor progress of their students in math using Aimsweb. Ms. Sesock had already entered the students’ names into the computer. Ms. Sesock then gave a brief description of how to perform the task. On October 30, 2009, Ms. Sesock reminded certain teachers, including Respondent, that they needed to enter their reading/literacy scores into Aimsweb. This was necessary for the school to prepare for a data meeting. On October 30, 2009, Mr. Palaio reminded Respondent that she needed to see about her Tienet progress reports that had to go home with student report cards. Mr. Palaio sent Respondent another message on October 30, 2009. In that message, Mr. Palaio stated that one of Respondent’s students still needed early literacy scores entered in Aimsweb. On November 2, 2009, Perry Primary School sent report cards home. Ms. Padgett asked Respondent to a meeting regarding Respondent’s failure to send Tienet parent reports out with report cards. On November 2009, Mr. Palaio responded to Respondent’s request for help in checking her students’ grades and parent reports. Mr. Palaio advised Respondent that he had corrected the grades in Gradequick so that she would now be entering grades for the second nine weeks. He stated that she had some grades missing and needed to be consistent in entering the grades. He also reminded Respondent that she needed to make corrections in the Tienet parent reports relating to student objectives, which should have been sent home with the last report cards. On November 17, 2009, Ms. Sesock directed Respondent to bring certain Aimsweb reading benchmark assessment sheets to a training session that afternoon. Ms. Sesock offered to enter them in the computer. In November 2009, Mr. Clayton became concerned with the lack of structure and student behavior problems in Respondent’s classroom. He subsequently initiated a plan to provide Respondent with help in this regard. On November 23, 2009, Ms. Padgett advised Respondent that a substitute would be available the next day so that Respondent could meet with school staff and the BMC consultant. The purpose of meeting was to develop a schedule and activities for Respondent’s class. On or about November 24, 2009, Respondent, the BMC consultant, and other school staff members met to develop a Tuesday/Thursday schedule for Respondent’s class. After the meeting, Respondent was supposed to develop a similar schedule for Monday, Wednesday, and Friday. There is no persuasive evidence that Respondent ever completed this task. The Tuesday/Thursday schedule provides for whole group time beginning at 8:00 a.m. As the day progresses, the personal assistants were assigned to work one-on-one with a student, in small groups, or large groups, while Respondent worked one-on- one or two-on-one with specific students. To supplement the Tuesday/Thursday schedule, Respondent and the BMC consultant developed a Tuesday/Thursday Lesson Plan of 1:1 or 2:1 Instructions. The lesson plan names specific students and the skills/materials to be used with that student. On December 1, 2009, BMC staff visited Respondent’s classroom to observe implementation of the new schedule. They advised Ms. Padgett that Respondent stayed on the schedule for part of the day, but failed to follow it for the rest of the day. On December 1, 2009, Ms. Padgett provided Respondent with a copy of a walk-through monitoring form to be used when she and other administrative staff visited Respondent's class. Ms. Padgett reminded Respondent to post her class schedule for all support staff during the times that Respondent and the personal assistants were working one-on-one with students and in group time. On December 2, 2009, Ms. Padgett shared BMC’s concerns with Mr. Clayton. On December 3, 2009, Ms. Padgett visited Respondent’s classroom to observe a reading lesson under the new Tuesday/Thursday schedule. Ms. Padgett noted that Respondent was behind schedule but appeared to be implementing the new plan. Ms. Padgett subsequently provided Respondent with written observations, setting forth strengths, missed opportunities, and something to work on. In December 2009, Ms. Padgett became aware that Respondent had not done the required mid-year FAIR testing or had done the testing but failed to enter the data in the computer. On December 3, 2009, Mr. Palaio advised Ms. Padgett that Respondent had not started a single FAIR test. The next day, Ms. Padgett directed Respondent to begin FAIR-testing her students and to get help from Mr. Palaio and/or Ms. Sesock, if needed. On December 4, 2009, Mr. Palaio advised Respondent and another teacher that they needed to complete the regress/recoupment forms for their students before Christmas break. The forms are used three times a year to record test data on the same specific skill. The data is used to determine whether a student requires an extended school year (summer school) as an accommodation. On December 7, 2009, Mr. Clayton responded to Ms. Padgett that he was disappointed in Respondent’s failure to adhere to the new schedule. Mr. Clayton stated that he would be visiting Respondent’s class that day. From December 8, 2009, through December 11, 2009, Respondent was absent from school because she had pneumonia. During that week, Respondent came to school one time for a meeting at Mr. Clayton’s request. The meeting related to a student that would soon be entering Respondent’s class. There is no record of Respondent receiving emails from school while she was home sick. Accordingly, the following emails dated December 8 through 11 may not have been read by Respondent until she returned to school on December 14, 2009. On December 8, 2009, Mr. Palaio sent Respondent an email. He advised her that certain students were missing a spelling score in the FAIR testing. On December 9, 2009, Ms. Thompson reminded Respondent that an IEP meeting was scheduled on December 11, 2009, for "O." Ms. Thompson had started the IEP but reminded Respondent to add the goals. The December 11, 2009, IEP meeting obviously had to be cancelled because Respondent was home sick and had not completed drafting the IEP. On December 10, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded her that she needed to enter FAIR scores for spelling. On December 11, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded Respondent to complete the regress/recoup form with all students that week. On December 16, 2009, Mr. Palaio advised Respondent that the initial regress/recoup testing had been done by another staff member the week before and that he had entered the scores. Mr. Palaio provided Respondent with a spreadsheet showing the results of the first probe that needed to be repeated the first day after Christmas break and then again two weeks later. On December 17, 2009, Mr. Palaio reviewed the policy at Perry Primary School regarding the need to check email three or four times a day. Teachers were supposed to read email before school, after reading, during lunch, and after school. Respondent was advised that teachers are held responsible for knowing the information contained in school emails, including requests for specific data. On December 17, 2009, Ms. Sesock reminded all teachers to complete their Aimsweb math and reading probes. Ms. Sesock wanted all teachers to enter the data that day or the next day so that the data would be available in January for intervention assistance team meetings. In an email dated January 3, 2010, Ms. Sesock wanted to know about missing scores in Respondent’s Aimsweb progress monitoring. Ms. Sesock could not run charts on the students until all scores were entered in the computer. January 4, 2010, was a teacher-planning day. During the day, Mr. Palaio sent Ms. Sesock a list of teachers, including Respondent, who had missing Aimsweb data as of December 18, 2009. Ms. Sesock responded with an email inquiring whether they could give Respondent an explicit instruction booklet on how to input scores so Respondent would learn to do it herself and quit bothering them. On January 4, 2010, Mr. Palaio reminded Respondent and other teachers that they needed to complete the second set of regress/recoup progress monitoring. He advised them to use the spreadsheet started before Christmas and to repeat the process on January 19, 2010. On January 5, 2010, Mr. Palaio requested that Respondent see him about Aimsweb and Brigance. He wanted to assist her with the Brigance books and Aimsweb probes. On January 5, 2010, Respondent injured her shoulder and knee when she fell after tripping over a student at school. She was prescribed pain medication (Vicodin and Celebrex) and required to wear a leg brace. Respondent claims that the medications made her sleepy and made it difficult for her to focus. However, she did not complain to anyone at Perry Primary School that the medications were interfering with her performance. On January 8, 2010, Ms. Thompson advised Respondent and other teachers about completing IEPs. Specifically, she reminded them that they needed to enter the accommodations for each child on an individual basis. On January 11, 2010, Mr. Palaio requested that Respondent see him that day. Mr. Palaio wanted to discuss Respondent’s scores for Brigance, Aimsweb, and Tienet. By January 2010, Mr. Clayton was aware that Respondent and the three personal assistants in her classroom were not working as a team. The personal assistants resented having to work with small or large groups of students while Respondent worked with students on a one-on-one or two-on-one basis. Mr. Clayton had a meeting with Respondent and her personal assistants on January 13, 2010. He gave the personal assistants a copy of their job descriptions. He reminded them that Respondent was the class leader and that they were her support staff. On January 13, 2010, Mr. Clayton told the personal assistants that they had to stay with their assigned students when BMC staff came to model implementation or observe implementation of a behavior plan. He did not want the assistants to think they could take a break every time BMC staff visited the classroom. During the January 13, 2010, meeting, Mr. Clayton discussed the Tuesday/Thursday schedule developed by BMC staff. He requested that Respondent develop a Monday/Wednesday/Friday schedule, using the same format, and give it to him. Mr. Clayton was concerned that there was not a consistent daily routine in Respondent’s classroom. Mr. Clayton also discussed Respondent’s lesson plans during the January 13, 2010, meeting. Mr. Clayton wanted Respondent to give him a copy of her lesson plans for the upcoming week every Friday before she left school. The first Friday that Respondent should have given Mr. Clayton her lesson plans was on Friday, January 15, 2010. As a general rule, teachers kept their lesson plans, two weeks in advance, in spiral notebooks provided by the school at the beginning of the school year. Teachers were supposed to keep the lesson plan books on their desks at all times. Mr. Clayton reviewed the lesson plans on a regular basis. Mr. Clayton made the special request on January 13, 2010, about Respondent’s lesson plans because he never saw her plan book on her desk. When he asked about the plan book, Respondent always said it was in her car or at home. During the January 13, 2010, meeting, Mr. Clayton instructed Respondent to provide each personal assistant with a copy of the IEPs and behavior plans for each student in the class. Mr. Clayton wanted the personal assistants to be familiar with all of the students’ IEPs and behavior plans so that they would know what to do in the absence of Respondent or a colleague. The greater weight of the evidence indicates that Respondent never complied with Mr. Clayton’s directive in this regard. Finally, Mr. Clayton told Respondent on January 13, 2010, that her class would be moved that weekend from a portable classroom to a classroom in the main building. The purpose of the move was to place the class closer to the school clinic to accommodate a student with medical issues. Mr. Clayton created written minutes of the January 13, 2010, meeting to share with Respondent and the personal assistants. Following the meeting on January 13, 2010, the assistants became more cooperative. On January 13, 2010, Ms. Sesock told Respondent how important it was for her to have up-to-date progress monitoring data for Aimsweb reading and math. At that time, Respondent had not entered the required weekly progress monitoring data, seven scores in math and five scores in reading. The second benchmark assessment for Aimsweb was due to be entered between January 11, 2010, and January 15, 2010. Ms. Sesock wanted to make sure that Respondent had all the materials she needed to perform the assessment. On January 13, 2010, Ms. Thompson reminded Respondent that "O's" IEP meeting was scheduled for Friday, January 15, 2010. Ms. Thompson requested that Respondent update his academic and behavior goals before the meeting. The next day, Ms. Thompson directed Respondent to update "O's" curriculum and behavior goals. On January 15, 2010, the IEP meeting had to be rescheduled because Respondent did not have “O’s” IEP properly drafted. Ms. Thompson sent an email to Respondent, stating that Respondent needed to separate goals and objectives on the IEP by subject area. For example, Respondent needed one goal and two objectives for reading, math, and behavior. After receiving a copy of Ms. Thompson’s January 15, 2010, email to Respondent, Mr. Clayton directed Respondent to complete “O’s” IEP goals by January 19, 2010. Mr. Clayton told Respondent to put the IEP in his mailbox before she left school on the 19th. On January 15, 2010, Respondent did not provide Mr. Clayton with the lesson plans for the upcoming week. Instead, she left school early for a doctor’s appointment and took the rest of the day off. On January 19, 2010, Mr. Clayton advised Respondent that he had reviewed her Aimsweb data and that it was not updated. He told her to update the reading and math data before she left school on January 21, 2010. During the 2009-2010 school year, Respondent had completed two IEPs before attempting the IEP for “O.” However, Respondent failed to complete “O’s” IEP and place it in Mr. Clayton's mailbox on January 19, 2010, as requested. On January 19, 2010, Mr. Palaio sent Respondent an internet link for Tienet. Apparently, Respondent had lost the website address. On January 21, 2010, Mr. Clayton issued Respondent a letter of reprimand for “insubordination” for failing to complete “O’s” IEP on time. Respondent received the January 21, 2010, letter of reprimand, concerning the IEP, in her mailbox at school. Respondent’s failure to timely complete the IEP was gross insubordination. Respondent had been given more than enough time and assistance to properly draft the IEP. There is no persuasive evidence that Respondent’s pain medication was responsible for her inability to complete the IEP. On January 21, 2010, Ms. Thompson advised Respondent that corrections still needed to be made to “O’s” IEP. Respondent was told that each area of the IEP needed a present- level statement followed by at least one goal and two objectives. Later that day, Mr. Palaio gave Respondent additional suggestions to make the IEP meet Petitioner’s ESE standards. On January 21, 2010, Mr. Palaio sent Respondent an email. The message reminded Respondent that most of her Aimsweb scores had not been entered. On the morning of January 22, 2010, Mr. Clayton shared some of his concerns with Respondent in an email. First, he discussed Respondent’s need to conduct Aimsweb progress monitoring probes in reading and math. Second, Mr. Clayton was worried about Respondent’s failure to enter grades in Gradequick, advising her to see Mr. Palaio by the end of the day to resolve this matter. Third, Mr. Clayton reminded Respondent that she needed to be using the school-wide behavior modification program. Fourth, Mr. Clayton noted some errors in “O’s” IEP. Fifth, Mr. Clayton told Respondent not to forget to do the ESE regress/recoup form. Finally, Mr. Clayton reminded Respondent that she was supposed to provide him with a copy of her lesson plans before leaving school that afternoon. Mr. Clayton wanted to make sure that Respondent received his January 22, 2010, email. He asked his assistant to call Respondent that afternoon. Realizing that Respondent was not in her classroom, Mr. Clayton requested the assistant to call Respondent’s cell phone and her husband’s cell phone. Because Mr. Clayton could not reach Respondent, he sent her another email at 3:55 p.m., telling her to contact Mr. Palaio if she and he were still on campus. Respondent left school on Friday, January 22, 2010, without giving Mr. Clayton her lesson plans. At 5:51 p.m. on January 22, 2010, Mr. Palaio sent Respondent an email. He reminded her to do her quarterly Tienet progress reports that were due to go home with report cards on January 27, 2010. On Monday morning, January 25, 2010, Mr. Clayton sent Respondent an email. The message stated that administration wanted to meet with her at 2:30 in Mr. Clayton’s office. Respondent was advised that she could bring union representation to the meeting. During the meeting on January 25, 2010, Mr. Clayton discussed Respondent’s failure to provide him with her lesson plans as directed. Mr. Clayton also told Respondent that her failure to complete a task by a given date constituted insubordination and served as grounds for termination. During the January 25, 2010, meeting, Mr. Clayton told Respondent that she had a chance to resign. Mr. Clayton stated that if she did not resign, he would contact the Superintendant and recommend her termination. Respondent could not make a decision to resign without talking to someone. Mr. Clayton told Respondent to let him know her decision by Wednesday, January 27, 2010. Respondent did not do so. At some point in time, Mr. Clayton placed a letter of reprimand, dated January 25, 2010, in Respondent's mailbox for failing to provide him a copy of her lesson plans on January 15, 2010, and on January 22, 2010. Mr. Clayton noted in the letter that he still had not received Respondent's lesson plans. Following the meeting, on January 25, 2010, Respondent got materials ready for her students for the remainder of the week. Respondent did not return to work until Monday, February 1, 2010. On January 26, 2010, Ms. Thompson advised Respondent by email that “O’s” goals and objectives were looking better. However, Ms. Thompson noted certain corrections needed to be made. Ms. Thompson placed a draft copy of the IEP, with notations, in Respondent’s mailbox. When Respondent returned to school on February 1, 2010, she gave Mr. Clayton a very detailed copy of her lesson plans for February 1, 2010, through February 12, 2010. The lesson plans were in a narrative form and not in a lesson plan book form that contains plans for a week at a glance. Even though the plans were not drafted according to Perry Primary School policy and were not the plans expected, Mr. Clayton provided Respondent with a lengthy critique of the lesson plans. On February 1, 2010, Mr. Clayton advised Respondent that she needed to complete the regress/recoup spreadsheet. He also told her that she still needed to fix “O’s” IEP by February 3, 2010, and before the IEP meeting on February 10, 2010. Mr. Clayton directed Respondent to complete the January Brigance testing before she left work on February 5, 2010. On February 1, 2010, Ms. Padgett sent Respondent an email regarding the reading programs in Respondent’s classroom. Ms. Padgett told Respondent that Ms. Padgett and the BMC staff had made certain decisions about the reading program while Respondent was absent from school. On February 2, 2010, Ms. Thompson advised Respondent that "O's" IEP was better. However, Ms. Thompson noted that Respondent needed to work on the reading goal and two objectives. On February 3, 2010, Ms. Thompson stated that she had met with Mr. Palaio and that he had offered some suggestions for “O’s” IEP. Ms. Thompson's message included a copy of a draft IEP prepared by Mr. Palaio. In a letter dated February 3, 2010, Mr. Clayton recommended that the Superintendant terminate Respondent’s employment. The letter references Respondent’s failure to provide him with lesson plans and the associated reprimand. The letter does not refer to Respondent’s reprimand for not completing the IEP goals. Mr. Clayton’s February 3, 2010, letter also included the following deficiencies: (a) Respondent never provided the personal assistants with the student behavior plans as instructed on January 13, 2010; (b) Respondent did not have her Brigance testing up to date; and (c) Respondent’s Aimsweb data was not up to date. In a letter dated February 5, 2010, Paul Dyal, Superintendant of Taylor County School District, advised Respondent that her employment was suspended with pay as of February 8, 2010. Mr. Dyal stated that the action was based on Respondent’s insubordination as outlined in Mr. Clayton’s February 3, 2010, letter. Mr. Dyal’s letter was hand-delivered to Respondent on February 5, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That The Taylor County School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 22nd day of February, 2011, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 February, 2011. COPIES FURNISHED: Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Paul Dyal, Superintendent Taylor County School District Alton J. Wentworth Administrative Office Complex 318 North Clark Street Perry, Florida 32347 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Should Respondent's five-day suspension without pay in December 1996, for her neglect of school policy and procedure be upheld? Case No. 97-1873 Should Respondent's five-day suspension without pay in February 1997, for insubordination in failing to complete student assessments be upheld? Should Respondent's employment with the School Board of Polk County, Florida, be terminated for insubordination in failing to complete required student assessments?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency responsible for providing public primary, secondary, and adult education in Polk County, Florida. To facilitate that responsibility, the Board hires certified teachers for classroom and administrative activities. Respondent Berger is a teacher, certified by the State of Florida. Berger has been a teacher for 34 years, the last 32 years in Polk County. Berger has taught Exceptional Student Education (ESE) since approximately 1980, Most recently, Berger has been working as an ESE teacher in Polk City Elementary School. During the 1995-96 school year, Randall Borland's first year as principal of Polk City Elementary School, he observed significant discipline problems in Berger's classroom. However, Borland recognized that some of the students were behavior problems, and during the school year Borland worked with Berger on the discipline problem, even to the point of removing students from Berger's classroom. Borland continued to observe problems in Berger's classroom at the beginning of the 1996-97 school year. In response, Borland began working with Berger to assist her management system in the classroom. Borland also observed that appropriate materials were not being used for the students at various levels. In September 1996, Borland met with Berger to discuss the Professional Development Plan (PDP) which he had prepared for Berger to assist her in the improvement of the management of student conduct and the monitoring of student progress. Under the goal of monitoring student progress, Berger was to: Assess students in math, reading, and writing during the first few weeks of school. Use assessment results in prescribing appropriate instruction and materials. Continue to utilize ongoing assessment to monitor student progress. Utilize meaningful and appropriate materials during instructional practices. Ongoing assessments of each student is a requirement of all teachers at Polk City Elementary School. These assessments were to be completed at the beginning of the school year and every nine-week grading period. All teachers are regularly given notice that these assessments are to be reviewed for each grading period. On September 12, 1996, Borland did a classroom observation of Berger's class and reported that she appeared unprepared and unfamiliar with the materials. Borland also made recommendations to assist her in these areas. Individual Education Plans (IEP) are required by State regulation for all ESE students, and the failure to timely prepare IEP's could affect the funding for those students. On September 27, 1996, Berger and another teacher at Polk City Elementary School received verbal reprimands for failing to have IEP's for all of their students. Following the verbal reprimand, Borland met with Berger to discuss her failure to successfully complete her PDP. At this meeting, Borland advised Berger that he intended to request the implementation of a Notice of Evaluation of Assistance in Time (NEAT) procedure. The NEAT procedure is designed to address and improve a teacher's deficiencies. Subsequently, Berger requested the Board to replace her Continuing Contract with a Professional Service Contract under Section 231.36(3)(d), Florida Statutes, and further requested that the process be expedited. The Board acted favorably on Berger's request on October 22, 1996. The effect of the change in contracts was to delay the NEAT procedure. Under the Professional Service Contract Berger would have one year to correct the deficiencies, whereas this benefit was not available under her Continuing Contract. By letter dated October 18, 1996, ESE Supervisor Jonda L. Dement advised Borland that the IEP's for a number of students were out of compliance. It is the responsibility of the ESE teacher to have the IEP's in compliance. Some of the IEP's for Berger's students were not in compliance. Berger received a reprimand for failure to have all of her student's IEP's in compliance. On November 4, 1996, the date set for teachers at Polk City Elementary School to review their assessment results with administrators, Borland met with Berger, and it was evident that her student assessments were not complete. Berger gave no explanation why the student assessment were not completed. Berger's failure to have her assessments complete resulted in her receiving a written reprimand. Additionally, Borland reviewed the importance and significance of the assessment results with Berger. To assist Berger, Borland requested that ESE Supervisor Jonda Dement meet with Berger to review available assessment tools. Dement met with Berger on December 2, 1996. However, other than the assistance offered Berger by Dement as set forth in Finding of Fact 26, the record is not clear as to what assessment tools Dement offered Berger at this meeting. On December 2, 1996, Assistant Principal Toni Bartley observed three students outside of Berger's classroom who remained unattended for some period of time. Bartley entered the back door of Berger's classroom to inquire about the students. Berger informed Bartley that she was giving a test (part of the student assessment) to a student which had to be administered individually to the student without other students present. Therefore, the other students had to remain outside. Upon leaving the classroom by the door where the students were located, Bartley discovered that the door was locked. Berger did not realize the door was locked. However, she admitted that she was not able to always observe the children that were outside the classroom. Subsequently, Borland and Bartley met with Berger concerning this incident. At this meeting, Berger was advised that leaving students unattended was unacceptable and that school policy required that students be supervised at all times. As a result of this incident and because of prior verbal and written reprimands, Borland recommended to the Superintendent that Berger be suspended without pay. By letter dated December 10, 1996, the Superintendent suspended Berger without pay for five days. This five-day suspension is the subject matter of Case No. 97-0384. Although the student assessments were due January 8, 1997, Berger was granted an extension until January 13, 1997. By memorandum dated December 12, 1996, Berger was advised that the ongoing assessments of her students were due January 13, 1997, and that a meeting would be held at 2:30 p.m. that day to review those assessments. However, Berger was granted an extension until January 15, 1997, to complete the assessments. At the January 15, 1997, meeting, it was clear that Berger's student assessments were not completed. As a result of Berger's failure to complete the student assessments, Borland recommended to the Superintendent that Berger be suspended five days without pay for insubordination. By letter dated February 18, 1997, the Superintendent advised Berger that he was suspending her without pay for five days based on insubordination in failing to complete student assessments as required by school policy and procedures. This five-day suspension is the subject matter of Case No. 97-1873. Review of student assessments for all teachers was scheduled for the week of March 10, 1997. Berger's appointment to review her student assessments was scheduled for March 14, 1997. Assistant Principal Bartley reviewed Berger's student files, and determined that numerous student assessments were missing for which there was no explanation by Berger. It is clear that Berger had failed to complete her student assessments at this time. As a result of Berger's repeated and ongoing failure to follow Borland's direction to complete student assessments, Borland recommended to the Superintendent that Berger's employment be terminated due to insubordination in failing to complete student assessments as required by school policy and procedure. By letter dated March 19, 1997, the Superintendent advised Berger that he was suspending her with pay effective March 21, 1997, and would recommend to the Board that her employment be terminated based upon continued insubordination in failing to complete student assessments. By letter dated April 1, 1997, the Superintendent advised Berger that the Board had adopted his recommendation to suspend her without pay effective April 1, 1997, pending the outcome of the administrative hearing. The Board's adoption of the Superintendent's recommendation to terminate Berger's employment with the Board is also the subject matter of Case No. 97-1873. Basically, prior to the 1996-97 school year, Berger had received good evaluations. Likewise, Berger has not had any serious discipline problems while employed as a teacher with the Board. Berger did not verbally refuse any direct order from Borland, or anyone else with authority, to complete her student assessments. However, although she completed some of the student assessments timely, Berger failed to timely complete all of her student assessments as directed by Borland, and required by school policy and procedure. Since approximately 1980, Berger has been completing county-wide assessments for her ESE students. Other than a small problem in 1992, Berger has successfully completed the county- wide assessments since 1980 without incident. Beginning with the 1996-97 school year, Berger, along with the other ESE teacher, was required to complete school-based student assessments. At the beginning of the school year it was Berger's understanding that the students’ classroom teacher would complete the school-based assessments. After being advised that she would be responsible for completing the school-based assessments for her students in certain areas, Berger began to assemble the necessary materials to conduct the assessments. Although Berger was not given any detailed explanation as to how the assessments were to be conducted, she was offered assistance by Jonda Dement, notwithstanding any testimony by Berger to the contrary. Although Dement testified that her office was not entirely familiar with this particular school-based assessment, she offered to have someone from her office to come and assist Berger in conducting and completing the assessments. Berger did not make a request of Dement for any assistance in conducting and completing her student assessments. Berger was given ample opportunity and time to complete her student assessments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board: (a) In Case No. 97-0384 enter a final order rescinding the Superintendent's five-day suspension and giving Berger a written reprimand; (b) In Case No. 97-1873 that the Board enter a final order sustaining the Superintendent's five-day suspension, but rather than terminating Berger, place her on a probationary status, which would allow her to correct any deficiency that the Board feels is necessary. Additionally, Berger should not be entitled to any back pay since the Board’s suspension. DONE AND ENTERED this 12th day of September, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 1997. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire LANE, TROHN, CLARKE, BERTRAND, VREELAND & JACOBSEN, P.A. Post Office Box 1578 150 Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire HERDMAN and SAKELLARIDES, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds Superintendent of Polk County School 1915 South Floral Avenue Bartow, Florida 33830-0391
The Issue The issues in this case are whether Respondent, Neil A. Merica, committed the offenses alleged to have begun in 1994 through 1999 as stated in the Amended Administrative Complaint dated May 7, 2003, and, if so, what penalty should be imposed.
Findings Of Fact Based upon observation of the demeanor and candor of the witnesses while testifying; the documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); stipulations and arguments of the parties; and the entire record compiled herein, the following relevant, material, and ultimate facts, arrived at impartially, based solely upon the extensive evidence adduced at the final hearing, are determined: Respondent's Qualification and Teaching Experiences Mr. Merica holds a degree in speech communication from the University of South Florida. He is also certified in specific learning disabilities (SLD) by that institution. Early in his 13-year tenure as a teacher at Foster Elementary School (Foster), he acquired a degree in computer science from Florida Metropolitan University. Mr. Merica holds Florida Educator's Certificate No. 532934, covering areas of English Speakers of Other Languages (ESOL), SLD,2 and Speech. His Florida Educator's Certificate expired June 30, 2003. As of the date of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. Mr. Merica also holds a teaching certificate from New Hampshire. Mr. Merica has a very demonstrative and expressive personality. His voice, when speaking at his normal conversational tone, resounds from the back of his throat in a louder than average volume. During his testimony, the pitch of his voice and his rapid speech pattern was accompanied by an unexpected and sudden outburst of spastic energy. Hillsborough County School Board's "Pull-out" Classroom Policy In 1987, the Hillsborough County School Board (Board) operated a Pull-out Classroom Policy (Pull-out Policy) for SLD and Physically Impaired (PI) students. Pursuant to the Board's Pull-out Policy, SLD and PI students were pulled out of their regular classes, divided into various numbered groups, and sent to a designated "resource" class teacher during the school day. Respondent's Initial Teaching Assignment Under the Pull-out Policy in 1987-1988 Mr. Merica began teaching at Foster as a SLD resource class teacher in October 1987 when the Board's Pull-out Policy was in effect. A resource teacher is the teacher whose class consisted of SLD students who were "pulled out" of regular classes of non-SLD students and sent to a resource class consisting of all SLD students for teaching and instruction. In 1989, the Board changed its Pull-out Policy to a "Self- contained" Classroom Policy (Self-contained Policy). The Self- contained Policy was designed to keep all SLD students together in one identified class throughout the school year. Mr. Merica taught SLD students under the Self-contained Policy at Foster until the 1992-1993 school year. Beginning at the start of the 1992-1993 school year, Foster's administration assigned Mr. Merica to teach a resource class consisting of PI and Learning Disabled Resource (LDR) students. PI classes consisted of students with a variety of physical impairments, including students who required various assistance devices such as wheelchairs, walkers, braces and "talkers," a machine device that assists the student with speaking difficulties to communicate. Mr. Merica continued as a PI and LDR teacher from the 1992-1993 school year through the 1998-1999 school year. Foster Elementary Exceptional Student Education Student Population from 1998 to 2000 During the two-year period of the 1998-1999 and 1999- 2000 school years, Foster had a large exceptional student education (ESE) population among its general student population. Foster's ESE community population consisted of 22 units, composed of full-time ESE students. There were six units of mentally handicapped students, with mental handicaps ranging from severe and profound mentally handicapped to mild emotionally mentally handicapped. There were four units of autistic students and four units of PI students. Foster had approximately five units of early exceptional learning programs, and three units of SLD students. Policy Change to Self-Contained Classes in 1998-1999 During the fall of the 1998-1999 school year, the Board changed their Pull-out Policy for SLD and PI students to a Self- contained Policy. The Self-contained Policy was instituted because of the severity of the students' learning disabilities, their struggles with academics, and the administration's conviction that the daily routine of shifting the SLD and PI students from "regular class to resource class" did not sufficiently address the students' individual learning disabilities and individual educational needs. Foster's administration identified students whom they believed did not handle transition well and recommended them as candidates for self-contained classes. The primary objective of the administration was to provide more "direct teaching time" and "direct teaching services" to each SLD or PI student. In the self-contained classes, SLD and PI students were assigned to one class and one teacher with a teacher's aide and/or a Department of Education for Exceptional Students (DEES) attendant throughout the day. The teacher's aides were those persons who were permitted to assist, under the oversight of the teacher, the classroom teacher with all facets of teaching, instruction, and classroom control. The DEES attendants were those persons whose duties consisted primarily of assisting the teacher by attending to individual and personal needs of SLD and PI students, i.e. changing their clothing, providing restroom assistance, etc. Respondent's 1999-2000 Reassignment to Teach Self-contained SLD Class In mid 1998, Brenda Griffin (Principal Griffin) was appointed principal of Foster replacing Janice Payne, f/k/a Pils (Principal Payne). At the start of the 1999-2000 school year, Principal Griffin changed Mr. Merica from his PI and LDR class and assigned him to teach a self-contained class of SLD students. A self-contained SLD class is a class composed of SLD students, each of whom has an individual educational plan (IEP) designed as the teacher's guide to assist in teaching each student to achieve specific, individual, and predetermined educational goals. Each IEP is developed by joint agreement of the SLD student's parent, his/her teacher and the assigned therapist (teacher). The IEP also identifies special educational services and supports that may be necessary to achieve desired outcomes and short-term objectives, and it establishes student educational benchmarks. An IEP may or may not contain daily, weekly or monthly checklists to evaluate a student's progress in achieving the benchmarks contained in his or her IEP. To make an objective determination of whether a student with an IEP has made progress (advanced from or to an ascertainable educational position), knowledge of the educational benchmarks contained in the student's IEP are essential. During the earlier years as a teacher at Foster, Mr. Merica served as the school's Classroom Teacher's Association (CTA) representative. In this capacity, he would address and argue those issues he believed to have had direct impact upon teachers who were members of the CTA. Mr. Merica attributed many of the comments made during staff meetings to addressing issues he believed had an impact upon teacher members of the CTA. During the 1997-1998 school year and after lengthy discussions with Principal Payne, but before Principal Griffin was appointed principal, Mr. Merica resigned as CTA representative. In September of 2000 and after 13 years of annual employment contract renewals, the Board terminated Mr. Merica's employment. At the time of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. In this proceeding, the Commissioner seeks to permanently revoke Mr. Merica's right to renew his Florida Educator's Certificate. The Amended Administrative Complaint The Amended Administrative Complaint alleged specific instances of specific conduct, specific acts, and specific speech to have occurred at unspecified dates and at unspecified times during a five-year span of time from 1994 through 1999. Accordingly, only incidents specifically alleged and proven by evidence of record to have occurred on or after January 1, 1994, through December 31, 1999, are considered in determining whether the Commissioner proved each allegation charged in the Amended Administrative Complaint. STATUTE VIOLATIONS Count 1: The Respondent is in violation of Section 1012.795(1)(b), Florida Statutes, in that Respondent has proved to be incompetent to teach or perform duties as an employee of the public school system or to teach in or to operate a private school. Count 2: The Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving mortal turpitude. Count 3: The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 4: The Respondent is in violation of Section 1012.795(1)(i), 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 Rules 6B-1.006(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 6B-1.006(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 6B-1.006(5)(d), Florida Administrative Code, in that Respondent has engaged in harassment or discriminatory conduct which unreasonably interfered with 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. WHEREFORE, Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 1012.795(1) and 1012.796(7), Florida Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension of the teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or combination thereof, for the reasons set forth herein, and in accordance with the Explanation and Election of Rights forms. Amendment to Amended Administrative Complaint to Correct Scrivener's Error. On December 24, 2003, Petitioner filed a Motion for Leave to Amend Complaint to Correct Scrivener's Error, which was granted and provided the following: On November 6, 2003, Petitioner Amended the Administrative Complaint in this matter. Paragraph 5 of the Amended Administrative Complaint should be further amended to correct the scrivener's error. Paragraph 5 of the Amended Administrative Complaint currently states: "During the 1998-99 school year, Respondent sexually harassed several different co- workers." That portion of Paragraph 5 should be amended to state: "Between 1994 and 1999, Respondent sexually harassed several different co-workers," to conform the time period for the allegations of Paragraph 5 with the time period for the allegations of all other paragraphs of the Amended Administrative Complaint. Janice Payne, Principal at Foster from 1987-1998 Principal Payne was principal at Foster from May 1987 to May 1998. An illness forced her to retire midyear in the 1997-1998 school year. After Principal Payne’s retirement, the Board appointed Principal Griffin as principal of Foster. Principal Griffin held that position during the time of this hearing. During Principal Payne's 1987 to 1998 tenure as principal at Foster and as required by statute, she performed yearly evaluations of Mr. Merica's professional performance as a teacher of SLD and PI students. Consideration was given to annual performance evaluations for the 1994-1995 and 1998-1999 school years. During the 1994-1995 through 1997-1998 school years, Principal Payne identified, in her annual evaluations of Mr. Merica's overall professional teaching performance, specific areas in which she independently determined Mr. Merica was in need of professional growth and improvement. At the end of each of those four evaluation periods, she met with Mr. Merica and discussed and identified for him those specific areas in which he was in need of professional growth and improvement. She provided him with specific, constructive advice and assistance to facilitate his professional growth and improvement as a professional teacher in the areas she identified. Undisputed evidence established that Mr. Merica accepted Principal Payne's constructive advice and assistance; he complied and implemented her suggestions in each area identified as in need of growth and improvement, and he grew and improved his performance in each identified area. It is noted, however, that Mr. Merica would sometimes suffer relapses and revert into his old pattern of voicing his personal opinions on a variety of subjects, described by Principal Payne as just: "talking up and rumoring everybody." Even with his propensity to occasionally "talk up and rumor everybody," Principal Payne concluded that he was a very good teacher and that he could be better. Principal Payne's methodology of assisting her young professional teachers' growth was to identify areas in need of improvement followed by personal conferences with each teacher explaining areas in need of improvement, making individualized suggestions tailored to the need(s) of the teacher, and, after an appropriate time interval, completing a follow-up assessment to evaluate the teacher's growth, improvement, and compliance with her suggestions. The record evidence demonstrated the existence of a professional and respectful relationship between Principal Payne and Mr. Merica, spanning the eight or more years they worked together, including the few occasions when there were disagreements. 1998-1999 Performance Evaluation of Mr. Merica In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE co-worker. Nevertheless, when Principal Payne evaluated his overall professional teaching performance for the 1998-1999 school year, including his personal conduct, she gave him a "satisfactory" rating in every area, without comments. Principal Payne made her independent written evaluation of Mr. Merica without assistance of any criteria or standards, other than as indicated on the evaluation form.3 In reaching her independent assessment of Mr. Merica's proficiency and effectiveness, scoring them on the characteristics and numerical scale indicated, she relied upon his teachings, his problems, and his improvements experienced. Her professional judgment of Mr. Merica was based upon her personal observation and day-to-day association with her teachers. Mr. Merica's 1998-1999 Performance Evaluation is the most accurate, reliable, and undisputed evidence of his competence and overall professional performance as a teacher during the 1998-1999 school year. There is no credible evidence of record that Mr. Merica engaged in unprofessional conduct evidencing either a past, an onset or a continuation of professional incompetence as a teacher in the school system during the 1998-1999 period covered by Principal Payne's annual evaluation. In response to the general inquiry of “whether or not her previous discussions and her prior improvement expectations of Mr. Merica as a teacher over the [unidentified] years were successful,” Principal Payne, convincingly, testified: Yes, temporarily, absolutely. My philosophy about Mr. Merica--first of all, he could be a good teacher if he wanted to be because I have observed him. I know that. He could behave if he wanted to. He could be a strong staff member. But, you know, he could do that probably for maybe four months or five months and all of a sudden it was just--he was just doing the same old thing, just going around, talking to everyone, rumoring people or getting rumors to people. It's just like this school was his life. Continuing, Ms. Payne testified: Mr. Merica would frequently apologize and realize what he had done was wrong, because at one time he's like a lamb and help to do whatever he can do and other times he just be so angry and upset to the point of where I said his behavior would frighten me. As the professional supervisor who worked with Mr. Merica for more than a ten-year period, Principal Payne was the most experienced and most knowledgeable person from years of hands-on experiences to have observed "the beginning of professional teaching incompetence that was not responsive to assistance provided by other professionals and continued unabated throughout her tenure." The Commissioner failed to prove, through the testimony and documentation of Principal Payne, "a beginning of demonstrated professional incompetence in 1994" or even as late as the school year of 1996-1997, as alleged in the Amended Administrative Complaint. Based on the testimony of Principal Payne, it is a reasonable inference, and I infer, that the "behavior of anger" sometimes demonstrated by Mr. Merica in Principal Payne's presence was directed toward the subject matter of "what he had done was wrong" and not directed toward the person of Principal Payne. Through the above testimony, the Commissioner failed to prove that between 1994 and 1998-1999, Respondent was insubordinate and confrontational towards Principal Payne during her tenure as principal. The Commissioner failed to prove the allegation that Mr. Merica's personal conduct began to demonstrate "incompetence" as a professional teacher during the period of the 1994-1995 through mid-year of the 1997-1998 school years while Principal Payne was principal of Foster. A review of the record demonstrated, and the undersigned so finds, that no other witness called by the Commissioner provided credible, material and substantive evidence, based on personal knowledge contradicting the testimony of Principal Payne, that related to Mr. Merica's professional "teaching skills" during the period of the 1994-1995 through mid-year 1997-1998 school years. Brenda Griffin Principal at Foster Elementary beginning in 1998 After the 1997-1998 midyear resignation of Principal Payne, the Board appointed Principal Griffin as principal of Foster. The professional relationship between Principal Griffin and Mr. Merica became tense, and, based upon the collective testimonies of teachers and administrative staff members hereinafter, the tension was known by both the professional staff and administrative employees at Foster Elementary. Principal Griffin recalled that during her first year as principal at Foster (approximately the latter half of the 1997-1998 school year), she made an unannounced visit to Mr. Merica's self-contained classroom of PI students. Recalling her visit, she testified: [T] hey [students], all had IEPs that have specific goals for each student and what I observed was group instruction, but I felt like the PI students were not being stimulated. (Emphasis added) There is no record evidence of the particular teaching materials being used by Mr. Merica during this single visit. There is no record evidence establishing ascertainable professional expectations or teaching standards below which Mr. Merica was performing during Principal Griffin's initial visit. There is no record evidence of specific educational benchmarks or educational goals contained in the PI students' IEPs. Within the situational circumstances of this one visit as testified to, Principal Griffin's conclusiory opinion that Mr. Merica's "PI students were not being stimulated" lacks an objective benchmark for evaluation, as well as any reasonable degree of reliability to produce a firm belief as to the truth of the matter sought to be established. Continuing, Principal Griffin testified: Mr. Merica would go to the board, where there may or may not have been written some vocabulary words, and he would start some kind of instruction and I felt that was because I was in the room--sometimes the aides would get up to work with the kids and sometimes not, and I was sure they were waiting on the direction from their teacher at that time. (Emphasis added) Principal Griffin recalled another separate incident, but omitted providing the month or year, when she "observed Mr. Merica sitting at his computer--she "did not know what he was doing at his computer"--but she had been in his classroom on a previous (unidentified time) occasion when a golf game was on the computer and she--"knows that he was not tending to the students." Principal Griffin's conclusions, her feelings, and her opinions in findings 24 and 26 herein above, minus evidence of the situational circumstances surrounding each incident, lack reasonable reliability to produce a firm belief of the truth of the allegations sought to be established. Principal Griffin also recalled (unspecified) occasion(s) on which she observed Mr. Merica outside his classroom. She characterized those observations as having seen Mr. Merica: verywhere- in the hallways, in the lunchroom, at the PE field, in the back of the school--in the ESE wing building, where the buses are for the kids, in the clinic, in the office, everywhere-at any period of time during the day. There is no record evidence of personal knowledge by the witness or evidence of the situation and/or circumstances that caused Mr. Merica to be outside his classroom on those occasions when he was observed by this witness. The witness' summary characterization, "everywhere-at any period of time during the day," lacks certainty, reasonableness, and a degree of believable reliability to produce a firm belief as to the accuracy of the matters to which she testified. Viewed most favorably, Principal Griffin's testimony failed to establish that on each of those occasions she observed Mr. Merica outside his classroom; his presence outside his classroom was not within the scope of his professional responsibilities and duties as a professional staff member at Foster. The credibility of this witness is further diminished by her exaggerated testimony of facts at issue. This testimony and the intended inference that his absence from his classroom caused a direct and negative impairment on his students' learning, lack essential details to provide a reasonable degree of reliability and cast insurmountable doubt as to the truth of the allegations sought to be established. Principal Griffin testified she talked with Mr. Merica about not being in his classroom and he told her: [H]e needed a break or that it was his break time and that his aides were in the classroom and they were capable of instructing his students. Mr. Merica disputed and denied making the particular statement, i.e. "that his aides were capable of instructing his students." His version of the reason(s) for absences from his classroom were reasonable explanations(s) corroborated by other witnesses as found infra. Even if Mr. Merica's denial of the inferred accusation is unbelievable, it does not prove the accusation by the Commissioner to the contrary. The acceptable and unacceptable reasons or situations a teacher may or may not be out of his or her classroom, and personal knowledge of those unacceptable occasions that Mr. Merica was not in his classroom, were not established through the testimony of Principal Griffin. The evidence does not support the frequency or extent of her assertions but, instead, casts doubt on the accuracy of the witness' testimony. The Commissioner failed to prove through the testimony of this witness that on each occasion Mr. Merica was observed outside his classroom, his presence was unreasonable, unprofessional, and caused a direct and negative impairment on his students' learning. Principal Griffin testified, unconvincingly, regarding another incident (again with no record evidence of the month, school year or the situational circumstances) that "a mother" called her to bring to her attention "that the teacher was not using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The witness did not provide the mother's identity. The witness did not provide the child's identity. The witness did not provide the teacher's identity though those three persons were allegedly involved in this undocumented incident. The presumed inference(s) that Mr. Merica was "the teacher" referred to by the unidentified mother, who (inappropriately) disciplined "a child" by taking away the unidentified child's touch-talker, is unreasonable. The vague, non-specific testimony of this witness, and her inability and/or her refusal to identify the mother, the child, and the teacher, create an unacceptable level of credibility due to the absence of three significant points of identity. The credibility of this witness' testimony was further diminished by the lack of corroborating testimony by other witnesses, and the witness' credibility disappeared because no recording was made of such an important call from a parent to the principal of a school. The testimony by this witness does not establish or corroborate other testimony regarding the issue of "some teacher using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The Commissioner, through the testimony of this witness, failed to demonstrate that Mr. Merica "inappropriately disciplined a student," as alleged in the Amended Administrative Complaint. The testimony of this witness, based solely on debatable expressions as her personal "feelings" and personal "opinions" regarding alleged conduct in the past reflected in findings 24 through 32 herein above, viewed most favorably, lacked reasonable reliability and substantial weight to produce a firm belief as to the truth of the allegations sought to be established. Respondent's 1998-1999 Personnel Performance Evaluation At the end of the 1998-1999 school year and notwithstanding her testimony in findings numbered 24 through 32 above, Principal Griffin, independently, determined that Mr. Merica's overall professional teaching performance, to include his personal conduct and, by reasonable and objective implication, his teaching competence, was satisfactory in every category for the 1998-1999 school year. The overall "satisfactory" performance evaluation given Mr. Merica by Principal Griffin for his professional teaching competence and personal conduct in the 1998-1999 school year is significant when juxtaposed to her testimony at the final hearing. As late as May 1999, this witness' independent evaluation of Mr. Merica's professional teaching competence and his personal conduct was reflected on his 1998-1999 performance evaluation as "all satisfactory." However, the testimony contained in Findings of Fact 24 through 32 in this 2004 proceeding is a direct contradiction. This aspect of the witness' 2004 testimony and written 1999 evaluation raised substantial issues of the witness' intent and cast insurmountable doubt on the witness' credibility. The lack of consistency in opinion and the ambiguity created by the 2004 testimony of conduct having occurred from pre-termination to post-termination are resolved in favor of Mr. Merica. Mr. Merica's competence as a teacher, his teaching skills, classroom management, and student discipline, as evaluated and determined by Principal Griffin, for the 1998-1999 school year, ending May to June 1999, is the more substantial, reliable, and persuasive indicator of his past performance and competence as a professional teacher during the preceding 1998-1999 school year. Debora Bragdon, Secretary to Principals Payne and Griffin Debora Bragdon testified that during the 1999-2000 school year (ending May to June 2000), Mr. Merica came into the administrative office a minimum of once and "sometimes" twice a day, depending upon the day. According to Secretary Bragdon: Mr. Merica and Principal Griffin had discussions in the principal's office a minimum of once and sometimes twice a day throughout the entire school year. Secretary Bragdon could not recall the subject matter discussed nor did she recall hearing Principal Griffin's voice at any time during the alleged daily office discussions. Mr. Merica's voice, however, she heard stating that "Mr. Merica would be screaming so loud that I could hear him clearly." However, she could not recall a word or phrase spoken by Mr. Merica. Secretary Bragdon did not enter the principal's office when Mr. Merica and Principal Griffin were having their daily conferences. Secretary Bragdon surmised, from the tone of Mr. Merica's voice only, that Principal Griffin was in danger. Secretary Bragdon further testified that during those daily conferences she would buzz Principal Griffin on the intercom asking if she needed assistance, and Principal Griffin repeatedly assured her that "she did not need assistance." Principal Griffin did not corroborate or confirm Secretary Bragdon’s testimony on the issue "once and sometimes twice a day throughout the entire school year she had discussions with Mr. Merica in her office." Any reasonable consideration of Secretary Bragdon's above recollection requires acceptance of the fact that a minimum of 180 (once a day) to a maximum of 360 (sometimes twice a day) conferences occurred in Principal Griffin's office during the 1999-2000 school year between Principal Griffin and Mr. Merica. The intended inference that during each daily office conference, whether 180 times or more, Mr. Merica was always screaming at Principal Griffin while she sat silently in her office is rejected. Secretary Bragdon's exaggerated testimony lacks any appreciable degree of reasonableness, reliability or credibility. Her entire testimony failed to produce a firm or a precise belief as to the truth of the allegations sought to be established, and the Commissioner failed to prove through this witness that Mr. Merica was confrontational and argumentative with Principal Griffin during unspecified conferences while in her office. Negative Statements Continuing, Secretary Bragdon testified, unconvincingly, regarding unidentified sounds she overheard on the intercom system: rom the sounds I overheard on the intercom system when Mr. Merica called the administrative office for help with control of his students,-not all the time but sometimes you could hear disorder, confusion, kids maybe not under control. (Emphasis added) From unidentified sounds she allegedly overheard on the intercom, Secretary Bragdon concluded that the sounds she heard were "disorder," and, from that, she inferred that the "kids were maybe not under control" in Mr. Merica's class. The intended inference that Mr. Merica's "student behavior management and student control" was not effective at unspecified times, alluded to by this testimony, is rejected for want of reasonable credibility. Secretary Bragdon's testimony in findings 33, 34, and 35 consisted of exaggerated and speculative conjectures. As such, her testimony was not substantial in specifics nor competent in knowledge to establish as fact the allegations testified to in findings 33, 34, and 35 hereinabove. Secretary Bragdon was secretary to both Principal Payne and Principal Griffin, but there is no record evidence of the school year the alleged intercom activities she purported to have overheard, and of which she testified, occurred. The Amended Administrative Complaint alleged misconduct during the period 1994 through 1999 (1999 ending December 31, 1999), not throughout 1999-2000. The ambiguity regarding the time period the alleged conduct occurred is resolved in favor of Mr. Merica. Subversive Statements Secretary Bragdon also testified about a personal conversation between her and Mr. Merica "shortly after the Oklahoma City bombing."4 Although she could not remember the day, month or year, she specifically recalled: I was in the cafeteria getting coffee and Neil was also in the cafeteria. He brought his children in there to have breakfast. And he was up at the same table that I was and he basically just said that, you know, - - everybody was basically talking about it and I don't know word for word, but basically what he said was it would be good if we could do something like that here, but we just have to make sure the administration are in the building. This statement, if true, demonstrated, at its worst, bad taste on behalf of Mr. Merica. When considered within the context (everybody was talking-about it), circumstances (just after the news report of the occurrence), and the location (at a table in the cafeteria) with everyone talking, the alleged statement does not evidence a manifested "subversive" intent of Mr. Merica, as alleged in the Amended Administrative Complaint. Sectary Bragdon's demeanor, attitude, and manner of responding to questions seemed calculated to provide little light on the substantive facts of the situation, but rather an exaggerated version of the nature and circumstances of the incidents. I find the testimony of Secretary Bragdon unworthy of reliance upon as a true foundation to support findings of fact as to the matters testified to hereinabove. Negative Attitude Toward Administration Statements Cynthia Blake, a DEES attendant at Foster from 1985 to 2002, testified regarding "statements" allegedly made by Mr. Merica that demonstrated his negative attitude (state of mind) toward the school administration. When asked the following question: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration," Ms. Blake gave the following answer: Well, there was a lot and sometimes he would just walk away. He did not want to hear it. He would walk behind me, say it again, and would say, you know, be careful or whatever and it never changed. At this one given time, we was just outside and I was watching some kids, I think, and he came up and they was painting the school and he just said that ought to get all the kids out of the school and blow the school up and leave the administration in the school. During her earlier deposition, Ms. Blake was asked: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration?" As seen below, her response then differed from her present testimony. Q. Do you remember a situation where Mr. Merica said something about blowing up the school? A. Yes. Q. Can you tell me about that? A. Well, we at some point always told Neil, you know, to you know, you'd better calm down because you never, you know, people -- the teachers and -- I mean the administration -- you have to just watch yourself. There are certain things you just can't say and probably in a joking way, but it was a lot of stuff going on at the time. The schools had been with firearms and up in Columbine and different situations, so probably it was in a -- I don't know what to say -- but he just spoke of we need to get all the kids about and leave the administration in and blow up the school. Q. Do you remember saying that it was probably in a joking manner back when your deposition was taken? A. Well, basically when Neil spoke about things, he laughed about it, so at the time, like I said, there was so much going on between the news and that, I would never know anymore. Q. All right. So he might have though it was funny, but you didn't think it was funny; is that fair? A. No, sir. The testimony of Ms. Blake, mirroring the testimony of Secretary Bragdon, demonstrated bad taste on behalf of Mr. Merica. When subject to cross-examination about the statement or other aspects of her prior testimony, Ms. Blake became vague and uncertain about her prior versions and was inconsistent on matters that seriously undermined her credibility. Consideration of the situation and circumstances when Mr. Merica made the alleged statement supports a reasonable inference that Mr. Merica's statement was a crude and boorish attempt at making a joke, not in good taste, but nonetheless a joke. The Commissioner did not prove by the above testimony that Mr. Merica was hostile and subversive or intended his comment as derogatory and disrespectful toward his principal as alleged in the Amended Administrative Complaint. Physical Restraint and Classroom Management Allegations Pat Drennan, assistant principal at Foster, by her admission was primarily responsible for the school's educational curriculum. In her "educational curriculum" capacity, Ms. Drennan assisted teachers, students, and parents in curriculum matters and assisted teachers in discipline in the classroom, student testing, and student grades. She was unable to recall the year and date, but she recalled she had been in her position as assistant principal for four years, approximately 1998 through January 2004. When asked about the Board's policy regarding an educator's physical restraint of students, Ms. Drennan responded that her "understanding" of the Board's policy was: [B]asically teachers are not to restrain students unless they have been trained-- unless they have ACT training they can not bring a child down on the ground or anything. She did not know whether Mr. Merica was ACT trained or not at all times pertinent and at the time of her testimony. No writing in the record speaks to this issue, and no predicate was laid to show that the witness was in a position to know the Board's policy. This witness stated her "understanding" of the applicable rule. A finding of fact that a violation of a penal statute or rule occurred cannot be based upon loose interpretations and problematic evidence, but on evidence as substantial as the penalty for violation of such statue or rule. The testimonial evidence given by this witness failed to establish the "rule." Thus, her opinion regarding violation of a rule she does not know, lacks a foundation upon which a reasonable degree of reliability will support. Ms. Drennan recalled one occasion on which (no evidence of the month and year) on which she instructed Mr. Merica "not to restrain a student she 'thought' he had restrained." She recalled making one general suggestion (not explained) to Mr. Merica regarding classroom behavior management, adding, but "he did not have to do it." Ms. Drennan did not know whether during his last year at Foster (1999-2000) Mr. Merica taught the entire year. When asked if she knew why Mr. Merica left Foster she answered: [I]n my mind, the situation was that he no longer was able to control himself and the class--the management of the class. No evidence of record speaks to the issue of a standard of classroom management from which to evaluate Mr. Merica's conduct. To demonstrate this issue the Commissioner's reliance on witnesses who could but state their "understanding" from various and dubious vantage points, failed to prove what was required of Mr. Merica and the specific conduct that fell below the required standards. The intended inference to be drawn from the above testimony of Foster's assistant principal, that Mr. Merica was "unable to control himself" and "unable to manage his class" and thus incompetent, is rejected for a lack of personal knowledge on behalf of the witness and evidence of an objective standard from which to evaluate "control" and class "management" by a teacher. The Commissioner failed to establish, by the testimony of Ms. Drennan, that Mr. Merica was unable to control himself and unable to manage his class and, thus, demonstrated incompetence, during the (unspecified) period inferred by Ms. Drennan's testimony, as alleged in the Amended Administrative Complaint. Ms. Drennan testified, unconvincingly, about hearsay from another teacher, Ms. Parson, who told her, "for information only." According to Ms. Drennan: Ms. Paula Parson, a teacher who did not want anything done about it but for information only, told her she was apprehensive about Mr. Merica bringing her lunch and giving her unwanted attention. Paula Parson was not called to testify. The intended inference of unwanted attention is not accepted by the undersigned. The Commissioner failed to prove by the uncorroborated hearsay testimony of Ms. Drennan that Mr. Merica sexually harassed several different co-workers, as alleged in the Amended Administrative Complaint. Code of Conduct and Rules of Professional Responsibility When asked if she was familiar with the Code of Conduct and the Rules of Professional Responsibility, Ms. Drennan again, unconvincingly, testified: I think yes, basically, the rule that deals with personal conduct that seriously reduces an educator's effectiveness in the school district,--when someone coming into the district-I would want to look at previous-- what had happened previously with the person and I would think they would be ineffective; I would find them ineffective in the fact if they were not open to interaction with faculty and staff in an appropriate, professional way; They are ineffective if they don't know how to deal with children in the proper way. If they couldn't tell me that they could do a management plan--have one before they walked in. I would find them ineffective if they were not--didn't have the right tools for teaching, basically, and those tools are many. Besides a degree, it would be how you get along with people, how open you are to learning new things, and that type of thing. There were no incidents of Mr. Merica being insubordinate or confrontational with Principal Payne witnessed by Ms. Drennan. This witness presented no evidence that she had personal knowledge of Mr. Merica's classroom management skills or the lack thereof. Her "opinions" about what conduct would be inappropriate and what conduct that would seriously reduce an educator's effectiveness (and competence) in the school district are her "opinions" and nothing more. The "right tools for teaching, basically, and those tools are many," standard coming from an assistant principal does not establish an objective and acceptable standard by which to evaluate a teacher's competence as a professional teacher. Viewed most favorably, the "opinions" of Ms. Drennan are not appropriate, objective standards by which to determine whether the professional conduct of a fellow teacher fell below the Code of Conduct and/or violated the Rules of Professional Responsibility. The Commissioner failed to prove, by the testimony of Ms. Drennan, that during the period starting approximately in 1998 and continuing through December 1999 Mr. Merica engaged in conduct that fell below the Code of Conduct and/or violated the Rules of Professional Responsibility as alleged in the Amended Administrative Complaint. Confrontations with Principal Griffin Ms. Drennan testified that at some point in time (of which she was not sure and unable to identify) her office was located next door to Principal Griffin's office, and she would "intentionally" leave her door open. According to Ms. Drennan, by leaving her door ajar she "could overhear and 'tell from the tone of the voice'--when someone was loud and confrontational like that [sic] you just never know and I just worried that there could be something else happening." Asked what she meant by "loud and confrontational," Ms. Drennan responded: Well, anger. Obviously, the man was angry when he was in there sometimes. I'm not saying every time, but the times that we're talking about like that, he was angry and anger sometimes can lead to other things, so . . . Ms. Drennan purportedly could overhear Mr. Merica speaking with her door open, but she gave no testimony of what, if anything, she overheard Mr. Merica say. Ms. Drennan's testimony, regarding loud talking by Mr. Merica toward Principal Griffin, inferring his state of mind as being emotionally out of control while conferencing with his principal, is speculative conjecture. There is no record evidence that this witness observed nor personally confirmed with Principal Griffin that Mr. Merica was, in fact, angry with Principal Griffin on each of those "sometimes" occasions she heard "someone was loud." This witness did not observe nor subsequently confirm with Principal Griffin that Mr. Merica pointed his finger her face, during those unspecified occasions when she sometimes left her office door ajar and sometimes heard someone was loud, as alleged in the Amended Administrative complaint. Secretary Bragdon recalled Mr. Merica yelling “everyday all the time,” and Ms. Drennan contradicts that testimony recalling he was loud and angry, but, qualifying that statement, she added she was “not saying every time [he was in the office].” The testimony of both witnesses, considered separately and together, failed to produced a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Refusal of Failure to Comply with Requests and Instructions When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of any failure or the refusal by Mr. Merica to comply with an identified request or instruction given by either Principal Payne or Principal Griffin. When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of Mr. Merica having made derogatory and/or disrespectful remarks about Principals Payne or Griffin in her presence. Ms. Drennan's opinion that Mr. Merica deviated from her "understanding" of the principles contained in the Code of Conduct and Rules of Professional Responsibility standards were speculative and insufficient to establish as fact that Mr. Merica deviated from or violated the Code of Conduct and the Rules of Professional Responsibility. The Commissioner failed through this witness to establish any violation or any deviation from standards found in the Code of Conduct and the Rules of Professional Responsibility by Mr. Merica. Ms. Drennan failed to establish an objective, ascertainable standard of professional level of effective teacher behavior and teacher classroom management for SLD and IP students. Her testimony and the intended inferences regarding Mr. Merica's alleged ineffective and unprofessional student behavior, teaching, classroom control, and student management is incompetent to establish as fact that Mr. Merica deviated from clearly, established professional standards as alleged in the Amended Administrative Complaint. Ms. Drennan testified as did other co-workers who were present that Mr. Merica's had occasional disruptive verbal conduct in faculty and staff meetings and that during collegiate discussions he often demonstrated an argumentative attitude. The Commissioner proved, through the testimony of Ms. Drennan and other witnesses who were present and testified, that at one or more (unspecified) faculty and/or staff meetings that Mr. Merica occasionally engaged in disruptive verbal conduct accompanied by an argumentative attitude. Derogatory and/or Disrespectful Remarks About Principal Shelley Opila worked as a PI and ESE teacher at Foster from August 1996 to July 2001. When asked to give an example of "bashing the principal," Ms. Opila testified that during (unspecified) faculty meetings, Mr. Merica would often state: "Oh, that will never work," in response to unspecified matters under discussion. There is no record evidence of the situation or circumstances of the particular subject matter under discussions when this witness overheard the statement. Viewed most favorably, the isolated statement, "Oh, that will never work," is a personal opinion and, as such, does not evidence a manifest intent by Mr. Merica to make derogatory statements about the Foster administration as alleged in the Amended Administrative Complaint. Ms. Opila testified that she overheard Mr. Merica several times voice his personal opinions "[t]hat you have to be blonde or a female," and "It's who you know to be a principal." Without evidence of the situational circumstances when the statement was made, Ms. Opila assumed that Mr. Merica was referring to one or both, Principal Payne and/or Principal Griffin. There was no corroboration from either Principal Payne or Principal Griffin that Ms. Opila conveyed her concerns to either of them regarding Mr. Merica's alleged derogatory and/or disrespectful remarks. Viewed most favorably, the general statement "You have to be blond or a female," could have been a true statement if the record evidence established the color of Principal Payne and Principal Griffin's hair during their respective tenure as principal. The record evidence, however, does not. As reflected in the record, the testimony of this witness does not evidence a specific intent of Mr. Merica to make derogatory comments about Principal Griffin or Principal Payne. The record evidence reflects that approximately 120 educational personnel worked at Foster during the time in question and among that number only five or six were males. The reference to "blond and female to be principal" applied equally to approximately 100 females at Foster who, if they were not at the time the opinion statement was made, were capable of being blond and also capable of being a principal. Neither Principal Payne nor Principal Griffin testified regarding their respective hair colors during times pertinent to when the alleged statements were made by Mr. Merica, and the undersigned did not notice and can not recall with any certainty, the hair color of each of the twenty-plus female witnesses who testified in the proceeding. With the presence of more than 100 other females at Foster, and no evidence of the hair color of the principals at any time, an inexplicable ambiguity of "intent" is here presented. The ambiguity is resolved in favor of Mr. Merica. The Commissioner failed to prove, clearly and convincingly, through the testimony of Ms. Opila, that Mr. Merica intended to, and did specifically, make the derogatory comments about Principal Payne and/or Principal Griffin by the "blond [hair color] to be principal" statement as alleged in the Amended Administrative Complaint. Mr. Merica's Students Performance Ellen Lipari was a teacher of third and fourth grade PI students with various physical ailments and/or traumatic brain impairments from the 1992-1993 school year to approximately the 1997-1998 school year. She taught forth grade PI students during the same five-year period Mr. Merica taught first grade PI students. According to Ms. Lipari: [U]nder the pull-out school board policy in effect during that time, Mr. Merica would pull out and send his kindergarten and first grade level PI students to her third and fourth grade level classes. At some unspecified period during the five-year time period, she and Mr. Merica switched grade levels, Ms. Lipari moved down and taught the kindergarten and first grade level PI students, and Mr. Merica moved up and taught the third and fourth grade level PI students. After the switch, she would send her kindergarten and first grade level PI students to his third and fourth grade level classes. According to Ms. Lipari, during the 1997-1998 school year she had many opportunities to observe students Mr. Merica taught when they were thereafter assigned to her class. During that year, she personally observed Mr. Merica's teaching methodologies, his classroom management methods, and his in- class teaching conduct and style. Ms. Lipari described her impressions, gained from close, extended, daily and weekly contact, of his classroom control and management skills and his teaching skills of PI students with various physical ailments and traumatic brain impairments as: Well, you know, he was a very technically-he was technically doing his job, but there was a lot of humanized things that you do with younger children to try to get them to learn to read and those kinds of things that primarily he did not do. He was mostly teaching out of the textbook and trying to teach very specific things and not doing the kinds of things and that's why we decided it would be better if I moved down so that I could do more mothering and maternal type activities and maybe the older children would respond better to having a man teacher. Alleged Complaint from an Unidentified Mother Ms. Lipari moved down to teach the kindergarten and first grade level PI students, and to provide what she described as "mothering and maternal type activities," in keeping with the stated policy and goal of Principle Griffin as chief of the Foster administration. As a male teacher, Mr. Merica could not provide "mothering and maternal type activities to first grade level PI students," and it was not established that "mothering and maternal type activities" were requirements of all teachers, male and female, by this policy. During an unspecified period after she moved down to teach the kindergarten and first grade level PI students, unidentified parents of her former kindergarten and first grade student(s) called her complaining to her about the differences in the curriculum used to teach their children who were then in third or fourth grade levels under Mr. Merica. According to Ms. Lipari, some unidentified parents of PI students complained to her that "their former kindergarten and first grade children had been allowed to do certain things, like watch TV programs to which they had become accustomed." Based upon complaints from parent(s) she could not identify, Ms. Lipari reached conclusions and, based upon those conclusions, offered her opinion: I personally did not see any educational benefit to students watching TV because our kids [PI] are at least developmentally delayed, if not mentally handicapped, as well as being physically impaired because those children are primarily mentally impaired. Most of our children's IQs go maybe up to 70-75, so the kind of math that you would do in The Price is Right [TV program] would not be valid for those age level of children. During her years of working with Mr. Merica and observing Mr. Merica's teaching methodologies, his classroom management, and his in class teaching conduct, she never once personally observed Mr. Merica's students watching TV programs. Ms. Lipari's recollection of one phone call and her failure to identify the parent(s), who were so concerned about their children that they personally called Ms. Lipari, fairly detracted from the weight and believability of her testimony rendering it unreliable to establish facts alleged therein. Her testimony was further diminished by the lack of corroborating testimony from other witnesses. Ms. Lipari's testimony failed to produce a firm belief, without hesitancy, as to the truth of the allegation sought to be established. Ms. Lipari's opinion regarding educational benefits derived from watching a TV program, based upon the hearsay of unnamed parent(s), failed to prove, such activity actually occurred, or if it did occur, failed to prove that Mr. Merica’s use of such methods and skills were ineffective teaching methods and deviated from the Code of Ethics or Standards of Competent Professional Performance standards as alleged in the Amended Administrative Compliant. IPE Preparation and Assistance Ms. Lipari testified that she assisted Mr. Merica, on unspecified occasions, by "explaining the particulars of an IEP and the mechanics of writing an IEP." According to Ms. Lipari: [F]or every student with an IEP, the teacher, parent and therapist [another teacher] agree on goals and objectives that in their collective determination can be achieved by the child during the forthcoming school year. The IEP is a joint collaborative endeavor requiring discussions, disagreements, compromises and finally an acceptable document; subject to subsequent modifications. Ms. Lipari gave her personal belief that: [T]he teacher(s) has to find different ways of handling their PI students' problems because each child is different, according to their disability, according to their ability to write or not be able to write. Some PI children cannot write at all. Some PI children cannot speak at all. Therefore, the teacher has to find some ways to show that the child can read. Because he can't read out loud to the teacher, the teacher would find different methods that can used to show the student is making progress. IEPs are personalized crafted documents designed to address the perceived needs and method of instructions to address the need(s) of each handicapped student. The evidence of record does not speak to the issue of accepted standard(s) for writing an IEP nor is there evidence that Mr. Merica did not comply with accepted standards for writing an IEP. The Commissioner's reliance on Ms. Lipari's "belief" that Mr. Merica needed her assistance in writing one IEP, without more, failed to establish that Mr. Merica was incompetent in his professional teaching skills and/or in IEP writing and/or implementation skills. Viewed most favorably, Mr. Merica had five to six years of writing IEPs with other teachers and counselors before Ms. Lipari's offered assistance which she characterized as "explaining the particulars of an IEP and the mechanics of writing an IEP." The intended inference of this testimony requires first a belief that other teachers and counselors who had worked with Mr. Merica on IEPs during the preceding five years (1987-1992) either did not know "the particulars of an IEP and the mechanics of writing an IEP" or were unable or unwilling to recognize a need for "the mechanics of writing an IEP" and to offer and suggest methods of improvement to Mr. Merica, to include Principal Payne who worked with Mr. Merica for almost 10 years. The testimony of this witness was not corroborated. The testimony of Ms. Lipari failed to include essential details that are central to the facts sought to be established and, thus, failed to produce any belief of conviction as to the truth of allegations sought to be established. The testimony of Ms. Lipari also failed to demonstrate a single refusal by Mr. Merica to accept and implement one positive necessary suggestion that was, in fact, made by Ms. Lipari to Mr. Merica relating to teaching students with IEPs. This testimony failed to establish the existence of, the beginning of, or the continuation of, a demonstration of professional teaching incompetence as alleged in the Amended Administrative Complaint. Physical Restraint and Control of Unruly Male Students Ms. Lipari recalled one occasion an unidentified male student in her class was unruly in the hall. During the time her male student was being unruly, Mr. Merica came along with his class. He asked her if he could be of help with her unruly student and according to her, without waiting for her to reply, physically restrained her unruly male student. No evidence of record establishes an injury to any unruly male student that resulted from the physical restraint by Mr. Merica. This testimony demonstrated that on one occasion Mr. Merica restrained one unruly male student in the hallway who was in Ms. Lipari's class. This evidence also demonstrated that PI and SLD students were routinely unruly in the hallways and elsewhere in the school, when Ms. Lipari was the teacher in control and in charge as well as when Mr. Merica was the teacher in control and in charge of a class. This evidence also demonstrated the propensity of young male students to react to female teachers and to male teachers in a different manner. Ms. Lipari's testimony regarding unruly conduct of students, in the hallways when Mr. Merica was the teacher in charge, does not evidence his lack of ability to control and manage his unruly students, as alleged in the Amend Administrative Complaint. This testimony does establish as fact that Mr. Merica restrained an unruly male student during a period when his ATC certification was expired. This technical violation of ATC certification by Mr. Merica is accompanied by the fact that the unruly student was unhurt; other PI students were not harmed; and Ms. Lipari, a female, who provided "mothering and maternal type activities," was rendered assistance by a male co-worker, in keeping with the school's policy, according to Ms. Lipari, of having a male teacher in charge of the older and larger male PI students. Ms. Lipari further testified that on one unspecified occasion when she was present in the school hall, Mr. Merica's class was "very loud and unruly." This is the same witness whose class had an unruly male student in the hall when Mr. Merica restrained him. According to Ms. Lipari, during Mr. Merica's loud and unruly class in the hall incident, her class was under her supervision and her volunteer, an unnamed "grandmother," who was assisting her with her class on that unspecified date. According to Ms. Lipari, she and the grandmother observed Mr. Merica: [M]oving from the front of his class line to the back of his class line, swinging his arms back and forth for his unruly students to get in line and stay in line; but, he was not swinging his arms at his students or in their faces. "Grandmother(s)" are community volunteers who come in to assist teachers with PI and SLD students. According to the witness, the objective of grandmother assistants is to provide a soothing and calming presence in the classrooms. Assuming the intended inference to be drawn from this vague, non-explicit, testimony was to demonstrate Mr. Merica's inability to control his class and his unprofessional conduct in the presence of an unidentified member of the community, it failed. The testimony in finding 70 above was not corroborated by other witnesses and was sufficiently vague so as to cause doubt and raise substantial issues of credibility. Viewed most favorably, the above testimony failed to produce a firm belief of the truth of the allegations sought to be established. The Commissioner failed to prove, through the testimony of this witness, that Mr. Merica's conduct was inappropriate or unprofessional in any manner toward his students in the hall at some unspecified period or in the presence of a member of the public/community as alleged in the Amended Administrative Complaint. Negative Feelings About School Administration Ms. Lipari acknowledged that Mr. Merica was a very outspoken person on all issues he addressed. From that observation she went on to testify about an incident in the teacher's lounge when she overheard him make the statement: "[n]o woman was going to tell him what to do." From overhearing that part of a single statement at some unidentified time and without providing the circumstances and context in which the alleged statement was made, Ms. Lipari assumed she knew how Mr. Merica felt about Principal Payne, Principal Griffin and, in general "all females." Based on her assumptions, Ms. Lipari concluded Mr. Merica's statement was specifically intended to be derogatory about a particular unnamed principal. She further assumed the statement "no woman was going to tell him what to do" included her. Based upon those assumptions, she inferred Mr. Merica was speaking first, in a negative fashion; second, he was speaking about all women in general; and third, he was speaking about Principal Griffin in particular. Ms. Lipari's testimony regarding Mr. Merica's general opinion statement "no woman was going to tell him what to do," without establishing the context, situation, and/or circumstances at the time the statement was made failed to establish anything other than the statement was made. To this non-specific and ambiguous testimony, any number of meanings can reasonably be attributed, including his private and personal relationships with women in his past. Testimony of this isolated statement is not competent to establish a manifested intent on behalf of Mr. Merica to be disrespectful toward Principal Griffin or Principal Payne or women in general. The testimony in finding 72 was not placed in a situational circumstance that would have enabled the undersigned to render an objective evaluation. The alleged out-of-context statement is not competent to establish as fact allegations that Mr. Merica intentionally made derogatory and disrespectful statements about Principal Griffin and other female co-workers as alleged in the Amended Administrative Complaint. IEP Preparation and Principal Griffin/Mr. Merica Relationship Linda Thomas was an ESE specialist at Foster from 1997 through 2002. Her duties included giving suggestions for curriculum or classroom management, assisting teachers with paperwork, and assisting resource teachers as needed. The usual method of contact would originate from a principal who would call Ms. Thomas and request her to lend assistance to a specific teacher. Answering the open-ended question, "what caused her concern about the Principal Griffin-Teacher Merica relationship," Ms. Thomas, without providing the year or month, answered: In my opinion, I don't believe that Mr. Merica had much respect for Ms. Griffin- -that he demonstrated that in the school setting. A number of times I overheard him say things such as that he would be around longer than she would. He was frequently making comments in faculty meetings just in general about the leadership and the administration in the school and his dissatisfaction with it. Ms. Thomas' testimony confirmed testimony of others that Mr. Merica often spoke out in faculty and staff meetings. Her opinion regarding what she "believed" to be Mr. Merica's opinion about the administrative leadership, even if true, was based on the alleged "frequency of unspecified comments," and her opinion that "I don't believe that Mr. Merica had much respect for Ms. Griffin--that he demonstrated that in the school setting," failed to establish as fact any allegation contained in the Amended Administrative Complaint. Answering the question regarding Mr. Merica's preparation for IEP meetings, and without identifying the number of IEP meetings she attended with Mr. Merica during the 1994 through 1999 period in question, Ms. Thomas stated: I believed preparation was very minimal. There was not -- he was not always ready. Most of his IEPs were all the same. Yet, it's -- an IEP is an individual education plan which is written specifically for each child, so every child in your class should not have the same thing written for them. Regarding his preparation of IEPs during the five-year period from 1994 to 1999, and without evidence of the number of IEP prepared by Mr. Merica and/or the number of occasions she personally inspected one or more of those IEPs, Ms. Thomas concluded that "[f]requently he wasn't prepared." This witness’ "belief" was not a "belief" based upon personal knowledge or facts. Though she believed "most of his IEPs--frequently not prepared," there is no evidence of record that she had personal knowledge or had occasion to review the content of an IEP prepared by Mr. Merica upon which to base her "belief," and, without more, her belief is speculative. Ms. Thomas was not qualified as an expert on IEPs and her personal "beliefs" and opinions regarding unidentified IEPs that she may or may not have reviewed, is lacking in preciseness to produce a firm belief as to the truth of the allegations sought to be established. As such, Ms. Thomas' testimony is not competent to corroborate and does not corroborate or support Ms. Lipari's testimony purporting to support the allegation that Mr. Merica's preparation of IEPs "in the school year of 1994- 1995 evidenced his ineffective teaching performance and demonstrated the beginning of his alleged incompetence that allegedly continued undiminished until not later than the end of the 1999 calendar year," as alleged in the Amended Administrative Complaint. The Commissioner failed through the testimony of Ms. Thomas to establish as fact or to prove that Mr. Merica initially or began to demonstrate an inability, refusal, improper, or any other negative aspect of his professional teaching responsibilities at any time during the 1994-1995 school year. Ms. Thomas testified of overhearing statements made by Mr. Merica of which she shortly thereafter made the following written notation dated August 12, 1999: This morning at bus arrival time Mr. Merica left his students unsupervised to go into the clinic to talk with the nurse. His conversation consisted of suggestions that the clinic should have cell phones that could be used at home. He also commented that he should talk to the television reporters who were outside to let them know how the county runs things. He came in and out of the clinic at least 3 times in a 10 minute time span and made these comments in the presence of staff and at least one student. Ms. Thomas' testimony and her subsequent written notation regarding a conversation consisting of "suggestions" that the clinic should have cell phones and that Mr. Merica "should talk to the television reporters who were outside," if true, were suggestions and nothing more. The witness did not know why or for what reason Mr. Merica entered the clinic. The identification of the staff member (other than herself) or identification of the unnamed student alleged to have been present and presumably overheard Mr. Merica's suggestions are not in the record. The witness' testimony demonstrated a distinct lack of a specific memory of the facts at issue to which she testified. The testimony in findings 77 through 80 failed to establish a firm belief without hesitancy as to the truth of the allegations sought to be established. Classroom Visits and Observations Ms. Thomas testified that over an unidentified three- year period she visited and observed Mr. Merica teaching his PI class approximately ten times with each visit lasting ten to 30 minutes. Ms. Thomas' visits and observations were neither made at the request of the principal nor were they made after notice was given to Mr. Merica. She did, however, make note of a single incident outside the school cafeteria, apparently for future reference and not to help a fellow teacher; but of the ten visits she made to observe and presumably help a fellow teacher, she made no written notations evidencing the dates of her visits and observations, at or near the time of each visit. Her alleged visits to Mr. Merica's class, without specifying the reasons for her visits, were more or less one co-worker visiting another co-worker; if, in fact, those ten, undocumented visits actually occurred. Documents Prepared Critical of Mr. Merica's Performance Ms. Thomas did, however, within a 45-day period, prepare seven documents, each critical of either Mr. Merica's conduct or professional teaching methods, and purportedly gave a copy of each document to Principal Griffin. The seven documents prepared by Ms. Thomas were all dated over a three-month period (August 11, 1999 to October 27, 1999), when from evidence of record, Foster administration was preparing to recommend to the Board termination of Mr. Merica's contract employment with the county. Ms. Thomas dated her first document August 11, 1999. She dated her six additional documents Augusts 12, October 19, 20, 21, 25, and 27, 1999. The seven documents prepared by Ms. Thomas did not include any of the alleged ten visits she made over the three-year (from 1997 through August 11, 1999) observation period of Mr. Merica to which she testified from long past memory in Finding of Fact 81 hereinabove. No other witness, including Mr. Merica, corroborated Ms. Thomas' alleged ten visits to Mr. Merica's class. I find the lack of documentation and the witness' lack of recall ability regarding specifics that occurred more than four years past an insurmountable barrier in accepting the witness' testimony as creditable on those significant points sought to be established. When asked on cross-examination whether Principal Griffin requested her to prepare the two August 1999 documents and the five October 1999 documents, Ms. Thomas suffered a sudden lapse of memory. When asked about each document individually, Ms. Thomas gave answers of either "I don't remember," "I couldn't say for sure" or "I couldn't guarantee." The seven documents prepared by Ms. Thomas in August and October 1999 contained alleged statements made by Mr. Merica, some personal observations, a prepared historical statement beginning with her first meeting with Mr. Merica in 1996 throughout 1997 and 1999, and hearsay statements from several students that were not recorded at or near the time they were made. The witness' failed memory, coupled with her inability to recall if she was asked by her principal to prepare those seven documents within such a short time span, rendered suspect and unreliable both the author and the content of her seven documents. The witness was defensive, evasive, and reluctant on significant points, evidenced by her lack of memory and confusion regarding who made the request and for what purpose she wrote seven different documents in a short time period. Her answers were not forthright and this aspect of her testimony raised insurmountable issues regarding her credibility. The testimony of Ms. Thomas lacked sufficient reliability, due to her uncertainty, to produce a firm belief in the mind of the undersigned as to the truth of the allegations sought to be established. Classroom Management by Mr. Merica Compared to Classroom Management by Other Teachers When asked about problems regarding classroom management Mr. Merica had with his PI classes as "compared with class room management problems of other teachers," Ms. Thomas answered "[t]here are children in most classes who present behavior problems." Her memory was better on this issue and she recalled observing a few instances with two or three students creating problems in Mr. Merica's class. However, she did not identify the "other teachers" to whom she compared Mr. Merica nor did the witness establish "the other teachers" class room management standards. I find the witness' testimony was intentionally slanted to exaggerate the nature of Mr. Merica's classroom management without providing specific incidents from which an objective evaluation could have been made. The Commissioner failed, through the testimony of Ms. Thomas, to prove allegations that Mr. Merica demonstrated incompetence as alleged in the Amended Administrative Complaint, by evidence that he had "more" behavior problems in his ESE and PI classes than other unidentified ESE and PI teachers similarly situated. Classroom Management by Mr. Merica as Compared to Classroom Management by New Teachers with Less Teaching Experience Ms. Thomas testified, unconvincingly, that after Mr. Merica left Foster in 2000, new unidentified teachers came in and taught self-contained SLD classes with acceptable classroom management style. With improved memory on this issue, Ms. Thomas recalled that she observed the new teachers' classroom management style but could not remember if she documented classroom management problems observed with the new teachers, as she had with Mr. Merica. Assuming the intended purpose of this particular testimony was to demonstrate an appreciable difference between Mr. Merica's classroom management skills and teaching methods, after years of experience, to the classroom management skills and teaching methods of new teachers with much less experience, it failed. The testimony of Ms. Thomas regarding the issue of her comparison of class management and teaching skills of Mr. Merica to those of new unidentified teachers, including documents she prepared, those referred to, and the alleged acts therein, whether used for comparison or not, occurred beyond the 1994 through 1999 time period alleged in the Amended Administrative Complaint or some comparable pleading. On that basis, this testimony of Ms. Thomas must be, and is, rejected in toto. It is a basic tenet of common law pleading that "the allegata and probata must correspond and agree." See Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987). The documents Ms. Thomas prepared and the testimony she presented herein above in findings 78 through 85 failed to establish as fact that on those occasions Ms. Thomas observed Mr. Merica, he failed to perform to professional expectations as a competent teacher as alleged in the Amended Administrative Complaint. Statements Made to Principal Griffin's Daughter Tamiko Council believed, but was not certain, that she was a DEEDS attendant at Foster the 1997 to the 1999 or the 2000 school year. She testified that during a (unspecified) summer school session, Principal Griffin's daughter had been introduced to her earlier in the day but she was unable to give the date of the incident. As she recalled, she and Principal Griffin's daughter were coming from the bus ramp in route to the cafeteria when Mr. Merica noticed Principal Griffin's daughter and, in her presence, said to the child: You need to tell your mom to quit worrying about teachers around the school. She needs to focus more on what the children are doing. Later that day Principal Griffin called Ms. Council into her office and made inquiry regarding the incident, as told her by her daughter, and Ms. Council confirmed the incident had occurred. Mr. Merica acknowledged making a statement to Principal Griffin's daughter. The Commissioner proved that Mr. Merica made a statement to the daughter of Principal Griffin. The appropriateness of a teacher stating his opinion to a young person who was a student attending a Hillsborough County school was inappropriate. However, the statement alone, under the above circumstances, does not demonstrate a "failure to protect student[s] attending for educational purposes from harmful conditions." There is no evidence of record offered to demonstrate that Principal Griffin's daughter, after the comments by Mr. Merica, "experienced harmful conditions to her educational purposes," during the summer she was at the school of which her mother was principal. Pamela Wilkins was a teacher of educable mentally handicapped students at Foster for a five-year period from 1993 to 1998. During the three-year period of approximately 1995 through 1998, Ms. Wilkins was an ESE specialist. Harassment and Unreasonable Interference with Co-workers Ms. Wilkins testified regarding an incident that allegedly occurred when she asked Mr. Merica into her office for an unspecified discussion. Ms. Wilkins did not remember the school year or the month the incident of which she testified occurred nor did she remember the situational circumstances, the context or the issue over which she and Mr. Merica had their alleged discussion and subsequent disagreement. With no memory of any specifics as to why she would ask him into her room, Ms. Wilkins only recalled Mr. Merica’s discussion with her that she characterized as "his getting upset and her saying nothing." Ms. Wilkins did not know why she invited him into her office, but emphasized her "only reason" for inviting "him into her office would have been to discuss an ESE issue." There is no record evidence regarding the ESE issue of such importance that this witness called Mr. Merica into her office for a discussion of an issue she does not recall, when her "only" time calling him into her office was so memorable. Having established her ability to ”call Mr. Merica into her office" for reasons unknown to her, this witness then testified about some purported disagreement between she and Mr. Merica. Even assuming the alleged disagreement occurred and was, in fact, over an ESE issue between she and Mr. Merica during their single discussion the witness testified: I really don't recall the entire situation. The main thing 'is just his response.' We were talking about--obviously it was ESE issues and he ended up getting upset, and I was on one side of the desk and he was on the other side. He ended up leaning over the desk and was in my face. His veins in his neck were bulging and kind of trembling and just was yelling at me and I was completely stunned and shocked the way he had responded and so I really did not say anything else at that time. The testimony of Ms. Wilkins evidenced her characterization of one party's reaction to an alleged disagreement over an alleged and unidentified ESE issue. Absence evidence of the context, circumstances, and the ESE issue that precipitated the purported disagreement between co- workers, the record contains no basis upon which to determine with reasonable certainty the appropriateness of one party's alleged reaction to the other party's input during a collegiate disagreement. The referenced reaction, even if accepted as factually true, absent evidence of the issue, context and circumstances, failed to clearly and convincingly establish an unprofessional, hostile behavior on behalf of Mr. Merica toward a co-worker, Mr. Wilkins, as alleged in the Amended Administrative Complaint. The witness' apparent stunned and shocked reaction to a co-workers' disagreement with her over an unidentified ESE issue was not so unprofessional and shocking, at the time of occurrence, to compel Ms. Wilkins to report such shocking disagreement to the school administration. It was not of such importance, at that time, to prompt Ms. Wilkins to document her shocking outrage for future reference and possible investigation by proper school authorities. Ms. Thomas' lack of recall of the circumstances to an incident to which she was a major participant, and the record evidence of scant circumstances surrounding the alleged one-party reaction to a two-party discussion and alleged violent disagreement, created an insurmountable credibility gap in her testimony. Based on the foregone, it is found that the testimony of this witness lacks credibility. This testimony is rejected because it is wholly unreliable regarding the truth of the allegations sought to be established. The testimony of Ms. Wilkins in findings 90, 91, 92 and 93, hereinabove, absent record evidence of the issue which caused the alleged disagreement between colleagues, is sufficiently vague and imprecise that it failed to establish a firm belief, without hesitation, of the truth of the allegations sought to be established. The alleged conduct by one party over an unidentified issue during a mutual disagreement between colleagues does not establish unprofessional conduct or a violation of established standard of professional protocol. The Commissioner failed, through the testimony of Ms. Wilkins, to prove that Mr. Merica, while in Ms. Wilkins' office engaged in conduct that was unprofessional, belligerent, hostile, confrontational, and subversive in the workplace toward his co- worker as alleged in the Amended Administration Complaint. Sexual Harassing Statements Made in Presence of Child Evelyn Tait, at all times material, was the administrative data processor at Foster. Before her promotion to administrative data processor, she was a teacher's aide for a few years. Ms. Tait is the sister of Secretary Bragdon. Ms. Tait first qualified her testimony stating that she "believed but was not certain," that the Investigation Manager for the Board (Michael Saia) came to her and asked her if she would write a statement about Mr. Merica. In her effort to comply with the request of the Board's investigator, and on October 2, 2001, Ms. Tait wrote the following document purporting to detail a "forgotten and previously unreported incident" that allegedly occurred, some three years earlier, in 1999. Ms. Tait's efforts to comply with the request of the Board Investigator resulted in Ms. Tait writing the following October 2, 2001, addendum to her 1999 written statement: On August 27, 1999, I wrote a statement regarding Mr. Neil Merica. The statement that I wrote was true and accurate [sic] as I recall. However, I would like to add a time that I was out in the pickup area picking up my son from school. I was in my care [sic] and Mr. MERICA came over to my window and made a commet [sic] regarding to what was under my shirt. I was made to feel very uncomfortable, and was inappropriately addressed [sic] from a teacher to a pa [sic] and also to a parent of a child in this school. Back in August 27, 1999, Ms. Tait wrote: To Whom It May Concern: I am writing this letter to you regarding the actions of Mr. Neil Merica that I have observed. I am a paraprofessional at Foster Elementary School and have only been employed as a permanent employee since the beginning of this school year.[1999] On several occasions, I have seen Mr. Merica screaming at a student with his face being very close to theirs. The child on each occasion looked very scared. Since I am such a new employee at the school, I am not familiar with the discipline procedures of the instructors, but being a parent of an eight year old, I know that the behavior that I have seen him display with the students is very uncalled for. As a parent, I would be very upset if I thought for once that a teacher was yelling at my child in such a manner. I have also witnessed Mr. Merica when he was upset for one reason or another with the administration. He sometimes appears to be out of control, saying things that are unnecessary. I am writing this letter for documentation of what I have observed and for the welfare of the children involved. I am requesting that my name not be revealed to Mr. Merica because being "a smoker", I am in contact with him daily. I am afraid of retaliation from him if he were to find out. Sincerely, Signed by Evelyn B. Tait /s/ The two documents signed by Ms. Tait, and her explanations when questioned, evidenced not truth, but rather confusion caused by this witness' attempt to comply with the request by Mr. Saia, in preparation for her testimony at this hearing. The truth and accuracy of the documents as well as Ms. Tait's understanding, explanation, and lack of credibility regarding these two documents are best demonstrated by her cross-examination: Q. Would you look back at number exhibit 23 again? You wrote that statement on October 2, 2001; is that correct? A. Um-hum. Q. And the first sentence says: "On August 27, 1999 I wrote a statement regarding Mr. Merica." (as read) Were you referring the Exhibit 22? A. I think I was --- Q. All right. You were referring to the other statement when you write that? A. I think I was. Q. I want you to take your time and made sure. That one is dated August 27th, 1999; correct? A. Yes. This happened on two separate occasions. Q. That's what we're going to get to in a minute if you'll let me walk you through this. A. Yeah, it did. Q. You go on to state that you gave a statement back in August '99 and everything you said in that was true, but you want to add something. And what you want to add is this incident that happened at the pickup circle: correct? A. Yes, sir. Q. How long ago had that incident happened at the pickup circle? A. What do you mean, how long ago? Q. How long prior to the time when you wrote this statement? A. I would say probably close to the date that it was signed. Q. Okay. So the incident at the circle would have been close to October 2001? A. I don't remember the dates sir. I don't remember the dates that I wrote the statements. I don't remember the dated. Q. Al right. The incident at the circle -- did you complain about it when it happened? A. Yes, I did. Q. Who did you complain to? A. I went and obviously told the principal's secretary again. I don’t' know who I would complain to. I'm just not going to -- you know, I wasn't out to get Mr. Merica in trouble. Q. I'm not suggesting that -- A. I was just --- Q. I'm not suggesting that you were. [Witnesses instructed by the undersign to answer the question asked by counsel without editorializing] Q. All right. Let's walk back through it. An incident happened at the pickup circle; correct? A. Um-hum. Q. And at some point after that incident, you reported the incident to someone; is that correct? A. It was immediately. Q. Immediately? That day? A. Yes. Q. All right. You got out of your car when you picked up your child? A. No. It wasn't immediately that day. It was -- like I said, the principal's secretary is my sister, so I probably reported it that afternoon. Q. After you picked up your child? A. Um--hum. Q. Is that a "yes"? A. Yes, sir. Q. All right. You took your child home? A. Yes. Q. And then went back to the school to report it? A. No. I probably called her on the telephone. Q. All right. You've said "probably a number of times. Do you -- A. I called her on the -- I don't remember. I'm sorry. I don't remember. You know, I don't remember when it was placed, to be honest with you. I don't remember exactly when it was reported, how it was reported. I don't remember. Q. All right. Did anyone ask you to write a statement about the incident that occurred at the pickup area? A. I don't remember that, either. I guess someone must have asked me to write a statement or I wouldn't have written one. Q. And when you say you wrote one, you're talking about Exhibit 23; correct? A. I wrote this statement as well. Q. Is there another statement besides Exhibit 23 that addresses the incident that allegedly occurred at the pickup circle at the school? A. No. It's this one. Q. So to your knowledge that is the only statement that you made; correct? You made that statement a couple of years after the incident occurred; correct? A. That would be 10-02 -- I mean, 01. Q. All right. A. August 27th is the first statement. Q. Of '99; correct? A. Right. Q. So here we are a couple of years later in 2001 and you're making a statement for the first time about the traffic circle incident; correct? A. Right. Q. That's the only statement that you're written about that? A. Yes. I am very sorry. This is very confusing to me. I wrote statement when they were reported -- you know, when I reported them. I don't remember dates. We're taking how many years ago and I apologize you know. Q. Could it be, ma'am that the first time that you reported the incident that occurred at the traffic circle was around October 2001 when you wrote this statement? A. Yes. When subjected to cross-examination about her two written statements, her confusions, and her lack of personal knowledge of specific details of the alleged curb-side incident, Ms. Tait contradicted her entire testimony as reflected in findings 96, 97, and 98 above, to include the two documents she authored. It is apparent that Ms. Tait's preparation for this hearing, at a minimum included writing a statement three years after the alleged occurrence. It is also reasonable to infer that Ms. Tait's testimony and her 1999 and 2001 documents were an attempt to exaggerate "negative personal conduct on behalf of Mr. Merica" in a decided attempt to appease her employer. Ms. Tait's entire testimony hereinabove, lacks credibility and failed to produce a belief to the undersigned as to the truth of the allegations sought to be established therein. Sexual Harassment of Co-workers Allegations Kelley Kolinsky (f/k/a Toms), a self-employed Occupational Therapist (OT) since 1998, worked at Foster for two and one-half years, doing evaluations and arranging treatment protocol for ESE children. As an OT, she recalled one pre-K evaluation she covered for Kathy Prado, Ph.D., another occupational therapist. Though she tried to recall the persons present at the meeting, she was unable to do so. She recalled an unnamed parent and a unnamed male who were also present. Ms. Kolinsky testified that she was not going to cover any more meetings at Foster. When asked why? Ms. Kolinsky answered: I don't know exactly. It's been like -- I don’t' even know how long, but I just remember being uncomfortable with -- I don't even remember if it was comments or notes, looks, whatever, but something like with the male teacher that was present at the meeting. But it's been so long that I really can't give any more specifics. When asked if during the meeting there was anything of a sexual nature, Ms. Kolinsky replied: I can't say. I mean, I remember I was uncomfortable, but I don't remember specifically now. The Commissioner, by the uncertainty of Ms. Kolinsky's testimony, failed to establish as fact that during the 1994-1999 school years, Mr. Merica sexually harassed a co-worker by making inappropriate comments to Ms. Kolinsky, an occupational therapist, in the presence of other colleagues and/or in the presence of a parent as alleged in the Amended Administrative Complaint. Kara Twohy was an ESE teacher at Foster from December 1996 through 2000. Ms. Twohy first met Mr. Merica when she was a teacher-intern in an EMH class at Foster during the 1995-1996 school year. Ms. Twohy testified that Mr. Merica made her "feel uncomfortable" giving as an example the following incident: He would do things like put his arms around me. One thing I can remember is he said I had an ink spot on the back of my shirt and he was attempting to rub it off. He would come -- and this is afterwards when I became a teacher -- he would come to the classroom and he brought a rose at one time, and he was constantly -- whether I was at art or I was in the classroom, he was constantly visiting the classroom. I can remember an incident where I was really ill and he came to an assembly and brought me some tissues. All in all, it just made me very uncomfortable. When she was "really ill," Mr. Merica brought her tissues and once gave her a rose. Bringing tissues to one's colleague when the colleague was "really ill" may have been either an appropriate or an inappropriate gesture. However, the act itself does not prove it was sexual harassment. According to Ms. Twohy, she initially expressed her uncomfortable feelings to other unnamed co-workers and Principal Griffin, but not to Mr. Merica. When she told Principal Griffin about her uncomfortable feelings around Mr. Merica, she testified that Principal Griffin said to her: "there's nothing really that anyone could do, but to start writing everything down. So I began writing them down." There is no evidence of record that Principal Griffin initiated an administrative investigation into the "uncomfortable incidents" related to her by the young teacher, Ms. Twohy. It is, thus, reasonable to infer, and I so infer that at the time and under the circumstances, Principal Griffin did not consider that Ms. Twohy's "uncomfortable" feelings resulting from Mr. Merica's attention to have been "sexual harassment" as that term is generally understood when placed in the above situational context. According to Ms. Twohy, after she told Mr. Merica that his presence, his attention, and his conduct made her feel uncomfortable, she recalled he apologized: There was in incident that occurred between him and my aide at the time who was Adele Morris, and basically she told him to leave me alone and he said well, I'm a big girl so I should be able to tell him myself. And he approached me the following day, I believe, after the confrontation and asked me if he made me feel uncomfortable, and I told him yes, he did. I felt very uncomfortable around him and he did apologize and say that he was sorry for making me feel uncomfortable. As a employee of the Board, Ms. Twohy knew the Board’s sexual harassment policy requirement of reporting harassment to the school's administration. She followed the policy by reporting her uncomfortable feelings and concerns to Principal Griffin. When Ms. Twohy informed Mr. Merica that his attention and conduct made her uncomfortable, he immediately discontinued all contact and apologized to her. If, as the Commissioner argued, Mr. Merica sexually harassed Ms. Twohy during the time above-stated, she followed protocol and reported the matter to her principal. There is no evidence of record that the principal of Foster initiated or requested an investigation by the School Board and a determination of whether or not Mr. Merica committed the alleged sexual harassment. If the matter was not properly investigated and determined by the Board to have been sexual harassment when it occurred, it will not be determined to be sexual harassment now by the undersigned based solely upon the unconvincing testimony of Ms. Twohy. The Commissioner failed to establish as fact, by findings 96 through 103 hereinabove, that Mr. Merica sexually harassed Ms. Twohy, a co-worker and sexually harassed Ms. Kolinsky, as alleged in the Amended Administrative Compliant. Kim Kimpton, via her video-taped testimony, was convincing and unequivocal in her response to the question, "[D]o you consider Mr. Merica's action(s) towards you to be sexual harassment? "No, not specifically." The "actions toward you" referred to what was described by the Commissioner as unwanted attention, several instances of on school-property encounters and off school-property encounters, to include buying lunch for her on one or more occasion, giving her presents, and thereafter writing a letter of apology. The Commissioner failed to prove by the evidence of record that during the 1998-1999 school year, Mr. Merica sexually harassed Ms. Kimpton, as alleged in the Amended Administrative Complaint. I find that the Commissioner failed to prove by clear and convincing evidence that Mr. Merica sexually harassed any present or past female member of Foster's administration as alleged in the Amended Administrative Complaint. SLD Student's Version of Classroom Management and Student Control Patricia Rumlin, mother of Jarmaal Rumlin, a 15-year- old SLD student witness who, at the time of the hearing, was in ninth grade, accompanied him at the hearing. When asked, Jarmaal remembered he had been a student in Mr. Merica's class for his fourth and fifth grade school years (1997-1999 school years), but he did not remember the specific school years. During the period Jarmaal was a Foster student, the Board was operating under the self-contained class policy, and Jarmaal was in Mr. Merica's self-contained class throughout the school day. When asked the open-ended question, "[W]hat about the incident when the kids were kicking a ball in the classroom?" Jarmaal gave the following, incomplete, confused, response: We was [sic] playing in the class. Takela kicked the ball to the back of the room and she went to go get it and he trapped us in the back of the room and we bust out and we ran down to the PE field. When asked "[D]id Mr. Merica ever come into any contact or anything with Takela?" Jarmaal, again confused, answered: No. He just holding in the back of the room. [sic] Holding her and she was trying to run and trying to grab her. She was going to fight back, until she got loose and ran. When asked, "[W]hy did you not mention or report this incident to other teachers, the principal [1997-1998/Payne and 1998-1999/Griffin] or the Board’s investigator?" (1999 to 2003) Jarmaal answered: "They didn't talk to me." Jarmaal's above testimony, did not corroborate the testimony of another witness who stated: "Ms. Teresa Joslyn entered a room and found Mr. Merica seated on a couch holding Jarmaal by the arm and yelling in his face and that Ms. Joslyn took him by the hand and stood him up and Principal Griffin came into the room and observed those actions," as argued by the Commissioner in its post-hearing submittal. Jarmaal admitted that "kids in his class misbehaved in class, played kickball and got up and walked around when they were not suppose to." When asked if he liked Mr. Merica, Jarmaal answered "[N]o." When asked if he learned anything in Mr. Merica's class Jarmaal answered, "I didn't learn nothing [sic]." When asked if he wanted Mr. Merica as his teacher again, Jarmaal, answered, "[N]o I don't Mr. Merica as my teacher again." Testimony from other teachers at Foster established that SLD students were, if not daily, most certainly, routinely unruly in their classes and in hallways. Jarmaal's testimony seemed rehearsed, but he was confused about the facts critical to the situation of which he testified. The witness' inability to recall and his manner of testifying raised substantial issues of the witness' credibility primarily because of his seemingly rehearsed responses and confused factual response, often mixing several parts of separate incidents. Through the testimony of Jarmaal, a SLD student, the Commissioner failed to demonstrate and prove by example that: (1) Mr. Merica engaged in inappropriate discipline, (2) he failed to engage in meaningful teaching methods, (3) he lacked professional classroom control and management of his SLD class, and (4) he was incompetent as a teacher, as alleged in the Amended Administrative Complaint. I find the SLD students' reply he did not "like" Mr. Merica an insufficient foundation from which to infer that the SLD student did not "respect" Mr. Merica as a teacher. Tawnya Clark, mother of Demetrie White, another 15- year-old SLD student, accompanied him in the hearing. Demetrie only remembered attending Foster. He did not remember the years he attended Foster (1997-1998/Principal Payne and 1998- 1999/Principal Griffin). He did not remember the grades he was in when he was attending Foster. He did not remember the class (fourth and fifth grades) he was in when Mr. Merica was his teacher. When asked "[I]n what ways Mr. Merica would get upset?" Demetrie, hesitantly, gave the following response: When like students get like up out of they seat and walk around the classroom and talk to other students, he'd get mad then and then after that he'd like -- Jonathan he would be like getting up out of his seat and talk to me, Eldrid and another friend who go to my school and he would like grab Jonathan, try to twist his wrist and then slam him on the ground and then Jonathan would be like, Get up off me. And then that's when like he would like flip. He would try to get up off the ground, Jonathan. That is when he tried to grab Mr. Merica's neck. That's it. Demetrie admitted that the kids would get up and walk around in class when they were not supposed to do so. He admitted that Jonathan tried to grab Mr. Merica's neck. He remembered a female teacher's aide but he did not remember her name or whether she was black or white. As with Jarmaal, Demetrie remembered Mr. Merica yelling at students when they were acting up. He remembered Mr. Merica yelling in the faces of students. Demetrie, like Jarmaal, said he did not like Mr. Merica, "he didn't learn nothing" and he "didn't want Mr. Merica as his teacher again." Utter confusion permeated Demetrie’s understanding of the questions asked of him and his seemingly rehearsed answers to those questions. I find the SLD student's reply that he did not "like" Mr. Merica an insufficient foundation from which to infer the SLD student did not "respect" Mr. Merica as a teacher. Viewed most favorably, the testimonies of these two very large young boys consisted of a confused misunderstanding of questions asked of them and their rehearsed answers. The testimony of these two young boys established that at times, Mr. Merica yelled at them and, on occasion, restrained them for his personal defense and/or to regain classroom control when they were acting out of control, being disobedient, playing kickball in the class room, and yelling at each other and at him. The situational circumstances of the separate incidents to which the witnesses testified occurred four or five years earlier. These two SLD students were confused, and their testimony consisted of a mixture and intermingling of critical factual portions of two separate incidents into one continuous dialogue. From their individual and collective testimony, the appropriateness or inappropriateness of Mr. Merica's conduct, in an attempt to control and manage his SLD class, cannot be determined with a reasonable degree of certainty to produce a firm belief as to the allegations in the Amended Administrative Complaint. The ambiguity created by the testimony of Jarmaal and Demetrie relating to a specific portion of their testimony related to a specific incident is decided in favor of Mr. Merica. The Commissioner proved that Mr. Merica "restrained" Takela, a student in his SLD class, by holding her arm. The Commissioner proved that Mr. Merica "restrained” Jonathan, a student in his class, by holding the wrist and arm of Jonathan. Based upon the testimony of these two young SLD students, assuming accuracy and truth, Mr. Merica’s physical restraining actions were, given the circumstances and situation at the time of physical restraints, appropriate for the defense of his person and for the protection of other students in the class. Disagreement Over IEP Content and Student Control In 1995 Ms. Teresa Joslyn began teaching at Foster Elementary as an EMH teacher. She affirmed other witnesses' testimonies that Mr. Merica was loud and argumentatively disruptive during staff and faculty meetings. Ms. Joslyn, however, gave unconvincing testimony regarding one IEP meeting she attended with Mr. Merica, but she could not provide the month or school year the IEP meeting occurred. According to Ms. Joslyn, during this IEP meeting an unnamed parent wanted unspecified items included in her unnamed child’s IEP, and Mr. Merica, the teacher, was apparently of the opinion that those items desired by this parent were not necessary. The IEP in question was not entered into evidence. When asked whose opinion determined the make up of the IEP, Ms. Joslyn replied, "[t]he case manager, who is generally the teacher [Mr. Merica in this instance]-- the person that serves the child the most.” During this particular IEP meeting, and with no evidence, or personal knowledge of the specific IEP items under discussion, Ms. Joslyn never the less concluded an unspecified position maintained by Mr. Merica was unreasonable and, by implication, unprofessional, and the position taken by the unidentified parent was reasonable. Ms. Joslyn's testimony is not credible, competent or of substantial weight to support a firm belief of the truth of the allegations sought to be established. Ms. Joslyn, without giving the year or month, remembered occasions when she would visit Mr. Merica’s classroom. According to Ms. Joslyn: On the occasion(s) when I would enter Mr. Merica's room, oftentimes I did not find him engaged in active teaching. There were times when I would walk in and he was--there was a game on the computer that he was playing or he'd be reading the newspaper or magazine at his desk. The aides -- the children would --have may or may not have worksheets on their desks and the aides seemed to be the ones that were more engaged with the children. Ms. Joslyn testified again, unconvincingly, about one incident she remembered, but she was unable to provide the month or year, when she heard a "kind of ruckus and loud voices." She remembered hearing an unnamed child's voice and Mr. Merica's voice, but she did not hear the words being spoken by either person. She supposedly entered the room and saw Mr. Merica seated on a couch holding Jarmaal (Rumlin) by the arm and Jarmaal trying to resist and get up. Continuing, she also remembered that Mr. Merica was agitated, upset, and yelling, and the child was also yelling. Ms. Joslyn specifically recalled that while she was "taking Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." According to Ms. Joslyn, both "the Principal" (Griffin) and Jarmaal were actively involved in this arm holding incident. Principal Griffin did not corroborate Ms. Joslyn's vague and non-specific memory of an undated arm holding incident. Jarmaal was not asked about this specific incident nor did he corroborate Ms. Joslyn's testimony. No other witness called by the Commissioner gave corroborating testimony in support of Ms. Joslyn’s testimony. This is critical to the credibility determination in this proceeding since allegations of inappropriate conduct in his professional relations with children are specifically alleged in the Amended Administrative Complaint and form the bases, in part, to support the allegation of professional incompetence. I find that Ms. Joslyn's vague, non-specific testimony, without corroboration of the other alleged participants to establish the context, circumstances, and time, raised substantial issues of her credibility. Her testimony and credibility was further diminished by the lack of corroborating evidence from other witnesses who were allegedly involved. The testimony contained in findings 128 and 129 hereinabove is rejected for its lack of credibility. I find that the Commissioner failed to prove, through the testimony of Ms. Joslyn, that between 1994 and 1999 Mr. Merica was not engaged in active teaching and that on unidentified occasions he was playing computer games or reading a newspaper or magazine while some unidentified staff taught his class and failed to prove that Mr. Merica engaged in inappropriate conduct by "holding Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." The Commissioner has failed to prove that Mr. Merica was incompetent, as alleged in the Amended Administrative Complaint. Debbie Maronic, physical education teacher at Foster, gave repetitive testimony affirming the fact that Mr. Merica was loud, often disruptive, and sometimes argumentative with colleagues at staff and faculty meetings. Ms. Maronic also testified of having heard "numerous stories about how Mr. Merica behaved inappropriately to other female staff members at meetings or in the hallway or other places," without recalling any one of those numerous stories. Ms. Maronic admitted that she heard her information, not from Kelly and Kim Rivenburg, the females alleged to have been recipients of inappropriate conduct, but from second-hand people. The hearsay upon hearsay summary testimony of "stories" Ms. Maronic heard regarding inappropriate conduct toward females is not competent to establish a finding of fact. The testimony of Ms. Maronic is rejected in toto by the undersigned. When the testimony of Ms. Kolinsky, Ms. Twohy, and Ms. Kimpton, that they were not sexually harassed by Mr. Merica, is juxtaposed to the hearsay upon hearsay testimony of Ms. Maronic that Mr. Merica "behaved inappropriately to other female staff members," a pattern of gossip, moving from witness to witness presented by the Commissioner, emerges for which there is no defense and very little, if any, truth to be objectively determined. The uncorroborated testimony of this witness lack credibility and is rejected. The Commissioner failed to prove, through the testimony of Ms. Maronic, that between 1994 and 1999 Mr. Merica engaged in unprofessional conduct, inappropriate conduct, and/or sexually harassed female co-workers as alleged in the Administrative Complaint. Ms. Maronic testified, again unconvincingly, concerning a throwing incident in the school cafeteria in 1999, she did not observe and therefore could not provide situational circumstances surrounding this incident. According to Ms. Maronic, as she walked by she could see Mr. Merica out in the hallway very upset and yelling very loudly at very close proximity to the unidentified students. Ms. Maronic testified that she was not "comfortable" witnessing that situation and would not leave the area until an administrator came. Nothing in her testimony identified the administrator who allegedly came so she could leave; she knew nothing, who, what, where, when or why, about the incident, though so "uncomfortable," she believed her presence was required. She neither attempted to record this "uncomfortable" incident for future reference nor did she report the matter directly to the school administration. This testimony was not internally consistent and the character of this witness' testimony, as well as the witness' demeanor, did exaggerate the nature or circumstances of the incident. The testimony of this witness lacks precise explicitness to produce a belief as to the truth of the allegations sought to be established. The Commissioner failed to establish as fact through the testimony of Ms. Maronic that, at some unspecified time in 1999, Mr. Merica's student behavior management was inappropriate or that Mr. Merica demonstrated professional incompetence as alleged in the Amended Administrative Compliant. Professional Assistance Offered by Resource Teachers Virginia King, with over 21 years of teaching experience, held the position of Hillsborough County, Area IV, administrative resource teacher (ART) since 1981. Ms. King's primary duty was to provide support and training for teachers of ESE. Her three-part support and training program consisted of: (1) teacher evaluation followed by (2) teacher assistance and concluded with (3) specific training for the teacher. Ms. King was not qualified as an expert. Based solely upon her experience, Ms. King opined that--"dealing with student behavior issues are [sic] challenging to teachers and most difficult for teachers in emotionally handicapped full time programs,” as was Mr. Merica. She further opined that "both SLD and ESE classes have behavior issues; but, in full-time ESE classes, student behavior control is most difficult for teachers regarding overall classroom control and classroom management, as compared to full-time programs where teachers of PI classes classroom control and management is least difficult." Ms. King testified that in her 21 years of teaching experience, many ESE teachers have difficulty with classroom behavior and management issues, and the training of teachers of those students is ongoing training in the Hillsborough County school system that never ceases. She is of the opinion that yelling in students' faces is unreasonable and physically restraining a student is "never" justified. Ms. King's opinion regarding physical restraint of a student is "never" justified conflicts with the statutory authority of teacher(s) to remove disrespectful, violent, uncontrollable or disruptive students from classes when appropriate, to include physical restraint, as provided in Subsection 1003.32(1)(j), Florida Statutes (2003). The Commissioner did not introduce evidence of physical restraints standards adopted by the Board of Education. The opinion of Ms. King is contrary to the statute and disregarded for all purposes in this proceeding. Proffered Evaluation and Assistance Offered to Respondent During the 1999-2000 school year, Principal Griffin requested that Ms. King visit Foster to evaluate, assist, train, and help Mr. Merica with his SLD class. According to Ms. King (without giving the year and month), she made two visits to Mr. Merica's class. She testified only about her initial visit that took place during the morning class session. When she returned for a second visit, the school administration had removed Mr. Merica from his teaching position. This one visit by Ms. King was the first step of her three-part support and training program, i.e. teacher evaluation. There was no teacher assistance and specific training offered to Mr. Merica by Ms. King. When asked to give her "general impression" of Mr. Merica's professional ability and competence to teach SLD students after just one visit, Ms. King replied: Well, in our interview I was a little surprised because I didn't really -- he has a background in SLD so he had a lot of knowledge of SLD and how to teach children with learning disabilities, addressing their different learning styles and I was actually able to observe that in class. It was a math class and I thought that he did a very nice job of addressing the student's individual needs, and that's a difficult thing to do because they're all so different and they were all at different math levels and I did see that he was able to use different teaching techniques all in one lesson. He did mention to me that -- well, I knew that there were behavior problems and I did see behavior problems and that did happen after the lesson in the transition period. The children were unruly and not really doing, you know -- you could tell that there was a lack of control was obvious. But at this particular time, the children had been really fairly well-behaved and he had mentioned to me that I should come back in the afternoon -- because this was a morning visit -- that I should come back in the afternoon so that I could see their true behavior which he said was truly out of control. Through the testimony of Ms. King, the Commissioner, clearly and convincingly, proved to the undersigned that during the 1999-2000 school year, Mr. Merica's competence as a professional teacher of children with learning disabilities ("the children had been really fairly well-behaved") was the same as and/or equal to competence as a professional teacher in the classroom of other teachers of children with learning disabilities whom the witness had observed. Conversely, the Commissioner failed to prove, clearly and convincingly, through the testimony of this witness that Mr. Merica demonstrated "incompetence" in his classroom teaching skills or that his classroom student behavior management was ineffective. The Commissioner failed to prove that Mr. Merica utilized ineffective lesson plans and ineffective classroom behavioral management plans. The Commissioner failed to prove that Mr. Merica failed to keep students academically engaged in class and that he failed to control his students and/or gain their respect as the manager of the class, as alleged in the Amended Administrative Complaint. The Commissioner failed to establish as fact, through Ms. King's testimony regarding her single classroom visit, that Foster administration, by and through Principal Griffin, offered Mr. Merica meaningful, professional, constructive help and assistance program plan that he intentionally disregarded and that he failed and refused to accept and implement the suggested offering of assistance as alleged in the Amended Administrative Complaint. The record evidence does not specify whether Ms. King's one visit occurred during the school year of 1998- 1999 or the school year of 1999-2000. This omission creates an ambiguity between the year 1999 (alleged in the complaint) and the year 2000 (the year beyond the time alleged in the complaint). The ambiguity is resolved in favor of Mr. Merica. The testimony in findings of fact 139 and 140 is incompetent and irrelevant to establish as fact allegations contained in the Amended Administrative Complaint. The Commissioner presented testimony of Sue Hindman. Ms. Hindman, with over 27 years of teaching experience and at all times material, was an ART and an ESE supervisor for Area II, in Hillsborough County. Model Classroom Observation Prior to and in Preparation for Termination by the Hillsborough County School Board Near the end of the 1999-2000 school year, Principal Griffin called Ms. Hindman and requested her to do a model classroom observation of Mr. Merica's class. A "model classroom observation" consisted of Ms. Hindman's selecting another classroom and SLD teacher (the model) in the same or similar position of the teacher (Mr. Merica) to be observed. The teacher (Mr. Merica) being observed, along with Ms. Hindman, would then visit the "model" SLD class to observe how the classroom itself was arranged and how the lessons were presented to SLD students. Based on the teacher's personal observation, and with the help and assistance of Ms. Hindman, the teacher (Mr. Merica) would then modify and model his/her classroom arrangement, classroom behavior management, SLD students' lesson planning and presentation, and other educational matters involved with teaching SLD students to that observed in the model classroom. After a reasonable period of adjustment, the ART would return to evaluate the "results of implemented changes" made after the model classroom. On October 8, 1999, after observing Mr. Merica's classroom, his teaching, his student control and classroom management, and after observation of the model SLD teacher and classroom, Ms. Hindman made unspecified suggestions for improvement to Mr. Merica. After she made her suggestions for improvement, Ms. Hindman returned to observe whether her unspecified, suggested improvements had been accepted and put into effect by Mr. Merica, and, if so, to document what results were observed. Ms. Hindman documented improvements she noted in Mr. Merica's class on her return visit as follows: The new behavior rules were typed clearly and colorfully. The post-it-notes [tickets] were being used to reward positive [student] behavior. Instructions was hampered by inappropriate student behaviors. On October 18, 1999, Ms. Hindman made a second follow-up visit to observe the progress of her earlier unspecified suggestions. During this second return visit, Ms. Hindman made additional unspecified suggestions for improvement. Ms. Hindman returned to observe whether her second suggested improvement had been put into place and if so, the effect and impact of her second suggestions. Ms. Hindman documented improvements observed in Mr. Merica's classroom management and student control and professional teaching competency on her second return visit as follows: Student behavior was better. Students responded to the LLP redirections. They also responded to the additional tickets given for good behavior. More positive comments were made when students were on task. Student behavior will improve as teacher consistency improves. The more aggressive students are getting, all the attention (and tickets) while the good students tend to be neglected. Curriculum must now become a priority. Your students really settle down while working on assignments and seem eager to accomplish tasks. Capitalize on that momentum! On October 26, 1999, Ms. Hindman made a third return visit to observe Mr. Merica's implementation of her earlier suggestions. During this visit, Ms. Hindman made additional suggestions for improvement and documented improvements she observed in Mr. Merica's classroom teaching and classroom management and student control as follows: Reading groups began today using a sequential program. Math groups began learning higher skills plus using manipulative. Individual work folders were used for seatwork. Through the testimony and corroborating documentation of Ms. Hindman, the Commissioner proved, clearly and convincingly, that as late as October 26, 1999, Mr. Merica accepted and implemented constructive criticism and assistance from those administrators whose positions required giving such constructive criticism and assistance. The Commissioner failed to prove, through the testimony of Ms. Hindman, as it did through the testimony of Ms. King, allegations that Mr. Merica intentionally disregarded and failed and refused to accept and implement the suggested offering of assistance. The undisputed testimony of Ms. Hindman clearly demonstrated that when given constructive professional assistance, a reasonable opportunity to implement the constructive assistance, and an objective evaluation thereafter, Mr. Merica was amenable and put into practice professional assistance and suggestions that proved to be helpful. He responded positively by implementing suggestions made by Ms. Hindman and to those made by Ms. King. During each return visit by Ms. Hindman, Mr. Merica demonstrated continued improvement in his professional ability as a SLD teacher. I find that through the testimony and resulting documentation of three separate occasions of Ms. Hindman rendering professional help and assistance and Mr. Merica's positive response thereto established as fact that the competence of Mr. Merica was not diminished so as to impair his effectiveness as a teacher in the Hillsborough County school system as of October 26, 1999.5 Petitioner's Presence Outside His Classroom, His Teaching, and Classroom Management Mr. Merica presented the undisputed testimony of Mary Evans-Bauman, a DEEDS Attendant who worked with over 15 teachers during her employment at Foster. From January through July of the 1997-1998 school year, Ms. Evans-Bauman was assigned and did work with Mr. Merica in his self-contained PI class. She did not work with Mr. Merica during any period he was teaching a SLD class. According to Ms. Evans-Bauman, Mr. Merica did not leave his classroom more often than any of the other 15 teachers with whom she worked during her employment at Foster. Based upon her daily observations, Ms. Evans-Bauman opined that Mr. Merica's PI students respected him, and she did not observe any problems with his classroom management. She denied observing Mr. Merica playing video games or reading newspapers when he should have been teaching. She testified that she never observed Mr. Merica exhibiting out-of-control behavior or imposing inappropriate discipline on students in his PI class. She acknowledged that PI students, because of their restricted physical mobility, were less likely to become disruptive and unruly because of their physical limitations. Mr. Merica presented the testimony of Carolyn Mobley. Ms. Mobley worked 21 years at Foster as a teacher's aide and as a DEES attendant. During her extended tenure at Foster, she worked with approximately ten different teachers, including Mr. Merica. Ms. Mobley began working with Mr. Merica during the 1998-1999 school year, the first year he taught a PI class with Ms. Payne as principal. She continued working with Mr. Merica when Principal Griffin moved him to an SLD class during the 1999-2000 school year. According to Ms. Mobley, she worked with Mr. Merica continuously, five days per week for seven and one- half hours per day, for two consecutive years. Based upon her continuous presence in Mr. Merica's classrooms, she had abundant opportunities to observe Mr. Merica's interactions with students in both his PI and SLD classes; she answered the question of how she would characterize his relationship with his students as follows: I would say he didn't have no problems that I would consider problems because I have kids and I wouldn't want nobody to mistreat mine, and I'm a fair person. On the mistreating kids in any way question, Ms. Mobley answered: No. He always seemed to be generosity [sic]. He would always treat them with respect and do the things most teachers wouldn't do, I would say. On what kind of things he would do that other teacher wouldn't do, Ms. Mobley answered: Well, you know, sometimes if they didn't have their lunch and they wanted something, then he would treat them to it, you know. On Fridays when they had free time, he would give it to them out of the cafeteria. Answering the question whether she observed Mr. Merica being off task--off his teaching duties during the time that you were the aide in the PI class, i.e. reading a newspaper during the time when he should have been teaching or playing computer games during the time he should have been teaching, Ms. Mobley answered: "No." Answering the question whether Mr. Merica would leave the classroom and leave the aides to take care of the kids, Mr. Mobley answered: No, because if he left the classroom, he would say, "I'm going to the office," run some papers or basically we knew where each other was. We always knew. Answering the questions whether Mr. Merica leaving the class occurred more often than other teachers, acting in an unprofessional way, being belligerent, and being confrontational with students, Ms. Mobley answered each question "No." Answering the question whether there were more behavioral problems in the SLD class than in the PI class, Ms. Mobley answered: SLD kids do have a behavior, [sic] where PI kind is not as verbal word-wise--. Answering the compound question of Mr. Merica's interactions with students in the SLD class, acting in an unprofessional way to any of the kids, being belligerent with the children, being hostile with the children, and being confrontational with any of the children, Ms. Mobley answered: "No" to each question within the compound question. Answering the compound questions of whether Mr. Merica raised his voice toward the students; talked loud when he was close to a student, screamed, or yelled, Ms Mobley answered: I wouldn't say raise his voice, but he talked loud, like scream or yell- No. Well he always talked loud, so to me it was always a loud voice. He don't have a soft voice. He had a loud voice. Through the undisputed testimony of Ms. Mobley, Mr. Merica demonstrated that from the school year beginning in 1998 and ending in 1999 his teaching and student behavior management, as observed by Ms. Mobley, was not ineffective; that he did not frequently leave his own class with his aides; that he did not walk around campus, socialize, and/or monitor other teachers and their students; and, when in class, that he did not play video games on his computer, read newspapers, or review architectural designs, as alleged in the Administrative Complaint. Human Resources Manager's Testimony Based upon her Summary Reports of Letters and Reports Received From Staff The Commissioner presented, as a summary witness, the testimony of Janice Velez.6 Ms. Velez had over 30 years in the school system during which time she has occupied the positions of classroom teacher, teacher trainer, school-based administrator, and director of personnel services. For four years (1999-2003), she occupied the position of General Manager of Human Resources (HR) for the School Board. The Commissioner did not qualify Ms. Velez as an expert. As director of personnel services for the School Board, Ms. Velez receives information, via written reports from Foster administration, from individual teachers, from medical personnel, and from other sources regarding school personnel. Ms. Velez rarely, if ever, has personal knowledge of instructional personnel activities at the many schools in the county, before such activities are reported to her in written form through the chain of administrative protocol. It is noted that her reports in evidence are not sworn to or notarized by the person(s) with personal knowledge nor are they "tested" for accuracy by independent investigation by Ms. Velez. She accepts each report as factually accurate. It was against this background and based upon many such unspecified reports that Ms. Velez summarized and posted a letter to Mr. Merica reflecting her summarized version of those hearsay reports that the Commissioner asked Ms. Velez to "explain" the first sentence of her July 1, 1994, letter to Mr. Merica. The sentence counsel for the Commissioner asked for as an explanation read: "Some information has come to my attention that you and I need to discuss." To the question "explain what did you mean by that sentence," Ms. Velez answered with the following editorial: What he acknowledged, and I don't have the report in front of me, but I remember the student was a difficult child and he had -- what upset me and the reason I asked him about the ACT [Aggression Control Techniques] certified was that in the course of taking care of this child, had dragged her across the carpet or something and then other adults were present that assisted him in the process. That's when I asked him if had had been trained and he said no, he had never been scheduled. There is no evidence that tends to corroborate the hearsay evidence contained in Ms. Velez's July 1, 1994, letter to Mr. Merica. Ms. Velez did not possess personal knowledge of the information reflected in her letter. Consequently, her testimony regarding Mr. Merica's alleged response merely amounts to hearsay upon hearsay upon hearsay. There is no record evidence identifying the context and circumstances of "[w]hat he acknowledged” as testified to by Ms. Velez. The intended inference that Mr. Merica acknowledged-—“that in the course of taking care of this child, he dragged her across the carpet or something," was not corroborated by any "other adult present that assisted him." Mr. Merica's denial "that he dragged her across the carpet or something," even if unbelievable, does not prove the Commissioner's accusation contained in the Amended Administrative Complaint. Ms. Velez’s recollection explanation is an assumption and not fact (that he dragged a child and other students and adults were present). Based upon her assumption, Ms. Velez concluded that Mr. Merica acknowledged her assumption as fact. The assumption and conclusion of “acknowledgement” by Mr. Merica of that assumption is incompetent, not credible and insufficient to establish the incident as fact or to establish that Mr. Merica admitted and acknowledged her assumptions and her conclusions “that in the course of taking care of this child, he dragged her [a child] across the carpet or something and then other adults were present that assisted him in the process." Ms. Velez testified that she met with Mr. Merica on four separate occasions, the first meeting occurred on or about the first week in July 1994, during the period Ms. Payne was principal. At the time of her first meeting with Mr. Merica in July of 1994, Ms. Velez was not general manager of HR for the Board. The evidence of record does not establish Ms. Velez’s position in the school system in July 1994, other than she was a teacher assigned to personnel services. Continuing, Ms. Velez testified that during the first week in July 1994, she was “initially concerned” because Mr. Merica was not ACT certified. The Board's policy required each teacher to be ACT certified before engaging in physical restraint of students. In 1993 to 1994, Ms. Velez was a teacher assigned to personnel services, and the record evidence does not provide any authority for her to “meet with Mr. Merica” as a part of her duties in personnel services. There is no evidence of record that Principal Payne, who was principal and who did not corroborate this story, requested Ms. Velez’s involvement with her teachers, including Mr. Merica. Assuming Ms. Velez had authority to read Mr. Merica’s personnel file, why in 1994 did she only recall his restraint certification status? Principal Payne testified that she, and she alone, identified Mr. Merica's needs for improvement and provided him with useful suggestions that he incorporated and showed improvement. Principal Payne buttressed her testimony by giving Mr. Merica all "satisfactory" annual performance evaluations. Ms. Velez's testimony regarding any facet of Mr. Merica professional competence in the school year of 1994 to the contrary is not accepted by the undersigned as credible evidence. The Commissioner, through the testimonies of 21 witnesses, failed to produce clear and convincing evidence that Mr. Merica exhibited any indicia of professional incompetence in July of 1994. Through the testimony of Ms. Velez the Commissioner again affirmed other witnesses' testimony that Mr. Merica was not ACT certified at certain periods. However, the undisputed evidence demonstrated that Mr. Merica’s last year of ACT certification was the year of 1995 and not, as Ms. Velez mistakenly assumed in her testimony, 1994. The Commissioner failed in its attempt to establish 1994 as the beginning year of Mr. Merica's alleged incompetence through the above testimony by Ms. Velez. In 1999, Ms. Velez was appointed to the HR position. Six years before, in 1993, she was in personnel services. It was during the 1993-1994 period that the Commissioner sought through her testimony to prove Mr. Merica knowingly admitted and acknowledged that in July 1994 "he used excessive force or restrained a [unidentified] child inappropriately as reported by a parent [unidentified] to the police department and the school internal investigators." The bare hearsay "admission against interest" hearsay statements of unproven acts from unidentified hearsay sources is not corroborated and is rejected by the undersigned. Ms. Velez gave her explanation of meeting with Mr. Merica for a second time on August 12, 1999, which she later reduced to a letter dated September 24, 1999. In that letter Ms. Velez recited the purpose of the August 12, 1999, meeting-- "for discussion of an investigative report into coworker's allegation that during the summer he made threatening remarks against the school administration and comments made about Principal Griffin, i.e. "She dyed her hair blond to get her job, "I got rid of one principal; I'll get rid of her too," and "If she wants to go head-to-head, then I'll win." In her 1999 letter, Ms. Velez stated that Mr. Merica admitted making the alleged statements, explaining the statements were "hearsay" and because, as he viewed the situation, "others wanted to bring [him] down to their own misery levels." Her third meeting with Mr. Merica occurred in September of 1999. This meeting, she explained, was convened "for discussion of a letter of reprimand written by Principal Payne." (In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE coworker.) Later during that school year when she evaluated his overall professional teaching performance, Principal Payne gave Mr. Merica a "satisfactory" rating in every area, without comments, for the 1998-1999 school year. This meeting and the letter of reprimand concerned Mr. Merica's professional conduct on two separate incidents. Those two incidents were a faculty meeting disruption and a school improvement team and parent meeting. No testimony was elicited or given by Ms. Velez regarding the situational circumstances attendant to those two incidents. When asked her opinion of Mr. Merica's "attitude" toward her during this third meeting, Ms. Velez replied: I would say it ranged in the typical realm of employees. When they meet with me sometimes they're angry. He was in denial that the letter was warranted. He said he didn't perceive himself to have lost his temperament. He did not recall -- in one of the two incidents, someone said he banged his hand or fist on the table. I don't recall doing that. There were several letters that the principal also forwarded to me from colleagues and they said that he was out of control. He said, I'm not out of control. I have a loud voice. And basically he was in denial that the incident was as significant as the principal had alleged in her letter or reprimand. The fourth meeting between Ms. Velez and Mr. Merica occurred on October 1, 1999. Also present at the meeting were Carl Crosson, CTA representative, and Dr. David Binnie, assistant superintendent for HR. The purpose of this fourth meeting was to discuss a specific classroom incident that had occurred on or about September 23, 1999, where it was alleged that Mr. Merica retained five students in the classroom due to their misbehavior while the other students went to lunch with the paraprofessional. In her 1999 letter, in the first paragraph, Ms. Velez wrote her version of an incident she did not personally observe: During the timeout period, you asked these students to sit quietly in their desks, while you placed your own lunch in the microwave. When they began to dance about the room and to toss and roll a kickball among themselves, you summoned several times for assistance on the intercom. During this period, you stated you remained at your desk, although once you tried to kick the ball away and once you moved your elbows in an effort to keep a student from retrieving the ball that had rolled behind your chair. Another student subsequently hit you on the head with a folder, and you chased him briefly until he, at your direction put the folder down. You summoned additional times for assistance. Continuing with the second paragraph, Ms. Velez stated: As a result of your poor performance this year, and its negative impact on the quality and continuity of instruction for students assigned to you, your principal recommended that you be either administratively transferred or dismissed as a teacher. Actions on these recommendations was placed in abeyance since you asked for, and Dr. Binnie granted, additional time and assistance from school and district personnel for you to develop and implement a plan to appropriately regain control of and develop respect from your students. He provided you with three days of paid duty time and a month of implementation to accomplish this end. In her last paragraph, Ms. Velez stated: Dr. Binnie will review the effectiveness of your plan, your professional conduct at work, and your future employment status during a meeting scheduled for Monday, November 1, 1999, at 3:45 pm in the Human Resources conference room, 2nd floor of the School Administration Center, 901 East Kennedy Boulevard. Ms. Brenda Griffin, your principal, has also been invited to attend. Ms. Velez testified that the November 1, 1999, meeting never occurred, "due to an error where [sic] his address was not in the system correctly, he was not in attendance at the meeting. So, we rescheduled it for November 3rd." Considering Mr. Merica was an employee with 13 years of service and had met four times with administration within a six-month period (July through October 1999), the loss of his address--"his address was not in the system correctly"--by the Board becomes suspect. Continuing, Ms. Velez testified that: [O]n November 2nd her office received a call from Foster Elementary School regarding an incident in the hallway that teacher could hear Mr. Merica scream at a child and described that he was in their face and we removed Mr. Merica from teaching at that time for a continuing pattern of being unable to control his students and control his temperament, creating a dangerous situation for children. (emphasis added) No witness presented by the Commissioner testified to having observed the incident above described by Ms. Velez. When subjected to cross-examination, Ms. Velez reluctantly admitted that her intentional use of the term “creating a dangerous situation for children" was not an accurate statement. During all times (1999-2000) pertinent to matters herein above, the goal of Principal Griffin, via Ms. Velez and through the Board, was to terminate Mr. Merica's employment with the Board. Thus, the HR manager's intentional selection and use of the statutory phrase, “creating a dangerous situation for children," that she knew at the time to be an inaccurate statement, revealed her intent and thus seriously undermined her credibility. The witness' credibility and testimony were further diminished by the fact that at the time she knowingly made her "inaccurate statement," she was an active participant in, and thus fully aware of, the Board's engagement in the procedural protocol process of terminating Mr. Merica's contractual employment. Ms. Velez's knowing misrepresentation, that Mr. Merica's continuing pattern of being unable to control his students and control his temperament was "creating a dangerous situation for children," was biased and inaccurate. Ms. Velez's unconvincing explanation of her understanding of the factual basis for the School Board's removal of Mr. Merica from teaching at Foster was vague: [B]ased on a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children. When asked to clarify her inaccurate misrepresentation of whether or not Mr. Merica's conduct resulted in an unacceptable environment or created a dangerous situation for children, Ms. Velez stated: "[D]uring the five years Mr. Merica taught the PI student class [from 1992-1993 to 1998-1999], Mr. Merica’s conduct and teaching did not create an environment that was dangerous to the students in those classes." Ms. Velez further testified that "[T]the [Hillsborough County School] Board determined that it was during the 1999-20007 school year a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children, that Mr. Merica was creating an environment that was dangerous to the students in his classes." Ms. Velez did not identify incidents that occurred August 12, 1999, through December 31, 1999, separate and apart from incidents that occurred between January 1, through May 24, 2000; thus, there is no basis to determine whether alleged incidents occurred in 1999 or 2000. Her testimony included "essential and substantial facts in support of the allegation" having occurred in a timeframe (1999- 2000) not embraced in the 1994-1999 period (ending December 31, 1999) alleged in the Statement of Charges of the Amended Administrative Complaint. "[T]the allegata and probata must correspond and agree." This ambiguity is resolved in favor of Mr. Merica. On that basis the testimony of Ms. Velez in findings 183 through 186, hereinabove is rejected. The Commissioner did not prove, by clear and convincing evidence, that during the period between 1994 and 1999 Mr. Merica "created a pattern of similar incidents thus creating an environment that was dangerous to the students in his classes." Conversely, through the testimony of Ms. Velez, the Commissioner proved, clearly and convincingly, that "during the 1992-1993 through the 1998-1999," including the 1994 through 1999 period alleged in the complaint, Mr. Merica did not engage in a pattern of similar incidents that created a dangerous situation for children." Regarding the school year when allegedly Mr. Merica initially became or his teaching methods demonstrated incompetence, Ms. Velez demonstrated a lack of knowledge and lack of expertise by her following qualified answer: It was my feeling--my personal and professional feeling when I reviewed the file--that he had indicators of incompetence for quite some time, especially in his personal conduct. I am not an expert in curriculum. It's been a long time since I taught in the classroom. [emphasis added] But Mr. Merica's statement to me was he's the best teacher that was at Foster Elementary, and I had an opportunity to look at his lesson plans one afternoon when I went to meet with Ms. Griffin and although I haven't written them in years, there were no lesson plans. They were subjects. Math, math, math. Nothing to distinguish between the levels of his children. When I reviewed the record at Foster, his conduct that created an uncomfortable working environment for employees had been there a long time. The former principal, Ms. Payne, had dealt with it from time to time. It's my professional opinion that she put him in physically impaired so he had less opportunity to be inappropriate with children, and she began then to deal with his personal conduct issues. So to answer your question, I believe -- I don't know that -- I don't know when it began, but I don't think it surfaced his last assignment at Foster, but rather sometime prior to that. [emphasis added] Ms. Velez was unable to identify the school year Mr. Merica became, as she characterized, "incompetent in his personal conduct." Ms. Velez's personal feeling of incompetence is an inadequate standard by which to measure professional competence, to include one’s personal conduct. Ms. Velez did not know when, if at all, Mr. Merica's alleged professional incompetence, to include his alleged personal conduct, began. The evidence of record established that the Board, as of January 13, 2000, had concluded its investigation and made a final determination that Mr. Merica was incompetent. Therefore, the Commissioner failed to prove, by clear and convincing evidence, through the summary testimony of Ms. Velez that Mr. Merica was or to began to become incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 19997 period as alleged in the Amended Administrative Complaint. Violation of a penal statute or rule is not found on loose interpretations of the Human Resource Director with 31 total years of education experience and a Master's Degree in Education Administration, or based on problematic evidence. Evidence more objective and substantial of critical matters in issue should be as substantial as the consequences. Clear and convincing evidence is not present in this record nor established by testimony presented by this witness that Mr. Merica was incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 1999 period as alleged in the Amended Administrative Complaint. Ms. Velez testified that teachers hired by contract (as was Mr. Merica), a veteran teacher, or a tenured teacher are required to be evaluated once annually by their principal, and the purpose of the principal's annual evaluation is for performance improvement. The testimony and documents prepared by Ms. Velez regarding a report from an unidentified mother about her unidentified child is unconfirmed, uncorroborated, incompetent, and thus insufficient to establish any purported facts of actual occurrence. Following protocol and to effectuate his contractual termination with the Board, on November 18, 1999, Ms. Velez submitted four of her letters, dated July 1, September 14 and 24, and October 20, 1999, to James A. Edgar, M.D., P.A., as the basis for her referral of Mr. Merica to Dr. Edgar for a psychiatric evaluation that was conducted by Dr. Edgar on November 18 and 23, 1999. Accepting as accurate and true the content of Ms. Velez's four letters and using those letters as the foundation of his examination, Dr. Edgar evaluated Mr. Merica. At the conclusion of his examination, Dr. Edgar opined that Mr. Merica did not have a diagnosable psychiatric disorder, either Axis I or Axis II, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.). According to Dr. Edgar, "None of the problems, as reflected in Ms. Velez's summary taken from non-notarized reports from unnamed third parties, makes him in and of themselves incapable of functioning as a teacher." He then goes on to qualify his opinion with a "[H]owever, taken together they 'could' make him very difficult to work with as part of a team effort.” Dr. Edgar's evaluation resulted in a qualified conclusion that Mr. Merica is aware of his actions but minimizes or denies the effect of those actions on others and thus rationalizes his verbal aggressive behavior as his "constitutional right" to express his opinion. From that position, Dr. Edgar reaches what appears to be the desired conclusion that: "Mr. Merica's current behavior does not appear to be an escalation of previous behavior just more of the same. I can not say whether he might become more aggressive or violent but I do believe his behavior will not improve." The attempt to lay a factual foundation that Mr. Merica's alleged incompetence was present in 1994 through the conclusiory testimony of Dr. Edgar failed for want of competence. The one line in Dr. Edgar's 1999 opinion that Mr. Merica's "behavior does not appear to be an escalation of previous behavior just more of the same," is insufficient in weight and substance to establish as fact and/or establish the basis from which to infer, and I do not infer, that in 1994, Mr. Merica demonstrated an "aggressive behavior," which demonstrated emotional "incompetence," and that behavior continued through 1999 as alleged in the Amended Administrative Complaint. Respondent's Response to Allegations Mr. Merica presented the testimony of Janice Wilson who worked as a DEES attendant at Foster from 1992 through 1998. Ms. Wilson was Mr. Merica's DEES attendant during the 1997-1998 school year and worked all day, five days a week, with Mr. Merica in his classroom when he taught PI students. She was not his DEES attendant when Mr. Merica taught SLD students. For the six-year period, 1992-1998, Ms. Wilson was in Mr. Merica’s classroom daily. She had occasion to observe his teaching as she worked with Mr. Merica. Based on her six-year association, Ms. Wilson testified as follows: When asked how would she characterize his rapport with his students, she answered: "wonderful, wonderful." When asked did she have problems or concerns working with Mr. Merica, she answered: "none, none, whatsoever." When asked had she ever observed Mr. Merica mistreating, in any way, students, she answered: "No." When asked did she ever see him getting in the faces of any of his students, she answered: "None whatsoever." When asked if she had observed Mr. Merica screaming at his students, she answered: "No." When asked if she would have any problems working with Mr. Merica in the future, she answered: "I would work with him any day." Regarding Mr. Merica leaving his classroom, Ms. Wilson testified that: When Mr. Merica would leave the classroom, he has been called from the front office or any other classroom for computer. If the computer goes down, he was the man that they will find to fix the problem with the computer. That's the only time he would leave the classroom, when they request they need it. To the question other than his lunch time and his planning period, did you know of Mr. Merica just to get up from the classroom and go walk around, she answered: "Not at all." When asked did Mr. Merica socialize, she answer: "Not at all." When asked did she ever know of Mr. Merica to be unprofessional, belligerent, hostile or confrontational, she answered: "No." When asked did she ever observe Mr. Merica trying to subvert the administration, she answered: "No." When asked how his students reacted to Mr. Merica, Ms. Wilson replied: Oh, they were glad to see him every day. I mean, a lot of times they would be hungry before lunch, and Mr. Merica would go to Sam's that night before and have snacks in the classroom to make sure they have snacks to eat before they went to lunch. I mean, he was a wonderful teacher. Nobody could never ask of --and I mean, he was outnumbered as male teachers at the school. There was only two, you know, and I think he was a wonderful teacher. Presence Outside His Classroom When asked if she personally received calls for Mr. Merica to assist someone with their computers, Ms. Wilson answered: Yes. It comes over the intercom and he always asked, will you be okay for five or ten minutes? Let me see what's wrong with the computer and that's the only time he would leave the classroom. When asked if she knew "specifically" where Mr. Merica went on computer calls, Ms. Wilson answered: The school has changed a lot with teachers. A lot of the teachers has left. A lot of times he would go to like an autistic class which is down the hallway from us. He would go to the room next door to us to help with the computer. Now, with names I'm not familiar with the teachers because like I said, the school has changed a lot since I've been there and maybe those teachers are not even working there. He used to help Rita Airwood (ph.) a lot with the computer because she wasn't--she didn't know where the power button was. Most of the teachers there didn't know where the power was. A lot of us would, after school, when all the kids were gone, we would have him to teach how to work the computer and be on task when the next day come. So, therefore, a lot of the teachers would come to our classroom to let Neil show them were the computer--what screen you start on and all before the next day because a lot of times we would get worksheets. We didn't have workbooks. A lot of times we would get worksheets off the computer. So when I say names, it's a whole bunch of names I would have to go through. When asked, "[h]ow do you personally know, from viewing him going to that room--witness him go to where he said he was going?" Ms. Wilson answered: Because we have windows. The aisles run from east to west. We have -- and I'm looking out the door to make sure he gets to that classroom. A lot of times when he gets to that classroom, he'll either do this here, a thumbs up, and he's on his way back. According to Ms. Wilson, she always knew where Mr. Merica went when he left his class because he would tell her before leaving; i.e. "They want me in the front office." "I need to be here." He would not just walk out of the class. Though she did not follow him out the classroom, she testified: A lot of times I would be doing bathroom and he would say, "Hey, I'll be right back." He may go and get a cup of tea and he's right back there helping me in the bathroom, because normally I think we had -- at the time I worked with him, we maybe four to five wheelchairs, and a lot of times he would give me help with the boys, you know, and then I would do the young ladies. I would take the girls first and he would stand right outside the bathroom and wait with them if I said I needed him, he'll come inside and help me. Through the undisputed testimony of Ms. Wilson, Mr. Merica established those purposes for his frequent departures from his classroom; to assist other teachers with computer problems in their classrooms. Whether or not one agrees with the stated purposes Mr. Merica gave for being out of his classroom, that fact does not affirm the Commissioner’s allegation of unprofessional conduct by his frequent presence outside his classroom. When asked if he was called upon by the Administration to provide technical computer assistance to the teachers Mr. Merica replied: Very often. I would not fix a computer unless it was on my planning time, unless it was instructed by the administration office, by Ms. Pils or Mr. Drennan--Ms. Payne, I'm sorry--or Ms. Drennan--that they needed me and it was a real emergency and I would also make sure with my class that there was the kind of instruction that wasn't going to hurt me to be pulled out for a few minutes. Regarding ACT training and physical restraint of students, Mr. Merica admitted that he received ACT training and was certified only for the 1995 school year. He was aware of the policy requirement of annual ACT re-certification, but he elected not to be re-certified. Mr. Merica admitted physically restraining students on approximately three to five separate occasions during the period of 1995 to 1999. When questioned as to his understanding of physically restraining students when his ACT certification had expired, Mr. Merica responded: That is not my understanding. I think another ESE teacher touched upon it that if a person is about to harm themselves or others or harm you, where you really feel that they're going to physically harm themselves, another student or yourself, then you can restrain them because what you are trying to do is keep a dangerous situation from becoming more dangerous. Mr. Merica denied having classroom behavior problems during his tenure as a SLD resource teacher (1987-1988 through 1992-1993 school years) as well as during his tenure as a PI resource teacher. Mr. Merica admitted engaging in disruptive conduct when attending faculty and staff meetings. He characterized his disruptive actions as "tapping a pencil on the table or tapping his fingers on the table," but denied "pounding his shoe on the table." He matter-of-factly acknowledged making arguably argumentative comments when he agreed or disagreed with some things presented by the speaker with callous disregard that the speaker was speaking. I find that such callous disregard of rendering reasonable respect to the person speaking and those of his colleagues in attendance under the circumstances demonstrated unprofessional conduct by Mr. Merica. I further find Mr. Merica's ". . . constitutional right" justification for unprofessional conduct unconvincing. Mr. Merica acknowledged he has a loud voice and a strong personality, and he is sometimes loud, but not "always" loud as testified by co-workers. Mr. Merica testified that he got along and related very well to the PI and the SLD students in his classes, and he believed they related very well to him and none of his children came to him personally with a complaint. According to Mr. Merica, during his tenure at Foster, he never received a written document from a parent that said "we have a complaint." Mr. Merica opined that other than academic concerns-- normal academic concerns--when he asked for a conference with parents of his children, a few parents would come on conference nights because most of the parents of his kids knew him because he had been there for a while. Regarding Principal Griffin's decision to move him from his PI resource class to a regular SLD class, Mr. Merica recalled that before summer school of the 1998-1999 school year, Principal Griffin and he discussed the matter. His recollection of their discussion follows: She basically said --she looked at my record and said, "As far as discipline goes -- I know we have some other issues, but as far as discipline goes, you look like somebody who could handle that class because it's very difficult class with mostly boys and we'd like to see a man in there,"--and to be perfectly honest, I told her I just went through a divorce. I needed stability. I would prefer to stay in PI or I would like a transfer, and unfortunately at that time, the transfer period was over or they had a freeze. It was one or the other. I think they might have had budget problems and had a freeze at the time. It was one of the two reasons.--It's just that I needed that stability and I hadn't done -- I had done resource before, and I've done PI, which I felt really comfortable in, but hadn't done a full time SLD unit. Even though I was qualified to do it, I just didn't really feel comfortable going into another area after the domestic problems I was having at home. I went through a divorce, which was not an easy thing, during that summer. (emphasis supplied) Mr. Merica's recall of Principal Griffin's comment, "[w]e'd like to see a man in there," was corroborated by Ms. Lipari testimony that during the 1997-1998 school year she was moved down to teach kindergarten and first grade level PI students to provide "mothering and maternal type activities," and Mr. Merica was moved to third/fourth grade to teach older, larger male students. Mr. Merica gave the following reason for resigning as CTA representative in the spring of school year 1998-1999: I resigned because there was undue pressure from the principal [Principal Griffin] and they actually were putting some pressure on my child that was going to that school. Concerning his role as a resource teacher, Mr. Merica stated: As a resource teacher, I had to implement the IEP that was generated by either me or a teacher before me, describing the amount of pullout time, and pullout means that they were in a "regular education class" and they were pulled out for special services. What special services I generally gave them was either math or reading, but it could be social studies or science. Those were rare occasions. Most of them were math or reading. You pull them out for the amounted time specified by the IEP at the level that the IEP indicates, and when that period of time during the day is over, you send them back or you walk them back. In Hillsborough County they had some problems at that time with kids running off campus, so they recommended that we pick up our students and take them back to class. Administrative Leave and Observation of Model Class According to Mr. Merica, on or about August 12, 1999, he was assigned to the SLD class and his last day in that class was November 2, 1999, a total of 83 days before he was placed on administrative leave for five work days plus the weekend. Mr. Merica's assignment by Foster administration to Lake Magdalene was for him to observe a class at Lake Magdalene similar to his SLD class at Foster. After he sat in the Lake Magdalene class for approximately two hours, he spent the next few days sitting next to the principal's office trying to compile materials that would work for his SLD class. Mr. Merica concluded that the Lake Magdalene (SLD) class was not similar (as a model) to his Foster (SLD) class based on following reasons: I was working in an inner city school, this was a very rich, affluent area with totally different set of behavior problems. The makeup of the class was totally different. There were more girls. They were more [sic] white. It was just a totally different makeup. They were younger. And I sat in the classroom for about two hours and then I spent the next few days sitting next to the principal's office supposedly trying to compile materials that would work for my class. Lock Down Drill and Student Running Out of Classroom Responding to questions raised about the "lockdown drill" situation when students were observed running from the classroom onto the PE field, Mr. Merica testified he was given a walkie-talkie because the school intercom system was down. He did not receive notification of the lockdown drill via the walkie-talkie, and so he was not made aware of the scheduled lockdown drill. The evidence is undisputed that students that were seen by his co-workers running "about" the facility during the lockdown drill were not under the supervision of Mr. Merica at that time. The evidence demonstrated those kids were in their scheduled PE class under the supervision of the PE teacher, who put them in "time-outs" and sent them to Mr. Merica for their "time-outs" periods. Undisputed evidence demonstrated and it is found as fact that during this "time-out" period that the incident of students kicking the ball and playing in the classroom and being generally unruly and disobedient that Mr. Merica had justifiable cause to defend himself when a student put his/her hands around his neck and attempted to choke him. His testimony regarding the conduct of students in his class was corroborated, in part, by the testimony of two students, Jarmaal Rumlin and Demetrie White. Mr. Merica denied yelling at either Principal Payne or Principal Griffin. In defense of his voice volume, he characterized his discussions as "forceful," "assertive," and sometimes with a "loud voice." He described pointing of his finger as [u]nder normal conversation when some people use their hands, they might consider that pointing, were I was just, you know, just using my normal gestures of speaking, as far as I was concerned, and if I was pointing, it was only --again, it was not to be pointing at anybody. It might be, that's point number 1; that's point number 2; that's point number 3. Continuing, Mr. Merica said he never lost his temper at school with either principal, was never "out of control" with any students under his supervision, and never injured a student under his supervision. Mr. Merica's explanations for his finger-pointing and verbal barrages during conversations with authority figures evidenced a defensive attitude that did not lend itself to the appearance of a professional team player. Principal Payne did not testify that Mr. Merica pointed his finger in her face during their many meetings over the years. Principal Griffin's testimony of "pointing his finger in her face by Mr. Merica" was not accompanied by specific circumstances and situational context of the incidents. Accordingly, the appropriateness of such conduct, without evidence of each party's participation in the conversation and the specific circumstances and situational context at the time of occurrence, was not shown by the evidence of record to be, clearly and convincingly, inappropriate. Answering allegations of making derogatory or disrespectful remarks about Principal Payne or Principal Griffin, Mr. Merica replied: That's the eye of the beholder, but as far as I was concerned, I was just trying to make them a better person and there were some things that they were criticizing me about. I criticize people for things that I feel they have weaknesses too. So, you know, it's the eye of the beholder. Responding to Offered Assistance and Suggestions When asked if he had received assistance to help improve his classroom management techniques with regard to his regular SLD class, Mr. Merica replied: Yes. I always took suggestions and implemented every suggestion. Some things did work and some things did not work. You know, sometimes certain personalities -- certain things won't work and certain things will, but I certainly implemented every plan. Now, hey, I can even say this: some plans that I wasn't that good at and probably somebody else could have made it work -- maybe. But I know that some things I did that they implemented -- some things worked and some things didn't and I can even go further without trying to be editorializing that we learn from others. Some of the other teachers have suggestions --not just the ones from administration. There were some teachers that came up with some plans that worked for me. Mr. Merica's above recollection of receptivity and implementation of constructive assistance was confirmed through the undisputed testimony of Ms. Hindman, who on three separate occasions documented specific improvements she observed in Mr. Merica's classroom on each of her return visits. Use of Computer, Games, and Newspaper as Teaching Aids Answering those allegations regarding his use of video and computer games as teaching tools, Mr. Merica's undisputed response was: I said I never played them [video games] during instructional time. Students played them sometimes and it was part of the IEP. There were various video games. There was many of them and one they talked about a lot was the golf. But, you see, these kids have kinesthetic problems and we're trying to teach them how to manipulate the mouse, keyboards and other things. There was a racecar game that they used to use, plus it was good for their eye-hand coordination because they were kinesthetically challenged kids. They were in IEP. It was in the IEP that they were supposed to be kinesthetically challenged to whatever level they were to try to take them another year's worth. They didn't even call it grade level, but another year's worth of progress. They were approved, by the way. As far as I know, every game that I brought was approved by the school board or if it was not, nobody told me it was not. There was a list of computer software that you could use for kinesthetic(s), but the list was not always complete. There was also ones for learning and some of the software I even created myself and I made sure it was approved by the office before I even used it because I created it. I wrote it and I wanted to make sure that it was okay with them. But they were very, very, academic. Mine dealt more with reading and -- it never had any kinesthetic(s) in it at all. So mine was easy to approve. ---I knew the list, but again the list -- it even says it does not include all the new software. It does not include all the new software. There are ones that we know about. And the same thing with video list. They had a video list. They have a video list, but it also said under these circumstances, these are -- generally a "G" movie is approved, but you know -- the list was always being compiled. It was always new it always had a little thing in there like, we may be incomplete, check with your principal. Answering the question, "[w]hat is kinesthetic?" Mr. Merica stated: Kinesthetic is using hand-eye coordination. They are physically impaired kids. Some of them were trying -- they might even some kind of physical deformity or nerve damage or cerebral palsy and they were trying to get them to manipulate their hands. Mr. Merica's selections of newspapers, computer games, and specific TV programs as associative resource educational tools for his students were undeniably appropriate resource materials and activities related to learning goals for his students with various learning and physical disabilities. No witness for the Commissioner, including Principal Griffin, the ART, and the ESE specialists, testified to the contrary. Mr. Merica denied that he had sexually harassed his co-workers, and his denials were confirmed by the testimonies of the alleged victims who were called to testify by the Commissioner. He denied "being off task when in the classroom." He denied playing video games in class during teaching and instruction time. Mr. Merica's denials of essential elements in the Amended Administrative complaint, even if unbelievable, does not prove the accusations. The burden remains with the Commissioner. Answering the allegation of "reading the newspaper in class," Mr. Merica stated: If there was a current event and we were talking about current events or -- the kids even had papers at that time, so we have used the paper in an educational way in the school before. Answering the allegation of allowing his class to watch the television program, The Price is Right, Mr. Merica stated: That's a possibility, because at one time in PI, our kids were not going to the lunchroom. They were served lunch in the room. Well, that was a time where I was not present. It was the aides on attendance. It was their duty. That was my time. I have a duty-free lunch is what they call it. It's part of the contract. I didn't always take that time. They knew if they needed help, I would help. If there was some special function going on or something like that, I would not necessarily go to lunch. But as a general rule I did do lunch, and those kids were in the room and sometimes the TV was on and the news during lunch period. It was lunch period for the children, too. Mr. Merica added that he was not aware of any prohibition against putting the TV on during the children's lunch period. Answering his attorney's question why he placed a "Do you need a Sub?" note (the Board's Exhibit 62) in some but not all his co-workers mailboxes, Mr. Merica stated: That's self-explanatory. It says: "Do you need a sub? If so please call Mr. Merica at 985-0203. Do not call before 6:00 a.m., or, you will have to deal with me personally. Can you spell DEAD?" I put it in a few teachers' mailboxes--friends mainly--I'm not a sub. People know that. The people that I gave this to know that I was not a sub. It's obviously a joke. The joke means that I don't think its appropriate to call anybody before 6:00 a.m. in the morning, you know, to disturb their family.--- As far as I know, they wanted to have a new policy because the secretaries didn't want to have to deal with sub calls anymore. So they said to start calling the subs before 6:00 o'clock in the morning to make sure they get there, and by the way, it doesn't say--can you spell dead? That's a little inside pedagogy, whatever you want to call it. It's a little inside teaching joke. "I hope you can spell." Based on the situations and circumstances at the time he engaged in activities and conduct in findings 206 through 211 and findings 229 through 234, I find Mr. Merica's explanations were plausible, reasonable, and within a teacher's authority and obligation to be creative and innovative by providing one or more methods of training to attain specific individual educational goals, based upon the physical and/or mental limitations of students and in concert with the educational goals as stated in their respective IEPs. Realizing that Foster administration and the Board were in the process of terminating his employment contract at the next Board meeting, Mr. Merica wrote a November 2, 1999, memorandum to Dr. Binnie and Principal Griffin, suggesting that he be transferred (to another school) as an alternative solution. The request of transfer was denied. By letter of January 13, 2000, Dr. Earl Lennard, Superintendent, the Board, suspended Mr. Merica with pay until the Board meeting on January 18, 2000, at which point his contractual employment with the School Board was terminated. The School Board's annual renewal of Mr. Merica's yearly contract of employment during Principal Payne's tenure as principal of Foster provides a reasonable inference, and I so infer, that the 2000 termination of Mr. Merica's annual contractual employment was based primarily upon issues that were identified and raised by Principal Griffin during the mid-1998 through 2000 period when she, and not Ms. Payne, was principal at Foster. There is no evidence of record that Foster brought to the attention of the Board or that the Board considered allegations of or findings of professional misconduct that had occurred during the 1994 through 1998 time period when Ms. Payne was principal at Foster Elementary. Amended Administrative Complaint Material Allegations Paragraph 3(a) The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica, at unspecified times, demonstrated heightened anger while conferencing with Principal Payne. The evidence proved clearly and convincingly that between 1998 and 1999,8 Mr. Merica yelled at Principal Griffin while conferencing with her as alleged in Paragraph 3(a) of the Amended Administrative Complaint. I do not find that Mr. Merica "pointed his finger in his principal's face and being emotionally out of control while conferencing with Principal Griffin." The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica failed or refused to comply with specific requests or specific instructions given by Principal Payne during her tenure as principal at Foster during the period of 1994 through mid 1998 or that Mr. Merica refused to comply with specific requests or specific instructions given by Principal Griffin during her tenure from mid-1998 through 1999, as alleged in paragraph 3(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica made derogatory and/or disrespectful remarks specifically about Principal Payne or specifically about Principal Griffin to and in the presence of his co-workers as alleged in paragraph 3(c) of the Amended Administrative Complaint. Paragraph 4 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica rejected constructive criticism and assistance from those whose positions required giving such constructive criticism and assistance as alleged in paragraph 4(a) of the Amended Administrative Complaint. To the contrary, the reliable evidence proved that between 1994 and 1999, specifically in the mid and latter part of the 1999 calendar year, Mr. Merica accepted and responded positively to constructive criticism and offers of assistance from those whose position required giving such constructive criticism and assistance. The material and relevant evidence proved, clearly and convincingly, that on unspecified dates between 1994 and 1999, Mr. Merica was disruptive at faculty meetings by speaking aloud; speaking to co-workers, sometimes argumentatively; and interrupting speakers when they were speaking during faculty meetings as alleged in paragraph 4(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica was disruptive at faculty meetings by banging on tables and by making subversive and derogatory statements about the administration, in the presence of students and parent and faculty as alleged in paragraph 4(b) of the Amended Administrative Complaint. Paragraph 5 The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, during February 1999 as alleged in paragraph 5(a) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, an intern and teacher at Foster as alleged in paragraph 5(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica sexually harassed co-worker, K.R., a teacher at Foster Elementary as alleged in paragraph 5(c) of the Amended Administrative Complaint. Paragraph 6 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica frequently left his class with his aides so that he could walk around campus, socialize, and/or monitor other teachers and their students as alleged in paragraph 6(a) of the Amended Administrative Complaint. The material evidence proved on those occasions, recalled by Mr. Merica and his DEES attendant who was an on-scene observer, that his absences from his classroom were for legitimate purposes within his obligations as a professional teacher in the Hillsborough County school system. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica's use of alternative methods such as video games, newspapers, and other tools and equipment to teach his students were "ineffective teaching tools and student management" as alleged in paragraph 6(b) of the Amended Administrative Complaint. To the contrary, the undisputed evidence proved that Mr. Merica's use of other supportive, available, and permissible means and methods such as video games, newspapers, and other tools and equipment for stimulating his PI students' interest were effective teaching tools. The material and relevant evidence failed to prove, clearly and convincingly, the factual basis to support allegations that between 1994 and 1999 Mr. Merica (1) utilized ineffective lesson plans, (2) utilized ineffective behavioral management plans, (3) failed to keep students academically engaged, and (4) failed to control his students and/or gain their respect as the manager of the class as alleged in paragraph 6(c) of the Amended Administrative Complaint. Paragraph 7 The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica restrained students without the required ACT certification as alleged in paragraph 7(a) of the Amended Administrative Complaint. The evidence proved that Mr. Merica restrained "unruly" students and restrained "a student" in defense of his personal safety and that of other students in the time-out class incident herein found. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica yelled in the faces of students as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. Through the testimony of two students, Demetrie White and Jarmaal Rumlin, it is clear when Mr. Merica was yelling in their face(s) it was, in part, to be heard over their yelling at him and/or each other when they were kicking the ball and playing during time-out. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica exhibited out-of-control or emotional forms of discipline as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. The material and relevant evidence proved that between 1994 and 1999, Mr. Merica restrained one unruly large male ESE student that was not enrolled in his class without a request from the teacher who was responsible for the class, as alleged, in part, in paragraph 7(c) of the Amended Administrative Complaint. Paragraph 7(d) was withdrawn by the Commissioner. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica's teaching and student behavior management was ineffective, including: frequently leaving his class with aides so that he could walk around campus, socialize, and/or monitor other teachers and their students. when in his class, frequently playing video games on his computer, reading a newspaper, or reviewing architectural designs. utilizing ineffective lesson plans and behavioral management plans, failing to keep students academically engaged, and failing to control his students and/or gain their respect as the manager of the class. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica restrained unruly students without the required ACT certification. The evidence demonstrated that in each proven encounter of unruly student restraint, Mr. Merica acted to protect the unruly student, other classmates, and, on two occasions, protect himself and another colleague. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica restrained an unruly male student who was not enrolled in his class without waiting for the female teacher to ask for such assistance as alleged in paragraph 7(c) of the Amended Administrative Complaint. The evidence demonstrated and it is found that by restraining the unruly male student, Mr. Merica prevented possible potential injury to the unruly student, to the female teacher, to the grandmother volunteer, and to other students of both classes who were present in the hallway at the time of the incident. Paragraph 7(d), alleging inappropriate discipline of several students on or about September 23, 1999, was withdrawn by Petitioner. Paragraph 8 The Commissioner failed to prove, by clear and convincing evidence, allegations in paragraph 8 of the Amended Administrative Complaint that Respondent met with his principal and county employees to discuss and received letters of reprimand for each act alleged in paragraphs 1 through 7 of the Amended Administrative Compliant. Paragraph 9 The Commissioner proved, by clear and convincing evidence, that the Board terminated Respondent's contractual employment as a teacher with Hillsborough County in 2000. The burden of proof required to terminate a contract of employment is not the clear and convincing evidence burden of proof standard required to revoke a license. The Commissioner offered no documented proof, however, proving the Board's decision was based specifically on the allegations found in paragraph 9 of the Amended Administrative Complaint. There is no documented evidence of record that identifies the specific basis upon which the ultimate determination to terminate Mr. Merica's 2000 school year employment contract was made by the Board. The Commissioner did not prove, clearly and convincingly, by material and relevant evidence of record, the allegations that "[E]ffective September 22, 2000, the school board terminated Respondent's employment on charges on [sic] insubordination, persistent violation or willful refusal to obey laws or policies relating to the public schools, and failure to demonstrate competency relating to the instruction, evaluation and management of students in accordance with accepted standards," as alleged in paragraph 9 of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Finding of Fact and Conclusions of Law, it is: RECOMMENDED that the Commissioner of Education enter a final order finding Respondent, Neil Merica, in violation of Subsection 1012.795(1)(i), Florida Statutes (2003), and imposing the following penalties: Suspend Respondent's right of renewal of his teacher certificate and place Respondent on probation for a period of three years, to require successful completion of an anger management course and other such conditions as the Commissioner may specify upon re-application under existing requirements for certification by the State Board at the time the suspension expires. Impose a fine on Respondent in the amount of $1,000.00 for violation of Section 1012.795(1)(i), Florida Statutes (2003), to be paid prior to or at the time of re-application for certification, and other such conditions as the Commissioner may specify. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 31st day of March, 2005.
The Issue The issue in this case is whether, and how, Respondent should be disciplined for failing to take appropriate action regarding a middle school student who brought a knife to school.
Findings Of Fact Respondent holds Florida Educator Certificate 1063574 and is licensed in the fields of English, English for Speakers of Other Languages (ESOL), Reading, and Exceptional Student Education. She began teaching at Bonita Springs Middle School in Lee County in September 2011, after the start of the 2011-2012 school year. During instruction in her fourth period class on February 13, 2012, Respondent heard a student ask another student, who was an Exceptional Student Education (ESE) student with emotional issues, "was that a knife?" The ESE student responded, "Drama!" When Respondent looked up, she saw the ESE student place something in her lap, out of Respondent's view. Respondent did not see what it was but saw a flash of silver or metal. The class started to "act up," and Respondent decided to diffuse the incident and quiet the class by telling the ESE student to "put it away." The ESE student then put the object in her backpack. When the class ended, Respondent approached the ESE student and asked if she had a knife. The student denied it. Respondent told the student, if she had a knife, that would be unacceptable, but Respondent did not pursue the matter any further at the time and allowed the student to leave for her next class. During Respondent's eighth period class, the last period of the day, Respondent asked her student-aide, who also was a student in her fourth period class, about the incident during fourth period. The student-aide told Respondent that it was a knife, like a small steak knife, and that the ESE student had been licking it. After speaking with her student-aide, Respondent sent the school's ESE director, who also was the ESE student's caseworker, an electronic message simply asking to discuss the student with her when she had a moment. No details about the incident were included in the message out of Respondent's concern that it would be a public record. Respondent did not receive a response by the end of the school day. The ESE director received the message after hours. The next morning, Respondent saw the ESE director at a teacher's meeting and explained the previous day's incident. The ESE director was concerned about the delay in doing anything else about it and immediately went to the school principal, who was in the cafeteria, as were several other students, including Respondent's ESE student. The principal immediately went to the student and asked if she had a knife. The student admitted she did and thought it was no big deal since Respondent did nothing about it the day before. The student later stated that she was depressed and was considering cutting herself with the knife. Respondent now understands that she did not take the appropriate action on February 13, 2012. However, she contends that there are mitigating factors to consider, and any discipline should be constructive (such as, additional training), not punitive. Respondent attempts to defend herself to an extent by saying she did not actually see the knife during fourth period. However, it is clear that Respondent heard students asking about a knife, and saw something silver or metallic that could have been a knife, and was aware of the student's emotional issues. In light of those circumstances, Respondent should not have been satisfied with the student's denial that she had a knife; she should have involved the school's administrators and resource officer at that point. When she learned during eighth period that the student in fact had a knife, she should not have been satisfied with an unacknowledged electronic message to the ESE director. Respondent also attempts to deflect some blame onto the school for not making sure she knew what to do about incidents like the one that confronted her on February 13, 2012. It may well be true, as she testified, that Respondent did not get a copy of the Parent Guide and Code of Conduct for Students, normally distributed to teachers at the beginning of the school year, which identifies a kitchen knife as a weapon and prohibits it. Petitioner attempted to impeach Respondent's denial of receipt of the document by citing a handful of student discipline referrals by Respondent that use incident types taken from that document. One incident type, albeit not used by Respondent in any of her referrals, was possession of weapons; however, the form does not define weapons. Respondent testified convincingly that she used the forms without reference to the source document. Nonetheless, she knew it would be unacceptable for a student to have a knife at school. When Respondent started teaching at the school, she was offered an opportunity to take the APPLES program for new teachers, which provides information and training on codes of conduct, including provisions to protect the safety of students and faculty. Respondent opted out, stating that she took the APPLES program during her previous employment in Collier County. While perhaps not handed to Respondent when she started teaching at Bonita Springs Middle School, the Parent Guide and Code of Conduct for Students was easily accessible from Respondent's school computer via a program called SharePoint that was a link on the home page. Respondent denies ever accessing the material from her computer. However, Respondent prepared a professional development plan shortly after she started teaching at the school in October 2011. It included a plan to train on how to download documents from SharePoint, but Respondent had not yet followed through on that plan by the time of the incident. Information also was available to Respondent in the form of an Agenda book that she was given. The Agenda book contained the school's rules, including one prohibiting weapons as nuisances and providing that they would be confiscated. It is not clear whether any of the information provided or available to Respondent would have told her what to do in circumstances where she suspected, but was not certain, that a student had a knife, and the student denied it. Based on the facts of this case, additional training is appropriate and actually is desired by Respondent. On the other hand, Respondent would rather not be reprimanded, submit to supervised probation, and pay a $500 fine and pay costs, as Petitioner proposes. Under the facts and circumstances of this case, Petitioner's proposal would be harsh, not constructive, and possibly demoralizing. The evidence is clear that Respondent will follow the rules she is given and take appropriate action in a situation if she knows what is expected of her. A repeat of the failure to act appropriately in a situation similar to the incident on February 13, 2012, is not likely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission find Respondent guilty of violating rule 6B-1.006(3)(a), issue a letter of reprimand, and place her on a short term of probation conditioned on the completion of appropriate additional training. DONE AND ENTERED this 8th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2013.
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2008),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), if so, what discipline should be imposed.
Findings Of Fact Ms. Jardas holds Florida Educator’s Certificate No. 1072218, covering the area of social science, which is valid through June 30, 2012. She graduated from college in December 2006. At all times material to this proceeding, Ms. Jardas was employed as a social studies teacher at Giunta Middle School (Giunta) in the Hillsborough County School District (School District). She began her employment at Giunta as a long-term substitute teacher in January 2007. In August 2007, she was hired as an annual contract teacher. Her annual contract was renewed for a second year. During the 2008-2009 school year, M.B. was a student in Ms. Jardas’ sixth-period geography class. In September or October 2008, M.B. approached Ms. Jardas for help with her school work and for guidance regarding M.B.’s problems in school attendance and problems at home. M.B. would stay after class about once a week and talk to Ms. Jardas in the classroom about M.B.’s problems. Other teachers were concerned about M.B.’s academic behavior and had discussed the situation with Ms. Jardas. Both M.B. and Ms. Jardas are lesbians. In November 2008, M.B. told Ms. Jardas that she wanted to have a romantic relationship with Ms. Jardas. Ms. Jardas told M.B. that she could not have a relationship with M.B. because she was a teacher, and M.B. was a student, and such a relationship would be inappropriate. Ms. Jardas did not report to the administrative staff at Giunta that M.B. had approached her about having a romantic relationship. Ms. Jardas was involved in the mentoring program at Giunta, where specific students would be assigned to specific teachers who would provide guidance to the students. M.B. was not part of the mentoring program. The School District had policies with respect to teachers meeting students off the campus during non-school hours. The general manager of the School District’s professional standards office explained the policies as follows: Teachers do not meet with students off campus, however, that is not done and it is not approved to do so without the knowledge of the principal, who is the responsible party at the school site, and many times, that involves parents’ permission, sometimes written permission, for that off-site visitation or interaction with one another. It is always related to either a curriculum- related instructional program, something to do with the academic focus for children. Even in a mentoring situation, there are guidelines as to how you meet with children and how you do not meet with children. It is never approved for you to meet alone with a student or to meet outside of school hours without it being directly related to some group activity or activity that has been approved by the district or the principal. Katie Brees (Ms. Brees) was at one time a friend of M.B.’s family. During the 2008-2009 school year, M.B. lived at Ms. Brees’ home. Sometime in November or December 2008, Ms. Brees sent a text message to Ms. Jardas, stating that M.B. had a problem and needed to talk to Ms. Jardas. Ms. Jardas had not given M.B. her telephone number; however, Ms. Jardas had called M.B.’s grandmother to discuss M.B.’s grades, and M.B. had gotten Ms. Jardas’ number from her grandmother’s telephone. At the time that Ms. Jardas received the telephone message from Ms. Brees, Ms. Jardas was at work at her second job at CVS Pharmacy, where she worked from 4:30 p.m. to 10:00 p.m. Ms. Jardas told Ms. Brees that she was at work and that, if it was an emergency, Ms. Brees and M.B. could come to the pharmacy. Ms. Brees and M.B. did go to the pharmacy around 8:00 p.m. They remained in the car. One of Ms. Jardas’ job responsibilities was to empty the trash containers and take them to a dumpster outside the building. When Ms. Jardas went out to empty the trash, she would talk to M.B. through the car window about M.B.’s problems. Ms. Jardas told M.B. that she could not keep coming to the pharmacy to talk to Ms. Jardas. Ms. Jardas did not report to Giunta administration that M.B. had come to the pharmacy to see her. Sometime in February 2009, Ms. Jardas got another text message from Ms. Brees, who said that M.B. had been cutting herself. Mr. Jardas, who was at work at the pharmacy, said that she could not leave work, but that she would meet them after work. Ms. Brees told Ms. Jardas to meet them at some property, which was owned by Ms. Brees’ brother. The location was dark and secluded. Ms. Brees parked her car behind Ms. Jardas’ car, and M.B. got out and went to sit with Ms. Jardas on the hood of Ms. Jardas’ car. Ms. Brees remained in her car. It was cold, and Ms. Jardas got a blanket from the trunk of her car. Ms. Jardas and M.B. sat underneath the blanket and talked for several hours. M.B. tried to get closer to Ms. Jardas, but Ms. Jardas would not allow her to do so. Ms. Jardas did not report her encounter with M.B. at the property of Ms. Brees’ brother to the Giunta administration. In February or early March 2009, Ms. Jardas received another text message from Ms. Brees, asking Mr. Jardas to meet with M.B. at Ms. Brees’ house. M.B. had been absent from school a lot. Ms. Jardas was again at work and told Ms. Brees that she would meet them after work. Ms. Jardas arrived at Ms. Brees’ home around 10:30 p.m. and went to the backyard. M.B. came out, and she and Ms. Jardas sat on the patio. Ms. Brees remained in the house. Around one a.m. or two a.m. when Ms. Brees went to sleep, M.B. and Ms. Jardas were still on the patio. M.B. tried to kiss Ms. Jardas, but Ms. Jardas rebuffed M.B.’s advances. Again, Ms. Jardas did not report her meeting with M.B. to the administration at Giunta. Ms. Jardas had made it clear to M.B. that she did not want to have a romantic relationship with M.B. Sometime in March 2009, M.B. began sending text messages to Ms. Jardas, saying that she hated Ms. Jardas and could not understand why Ms. Jardas did not want to have a relationship with her. Ms. Jardas had her telephone company block calls coming from M.B.’s telephone number. On March 16, 2007, Ms. Jardas received a photograph on her telephone which showed the nude upper torso of M.B. The photograph came from a telephone number unknown to Ms. Jardas. Ms. Jardas deleted the photograph and had her telephone company block the number from which the photograph was sent. M.B. was angry and upset with Ms. Jardas because Ms. Jardas did not want to have a romantic relationship and was trying to break contact with M.B. by blocking M.B.’s telephone number. M.B. told some of her friends that she and Ms. Jardas had been dating. The friends advised the school resource officer that M.B. and Ms. Jardas were supposedly having a relationship. On March 17, 2009, when M.B. was first questioned by a sheriff’s deputy about any relationship with Ms. Jardas, M.B. said that Ms. Jardas was her mentor and had been helping her with problems at home. M.B. advised that she was in love with Ms. Jardas, but Ms. Jardas said that she would have to stop seeing M.B. and would refer her to a guidance counselor. M.B. told the deputy that no inappropriate touching had taken place. On March 18, 2009, M.B. was again interviewed by personnel from the sheriff’s office. At this interview, M.B. said that she had met Ms. Jardas at the property of Ms. Brees’ brother and at Ms. Brees’ home. M.B. told the officer that they had kissed and hugged each other; that Ms. Jardas had put her hand down M.B.’s pants and rubbed M.B.’s vagina; that Ms. Jardas asked M.B. to play with herself, and M.B. complied; and that Ms. Jardas had said that she wanted to be deep inside M.B. At the final hearing, M.B. recanted her second interview with the sheriff’s deputy and stated that there had been no inappropriate touching by Ms. Jardas and that she had lied because she was mad at Ms. Jardas because Ms. Jardas did not want to be with her and would not give her a chance. M.B.’s testimony that there had been no inappropriate touching is credited. After the school resource officer became involved, there were rumors around Giunta concerning the alleged relationship between Ms. Jardas and M.B. The School District became involved and placed Ms. Jardas on administrative leave with pay, pending the outcome of the investigation. No criminal charges were filed against Ms. Jardas. The School District decided not to renew Ms. Jardas’ contract for the 2009-2010 school year. On March 27, 2009, prior to being formally advised of that decision, Ms. Jardas resigned her position with the School District, citing personal reasons. The School District allowed the resignation date to be the last day of school, which resulted in Ms. Jardas’ receiving pay to the end of contract. Ms. Jardas was not allowed to continue to teach in the School District. Ms. Jardas is currently teaching in New York. Ms. Jardas was aware that she should have reported her meetings with M.B. to the school administration and that she should have reported to the school administration that M.B. wanted to have a romantic relationship with her. Ms. Jardas explained her rationale for not reporting the situation to higher authorities as follows: I thought it was just like a school-kid crush, I thought nothing was going to develop from it, I thought that I could control the situation. She [M.B.] trusted in me, she believed in me, she sought me out. I didn’t want to, you know, be responsible for anything that she could do to herself, because I was aware that she was [a] cutter and that she would physically, you know, hurt herself, and I didn’t want that on my conscience, and she trusted me, and I didn’t want her to feel like I ratted her out by going to speak to, like a guidance counselor or my principal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Jardas did not violate Subsection 1012.795(1)(d), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(e) and 6B-1.006(3)(h); finding that Ms. Jardas did violate Subsections 1012.795(1)(g) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a); and suspending her educator’s certificate for one month followed by probation for one year. DONE AND ENTERED this 16th day of August, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 16th day of August, 2010.
The Issue The issues in this case involve whether the Respondent has engaged in acts of misconduct alleged in the Administrative Complaint, and if so, whether the Respondent's Florida educator's certificate should be revoked or other disciplinary sanction imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with regulating the standards for entry into practice as a teacher, including licensure and the regulation of practice of teachers once they are licensed. The Respondent is a licensed Florida Educator (teacher) holding certificate 795510, covering the area of mathematics. That license is valid through June 30, 2003. During the 1999-2000 and 2000-2001 school years the Respondent was employed with the Washington County School District as a teacher at Vernon Middle School. From September 1999 through December 2000 the Respondent was assigned to teach low-functioning exceptional student education (ESE) students. ESE students are those who have learning disabilities or physical impairments which adversely affect the ability to learn. In January 2001, the Respondent sought and obtained a transfer from her ESE assignment to a position teaching mathematics classes, which was within the scope of her certificate. She continued to teach mathematics until her suspension with pay in April 2001. During the 1999-2000 and 2000-2001 school years the Respondent also taught adult night school courses. When the Respondent became employed as an ESE teacher the Washington County School District issued her a laptop computer for the purpose of preparing individual education plans (IEP) and other paperwork required in the ESE program. The Vernon Middle School guidance counselor and its other ESE teacher were also issued laptop computers for ESE paperwork purposes. Witness Heather Miller, testifying for the Petitioner, stated that all ESE teachers received a letter limiting the use of the laptop to ESE purposes. The Respondent testified that she did not receive any letter or other instructions limiting her use of the computer. Ms. Miller admitted on cross-examination that she was not present when any such instructions may have been delivered to the Respondent. Be that as it may, the gravaman of the charges in the administrative complaint do not involve use of the ESE laptop computer for personal purposes versus employment-related purposes. The Respondent may have been instructed not to use the computer for anything other than ESE instructional-related purposes or may not have been given such instructions, or may simply not recall getting such instructions. Whether or not she received such instructions is immaterial to the charges in the administrative complaint, however. The Respondent had the laptop computer in her classroom when it was first issued to her, while she was learning how to use it. Sometime early in her use of it she installed a program called "Clue Finder" which is a software program for children for the third to fifth grade. She allowed the students to use this software in class. The laptop had never been connected to the internet at the time she permitted students to use it in her classroom and her classroom did not have internet access at that time. She ceased permitting students to use the laptop after she had a discussion with the other ESE teacher, Julie Johnson, about her not permitting her students to use her laptop. The Respondent's students were not permitted to use the laptop from that point forward, which was sometime in the month of February 2000. Each laptop was equipped with a "zip drive" and "zip disc" in order to download the "GibCo Dynamo Program," the program used for ESE paperwork purposes. Therefore, it was unnecessary for ESE employees to access the internet using their school board-issued laptop. ESE employees were permitted to remove and transport their laptops away from school premises so that they could work on IEP and other ESE paperwork at other locations, including their homes. The Respondent took her laptop home sometime during or after February 2000 and began becoming acquainted with the GibCo Dynamo Program, which helps ESE teachers correctly complete IEP's and other paperwork. It was necessary to periodically update the GibCO Program to reflect changes in the ESE forms. The Respondent already had the laptop at home and did her IEP work there because she did not have time to do it in class. Therefore, she asked Brenda Miller, the ESE resource person from the county office, if she could use her laptop to update her GibCo program through her home internet service provider. She received permission and did so in late February or early March 2000. On one occasion prior to the end of the spring 2000 school term, the Respondent permitted one of her adult alternative education students to use her laptop to complete a paper he was writing. She assisted him in using the laptop and was present the entire time he was using it. This incident occurred before she had begun any personal use of the laptop or put any of her programs on it. Therefore, the use occurred before the material contained in Petitioner's Exhibit one was received or stored on the laptop. The Respondent did not teach during the summer of 2000 and spent more time accessing the internet through the school laptop for personal purposes. Although they were still living in the same home, the Respondent and her husband had become estranged and were ultimately divorced. During the summer of 2000 the Respondent used the ICQ program to communicate with and strike-up non-sexual relationships with other people, including males. The ICQ program is a forum or "chat room," with the exchange of ideas and information on virtually any subject. Users fill out a personal profile which informs other users about the person's interests or subjects the person is interested in receiving or sending communications about. The Respondent contends that her ICQ profile only contained her name, age and gender. When such a user starts his or her computer other users are alerted to that user's presence and availability for communication. The user may send or receive communications to or from others, which communications can contain attachments, such as documents or pictures. During the time she was using the laptop to access the ICQ program, the Respondent's husband, her baby-sitter and her baby-sitter's mother also had access to the laptop at various times in her home. The Respondent's laptop was connected to the internet at her home for approximately three and one-half to four months. Sometime during the summer of 2000 lightening struck her modem and destroyed it. The laptop was never connected to the internet after that event. During the time the laptop was connected to the internet in the Respondent's home the documents contained in Petitioner's exhibit one were received on the laptop and placed on the hard drive in fifty-eight program folders. The Respondent maintains that she did not realize that the materials contained in Petitioner's Exhibit One, which were on her computer, had been recorded on her hard drive. She admits to seeing some of those documents in Petitioner's exhibit one but maintains that she had not seen all of them. She maintains that she did not see many of the items in Petitioner's Exhibit One, especially items which indicate the ICQ identification name "Hotrod," which was that of her husband. The Respondent claimed that she never knowingly or intentionally accessed or "downloaded" any pornographic materials on her school laptop, nor did she solicit such material from anyone else. During the time her laptop was operating on the internet, through the ICQ program, she would sometime receive messages with documents attached. On some occasions she states that she would discover sexually explicit material when she opened the document and that when she did so would immediately close the file and assumed that it had been deleted. She claims that she had no idea the information was being saved on the computer's hard drive. If the Respondent received unsolicited, sexually explicit material from someone she had wanted to chat with she states that she would inform them not to send that type of information if they wanted to continue to communicate with her. During the time period in question the Respondent also received unsolicited e-mail of a sexually explicit nature which indicated that she had subscribed to it, although she states she never had. The fact that an e-mail indicates that the recipient is a subscriber does not mean that the recipient actually solicited or subscribed to the e-mail. Rather, the recipient's name could have been obtained from another source merely upon the receiver's profile having been provided to a particular site. It is unclear how the material contained in Petitioner's Exhibit One was saved on the hard drive of the Respondent's laptop. It can not be precisely determined who saved a particular file or who if anyone opened and viewed a particular file, primarily because the Respondent did not have sole access to the computer while it was in her home. It is probable that the Respondent did obtain some of the material that was present on her laptop hard drive, as she did acknowledge having seen some of the material in the past, when confronted with the presence of it by her employer. It cannot be determined from a review of the laptop hard drive that the Respondent named or saved any specific file contained in the Petitioner's exhibit one. After the laptop's modem was destroyed by lighting, the Respondent continued to use the laptop for her IEP's until she returned the computer to the school in September 2000, at the request of Ms. Harrell. The Respondent specifically requested permission to lock the computer up and Ms. Harrell told her she could keep it in a locked storage room, which she did. The storage room was in the administration building, which was next to the building in which her classroom was located. The laptop remained in the locked storage room until October 2000, when the Respondent was assigned a new ESE student. She brought the laptop to the classroom for a short time on that one occasion to work on the new student's IEP, but the students never had access to the computer nor were they ever in a position to see what she was doing on the computer. In January 2001, the Respondent was re-assigned, at her request, from the ESE position to the position of math teacher, which was within her area of certification. She had no further use for the laptop and believed she had removed from it all programs, games and other information she had put on the computer as a result of her personnel use. The Respondent removed her internet service program, Digital Express, and the ICQ Program, believing that this action removed anything associated with these programs from the computer. She was unaware that there were separate program files for the ICQ Program saved to the hard drive. If she had known of this she would have deleted them. Gerald Fender, the Washington County School District Computer Technician indeed saw evidence that an attempt had been made to remove information from the Respondent's laptop when he inspected it. The Respondent's laptop was turned over to her successor, Aubrey Herndon, the new ESE teacher, who placed it into a locked closet in his classroom. The computer remained there until approximately April 10, 2001, when Mr. Herndon removed it to learn how to use it to prepare his IEP. On April 10, 2001, Heather Miller was assisting Mr. Herndon with transferring information from a zip disc to the laptop when she noticed two sites listed on the "favorites" screen, "ALT.Sex Stories" and "Asclepius Himself." Upon seeing these items, Ms. Miller took the laptop and reported what she had found to the principal, Ms. Harrell and the School Resource Officer, Deputy Mark Collins. Ms. Miller and Officer Collins searched the computer for other suspicious files but were unable to locate any. The next day, Gerald Fender, the school board computer technician was called in and asked to search the computer. After an extensive search, Mr. Fender located the ICQ Program in the program files. In the afternoon of April 11, 2001, the Respondent was called to Ms. Harrell's office and confronted with some of the information contained in Petitioner's Exhibit One. The first document the Respondent was shown was page eighteen of Petitioner's Exhibit One from a program called "pal talk" which was supposed to be a program which enables a person to speak to another person over the internet. The Respondent was shocked when she was shown this document because she had thought she had deleted the entire pal talk program and the file containing this document, after she had received the document when she first accessed the pal talk program. She was shocked when this sexually explicit document appeared through a program she had understood to be a voice program and which she thought she had immediately taken off the computer. The Respondent was also shown a copy of page twenty- nine of Petitioner's Exhibit One, which was a sexually explicit picture of a man standing in a shower. She recognized that picture as also coming from her computer. She acknowledged that the two pictures she was shown were from her computer and then she told "them" that they did not have to show her anymore. There was some conflict in the testimony regarding the precise number of pictures from Exhibit One which were shown to the Respondent. It is unnecessary to resolve this discrepancy because all of the testimony of all witnesses present is consistent that the Respondent acknowledged that the pictures were from her laptop computer after being shown a few of them and no more were therefore shown. The Respondent was asked whether the students had ever used the computer and she said that they had, but that the students were allowed to play games on the computer only during the time before she had taken the computer to her home and before the information contained in Petitioner's Exhibit One had ever been received. The Respondent also stated in that initial meeting on April 11, 2001, that she had thought that she had deleted all the information which she had been shown from the computer. During this meeting the Respondent also made a statement to the effect that she had used the laptop at night to access her ICQ file when she "would get bored" while working on class work. She was referring to working at home and not in the classroom. Also, during this meeting she told Officer Collins that the students had never seen the objectionable information, and he indicated that he would interview her students, which she encouraged him to do. No student interviewed indicated that he or she had seen any of the information contained in the Petitioner's Exhibit One. Officer Collins also consulted with Captain Strickland the Chief of Investigations of the Washington County Sheriff's Department Capt. Strickland advised that there was no basis for any criminal charges. The Respondent met with Superintendent Jerry Tyre in his office on May 3, 2001, and submitted her resignation effective May 14, 2001. The Respondent had already been informed by Ms. Harrell before this incident that she was not going to be recommended for renewal as an annual contract teacher for the next year. By resigning rather than contesting the superintendent's suspension, the Respondent believed that she could resolve the situation quickly without any further publicity or notoriety. In June 2001, the Respondent applied for employment as a teacher in Bay County, Florida. She submitted written references from three former colleagues, Paul Parker, her supervisor and director of the Washington County Technician Center; Mary Davis, Adult Education Coordinator and Genevelyn Brown, EAS Assistant. Each of the individuals was informed of the circumstances surrounding the Respondent's resignation and each was still willing to give her a positive reference. The Respondent also solicited support from several parents of students she had taught or tutored while employed in Washington County, during the investigation of this matter by the Department of Education. She informed each of these individuals of the nature of the allegations against her and the circumstances surrounding her resignation. Each of these individuals, Rhonda Duren, Julie Bielinski, Brenda Richards and Victor Marshall, submitted written statements supporting her ability and their belief she should continue as a teacher in Washington County or elsewhere. The Respondent obtained employment as a teacher with the School Board of Bay County at Mosely High for the 2001-2002 school year. She was still employed as a teacher in Bay County at the time of this hearing. She has had no disciplinary problems of a similar nature to that to which occurred in Washington County. It is not clear whether the authorities who hired her in Bay County were aware of the circumstances surrounding her resignation from her position in Washington County. Both prior and subsequent to the events at issue in this case, the Respondent has never had any accusations of any similar misconduct and has no disciplinary record. It has not been established that either the intentional or inadvertent accessing of sexually explicit materials in the privacy of the Respondent's home (even though on a school-issued computer), was immoral or grossly immoral. The downloading of the materials and the presence of them on the computer never became accessible to any students and no student was ever aware that such information was on the computer. It has not been established that the Respondent's failure to delete the sexually explicit material from the computer prior to taking it back to her place of employment constitutes immorality or gross immorality. It has not been shown that the conduct involved in this proceeding was a matter of any notoriety so that her position in the education profession could be the subject of any public disgrace or disrespect or that her service to the community in that profession could be impaired. There is no clear and convincing evidence that the Respondent engaged in personal conduct which is seriously reduced her effectiveness as an employee of the school board. The Petitioner elicited opinion testimony from witnesses which was conclusary and failed to specify precisely how the conduct could seriously reduce her effectiveness as a teacher. The opinion testimony was based on a factual assumption which was not established by the evidence, namely that the Respondent's students used her laptop after the sexually explicit material had been received and thus had reasonable access to the laptop with that material on it. In fact, the evidence of record supports the opposite conclusion; that the students had no such access to the laptop after the sexually explicit material had been received on it, so the opinions to the effect that her effectiveness has been seriously reduced cannot be accepted since they are based upon an invalid assumption. There is no clear and convincing evidence that the Respondent failed to make a reasonable effort to protect students from harmful conditions concerning learning or their mental health or physical safety. The Respondent tried to delete the material from her laptop, albeit unsuccessfully, prior to returning it to school, based upon what she knew at that time. She returned it to school thinking it was deleted when it was not. Nevertheless, her conduct after the computer was returned to her school prevented the students from gaining access to it since the computer was maintained in a locked storeroom, one building removed from the building where her classroom was located. Thus it was highly unlikely that the students would have access to the sexually explicit material on the computer. There is no evidence in the record that they did.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Commissioner of Education dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2003. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331 South Santa Rosa Beach, Florida 32459 Thomas W. Brooks, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educators Specialist Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
The Issue Whether the School Board of Broward County, Florida (School Board) has just cause to terminate Respondent's employment based on the allegations set forth in the Administrative Complaint dated May 13, 2010.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times material hereto, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract. At all times relevant to this proceeding, Respondent was assigned to Ashe Middle School where she taught reading and language arts. Respondent holds a Florida educational certificate that has both reading and gifted endorsements. During the time Respondent taught at Ashe Middle School, the school was considered a low performing school. There was a high level of student turnover and a relatively high number of foreign students who did not speak English. Respondent had an advanced reading class that read on grade level. Most of her other students read below grade level.1 Pursuant to a collective bargaining agreement (CBA) with Broward Teachers Union and applicable law, which will be discussed in the Conclusions of Law section of this Recommended Order, School Board has adopted a system to assess teachers known as Instructional Personnel Assessment System (IPAS). Subsection (F)(1)b of Article 18 of the CBA contains the following guiding principle: b. The School Board and BTU [Broward Teachers Union] acknowledge that the assessment process should recognize the professional nature of teaching and supervision. Educational research has not identified a single uni-dimensional construct called "effective teaching." Teachers must pursue a variety of models of effective teaching. It is recognized, moreover, that the educational environment is complex and variable and great weight should be placed on teacher judgment to guide the activities of student learning. Subsection F(2)(e) of Article 18 of the CBA requires that the principal, director, or his/her designee evaluate each employee at least once a year utilizing IPAS. Rating criteria are defined on the IPAS form in the following categories: Instructional Planning Lesson Management Lesson Presentation Student Performance Evaluation Communication Classroom Management Behavior Management Records Management Subject Matter Knowledge Other Professional Competencies The evaluator rates the employee as to each criterion and for overall performance. The rating can be "satisfactory", "needs improvement", or "unsatisfactory." Subsection F of Article 18 of the CBA describes IPAS. Pursuant to the CBA, the assessment system requires a teacher, whose performance has been deemed deficient in one or more areas by an appropriate school administrator, to be placed on a Performance Development Plan (PDP). A school administrator develops the plan and monitors the employee's progress in completing the plan. Subsection F(2)(m)2 of Article 18 of the CBA provides as follows as to the use and implementation of a PDP: Use and implementation of this plan requires identification of deficiencies, definition of strategies for improvement, definition of an assistance timeline, definition of expected outcomes, definition of possible consequences for failure to remediate, completion of assistance activities, and documentation. Subsection (F)(2)f of Article 18 of the CBA provides as follows: The following five (5) techniques are used to gather data on employee performance. Assessors use multiple techniques to understand actual performance and develop performance ratings. Informal classroom observations: Informal observations are made periodically by the principal or designee. A follow-up conference is not required subsequent to an informal classroom observation if performance is deemed satisfactory. Formal classroom observations: Formal observations are primarily initiated by the principal or designee. Employees may, however, request a formal observation. These are not less than 30 minutes in duration and are conducted by the principal, director or his/her designee. The 30 minute time period may be shortened by mutual agreement between the principal and the affected employee. All observations of employees for the purpose of assessment shall be conducted with the full knowledge of the employee. A conference is conducted after each formal observation. The FPMS [Florida Performance Measurement System] or other educationally sound observation instruments which may be used for formal observation.[sic] Observations in non-classroom situations: Principals use opportunities outside the classroom to observe the performance of employees. A follow-up conference is not required subsequent to this type of observation if performance is deemed satisfactory. Review of records and data: Principals review a variety of work samples prepared by the employee. These may include lesson plans, reports, grade card comments, discipline referral documents, etc. In addition, specific records or plans may be requested for review. A follow-up conference is not required if performance is deemed satisfactory. Review of performance portfolio: The principal or designee and the employee may mutually decide that a performance portfolio is needed to provide additional information for the completion of the assessment ratings. The design of a portfolio is determined by the principal and employee. A follow-up conference is not required if performance is deemed satisfactory. A teacher placed on a PDP is given 90 calendar days, excluding school holidays and vacations, to correct the identified performance deficiencies. If, at the end of the 90- day probation period, the performance of the employee remains at an unsatisfactory level for one or more of the assessment criteria, a rating of U (for unsatisfactory) is given. At that juncture, the administrator can extend the PDP period, or he/she can refer the matter to the Office of Professional Standards for further proceedings. Mr. Luciani was the principal and Mr. Muniz was an assistant principal at Ashe Middle School during the 2006-07 school year. On December 11, 2006, Mr. Muniz wrote a memo to Respondent. The memo is quoted verbatim because it targeted problems that continued throughout Respondent's tenure at Ashe Middle School. The memo is as follows: This correspondence is to document the last few week's [sic] events when it was determined that your job performance has been less than satisfactory in the following areas: Behavior Management-managing student behavior Records Management-management of data Communications Instructional Planning On December 7, while doing a classroom visit that lasted 31 minutes I noticed a lack of classroom management. It took almost seven minutes to get the class under control to start your lesson. While there were only 11 students in your room, yet, only five students were on task. You continued to do your lesson despite the disruptions. I am not sure if you were aware or just ignored the disruptions. In the last few weeks you have banished, kicked out, or attempted to kick out students everyday for almost twelve consecutive days. In the past Mr. Hart, Assistant Principal, and I have mentioned that the students should be accompanied by an escort or if you have a receiving teacher you should wait at the door until the child is situated. In at least five occasions your students have been caught wandering the halls because you have kicked them out. There have been many times while on hall duty that I noticed you kicking students out and the class has not yet started. This is unacceptable. You are responsible for the students in your class. When they are unescorted the possibility of injury exist [sic] due to your negligence. The students have not sat down and you attempt to remove them from class. This is also unacceptable. Prior to our recent data conference it was 12:15 in the afternoon and you requested to find out what data you needed at the conference. I directed you to Ms. J. Shakir[,] reading coach[,] who assisted you in securing minimal data for the conference. Please note that there had been four data presentations regarding preparation for the data conferences conducted by Mr. Fleisher and Ms. Lumpkin form c-net. Ms. Shakir and Ms. Pickney also conducted data disaggregation workshops in the previous weeks. While at the conference itself you appeared to know very little with regard to your student data. You were not familiar with your BMA results or the progress your individual students or classes had made. There was no attempt made at providing categorical breakdowns of students which needed prescriptive strategies to address their needs. The confrontational manner with which you speak to children is a direct factor in the lack of classroom management. Your lack of communication skills has led to referrals on many students which have led to major consequences for students after the referrals led to escalated verbal confrontations. During various grade level meetings, I have requested that all teachers provide me with emergency lesson plans every two weeks. To date I have not received any of these plans. Our expectations for each of the above listed concerns are: First and foremost, resolve the discipline problems in compliance with the policies of the school, rules of the District School Board and [sic] the State Board and Florida Statutes. Next, maintain consistency in all application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction. You must prepare for your students all day every day. Lesson plans must be meaningful and relevant to your content area. Studies show that students who are authentically engaged are less prone to deviant [sic] behavior. You must maintain complete order in your classroom. The Principles of Professional Conduct for the Education Profession in the State of Florida requires that the educator make reasonable efforts to protect the students from conditions harmful to learning, and/or to the students' mental, and/or physical health and/or safety. In the next few weeks you will be provided with assistance from behavior specialists, reading/curriculum coach and c-net personnel to assist you in meeting expectations. In February 2007 Respondent was placed on a PDP. Mr. Muniz monitored Respondent's progress and opined that she had not successfully completed the PDP. Mr. Luciani disagreed and instructed Mr. Muniz to give Respondent a satisfactory evaluation, which he did.2 Mr. Luciani was the principal and Mr. Hart was an assistant principal at Ashe Middle School during the 2007-08 and 2008-09 school years. Mr. Hart received a written complaint from a student that on October 1, 2008, Respondent told the student that the student's mother was unfit and did not know how to raise the student. In response to that complaint, on October 3, 2008, Mr. Hart issued Respondent a letter addressing the inappropriate manner in which she had addressed students, which included the following: On numerous occasions you have been counseled regarding your inappropriate comments/behavior towards students. This behavior includes embarrassing, disparaging, and/or awkward comments and/or actions. It has recently been brought to my attention that, once again, you have exhibited this behavior. * * * I am directing you to cease and desist all actions/comments of this nature immediately. You are to speak to students in a respectful, professional manner at all times. Mr. Hart, Respondent, and the student's parent met to discuss the alleged statements made by Respondent to the student. During that conference, Respondent became angry and left the meeting. Later, Mr. Hart met with Respondent to give her a copy of his letter dated October 3. Respondent took the letter and walked out of the meeting without signing the acknowledgment that she had received the letter. Respondent slammed the door as she left Mr. Hart's office. Mr. Hart received numerous complaints from parents and, as a result, transferred several students from Respondent's class to another class. On February 5, 2009, Mr. Hart observed Respondent arguing with a student in her classroom. He admonished her in writing to not be confrontational with students. Respondent's conduct on February 5, 2009, was inconsistent with Mr. Hart's admonishment to her on October 3, 2008. In an undated memorandum subsequent to January 20, 2009, Mr. Hart set forth the following issues that continued to be of concern despite his previous discussions with Respondent: Parent phone calls from her classroom Completing assignments Checking emails Inputting grades into Pinnacle (a computer database) Being prepared for instruction On February 18, 2009, Mr. Hart issued a written reprimand to Respondent for her failure to input student grades into Pinnacle. Respondent was placed on a PDP on February 13, 2009. Noted under the categories "Lesson Management" and "Lesson Presentation" were the failures to meet the following criteria: Orients students to classwork, specifies purposes of activities and relationship to the objectives; Prepares the classroom materials and equipment for the presentation of the lesson; Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills; and Asks questions which are clear and require students to reflect before responding. During the PDP period that began February 13, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. On May 28, 2009, Mr. Hart completed an IPAS evaluation that rated Respondent unsatisfactory overall and as to the following five categories: "Lesson Management", "Lesson Presentation", "Student Performance Evaluation", "Classroom Management", and "Behavior Management." Mr. Hart rated Respondent satisfactory as to the remaining five categories. Mr. Hart placed Respondent on a second PDP that extended into the 2009-10 school year. At the end of the 2008-09 school year, Mr. Luciani retired. Before the start of the 2009-10 school year, Ms. Peebles became principal of Ashe Middle School. Respondent failed to enter grades and other data for students during the first marking period of the 2009-10 school year. That failure hindered the assessment of each student's needs and made it more difficult to monitor each student's progress. On November 19, 2009, Ms. Peebles conducted an IPAS evaluation for Respondent as to the PDP Mr. Hart had placed her on at the end of the 2008-09 school year. Ms. Peebles found Respondent to be deficient in the same five categories as Mr. Hart's evaluation, and she rated Respondent's overall performance as unsatisfactory. During the PDP period that began May 28, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. After her evaluation of November 19, 2009, Ms. Peebles had the options of referring Respondent to the Office of Professional Standards for further proceedings or placing Respondent on another PDP. Ms. Peebles elected to place Respondent on another PDP (the last PDP) because Ms. Peebles was new to the school and she wanted to give Respondent another chance to prove herself. At the conclusion of the last PDP, Ms. Peebles conducted an IPAS evaluation, which was dated April 19, 2010. Respondent remained unsatisfactory in the same five categories as the previous evaluations by Ms. Peebles and Mr. Hart, and her overall evaluation remained unsatisfactory. Throughout her employment at Ashe Middle School, Respondent exhibited a pattern of being absent on Fridays and Mondays. Respondent failed to correct that deficiency after having been counseled by administrators. During the 2009-10 school year, Respondent repeatedly failed to timely provide or leave appropriate lessons after having been counseled by administrators to do so. Respondent was instructed to give her lesson plans to Ms. Brown, the Reading Coach and Reading Department Chairperson, during that school year. Respondent never provided Ms. Brown a complete set of lesson plans the entire year. During the 2009-10 school year, Respondent repeatedly failed to demonstrate that she could control her classroom. She made multiple calls to security on nearly a daily basis and she continued to kick students out of class, which left them in the hallways, unsupervised. The Benchmark Assessment Test (BAT) is a county created test that is administered twice a year in September and again in November. The test is designed to measure the progress, if any, the student has made between the testing dates. The test is also used as a predictor for the Florida Comprehensive Achievement Test (FCAT). The vast majority of Respondent's student's test scores depict either no growth or a regression in all classes. A Mini-BAT is an assessment tool used to develop and provide effective lesson plans as well as student growth. The teacher is responsible for administering the assessment tool to her students and thereafter inputting the results in the computer database. During the 2009-10 school year, approximately half of Respondent's students either were not tested or had no score inputted after being tested. The DAR Assessment is a two-part standardized test designed to measure a student's ability at word recognition and all reading frequency. The test is administered twice a year, once in September and again in January. Ms. Brown administered the tests at Ashe Middle School during the 2009-10 school year. Ms. Brown scored the tests and gave the score results to Respondent, who was required to input the scores in the computer database. The Florida Department of Education (DOE) requires that 90 percent of the students complete the tests, which gives a 10 percent leeway for students who are absent on test days. Students are placed in reading classes based on their test result. The tests also measure each student's progress, or lack thereof, between the test dates. Forty-five percent of Respondent's students had no scores. Nineteen percent of those with scores had no gain. Mock FCATs are periodically administered to students following Mini-BATs. The Mock FCATs administered to Respondent's students during the 2009-10 school year were created by Ms. Brown. Ms. Brown utilized previous iterations of the FCAT that had been released by DOE in an effort to simulate the actual FCAT process in terms of difficulty and complexity. The tests are graded by computer and the scores are given to the teacher to input into the computer database. The results of the Mock FCATs are used to develop instructional plans for students. Sixty-three of Respondent's 111 students (or 57 percent) had no score inputted in the computer database. Nine students who did receive a score made no progress between the dates of the two tests. School Board entered into a contract with a consulting firm named Evans Newton, Inc. (ENI) to assist schools in need of improvement. In 2009-10 school year, ENI provided an assessment test that teachers were to use to monitor students' progress. Respondent administered the assessment test to her class, gave the results to Ms. Brown to score, and recorded the scores in the computer database after receiving the scored results from Ms. Brown. More than 40 percent of Respondent's students had no score recorded for the assessment test. Ms. Brown testified, credibly, that she returned all scored results to Respondent. The lack of a score for over 40 percent of her class can only be explained by Respondent's failure to do her job. Respondent either did not administer the test to those students, she did not give the test results to Ms. Brown to score, or she did not input the scores in the computer database after receiving the results from Ms. Brown. The FCAT Reading Learning Gain is the document through which DOE reports test score results to school districts. During the 2009-10 school year, DOE required a 60 percent learning gain. Respondent's students did not achieve that goal during that school year. For three of the four years she taught at Ashe Middle School, Respondent's classes failed to achieve their FCAT goals. The administrators at Ashe Middle School followed all applicable procedures in formulating and implementing the PDPs and IPASs at issue in this proceeding. After her IPAS evaluation of April 19, 2010, Ms. Peebles referred Respondent's case to the Office of Professional Standards, which resulted in the termination proceedings at issue.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this May 23, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 23rd day of May, 2011.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of January, 2018.
