The Issue Whether it was proven by clear and convincing evidence that Respondent committed the offense(s) charged in Petitioner's Petition; and, if so, what discipline is appropriate.
Findings Of Fact The undersigned makes the following findings of relevant and material facts: Stipulated Facts During the 2014-15 school year, Respondent was employed as a teacher at Frontier Elementary School ("Frontier"). Respondent is an experienced teacher. Facts Established at the Hearing Petitioner is the duly-constituted school board of Palm Beach County, Florida. It is charged with the duty to provide a public education to the students of Palm Beach County and to establish policies and programs consistent with state law and rules that are necessary for the efficient operation and general improvement of the Palm Beach County district school system. Respondent was employed by Petitioner as a teacher in the Palm Beach County district school system for 16 years and has been teaching since 1996. At all relevant times, Respondent was employed at Frontier in Palm Beach County, Florida. Respondent previously taught second grade, third grade, and fifth grade in self-contained class settings. During the events relevant to this action, she was an English Language Learners (ELL) resource teacher to children in grades first through fifth. Her performance evaluations had been positive up until the events which are involved in this matter. The employment relationship between Petitioner and Respondent is subject to the terms and conditions of a collective bargaining agreement between Petitioner and the Classroom Teachers Association of Palm Beach County ("CTA"). Petitioner has alleged in its Petition that Respondent is guilty of the following violations of statute, School Board policies, or administrative rules: School Board Policies 0.01(2)(c) and (2)(d) Commitment to the Student, Principle I; School Board Policy 3.02(4)(a), (4)(d), (4)(e), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 5.002, Anti-Bullying and Harassment, Expectations; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff, School Board Policies; School Board Policy 3.27, Criteria for Suspension & Dismissal and Code of Ethics of the Education Profession in Florida; Article II, Section M of the CTA Collective Bargaining Agreement; Rule 6A-5.056, F.A.C., (2) Misconduct in Office; H. Rule 6A-5.056(4), F.A.C., of [sic] Ethics of the Education Profession in Florida; I. Rules 6A-10.081(3)(a) and (3)(e), F.A.C., Principles of Professional Conduct for the Education Profession in Florida. The facts underlying these alleged violations are outlined in paragraphs 8 through 12 of the Petition filed by the School Board dated March 2, 2016. See DOAH docket entry and Petition filed on March 2, 2016. Incident Involving Z.N. Z.N., a student of Respondent, was called by the School Board. On direct examination, he was unable to remember how he was treated by Turnbull when she was his teacher. Other than acknowledging that he remembered being pulled out of Petitioner's class, Z.N. articulated no credible, clear, or convincing testimony supporting any of the allegations lodged against Respondent regarding her interaction(s) with him. Z.N.'s mother, J.N., testified that Turnbull was her son's teacher when he previously attended H.L. Johnson Elementary School ("H.L. Johnson"). Z.N. would come home every day crying and seemed miserable in Respondent's class. These observations occurred when he was Respondent's student at that elementary school. He was moved to her class at Frontier on September 22, 2013. There were times when he attended her class at H.L. Johnson that he would come home from school and would be visibly shaking. He would throw up the night before school, and she would have to physically put him in the classroom while he would beg and scream not to stay. Prior to and after leaving her class, Z.N. did not exhibit those behaviors. She wrote a letter complaining to the principal about Respondent. His mother also testified that Z.N. has been diagnosed as having attention-deficit/hyperactivity disorder ("ADHD"). The mother observed that on days where he had to attend school with Respondent at H.L. Johnson, she noticed a big difference in his sleeping and his eating. His demeanor would change, and he became withdrawn. The mother of Z.N. did not personally observe any interaction between her son and Respondent in the classroom. The father of Z.N. testified as well. He recounted that his son did not want to attend school while he was previously in Respondent's class at H.L. Johnson. He would become upset, emotional, and withdrawn. His son "threw fits," broke down, and cried when he had to go to school. To investigate his son's disconcerting response, the father personally "observed" the class three times, from outside the door.1/ During one visit, he observed the class being somewhat reckless, and Respondent was trying to get her class under control. He heard Turnbull slam a book on the desk to get the attention of the class. He heard Petitioner use the "F bomb" on one occasion.2/ When Z.N. transferred out of Turnbull's class, he started doing very well, began to succeed, and started to come out of his shell. He began going to school with less of a problem. Like the mother, Z.N.'s father did not personally observe or witness any interaction between his son and Respondent. E.D. was a student in the same class with Z.N. and Respondent at H.L. Johnson. She testified that she found Respondent to be a great teacher, and she learned things in the class with her. She felt that Turnbull was very nice to other students and her. She never saw Turnbull pick on Z.N., or treat him in a way that she felt was unfair. On the other hand, E.D. testified that Z.N. was loud and disruptive in class. Z.N. caused problems in the class which prevented the class from moving forward. E.D. did not recall hearing Respondent yell at any students, other than perhaps once when the class was loud. She never saw or heard Z.N. cry in class. The testimony of E.D. was credible and gained from personal knowledge and actual observation of teacher/student interactions in the classroom. Turnbull testified about her involvement with Z.N. At some point in time, Z.N. eventually became her class student. He was bright, although he had a diagnosis of ADHD and had been prescribed medication, which he "took infrequently, at best." He acted out and was disruptive in class virtually every day. He was disruptive in different ways, sometimes calling out and sometimes making funny noises with his mouth. At times, he would bother the other children. The behavior of Z.N., combined with that of other students, was difficult and disruptive, preventing her class from moving along according to the curriculum. As a result, the class was falling behind the other classes academically. Respondent did yell at Z.N. but not as a first resort. She would first talk to him and ask him to stop. She tried different techniques with Z.N., but admitted that there could have been times when her voice got louder when she had to repeat the same thing to Z.N. six or seven times within a short time period. She has a loud voice, which some students can interpret as yelling, but that was not her intent. Until the time Z.N. left her classroom, she felt that the parents were supportive. The mother sent her emails thanking her partially for what she was doing for her son, including an email thanking her for easing his transition into her class. She felt compassion for Z.N. and believed that he could not control what he was doing, particularly when he was not regularly taking his prescribed medication. The more persuasive evidence is that Z.N. presented teaching problems and challenges to Respondent. He disliked going to school after he was assigned to Respondent's classroom, but the undersigned is not convinced that his reaction to school was based on any traumatic treatment by Respondent. Z.N. himself offered absolutely no evidence regarding any wrongdoing by Respondent. Based on this record, there was simply a lack of clear and convincing evidence to support the allegation(s) that Respondent violated any statute, policy, or rule regarding her interaction with Z.N. Incident Involving Student A.C. A.C. was called by the School Board. He was Turnbull's fifth-grade student at Frontier. A.C. is now 13 years old and in seventh grade. On direct examination, he testified that he liked having Respondent as his teacher. He also recounted that there was not a time he did not want her to be his teacher or a time he did not want to be taught by her. Inconsistently, however, he also testified that he talked to his parents about getting him out of Respondent's class because she was rude and he did not want to be in her class. After he was no longer in her class group, there came a time when Respondent wanted A.C. to return to her group. A.C. testified that Turnbull came to get him and took him outside to talk. She stood close to him outside in a hallway alcove. He said that he was scared and nervous because he did not like the idea of a teacher talking to him. However, Respondent did nothing else to make him feel uncomfortable while they were standing in the hall. Respondent was merely talking to him. A.C. testified that when he spoke with Respondent in the hallway, she told him how much she liked him. She was not yelling or rude to him. This same hallway discussion between Turnbull and A.C. was apparently observed by Jacquelyn Marie Smith, a ten-year teacher at Frontier. She testified that one day as she was walking down the hallway with a few students, she observed Respondent and A.C. in the alcove of a doorway outside a classroom, standing about eight inches apart. It appeared to her that Respondent was speaking to A.C. and reprimanding him for something. She observed the look on A.C.'s face and could tell that he was very uncomfortable. However, she did not hear anything said by either Respondent or the student. She assumed the student was being disciplined based on his body stance and facial expressions. She did not observe Respondent place her hands on A.C. in the hallway. She testified that she observed the situation for "maybe 10 seconds."3/ There was nothing about Respondent's demeanor, posture, or anything else that led her to believe that Respondent was angry or upset. She never observed A.C. crying during her brief observation of this hallway encounter. Another teacher, Rosa Cabrera, testified that as she was passing by, she also saw Respondent in the hallway with her finger pointed at "J," a second-grader. Respondent was crouched down in the student's face saying things which Cabrera could not hear. She had no idea what Respondent was saying to the child. She did not hear anything, although she passed very close to Respondent and the student. The two were talking in a tone lower than a typical conversational tone. Like Smith, Cabrera found the fact that Respondent was standing so close to the student to be improper.4/ Respondent testified that A.C. was removed from her group for a period of time. She understood that he had gone home one day and expressed to his father that he was upset because he felt that she did not like him or that she had been mean to him and he did not want to go back to her class. When he was removed from her teaching group, Turnbull became concerned about A.C. not being provided the teaching instructions he needed. It was unrebutted that she exchanged emails with the assistant principal expressing her concern for him and her desire to work with A.C. again. As a result of her request, she was directed by the assistant principal to work with A.C. again. Respondent decided to speak to A.C. first to be sure that he was comfortable with her. She asked A.C. to come out of his class into the hallway, and they spoke in the hallway alcove. The alcove was the width of the door and perhaps an additional six inches on either side. She did this so that their conversation would not be overheard by classmates, would not embarrass him, and to ensure that A.C.'s privacy would be protected. She stood close to A.C. because there was little room in the alcove and she could hear his voice. She wanted to speak quietly and gently to him so that she would be more reassuring to him.5/ Respondent told A.C. that she understood that he felt that she was angry at him for some reason. She told him that she wanted to reassure him that she was not angry with him. Respondent told A.C. that there had been some misunderstanding between them and she would like to try to clear it up. She asked him how he felt about coming back into her class group, and told him that they missed him because he was a great addition to it. By the time the conversation was over, A.C. was smiling. They shook hands and said that they would see each other in group later that day. A.C. came to her group later that day and had an excellent session, smiling more than he had before. At no time in her conversation with him was there any scolding, anger, or cross words used. The evidence from the student, A.C., did not support a finding of any violations by clear and convincing evidence. What he did recall, and testify to, did not amount to infractions by Respondent. Likewise, the fellow teachers' unfavorable conclusions about what they observed in the hallway alcove were based on brief observations and did not constitute clear or convincing evidence of any violations. Incident Regarding Marisa Madzi Respondent "pushed in" to the classroom of Marisa Madzi, a third-grade teacher at Frontier.6/ Madzi alleged that Respondent "corrected her" in front of the class, although Madzi could not recall specifically what the correction was about. She recalled that Respondent "chimed in," telling her that she was wrong about a point or topic she had been explaining to her class. Madzi felt that Respondent acted in an unprofessional manner and that if she had an issue, she thought she should have addressed it afterwards and not in front of the class. However, Respondent's statement in front of the class did not cause her to stop her teaching. Respondent previously complained to Madzi that Madzi was loud in the classroom when she taught and that it was interrupting Respondent while she was working with her small group.7/ Respondent explained the incident in a different way. She was working with her students when one of them shared with her his response to Madzi's explanation of the answer. The student explained to Turnbull that he did not understand why his answer was wrong. She looked at the question and could see where his confusion came from. Either Madzi walked over to her to determine what she was talking to the student about or Respondent gestured for her to come over. She told Madzi that "I explained it to him, but you may want to go further into explaining to him why that's the right answer." Madzi had a reaction to being called over by Turnbull and said, "Okay, I will take care of it." Madzi had a funny look on her face that made Respondent uncomfortable. Thinking that Madzi may have been upset by their interaction in class, Respondent sent her an email (Resp. Ex. 40), saying that she did not intend to step on Madzi's toes. The purpose of the email was to apologize for giving Madzi the impression that she was correcting her. Turnbull testified that during the entire time that Respondent worked at Frontier, Madzi never spoke to her to suggest that there was anything about her, her teaching style, or her dealings with her students that she was uncomfortable with. The undersigned finds that there was not clear or convincing evidence to conclude that the incident in Madzi's class constituted a violation of any statute, policy, or rule. Incident Involving Rose Cabrera Rose Cabrera has been a teacher at Frontier for 12 years. She was driving home from campus one day and felt that Respondent was driving behind her in an aggressive manner.8/ The next day Cabrera approached Respondent on campus and said that she was the one that Respondent was tailgating and yelling at. She claimed that Respondent immediately got upset and started yelling at her and telling her that she was unprofessional. Cabrera then walked away. The next work day, Respondent stopped Cabrera in the hallway and asked to talk. Cabrera claimed that Respondent told her that "there were two possible reasons why people tailgate; either they are crazy or they have a problem, like something's going on." Cabrera testified that she walked away; but, that Respondent continued to yell at her, saying that she was unprofessional and pointing her finger at her. No students or other employees were present at either of these encounters between Respondent and Cabrera, and none were called to testify about them. Turnbull testified that she recalled the incident. She was running late for an appointment and was driving in a rush. She did not recognize the person driving the car in front of her. The next day, as she left the mail room, a person whom she did not recognize was blocking her way. The woman began to berate her, stating that Respondent had been tailgating her, that she was crazy on the road, that the woman had recently had an accident and was very nervous on the road, and that Respondent should not have been doing what she did. Respondent "could not get a word in edgewise." Neither woman was shouting. Shortly thereafter, Respondent saw Cabrera in the hallway and asked to speak with her. She tried to explain to her that she was sorry if she had upset her on the road. The two were talking over each other, but Respondent tried to explain that if somebody is behind her or beeping or waving or tailgating, she usually just gets out of their way, as obviously they are in a hurry for some reason. Cabrera said that she did not want to talk to Respondent. She had upset her the other day and was upsetting her again, so she walked away. As Cabrera was walking away, Respondent told her she was being unprofessional because she was not allowing Respondent to reply to the accusation. They never spoke of the matter again. The off campus incident on the road and the follow-up discussions on campus do not support a violation of any statute, rule, or policy by clear and convincing evidence. There was no credible evidence presented to suggest that any students or other staff members were affected, and the dispute was in the nature of a personal disagreement between Turnbull and Cabrera. This conduct and personal encounter, while regrettable, did not rise to the level of a violation of a statute, policy, or rule by Respondent. Incident in Alyssia Liberati's classroom. Alyssia Liberati worked as a teacher at Frontier for approximately 15 years. Respondent was teaching two students at the back table in her classroom, while Liberati was teaching the main class a social studies lesson. Liberati asked her students a question and, when some raised their hands, Respondent inexplicably raised her hand as well. The students thought that was funny. Liberati did not find Respondent's action to be appropriate because she was asking the children the question, not Respondent. Liberati could not remember whether Respondent was working with her students on a separate matter or whether they were included as part of the social studies lesson. Respondent claims they were coordinating their work, and one of her students wanted to participate in Liberati's question. Turnbull further testified that when the class was asked this question by Liberati, one of Respondent's own students had the correct answer. She encouraged the student to raise his hand and answer Liberati's question. When he just smiled, she offered to raise her hand for him, and he agreed. When she raised her hand, Liberati called on her. When the student would not answer, despite her encouragement, Respondent announced the student's answer and attributed it to him. Liberati said nothing to her then or after class and did not chastise her in any way, then or later. Respondent testified that part of her job was to help the English for Speaker of Other Languages (ESOL) students acquire oral language and the ability to socially interact and participate. She wanted to show the student that he should not be afraid of participating. Liberati continued on with her class and never suggested to Respondent that by raising her hand and offering her student's answer, she had disturbed her class. Empty Classroom Incident with Alyssia Liberati On another occasion, Respondent went to Liberati's classroom to "push in" and found the classroom dark and empty. Respondent waited for approximately ten minutes, thinking that the students may have been out of the room for some reason and would be late getting back. When the class never appeared, Respondent left. She wrote an email to Liberati, asking that she be notified in the future if the class and teacher were not going to be in the room at her designated arrival time.9/ Pet. Ex. 12. Liberati testified that she received an email from Respondent that night, which she characterized as requesting that she let Respondent know next time in advance if she was not going to be in the classroom because her time is valuable, that she does not have much time to go from one classroom to the next, and that she had wasted her time trying to find out where her students were. She responded to the email late that night, explaining about her daughter. She found Respondent's email to be offensive and inappropriate. The next morning, Respondent read the late night email from Liberati and, for the first time, found out about Liberati's daughter's situation. She responded immediately to Liberati and explained that at the time that she wrote her email, she had not known that Liberati's absence had been due to a family emergency. She also inquired about the well-being of her daughter. Pet. Ex. 12. Respondent further wrote, "No offense was intended," and "[S]o I hope none was taken." She followed up by going to Liberati's room in the morning to ask her if she had seen her email from that morning. Liberati replied that she had not yet seen it. Respondent explained to her that had she known that Liberati's daughter was ill, she would have never sent the email. Respondent told Liberati that her daughter takes priority and that she inquired as to how her daughter was doing. Liberati testified that she was offended by the email and that Respondent did not have to send it. She felt that Respondent could have asked another teacher where her students were. Respondent tried to explain to her that she had been instructed not to knock on other teachers' doors for any reason, so she did not-–as she did not want to disturb other classes. Nonetheless, Liberati was very angry with her. During Respondent's follow-up about the second email the next morning, Liberati felt that Respondent was in her personal space and she felt uncomfortable. She noted that Respondent's tone was very rude and confrontational and felt Respondent should not be speaking to her like that in front of the children in the hall. However, Liberati acknowledged that Respondent expressed to her in one form or another that no offense was intended. Liberati's coworker, Tara Levine, saw Respondent come down the hallway the next morning in what she described as a fairly aggressive manner, at a fast pace and with an annoyed look on her face. Levine observed a conversation between Liberati and Respondent which she felt was "a little heated." However, Levine admitted that she could not remember the conversation or its tone. She felt it was necessary to remove students from the area, which was in the hallway just before school started. Levine testified that Respondent's finger was in Liberati's face, although she observed that Liberati is much taller than Respondent, who was standing very close to Liberati. Levine never reported the incident to any administrator. Based on an objective view of the facts involving Liberati's classroom hand-raising incident and their exchange of comments regarding the empty classroom incident, there is no clear and convincing evidence that these events constituted a violation of any statute or rule. Respondent was attempting to coach her student to raise his hand when he had the right answer, and then modeled the hand-raising for him. Rather than doing something improper, Respondent was serving her student in a manner that caused no problem to Liberati. While Liberati may have been taken back by this technique, it did not constitute a violation of any rule or policy. Likewise, there was nothing improper about the email written by Respondent, who did not know about the ill child. When she found out, she responded appropriately and with due concern for the child, explaining that she did not know of the circumstances. Although the undersigned credits the observation by Levine, the hallway confrontation between Liberati and Respondent does not rise to the level of clear and convincing evidence to support a violation of statute, policy, or rule. Incidents Involving J.B. Respondent taught in a class of students with Janet Vino, a teacher at Frontier. Vino testified that Respondent was very aggressive toward her student, J.B. Respondent would get "in his face," speaking loudly enough for the rest of the class to hear. While Vino conceded that there was nothing inappropriate about reprimanding a student who is having behavior issues, Respondent did so in a way that Vino could hear Respondent as she was teaching her lesson off to the side. Vino described Respondent's demeanor with J.B. as very loud, with her being very close to him and with her fingers pointing in his face. Vino said that Respondent on occasion would ask her in class whether she had issues with him too. On occasion, J.B. would hide in the bathroom to avoid going with Respondent. When he would come out to go with her, he would be sulking. J.B. was in the midst of a number of family and legal-related problems, and he also had discipline issues. Vino acknowledged that she was never trained to avoid pointing your finger and shaking it at a student or not to "get too close to a student." Respondent conceded that she had problems with J.B. He would not do his work and was disruptive. J.B. would do disruptive things, like crawl under the work table and lift it up with his shoulders, while she was working with the other students. J.B. spoke to her disrespectfully at times and would hold up the class by taking his time getting started and by not being ready when she would arrive to pick him up. Sometimes he would go in the bathroom and would not come out. The effect of J.B.'s behavior on her teaching was to limit the time that she had available to teach him and other students in his group. It often took ten minutes to get J.B. to the room and seated at the table, before they could even get started. His behavior interrupted the lessons that Respondent was trying to teach and interrupted the learning of the other students. Respondent sought help with J.B. from his teacher, Vino, and Assistant Principal Witt. Respondent sought help from Vino one time in her classroom, calling her to ask if she could come over and help with J.B. because he was refusing to work and instead was writing on the worktable with a crayon. Vino never complained to Respondent about her request for help but seemed unwilling to help her with J.B. As a result, Respondent did not seek her assistance again. Turnbull sent emails to the principal and the assistant principal concerning J.B. and his problems at school. Respondent felt that J.B. was a special child who came from a difficult situation and that people at the school should be working to help him. She wanted to keep the administration informed regarding her dealings with him and how he was doing with her. Resp. Exs. 10, 11, 12, 15, and 24. Respondent made efforts to try to work with and communicate with J.B., notwithstanding his behavioral issues. She tried speaking to him directly and told him that his behaving was keeping him from learning and preventing the other student from learning. Respondent testified that she liked J.B., and, as disruptive as he was, she felt a great deal of compassion for him. She understood his bad situation at home and knew that his family was split up among foster homes. She believed that his disruptive behavior was attention-seeking and that he was an angry boy. The undersigned finds that the more credible and persuasive evidence establishes that Respondent had trouble with J.B., who presented a formidable challenge to teach. This very likely would have been true for any teacher dealing with him. Respondent sought help from his teacher and the administration. The observations and concerns raised by Vino, while understandable, do not rise to the level of providing clear and convincing evidence of a violation of any statute, policy, or rule. Behavior Observed by Principal Susan Groth Susan Groth has been the principal at Frontier for six years. She felt that the collegial and helpful climate at her school changed after Respondent came to the school. While offering no causal or underlying link to Respondent, Groth claimed that teachers became more reserved, no longer left their doors open in the morning, and had fewer interactions with one another. She claimed that this collegial atmosphere changed with Respondent's arrival.10/ Groth claimed to have personally witnessed that after certain encounters with Respondent, Community Language Facilitator Melady Roque would be shaken and crying.11/ Groth personally encountered combative behavior from Turnbull when she would try to have conversations with her. She also started to receive complaints from other teachers about Turnbull.12/ In response, she offered Respondent different training opportunities, which Respondent attended. Groth provided Respondent with two mentors for advice because she was new to the "push in" and "pull out" class system at Frontier. Groth was made aware of issues involving Respondent from other teachers within her first three weeks at the school. She received reports about Respondent concerning intimidation, humiliation, interruptions, unprofessionalism, and Respondent being very defensive.13/ However, she did not witness those encounters or behaviors herself. She noted that Respondent was defensive when she would provide constructive feedback to her. During one of her classroom observations of Respondent at work, a student misread certain sight words. Respondent nonetheless praised his work. Groth addressed the matter with her. She felt that Respondent's response to her counseling was very defensive. Subsequently, Groth gave a written observation report to Respondent. Respondent disagreed with several observation points made by Groth. She provided Groth with a written explanation setting forth her rebuttal and verbally defended her position.14/ Despite this, when Groth provided her with helpful resources and training to review, Respondent participated. However, Groth felt that Respondent did not accept her criticism very well. The issues that Groth had with Respondent were becoming less serious as time went on. It appeared to Groth that by January of Respondent's first year at Frontier, Respondent was beginning to properly adjust to the school environment and personnel. However, shortly thereafter, during an investigative meeting with Turnbull, Groth confronted Respondent with the names of several teachers that had complained about Respondent's behavior.15/ During the meeting, Turnbull had a pad of paper out and was bearing down hard and writing every time a new name of a witness was disclosed by Groth. At one point, she threw down her pencil on the table in frustration and stated, "This is horse shit." She did not throw the pencil at any person, nor did Groth think that it was her intent to do so. Respondent's union representative, at one point, had to calm her down because Respondent's arms were flailing, and she was explosive. Respondent used profanity during the meeting.16/ Despite Turnbull's actions, the process went on to completion. Neither Respondent nor her union representative ever asked for the meeting to be adjourned. Respondent's actions during that meeting were documented.17/ Pet. Ex. 11. Turnbull provided her version of this investigatory meeting with Groth. She received notification that an incident involving A.C. was being investigated. The notice of the meeting advised her that there was going to be an inquiry into an incident regarding A.C. At the meeting, other matters, unrelated to A.C., were brought up by the principal. Respondent objected to the other matters being raised. She felt that she had been "blindsided" and was being treated unfairly by consideration of matters that were not part of the official notice to her. Respondent became upset and started crying because these issues were statements made against her by colleagues, and she did not know so many people were upset with her. She testified that none of her colleagues ever approached her about any of these complaints or issues. She thought that the meeting was called to discuss one specific incident regarding one specific child. She was overwhelmed when she learned that there were so many complaints against her by teachers who had never said anything to her. Respondent was completely unaware that the statements from other teachers had even been taken. She admitted she felt betrayed and was extremely upset, stunned, and shocked. She did not threaten any person and did not confront any of the complaining teachers or staff members. Groth claimed to be worried about the safety and security of her staff and students, because of Respondent's profanity, emotional state, and explosive behavior at the meeting. Groth worried about Respondent "going after" one of the people on the list of witnesses announced at the meeting. After the meeting, Respondent was escorted off the campus without incident. Groth's belief that the mood at her school changed after Respondent arrived, without her own specific observations of conduct by Respondent, is nonetheless credited. However, her "sense" of an atmospheric change falls short of clear and convincing evidence of a violation of a policy or rule by Respondent. While Groth had the responsibility to observe and evaluate Respondent's performance, Respondent had the right to professionally and respectfully defend that performance in the observation conference. The manner of her evaluation performance defense does not violate any statutory policy or rule. However, the undersigned finds that Respondent's use of profanity and her unrestrained and explosive conduct, at the investigative meeting, were inappropriate and insubordinate. Petitioner provided sufficient and credible evidence to prove a violation of the rules and policies by clear and convincing evidence regarding her actions and conduct during this investigatory meeting with Groth. Other Relevant Events and Testimony From Respondent Aside from teachers who claimed difficulties or hostile encounters with Respondent, there were also teachers and colleagues who complimented her work and teaching methods. Janine Brockelbank has been a "push in" teacher at Frontier since 2003, like Turnbull. When she worked together in the room, she did not observe any problems with Turnbull. She observed Respondent working with Lisa Caprio's students, and the interaction seemed positive and professional to her. Turnbull often spoke closely and quietly to children in consideration of the privacy of the children and to prevent embarrassment. Brockelbank also stated that Respondent was cooperative and collaborative when they compared lesson plans with one another. Caprio taught at Frontier since it opened in 2001. She found Respondent to be on time and was always prepared to work with students. She promptly got started with the students and seemed to be ready to work with them. Caprio never had any issues with Respondent in her classroom. Caprio stated she did not find any issues with a teacher interrupting her lesson for assistance with a student. In her view, it was appropriate for a "push in" teacher to ask for her help with a student. Jennifer Eddy taught at Frontier for 13 years. Eddy observed Respondent work with her students. There was nothing that Respondent did while she was teaching in the same room that disturbed her or kept her from doing her job, nor caused her concern for the well-being of Eddy's students while they were taught by Respondent. Eddy thought that Respondent's one-on-one instruction seemed appropriate, collaborative, positive, helpful, and beneficial to the students. Catherine Burda is a 14-year veteran teacher at Frontier. She observed Respondent work hard and well with one of her students and felt she learned a lot from Respondent. Respondent had a good relationship with her students and came prepared each day. Burda wrote a positive and praising email to the principal regarding Respondent's work. Resp. Ex. 16. Burda appreciated that Respondent always spoke honestly and freely with her. Karen Lundgren worked with Respondent at H.L. Johnson and considered her to be a good colleague. Lundgren worked closely with Respondent, who was cooperative, collegial, and friendly. Respondent got along with students and taught them well. She acted professional and caring towards both students and colleagues. Smyrna Daumec, an 18-year teacher, taught with Respondent at H.L. Johnson. She found Respondent to be a good colleague because Respondent would contribute ideas on how they could work together and they shared lesson plans. Notably, she witnessed Respondent having professional disagreements with colleagues, but none of those professional disagreements adversely impacted her ability to teach. Respondent knew the material that she was teaching and was a cooperative coworker. Respondent was kind to the students and not belittling or mean. Parent S.S. had a daughter in Respondent's third- grade, gifted math class at H.L. Johnson. Her child learned and made progress in Respondent's class. Respondent remains her favorite teacher to this day. Her child learned and achieved in Respondent's class. Respondent consistently kept S.S. updated on her child's progress through email or notes in the agenda. S.S. never had any problems with Respondent, and her daughter had a good year of school when she was with Turnbull. She observed that Respondent interacted warmly with students and parents and acted very friendly and cheerful. Parent C.B. knew Respondent as a teacher for her two children at H.L. Johnson. When her children had Respondent as a teacher, they never acted or manifested a desire not to go to school. Respondent kept her updated on her children's progress, and she had open communication with Respondent while she was the teacher for both of her children. She found Respondent to be volunteering and helpful. She saw Respondent interact with other children in addition to her own when she was on campus and did not observe anything that was negative in those interactions. Her children had good years in school when they were in Respondent's class and seemed happy with her as a teacher, despite Respondent being a strict teacher. As a parent, C.B. was very happy with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order withdrawing the proposed five-day suspension and issuing instead a letter of reprimand to Respondent regarding her conduct during the investigatory interview with her school principal. DONE AND ENTERED this 9th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2017.
The Issue The ultimate issue for determination at the formal hearing was whether Respondent's teaching certificate should be revoked for violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e), as more fully described in the Administrative Complaint.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a substitute teacher pursuant to certificate number 479861 from the State of Florida Department of Education. Respondent's teaching certificate expires on June 30, 1991. Respondent had approximately 10 years experience as a substitute teacher in Dade and Broward counties. He never received an evaluation less than satisfactory and never received a written reprimand during his 10 years of employment as a substitute teacher. Respondent never achieved annual or continuing contract status with any school board in Florida. Respondent was a permanent substitute teacher in physical education during the 1988-1989 school year. His teaching responsibilities were divided between Natural Bridge Elementary and Biscayne Gardens Elementary. Respondent also worked as an actor and had appeared in at least one episode of the television program "Miami Vice". One of Respondent's students at Biscayne Elementary was Omar de Jesus. Omar was in the sixth grade at the time. Racquel de Jesus, Omar's younger sister, was in the fifth grade at Biscayne Elementary but was not one of Respondent's students. Judy Aulet is the mother of Omar and Racquel. Mrs. Aulet and her children lived approximately two blocks from Biscayne Elementary. They moved to Florida after the school year began. Omar and Racquel began attending Biscayne Elementary sometime in October, 1989. Neither Omar, Racquel, nor Mrs. Aulet knew that Respondent was an actor. Respondent approached Omar approximately two to three weeks after Omar began attending school in October, 1989. Respondent told Omar that Respondent had noticed Omar's mother the first day Omar started school and that Omar's mother was very pretty. Respondent asked about Omar's mother during class on several subsequent occasions, asked Omar for his mother's telephone number and address so Respondent could talk to her, and generally engaged Omar in extended conversations about Omar's mother. On one occasion, Respondent told Omar that Respondent had obtained the address and telephone number of Omar's mother through the school records and was coming over for dinner that evening. Omar was alarmed at Respondent's apparent preoccupation with his mother and was embarrassed by Respondent's repeated comments and inquiries. Omar disclosed the problem to his mother. When Respondent told Omar that he was coming over for dinner, Omar disclosed the situation to his mother. At that time, Omar discovered that Respondent had also been talking to Omar's sister, had given a picture of himself to Racquel, and had asked her to take the picture to her mother. Racquel was first approached by Respondent during physical education class one day. Racquel accompanied two of her friends over to where Respondent was teaching another physical education class. After the two friends left, Respondent told Racquel that her mother was very pretty. The next Monday during Racquel's lunch break, Respondent asked Racquel if her mother was going out with anyone or if she had a husband. Approximately two to three days later after school, Respondent gave Racquel a picture of himself and told Racquel to give it to her mother. Racquel did not want Respondent to go out with her mother and was concerned over the situation. Racquel was afraid that Respondent would get mad if Racquel told Respondent that her mother did not want to go out with him. Racquel was also afraid to tell her brother for fear her brother would get mad at Respondent. After Racquel disclosed the situation to her mother, Racquel was concerned enough to telephone her father in New York for advice. /1 One day during his physical education class, Omar accused Respondent of cheating in-favor of the girls' team when Respondent was refereeing a game between the boys and girls. Omar and Respondent began arguing. Omar told Respondent that he was going to get Respondent fired for confronting Omar and his sister about their mother and that a detective was coming to school to investigate the matter. Respondent grabbed Omar by the arm, shook him, called Omar a "motherfucker", and threatened Omar. Respondent told Omar that if he was fired over this he would "come after" Omar. Omar had a disciplinary history involving failure to listen, inattentiveness, and "mouthing off" at teachers. Omar was sent to the principal's office many times by other teachers. Omar accused Respondent of cheating in favor of the girls team whenever Respondent refereed games between the girls and boys. Omar called Respondent a "cheat" to Respondent's face on more that one occasion. Respondent never sent Omar to the principal's office for discipline. Respondent awarded Omar a grade of B in physical education and a C in conduct. The altercation between Omar and Respondent occurred approximately two to three weeks after Omar and Racquel had disclosed the situation to their mother. At the time of that disclosure, Mrs. Aulet had put Respondent's picture in a drawer and told her children she would report the matter to the school. She told her children not to confront Respondent with the issue. Mrs. Aulet did not know Respondent and had never communicated with him or met him. Mrs. Aulet reported the incident to Dr. Jolivette, the school's principal, after the altercation between Omar and Respondent. Dr. Jolivette questioned Respondent and verbally reprimanded Respondent. Dr. Jolivette requested an investigation, and the matter was investigated by a detective. Respondent was suspended from his employment and remained suspended at the time of the formal hearing. Respondent's actions subjected Omar and Racquel to unnecessary embarrassment. The conditions both children were subjected to were harmful to learning. Respondent demonstrated extremely poor judgment in his course of conduct. He used Omar and Racquel in an attempt to attain personal gain outside the scope of his employment. Respondent's actions and course of misconduct were serious in their nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e). It is further recommended that Respondent's teaching certificate be revoked for a period of three years from the date of the final order in this proceeding. DONE and ENTERED this 4th of September 1990, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September 1990.
The Issue The issue to be resolved in this proceeding concerns whether the Leon County School District has just cause, as defined in Section 1012.34(3)(d), Florida Statutes (2006), to end the Respondent's tenured employment as a teacher, due to allegedly deficient performance.
Findings Of Fact The Respondent, Mr. Waters, has worked as a Special Education Teacher in Leon County for approximately 13 years. He most recently has worked in the field of Special Education at Oakridge Elementary School (Oakridge), starting in the school year 2001-2002 and ending in December 2005. Mr. Waters is married and has two children by a former wife, with whom he shares custody of his children. He has volunteered for 18 years as a Troop Leader for a troop of disabled Boy Scouts in Tallahassee. He has been recognized for those efforts by being the recipient of the Tallahassee Memorial Hospital Foundation's "everyday hero" award. He has also been a finalist for the Tallahassee area "volunteer of the year award" in 2005. When Mr. Waters was hired at Oakridge Elementary School he was interviewed by the head ESE teacher or "team leader", Donna George. He was chosen for the available position from three or four final applicants, based upon her favorable view of the qualities he could bring to the position, which she still believes to be the case. During the 2001-2002 school year the principal at Oakridge was Michelle Crosby. Ms. Hodgetta Huckaby was the Assistant Principal. Sometime during that school year Mr. Waters encountered a problem involving two of his students being engaged in an after school fight. He apparently referred the students for discipline to the Assistant Principal, Ms. Huckaby, and she sent the students back to his class. He disagreed with this disciplinary decision and appealed the matter to the principal, Ms. Crosby. Ms. Crosby resolved the disciplinary matter in favor of Mr. Waters' position. Ms. Huckaby thereupon called Mr. Waters to her office to upbraid him and express her anger at his having "gone over her head." After a heated exchange between the two she told the Respondent to "never come back into my office for any reason." Thereafter, for the remainder of his tenure at Oakridge their relationship was very strained, especially during the time Ms. Huckaby was Principal, which began at the beginning of the following year, the 2002-2003 school year, after Ms. Crosby left Oakridge and was replaced by Ms. Huckaby. In order to replace Ms. Huckaby's vacant former position as assistant principal, the District assigned Kim McFarland as the new assistant principal in the fall of 2002. Prior coming to the assistant principalship at Oakridge, Ms. McFarland had served as a fifth grade regular classroom teacher for 10 years in the District. She had no prior administrative experience and had no experience in Exceptional Student Education. Her degree field is in the area of elementary education. After the events at issue in this case, Ms. McFarland left Oakridge, on July 1, 2006, to become the assistant principal at Swiftcreek Middle School. Ms. Huckaby and Ms. McFarland jointly performed the annual evaluation of the Respondent for the 2002-2003 school year. They used the "Accomplished Teacher Performance Feed Back Summary Form." Mr. Waters's overall rating for that year was "at expectancy level." Ms. McFarland wrote several positive comments concerning his performance on that document, but he also received ratings of "below expectancy" in two areas, teacher performance improvement and professional development. Also, in the Spring of 2003, Ms. McFarland observed his class on or about April 23, 2003. She was positive about that evaluation and wrote Mr. Waters a note wherein she indicated that he had "presented a great lesson" and that his students were engaged and on task. She praised him for monitoring student behavior using a behavior management point system and found his room "exciting" because he displayed a great deal of students work on the walls. In the 2003-2004 school year, specifically in November 2003, Ms. McFarland informed Mr. Waters that his lesson plans were not adequate because he was failing to incorporate a new component which required that notations of student remedial reading levels be made, represented by "lower case" roman numerals. She required him to submit his lesson plans to be reviewed each Monday while he was seeking to improve his lesson plans. Thereafter, on April 26, 2004, Ms. McFarland notified the Respondent that he had satisfactorily complied with lesson plan requirements and no longer needed to submit lesson plans for review each Monday. She also emphasized in that letter of April 26, 2004, that he should adhere to his lesson plans, as prepared, in his teaching presentation to the extent possible, so that when administrators observed his room they would be able to determine exactly what he was performing at the time simply by looking at his lesson plan book. In the meantime, Mr. Waters was given an improvement notice on February 20, 2004, by Ms. McFarland. This was because of her concern that he was not fully cooperating with procedures and recommendations concerning behavior management; recommendations made by behavior management consultants on contract with the School Board. Those consultants were working with him and his emotionally handicapped (EH) student class at that time. During their meetings and contacts with Mr. Waters and his EH student class that year he had exhibited a good level of agreement and cooperation with their recommendations to him regarding changes in behavior management methodologies for his class, but the consultant, Dr. Adams, perceived that he was slow or reluctant to actually carry them out. Later in the spring of that school year, Dr. Adams took Mr. Waters on a tour at Kate Sullivan Elementary and another school, to observe how behavior management models or methodologies were employed in EH classes at those schools and which Dr. Adams opined he was later reluctant to implement in his own class. They communicated these concerns about his perceived intransigence in changing his behavioral management style or methodology to the administration at Oakridge, which resulted in the February 20, 2004, improvement notice from Ms. McFarland. Significantly, however, Ms. Haff, in her observations of the Respondent's performance during the following school year found that he had received the higher level of training in the "Champs program" concerning behavioral management, and had been and was successfully implementing it in his class and with his students to a great degree, although, of necessity, adapting it to the needs of his students and his role then as a resource teacher, rather than as a discrete EH classroom teacher during the following 2004-2005 school year. Ms. Huckaby changed his assignment from duty as a direct class EH teacher to that of "resource teacher" after the 2003-2004 school year. Mr. Waters had a meeting with Ms. McFarland on February 20, 2004, to discuss that improvement notice, and her concerns that he was not fully cooperating with the recommendations of the behavior management consultants in terms of not carrying out their recommendations. During the course of that meeting she stated, "You know its not me that’s behind this" implying to him that Ms. Huckaby was actually the instigator of the improvement notice concerning this subject matter. Apparently Mr. Waters contacted union officials for the Leon County Teachers Association (LCTA) complaining that the improvement notice was too general and did not specifically point out what must be done to correct the perceived problem. In response to those concerns, in part, Ms. McFarland issued a subsequent improvement notice on April 27, 2004, with a few more specific expectations and which updated the status of Mr. Waters's efforts to address the concerns raised in the February 20th revised improvement notice. Ms. McFarland observed Mr. Waters' class on March 11 and March 16 and did a "part A" teacher's assessment document for each observation. Mr. Waters was due to be evaluated using the Accomplished Teacher Summary Form for 2003-2004 and so the assessment part A form was not required to be completed for him. Nonetheless, Ms. McFarland told Mr. Waters that these were really informal observations and she was completing these observation forms in order to get some practice using them since it was her first year as an administrator, formally observing and evaluating teachers independent of Ms. Huckaby. The Respondent did not get a copy of these assessment part A documents until June of that year and did not get an opportunity to discuss them with Ms. McFarland. Ms. McFarland also completed the Accomplished Teacher Feedback Summary Form for the 2003-2004 school year. That form states that overall assessments must be satisfactory if all the required areas are completed. Ms. McFarland described Waters' performance unfavorably in the "comments" section of the form and gave him an overall performance rating of "below expectancy level." He received this Accomplished Teacher Summary Form rating document on or about September 22, 2004. During the month of October he inquired of Ms. McFarland, union officials, and school district officials concerning the meaning of his overall "below expectancy" rating for the 2003-2004 school year. Apparently an attorney for the school district informed him that the evaluation was considered satisfactory on the Accomplished Teachers Summary Form, unless school administrators produced an evaluation document that indicated an overall "needs improvement" rating. Ms. McFarland had informed him that the Accomplished Teacher document reflecting the below expectancy rating was his only official evaluation. Although Mr. Waters received confirmation that the use of the Accomplished Teachers Summary Form rendered his 2003-2004 evaluation to be automatically a satisfactory one, it is also clear that Ms. McFarland intended to give him the below expectancy rating and for some reason mistakenly used the wrong form and procedure. During October 2004 the Respondent met with Ms. Huckaby to discuss some matter unrelated to his performance rating. During the course of that meeting, at which only Ms. Huckaby and the Respondent were present, Ms. Huckaby became angry at the Respondent and engaged in a tirade, calling him "the worst teacher she had ever seen, as well as making other unprofessional comments." Mr. Waters then stated to the effect that he did not think he was such a bad teacher since he had consistently received satisfactory evaluations. Ms. Huckaby then indicated that she felt he had received a needs improvement evaluation for the 2003-2004 school year, to which Mr. Waters retorted that based upon the Accomplished Teachers Summary Form being used his evaluation was deemed to be satisfactory overall. Ms. Huckaby then angrily threatened him with an unsatisfactory evaluation for the upcoming 2004-2005 school year. Only a week or two elapsed after this meeting and comment by Ms. Huckaby when, at Ms. Huckaby's behest, Mr. Waters inclusion class was changed to a "pull-out reading group," meaning that he then had to work with a new reading curriculum and plan his own reading lessons using that curriculum instead of relying upon and carrying out the regular classroom teacher's daily lesson plan reading goals, which had been the program he had been instructed to perform previously. Ms. Eydie Sands was dispatched by Ms. Huckaby to observe Mr. Waters' reading class and made critical observations during follow-up meetings with Mr. Waters and Ms. Huckaby; the team-taught writing group jointly taught by Mr. Waters and Ms. Wacksman, which had worked well in rendering progress to the students in writing, was abruptly separated into two sections by Ms. Huckaby with no explanation or apparent reason; thereafter on approximately November 6, 2004, Ms. Huckaby gave Mr. Waters a lengthy letter of harsh criticism as to almost all aspects of his teaching performance and directed him to immediately comply with 13 directives contained in the letter. Additionally, Mr. Waters' 2004-2005 school year resource teacher schedule was changed five times, adding further confusion to an already difficult year, which started with a new classroom assignment. The new room was piled high with boxes of materials for many teachers and classrooms other than his own. This circumstance required him to spend his entire pre-planning time moving and clearing out his newly assigned room so that he could use it. Significant changes and requirements were imposed for lesson plans, student progress monitoring requirements, and the new A3 computerized IEP technology, as well as a substantially increased amount of related paperwork burdens placed upon all teachers at the school, including Mr. Waters, through Ms. Huckaby's policy directives. One directive in the November 6, 2004, letter from Ms. Huckaby required Mr. Waters to again submit weekly lesson plans to school administrators by 8:00 a.m. every Monday morning. The normal procedure provided for having lesson plans to be examined from time to time, after advance administration notice to the faculty of their lesson plan review dates. Despite lesson plan component changes made unilaterally by the administration in both the 2004-2005 and 2005-2006 school years which added several time-consuming, ill-defined requirements to the previous less formal structure for lesson plans, the Respondent's lesson plans during those years remained detailed and organized when compared to those of his fellow special education teachers who apparently were deemed to have performed this task appropriately. In carrying out this instruction Mr. Waters tried to obtain model lesson plans and to incorporate the new requirements into his plans. They were consistently unacceptable to Ms. Huckaby, however, and ultimately cited as one of the reasons for his termination recommendation. Similar, and even less detailed lesson plans of his colleagues that had been found acceptable, were not reviewed or remained the same even after administrators provided plan improvement instructions, without those teachers being subjected to discipline therefor. In an effort to comply with the directive concerning his lesson plans and because the new lesson plan components imposed were difficult to understand and reasonably apply, especially for an ESE teacher and students, Mr. Waters sought to obtain model plans and lesson plan advice, but received little or no meaningful help. His mentor teacher assigned for 2004-2005, Michelle Smith, did not respond to his request for samples of her lesson plans. The Oakridge administration gave him only limited excerpts of two teachers' lesson plans for 2004-2005, which were confusing and did not themselves comply with the new lesson plan format imposed that year. In the 2005-2006 year the Respondent was not asked to submit lesson plans on a weekly basis and received no assistance with lesson plans until Ms. Palazesi, who was observing his class or classes that fall, in early November, wrote a model lesson plan, adapted from one of his actual lessons. Ms. Palezesi, however, was not aware of the lesson plan requirements in place at Oakridge then, and even her lengthy lesson plan sample, for just one class period, did not meet all of Oakridge's lesson plan criteria imposed for 2005-2006. It is noteworthy that the lesson plans for 2004-2005 and 2005-2006 of teacher Charles Robshaw, also a resource teacher for Special Ed at Oakridge clearly do not comply with the lesson plan requirements. This fact serves to corroborate the Respondent's contention that only he was held strictly accountable for the administration's excessively detailed and to some extent non-germane lesson plan requirements. In both pertinent school years the Respondent was deemed deficient by Ms. Huckaby and Ms. McFarland in terms of timely or fully complying with student progress monitoring test data compilation requirements. The Respondent did keep abreast of his students daily classroom progress and maintained files on their work and test papers. In the 2004-2005 school year, however, in the early part of the year (September thorough mid- November) he encountered problems in timely complying with submitting the "cover sheet" student progress test data information as part of the curriculum notebook he was required to supply the administration, through the mechanism of either monthly or bi-weekly progress monitoring meetings between teachers and the administration. He was given a needs improvement notice as to this issue, and as the year progressed, he complied with these requirements. In the 2005-2006 school year he inadvertently missed the initial progress monitoring meeting because he became confused as to when his fourth grade team was supposed to meet for the progress monitoring session and he candidly admitted that was his own mistake. Ms. McFarland did not criticize him for that, but simply reminded him that he had missed the meeting. A subsequent meeting early in the fall of 2005 was scheduled with Ms. McFarland and he did attend with his notebook (or other required data) for a 3:00 p.m. meeting. He had an pre-existing appointment after school at 3:30, which he could not miss, and he informed Ms. McFarland of that fact. She excused him from the meeting. After those two early progress monitoring meeting discrepancies in September 2005, however, the Respondent complied with his progress monitoring requirements and those issues were not again raised with him, until raised as one of the reasons in Ms. Huckaby's final decision in late December 2005 as to why she recommended his termination. Significantly, the school administration only checked to see that teachers other than Mr. Waters had completed similar student data compilations only once or twice early in each school year. Subsequently, each year the administration was less interested in actually inspecting such data and course test score charts plotted on spread sheets/graphs by most teachers. In neither of the two school years in question was Mr. Waters given a full planning period or a week after students arrived to prepare for his resource assignment ESE students. These are privileges which were customarily given to resource teachers in prior years. Despite the meager planning time he was accorded on the administrator's schedule, in reality he lost significant valuable planning time by escorting students to and from classes and due to his morning duties. Adequate planning time is crucial to the work of special education teachers, particularly if one is deemed to be struggling with lesson planning, IEP preparation and timeliness issues, and related A3 IEP technology time demands. The Respondent asked for schedule changes to improve his ability to meet the new administration demands, as, for instance, to allow time during the day to input IEP requirements into the A3 system to prepare IEP documents, instead of at the end of the school day when all the ESE teachers were on the A3 system, which slowed it down drastically. Ms. Huckaby, however, never agreed to provide such schedule changes so that he could more efficiently use his planning time. Indeed, in the 2005-2006 school year, Ms. Huckaby scheduled Mr. Waters to spend 26.25 hours teaching students each week which is more than the 25 hour per week maximum teaching time provided by the collective bargaining agreement while still providing him less than a full class period of uninterrupted planning time. Sometime in the 2003-2004 school year the system for generating individual education plans (IEP) changed from paper IEPs or the so called "gibco" IEP system (apparently a school based software operated system) to a district-wide computer net system called the "A3 IEP." This was a difficult system to learn and to use in completing IEP's without mistakes in the first effort. The District made training available in 2004, particularly in the summer of 2004 and subsequently. It can take as much as three hours to create IEP's "from scratch" on the A3 system and to input all the necessary student demographic and test score history data to upgrade a previously hand-written or gibco-generated IEP in converting it to an A3 IEP. This is especially so for newly trained or partially trained teachers. Complicating these time constraints were the Respondent's limited planning time, with competing meetings being held in the conference room area where cumulative ("cume") folders were housed at Oakridge, which are necessary to the student data research required to generate the IEP's. Thus teacher access to the demographic and testing information needed for IEP completion was somewhat restricted at times. Moreover, Mr. Waters had his only significant block of continuous planning time, when he could work on IEP's, immediately after school. This is the time of day when the A3 IEP computer network operates very slowly because most of the ESE teachers in the entire district are attempting to use it immediately after school hours. These factors are part of the reasons Mr. Waters in the Spring of 2004 had an occasion when IEP's were prepared somewhat late and computer-generated progress reports on one occasion were submitted several days late. It is also true that the Respondent and Ms. Wacksman were not formally trained on the A3 system until late January 2005. This delay in receiving the A3 system training appears to have been due to both the Respondent's and Ms. Wackman's delay in seeking the training and the district's and the school's inattention to scheduling the training sessions. With regard to the occasion testified to by Ms. Petrick concerning his late preparation of, or need to correct mistakes in some IEPs, the Respondent established that he immediately corrected the minor mistakes in several of the IEPs he prepared and that, when Ms. Petrick contacted him about the need for him to make corrections, in several instances the corrections had already been made on the original IEP in question but had not gotten corrected on her copy. Moreover, four or five of the students who had to have corrected IEPs, or whose IEPs were submitted slightly late were students who the Respondent himself had identified to his administration as being wrongly placed by the administration. The students were supposed to have been in a fourth grade level program and instead were in a first or second grade level program. This necessitated re-constituting their IEPs. The Respondent, after alerting the administration to its error also completed the new IEPs on these students. In any event, it is true that Mr. Waters could have begun sooner and more timely prepared the IEPs involved and the same is true of the occasion when the somewhat late progress reports caused his reprimand by Ms. McFarland. It is also true, however, that the requirement of using the cumbersome A3 system to prepare IEPs, more particularly the lack of adequate usable planning time, and the somewhat chaotic effects of five schedule changes during that school year imposed by Ms. Huckaby also contributed to the issue encountered near the end of that year concerning timeliness and corrected IEPs. Although the Respondent received less than satisfactory evaluation ratings as to professionalism and ethics because of the issue regarding delays and mistakes in the IEPs described above, these were a small number of occurrences, concerning very few students, at one particular period of time in the school year. They did not cause any delay or other adverse effect in the provision of ESE services to students nor the loss of any federal, state, or other special education funds, or adverse effects on the school's rating. Moreover, this aspect of Mr. Waters' performance improved after this occasion. Ms. Huckaby and Ms. McFarland made significant changes in required lesson plan and progress monitoring formats, and student progress charting. These requirements were considerably more time demanding and were accompanied by rigid reliance on upgraded, scripted reading and standardized math curricula with the advent of the 2005-2006 school year. These new requirements were to be applied by all ESE teachers for their students. Ms. Huckaby imposed a severely time-constrained, scripted reading curriculum for Mr. Waters' class and also a mandatory new vocabulary program that took up to 15 minutes more of his reading class time block each day. She also required an additional fluency probe-recording requirement to be carried out weekly in all reading classes, including Mr. Waters', which required an average time for completion of five minutes per student. Mr. Waters' reading mastery (RM) curriculum required class time scheduled during the first ninety minutes of his day in the 2005-2006 year. This was clearly impossible to carry out and remain consistent with the RM program's lesson sequence requirements, particularly with the addition of the fluency probe and vocabulary project requirements that Mr. Waters and all teachers were required to include in their reading classes that year. In fact, the reading mastery schedule for Mr. Waters was impossible to carry out within the allotted time period, even when one was not additionally delivering the required vocabulary project lesson and doing the reading probe requirement. In this regard one of the individuals asked to assist Mr. Waters in the 2005-2006 school year was Donna Haff, of the FDLRS staff. Ms. Haff, in working with Mr. Waters, tried to develop a better means for him to address the RM scheduling problem. She began that effort by "model teaching" his scripted RM classes in order to better understand his problem. This means that she simply tried to teach the RM class herself to see if it could be done within the mandatory curriculum and time period in which Mr. Waters was required to do it. Despite her extensive experience and familiarity with RM curriculum and her experience teaching it as a trainer for teachers, Ms. Haff was unable to complete the RM lesson in the time allotted to Mr. Waters, even without performing the mandatory new vocabulary program or any reading fluency probe requirements. She concluded that his RM schedule could not reasonably be carried out. She informed Ms. Huckaby of that conclusion. Ms. Huckaby expressed her frustration to Ms. Haff concerning this problem by asking, "Do you realize how much time we have put into this?" Ms. Huckaby decided not to act on Ms. Haff's advice and decided not to make any changes in Mr. Waters' 2005-2006 RM schedule. On or about June 3, 2005, Ms. Huckaby imposed an improvement notice on Mr. Waters, listing items in his instruction and teaching management that she felt needed improvement and concomitantly imposing a 90-day probationary period running from a date in September through early December 2005. Making only two observations of Mr. Waters' teaching herself, she relied upon reports of Margot Palazesi's 13 observations of Mr. Waters' classroom and teaching during the 2005-2006 school year from generally September through December. Ms. Palazesi's primary expertise, however, was in IEP compliance, IDEA compliance and grant funding compliance. She has a great deal of training in exceptional student education including a PHD degree, but she was not trained or qualified to work within and with regard to Leon County's performance observation and assessment for teacher evaluation, as either an administrator or a classroom mentor. Ms. Palazesi was unfamiliar with the lesson plan requirements at Oakridge and with the CHAMPS behavioral program requirements. She acknowledged that she understood Mr. Waters had the CHAMPS program implemented in the behavioral management aspect of his class and teaching, but she had little familiarity with what it entailed. She did acknowledge, however, that he had an award system for behavior and academic performance for his students built into and actively followed in his classroom. Ms. Palazesi also was not certified in reading and had not taught a reading mastery class in 20 years. Nonetheless, she made 8 of her 13 observations of Mr. Waters' teaching in his RM class. She did not have any understanding of the impossible double-scripted reading class schedule for his two reading groups that he was required by Ms. Huckaby to execute within the 90 minute time block. Through her interaction with Mr. Waters she came to understand from him that there was more material in the double-scripted reading curriculum than could be delivered in the 90 minute period, as Ms. Haff's testimony also showed. Ms. Palazesi, nonetheless, criticized his lecture teaching style, without acknowledging that that teaching method might have been effectively imposed on Mr. Waters in large part due to the impractical time constraints placed upon his delivery of the reading program, the vocabulary requirement and the reading fluency assessment requirement, imposed on him by Ms. Huckaby. Ms. Palazesi also noted, early in her observations, that Mr. Waters did not, in her view, engage in a review of material previously instructed, as, for instance, the day before, or inform the students what they would be learning in the lesson that day. Concerning one or more of her October observances, however, she acknowledged in her testimony that he had done that or started doing that. Moreover, one of her notations was acknowledged by her to be inaccurate in that she criticized him for not doing an introductory portion to his lesson, but then acknowledged that she had arrived some 10 minutes late, missing that portion of his lesson for that day. She also acknowledged that he was receptive to following her suggestions for improvements she thought should be made in his classroom management, in terms of assigning student desks, changing the arrangement of the room as to where a work table was placed, etc., and he did so. Ms. Palazesi also noted that he had a very good rapport with his students, and that his students behaved well and did their work in his classroom. They were on task much of the time. Although she criticized him for departing from his lesson plan on her first observation, in later observations she acknowledged he appeared to adhere more to his lesson plan. Ms. Palazesi was ostensibly dispatched to Mr. Waters' classroom to provide him technical ESE department-type assistance. However, she primarily engaged in making suggestions concerning ways that Mr. Waters could improve otherwise acceptable lessons and lesson plans and make improvements to his classroom management and the physical layout of his classroom. She acknowledges in her testimony that this was an exercise that she could have undertaken in any teacher's classroom and instructional regimen, and could have found ways to suggest improvements. Her suggestions, however, to the extent they were criticisms, appeared to have been relied on, and, inferentially, used to corroborate Ms. Huckaby's negative findings. During the second part of the 2004-2005 school year and the first half 2005-2006 school year Mr. Waters used computer technology in his classroom. He received advice from Ms. Donna Haff on how to incorporate it as a relevant and exciting way to reinforce his course curriculum and began doing so. In each of the 2004-2005 and 2005-2006 school years, he used power point technology in the form of game show question and answer formats ("Who Wants to be a Millionaire," "Jeopardy," and "Hollywood Squares/Tic Tac Toe"). He also employed other types of computer technology in his classroom on a regular basis, whether or not they were also noted in his lesson plans or were specifically observed by Ms. Huckaby, Ms. McFarland, or Ms. Palazesi. He demonstrated an ability to incorporate technology into his classroom instruction at least as effectively as most of his colleagues. Despite this fact and Ms. Huckaby's own praise for Mr. Waters' use of power point technology as a reinforcement tool in her December 14, 2005, observation, Ms. Huckaby still asserted to the Superintendent of the District in her letter recommendation for his termination that Mr. Waters did not adequately incorporate technology into his teaching and claimed that the December 14, 2005, lesson where she observed his use of technology marked "the first and only time he has integrated technology in the teaching and learning process." If Ms. Huckaby had made adequate observations of his teaching and his classes, or had even adequately conferred with Ms. Haff, she would have known of the extent of his use of technology in the classroom (or else perhaps she knew it and disregarded it). This statement to the Superintendent is one of the indicators of the level of bias Ms. Huckaby bore towards Mr. Waters. Most of the ESE teachers, including Ms. George, Mr. Waters, and Ms. Wacksman customarily do not employ computerized grading of their students because of the unique, singular nature of each ESE student's problems, learning styles, abilities, and each ESE student's goals and the varying curriculum and social needs of each ESE student. These and the other individualized differences among ESE students render a hand-written old fashioned grade book the most effective way to make a record of each student's progress toward that student's IEP- codified goals. Ms. Huckaby gave Mr. Waters a negative rating in the area of technology use partly because he did not use a computerized grading system, but neither did any other ESE teacher at Oakridge. Mr. Waters was singled out for criticism for that aspect of his teaching and the others were not. All teachers at Oakridge, particularly ESE teachers, during both the relevant school years, worked under increasing lesson plan requirements and student performance monitoring and documentation requirements and changes, as well as curriculum changes and related paperwork and time constraints. These were very stressful and no doubt were related in a significant part to the fact that the school had slipped from a "C" rating to a "D" rating on Ms. Huckaby's watch as principal. This no doubt caused significant tension and anxiety for all concerned on the instructional staff and in the administration. Only Mr. Waters, however, was held strictly accountable to all deadlines and all aspects of the burdensome documentation requirements and time constraints imposed during those two school years. In the context of his limited planning time, the excessive student contact time scheduled for him in 2005-2006, the delays he encountered in getting A3 IEP System training (some of which were self-inflicted), the difficulties encountered in gaining sufficient access to the conference room where the cume folders were maintained in order to comply with progress monitoring requirements, as well as the repeated schedule changes to his 2004-2005 assignment schedule and the time constraints of his 2005-2006 reading mastery schedule, put the Respondent in a position where it was impossible for him to timely and fully comply with every requirement imposed on him. Ms. Huckaby's close monitoring of the Respondent, as compared to other teachers, under such circumstances, is reflective of her bias in favor of a recommendation of termination. It impelled her, Ms. McFarland and Ms. Palazesi to document and exaggerate the significance of every minor error or omission that involved Mr. Waters. Arranging for ESE meetings, monitoring and complying with deadlines related to IEP's, monitoring ESE consult situations and completing all IEP-related paperwork are the responsibilities of the assigned ESE teacher. The carrying out of these tasks, however, often involves frequent communications among, and timely cooperation with several other people, such as other ESE teachers, regular classroom teachers, school administrators, the District Staffing Specialist, and the ESE students' parents. Mistakes, delays, and miscommunications concerning these ESE teacher responsibilities will occur and while they are not desirable they are not unusual. When such problems arise they are normally corrected by all persons involved as quickly and cooperatively as possible without resort to blame. Although Ms. Petrick became critical of paperwork problems and delays Mr. Waters was responsible for in the last half 2004-2005 school year, Oakridge school lost no federal funding because of them nor was it shown that any students suffered in academic or behavioral progress because of them. It is noteworthy that the IEP-related deficiencies concerning Mr. Waters began to arise only in the second half of the 2004- 2005 school year around the same time that critical memoranda from both Ms. Huckaby and Ms. McFarland were becoming the norm. In any event, Mr. Waters improved in these areas in the 2005-2006 school year. Mr. Waters received little of the help promised him in the September 2005 revised improvement notice document. He did not have a national board-certified mentor assigned him for 2005- 2006, did not get to meet with consultants from the Reading Mastery Plus Program, "Open Court," the "Great Leaps," or the Harcourt Brace Mathematics Programs. He did not meet with anyone from the Florida Inclusion Network. The administration did not provide adequate or meaningful assistance to him in either school year, but rather denied, delayed answering, or ignored his specific requests for more planning time, model lesson plans which would comply with Ms. Huckaby's lesson plan changes and requirements, relief from his impossible RM schedule for 2005- 2006, and his request for a transfer to another school. Instead of providing practical help to him (with the exception of Dr. Adams), the District focused its "assistance" mostly upon sending more staff and district employees to observe him and provide resulting reports to Ms. Huckaby. (Ms. Smith and Ms. Sands in 2004-2005 and Ms. Palazesi in 2005-2006.) During the 2005-2006 school year Mr. Waters work was being scrutinized over the 90 day performance improvement probationary period imposed by Ms. Huckaby which ended on December 8, 2005. During that time, however, his classroom activities were observed only once by Ms. Huckaby, on November 8, 2005. Ms. Huckaby's second observation of him took place nearly a week after the end of the probation period and was two and one- half hours long. It resulted in a critical observation report based primarily upon the last third of that classroom time when Mr. Waters had a formal lesson plan to take his writing class students to a "writing boot camp" session to be attended by all fourth grade teachers and students. Ms. Huckaby, however, refused to let him follow his lesson plan for that day's writing class and insisted that he teach the group there in his room. It was the last day his writing class would meet before the Christmas break which is why he planned to let them go to the writing boot camp with students from other classes on that day. There were no lesson plans for the rest of that week that he could adapt to the remaining one- third of his class that day, with the students unexpectedly present because of Ms. Huckaby's order; it was the last day of school before the Christmas break, and lesson plans for the next day or other days remaining in the week were thus unnecessary. Nevertheless, Ms. Huckaby made negative comments concerning allegedly inadequate planning for his writing group for the class that day after she concluded her observation. Ms. Huckaby had access to Mr. Waters' lesson plans for his December 14, 2005, class and before her observations that day. She had previously reviewed his lesson plans while observing his class to be sure he was precisely following those plans as he had often been instructed to do. She no doubt reviewed his plans for the December 14th lesson and had to have seen the writing boot camp entry. Nevertheless, she refused to let his students attend the writing boot camp. It was by this means that she was able to document a purportedly inadequately planned writing class activity for that day and then relied upon those negative comments in support of her termination recommendation to the superintendent which, inferentially, she had already decided to write. Ms. Huckaby only observed Mr. Waters classroom activities one time during the probationary period. Her only other observation of his classroom activities occurred on the December 14, 2005, occasion, approximately a week after the probation period ended. School administrators, however, are required to periodically evaluate and apprise teachers of their progress during such a 90-day probationary period, which Ms. Huckaby did not do.1/ The Respondent was confronted with a significant increase in time consuming paperwork/reporting requirements lesson plan requirements and the other burdens depicted in the above findings of fact, which Ms. Huckaby placed upon him. Other teachers and ESE teachers had to contend with some of these as well, although to a lesser extent and with less micro- management by Ms. Huckaby. Nonetheless, the Respondent made significant improvements in teaching methods, lesson plan quality and organization, classroom organization, the variety of planned classroom activities and his technology-supported lesson delivery methods. Mr. Waters was effective enough in his teaching and had made sufficient progress so that he received the second highest number of votes for "teacher of the year" from Oakridge's faculty and staff. He thus only ranked behind one revered teacher who had received the award before and who had more recently received the most votes, but declined the award in order to allow someone else to get it. Mr. Waters complied with all reasonable requests made of him, by and large, and in those areas of less than acceptable compliance made the necessary improvements in his compliance. He satisfactorily executed his job duties in both 2004-2005 and 2005-2006 school years as long as he was at Oakridge. Notwithstanding those improvements in performance, Ms. Huckaby continued to evaluate him as if he had made no improvements, pronouncing in June 2005 the results she had angrily promised him in their October 2004 meeting. She re- confirmed that negative assessment in December 2005 with her termination recommendation, made with only one observation by her during the actual period of his 90-day probationary status. Mr. Waters' teaching and classroom management performance in 2004-2005 as well as 2005-2006 and Ms. Huckaby's and Ms. McFarland's criticism of it, culminating in the termination recommendation by Ms. Huckaby, did not result and was not predicated on his students' FCAT scores. Ms. Huckaby admitted as much in her testimony as to both relevant years. The Petitioner attempted, in its rebuttal case only, to introduce test-related evidence that students of Mr. Waters in the 2004-2005 school year did not do well on standardized tests. That exhibit, and the information it was prepared from, however, were not made available at the hearing, during discovery, were not disclosed in the pre-hearing stipulation, and were not disclosed as a reason for Mr. Waters' performance criticism and termination by any charging document, notice or pleading by the Petitioner made a part of this record. The Petitioner in essence was using or attempting to use the proffered Exhibit 46 to buttress its case-in-chief because it was not rebuttal of anything raised or offered in the Respondent's case. Therefore, it was excluded on the basis that it constituted improper rebuttal evidence and, moreover, because of the non-disclosure problem referenced above, was not admissible on due process of law and "notice pleading" principles. Moreover, the information included in the charts in Petitioner's proffered Exhibit 46 is misleading with respect to comparative student progress issues by teacher. There is confusion as to which student was the pupil of Mr. Waters or another ESE teacher or teachers. It is difficult to determine based upon that exhibit, and the testimony proffered concerning it, an accurate comparison of student progress by the students depicted under Mr. Waters's teaching performance versus that of other teachers. Further, the "Writes Upon Request" chart comparison contained in Petitioner's Exhibit 48 and the testimony related to it, was clearly not a reason used or considered in lodging performance-related criticism against Mr. Waters or ultimately in the decision to terminate him. It clearly could not have been considered until several months after Mr. Waters had been removed from the Oakridge school. Had those Writes Upon Request chart results been considered by Ms. Huckaby in the context of this case, they would not serve as preponderant evidence of sub- standard performance by Mr. Waters, considering the other evidence of the circumstances and abilities of his students in conjunction with his performance. Mr. Waters is at minimum an adequate teacher and in some aspects of his performance a superior teacher, as, for instance, in his ability to advance his students' performance in writing and in terms of his ability to motivate his students and establish a good rapport, with an interest in learning, in his students. His classroom management skills, instructional methods and classroom demeanor fall within the parameters of acceptable performance and behavior as a teacher and an ESE teacher. He consistently and successfully relied upon his own behavior management reward system for his students, employed the Champs Program in his classroom and was successful at motivating his students to enjoy learning. In demonstrating a very good rapport with his students, he always created a classroom environment of mutual respect that is conducive to student learning and his students were learning. His overall performance for both school years at issue was objectively satisfactory despite Ms. Huckaby's biased assessment of his performance during those years and in her ultimate termination recommendation. In fact, the excessive number of areas of criticism by Ms. Huckaby concerning Mr. Waters job performance made it quite difficult to demonstrate mastery of every criticized area, much less to demonstrate it all in only two formal observation attempts by Ms. Huckaby. Ms. Donna George is a 21-year career ESE teacher. She has a master's degree in the areas of learning disabilities, emotional handicap, and varying exceptionalities. She has spent 13 of her teaching years at Oakridge school. She is the ESE Department Team Leader at Oakridge, as well as the "technology contact" teacher, who trains and assists other teachers in implementation of technology programs and equipment at Oakridge. She assists in teacher technology training. She is also a National Board Certified ESE Teacher. Ms. George is thus a leader on the staff at Oakridge. She has observed in ESE meetings and in school-wide faculty meetings, throughout Ms. Huckaby's tenure as Principal, that Ms. Huckaby has an autocratic, dictatorial management style, and an aversion to allowing commentary or questions regarding her policies, directives or programs at Oakridge. Ms. Huckaby has demonstrated little tolerance for questions or comments she perceives to reflect less than complete agreement with her positions or policies. Indeed, although Ms. George is the ESE team leader, she seldom has asked questions or sought clarifications of Ms. Huckaby during such meetings, because of her fear that she would be yelled at, treated with disdain, anger or even with reprisal. Such has also been the experience of Ms. Wacksman and others. Ms. George established that Ms. Huckaby's management style had driven many good teachers away from Oakridge. A survey by the district staff concerning long-term teacher retention rates showed that Oakridge had the lowest retention rate at 17 percent. The next lowest school in the survey had approximately 30 percent retention rate. This survey encompassed the period beginning with the 1999-2000 school year to present. Ms. George observed that Ms. Huckaby often responded to questions or comments from Mr. Waters with both verbal and non-verbal ques, such as eye rolling or turning away or other mannerisms, that generally showed disdain for his questions or his opinions. Ms. George unequivocally opined upon cross- examination by the Petitioner that Ms. Huckaby clearly does not like having Mr. Waters on her staff and was "out to get him." According to Ms. George, Mr. Waters asked questions more frequently than others in faculty meetings, but his questions generally were reasonable ones. He apparently also would attempt to make humorous comments, at times which often irritated Ms. Huckaby and other teachers as well. It is likely that some of his motivation to question Ms. Huckaby and her motivation to treat him with disdain, stemmed from their strained relationship starting with the student disciplinary incident described above. In any event, Ms. George's testimony is accepted in establishing that Ms. Huckaby had a bias in favor of removing the Respondent from her staff, which colored her judgment in making many of her criticisms of his teaching, which long pre-dated his probationary period and which, along with her scant actual observations of his instructional prowess, caused some of his improvements to be overlooked or disregarded, and which caused him to be evaluated more critically than his colleagues as to some performance requirements. In fact, the preponderant evidence establishes that in an objective sense his performance as a teacher, although not flawless, was acceptable and improved in a number of areas. As found in more detail above, in consideration of the circumstances imposed on him by the school administration, in his capacity as a resource teacher, with the time and schedule constraints and disadvantages that status entails, he performed in at least a satisfactory way in the 2004-2005 and 2005-2006 years at issue.
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 Leon County School Board re-instating the Respondent to a similar special education teaching position, with reimbursement for lost wages and benefits, in a manner so as to be "made whole" from the date of termination. DONE AND ENTERED this 31st day of July, 2007, in Tallahassee, Leon County, Florida. S 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 Clerk of the Division of Administrative Hearings this 31st day of July, 2007.
The Issue The issue in this case is whether the School Board of Pinellas County (School Board) should accept the Petitioner's recision of her resignation from her position as a high school teacher and reinstate her to her former position on the ground that her resignation was given under legal duress.
Findings Of Fact During the 1992/1993 school year, the Petitioner, Deborah Green, taught high school in the GOALS (drop-out prevention) program at Dixie Hollins High School. In January, 1993, she applied for a year of medical leave of absence due to stress and stress-related symptoms. The School Board approved leave starting January 27, through June 11, 1993. Shortly after going on medical leave, the Petitioner was notified that a student had made serious accusations against her. One of the accusations was that the Petitioner freely told the student details about her romantic relationship with a Michael Miller, who was married and the principal of another Pinellas County high school. She contacted the student to find out what the accusations were and met with her principal and the student and his mother to discuss the accusation. At the meeting, the student recanted. The Petitioner left for Dallas, Texas, shortly after her leave began, but she continued to receive telephone messages locally through her friend and former housemate. Not long after the Petitioner left for Dallas, the student who had accused her, and then recanted, again accused the Respondent, alleging that he had recanted because the Petitioner had asked him to lie for her. When this happened, the principal of Dixie Hollins referred the matter to Stephen Crosby, Director of Personnel Services for the Pinellas County Schools. Crosby called the Petitioner at her local telephone number and left a message. When the Petitioner returned the call from Dallas, Crosby explained that he was investigating serious charges that had been made against her and that, as always in such circumstances, it was important for him to meet with her about them as soon as possible. The Petitioner declined, stating that she was not emotionally, mentally, or physically prepared at the time to handle the situation or the stress of the situation. She insisted that her meeting with Crosby be postponed. As an accommodation to the Petitioner, Crosby agreed to postpone the meeting, and the two agreed to meet on March 1, 1993. On or about February 28, 1993, on a return trip to Pinellas County, the Petitioner visited her school and left a written message for Crosby to tell him that she still was unable to meet with him and would not attend the scheduled March 1, 1993, meeting. Crosby did not get the message until the morning of the scheduled meeting. On receipt of the message, Crosby turned to the School Board's legal office for advice on how to proceed. Based on the advice of counsel, Crosby sent the Petitioner a letter stating that he viewed the delay in the interview until March 1 to be an unusual accommodation, since teacher interviews normally are conducted as soon as he becomes aware of the charges. He wrote that, since the Petitioner would not meet on March 1, as they had agreed, he would have to proceed exclusively on the basis of his interviews of students and others. In accordance with normal procedures, he also advised her that, unless she chose to resign by March 12, 1993, he would be recommending to the School Superintendent that he recommend to the School Board that the Petitioner be dismissed. On March 3, 1993, the Petitioner received Crosby's March 1 letter and wrote back in response to offer her resignation, effective June 11, 1993. In the Petitioner's own written words, she resigned "for my personal sanity and for the credibility of Michael Miller." Crosby processed the Petitioner's resignation to be considered at the March 24, 1993, School Board meeting. It is standard operating procedure to process resignations before their effective dates, if possible, so that replacement personnel can be hired. The School Board accepted the Petitioner's resignation (among others) at its March 24, 1993, meeting. The Petitioner tried unsuccessfully several times after March 24, 1993, to contact Crosby by telephone to rescind her resignation. She was unable to speak to him but was told that the School Board already had accepted her resignation and that it was too late to rescind it. In April, 1993, the Petitioner learned that the Florida Education Practices Commission of the Florida Department of Education also was investigating the allegations against her, notwithstanding her resignation. On or about June 3, 1993, the Petitioner returned to Pinellas County and met with a lawyer about getting her teaching position back and about defending her teacher certificate. On June 8, 1993, the lawyer wrote a letter to the School Board Attorney (which was received on or before June 11, 1993) purporting to rescind the Petitioner's resignation. It was not proven that the Petitioner had no choice but to resign from her position as a teacher between March 1 and March 12, 1993, due to her emotional, mental and physical condition at the time. As a result of her long-standing membership in the local teachers' union, the Pinellas Classroom Teachers Association (PCTA), the Petitioner knew that dues-paying members of the PCTA may be entitled to the services of an attorney, free of charge, in a teacher dismissal proceeding. She claimed that she did not know she still was entitled to free legal counsel after going on medical leave of absence as of January 27, 1993, and ceasing to pay union dues while on leave. However, there was no evidence that she inquired as to the availability of paid counsel until after the effective date of her resignation. Had she done so in a timely fashion, she would have learned before her resignation was accepted that she was entitled to the services of an attorney, free of charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Amended Petition for Administrative Hearing. RECOMMENDED this 16th day of May, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6074 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, rejected as not proven. Third sentence, accepted but subordinate and unnecessary. Rejected as not proven that she spoke to Crosby more than once. Explaining the discrepancies between her testimony and his is problematic. But some of the telephone conversations she supposedly had with Crosby would have been on weekends (e.g., January 16 and 23, 1993), giving rise to a question as to the accuracy of her testimony. In addition, the Petitioner's own evidence suggested that her condition during this time period impaired her thought process and memory. Perhaps the Petitioner is counting unsuccessful attempts to contact Crosby as actual conversations with him. Rejected as not proven that the Petitioner acted on the advice of her physician in cancelling the March 1, 1993, meeting with Crosby. Otherwise, accepted and incorporated. Accepted and incorporated. First sentence, rejected as not proven. Second sentence, rejected as not proven that she resigned "under protest because of her inability to participate in the investigation due to her medical condition"; otherwise, accepted and incorporated. First sentence, rejected as not proven. See 7., above. (Some of the telephone conversations she supposedly had with Crosby during this time period would have been during the spring school holidays when all school offices were closed.) Second sentence, accepted and incorporated. First sentence, accepted but subordinate and unnecessary. Second sentence, rejected in part as not proven as to "rational decisions with respect to her employment"; otherwise, accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. 4.-7. Accepted but subordinate and unnecessary. 8.-20. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. 23.-26. Accepted but subordinate and unnecessary. (As to 25., the referee appeared to be referring to Green's medical leave of absence.) COPIES FURNISHED: Mark F. Kelly, Esquire Kelly & McKee, P.A. P. O. Box 75638 Tampa, Florida 33675-0638 Keith B. Martin, Esquire Assistant School Board Attorney Pinellas County Schools Administration Building 301 Fourth Street SW Largo, Florida 34649-2942 Dr. J. Howard Hinesley Pinellas County School Board 301 4th Street SW Largo, Florida 34640-3536 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact During the 1991/1992 school year, the Respondent, Patricia Albritton, was teaching in the Pinellas County Public School System under an annual Professional Service Contract, renewable from year to year as determined by the School Board. She was an "itinerant teacher," meaning she had classroom assignments at various schools. Her base school was Azalea Middle School, where she taught a strings orchestra class at 1:30 p.m., and then had a teacher planning period before end of the school day dismissal. On March 18, 1992, shortly after the bell rang for the beginning of the strings class at Azalea Middle School, the Respondent entered the class and, in preparation for the class, requested that the pupils rearrange the chairs in semi-circles to simulate the seating arrangement for an upcoming concert. The class was noisy, and many of the pupils either did not hear or ignored her instructions despite her having raised her voice to get their attention. Frustrated and angry, the Respondent picked up a wooden chair to almost face level and slammed it to the floor. In the process, she lost her grip on the chair, and it slammed to the floor with enough force for one leg of the chair to crack. She then asked the class a question to the effect of, "do I have to do cartwheels to get your attention?" As she turned away from the class, perhaps in response to a pupil's question as to why the class was being required to give a concert performance, the Respondent also mumbled to herself, but in a voice loud enough for some of the pupils to hear: "I'm getting so tired of this damn class." After this incident, the Respondent either set the chair to the side or put it in the adjoining supply room where the Respondent generally stored music stands. One or more of the pupils who tended to be the class troublemakers, or clowns, retrieved the broken chair, and one of them purposely sat on it and appeared to fake falling to the floor. The fall did not appear to be of the kind likely to have injured the pupil in any serious way. Nonetheless, the pupil complained that his head hurt and asked for permission to go to the clinic. The Respondent, who had observed the apparent fakery and knew the propensities of the pupil involved, declined permission, believing it was yet another in a series of ploys to get out of class. She said something to the effect of, "you were stupid to sit on the broken chair." When the pupil persisted in saying his head hurt, the Respondent mocked him, saying words to the effect, "oh, you poor baby." After the incident, the parents of the pupil who tried to fake falling in the broken chair became upset with the Respondent and took their son out of the Respondent's strings class. Two other parents expressed concern, primarily about the Respondent's angry outburst and throwing the chair. Otherwise, there was no evidence that the Respondent's effectiveness as an employee of the School Board was impaired as a result of the incident. She had no difficulties at any of the other schools where she taught. The Respondent has been a teacher in the Pinellas County School System for ten years. Aside from some criticism for being tardy in 1986, the Respondent generally was not seriously criticized for deficiencies in her teaching ability or other aspects of her work in the earlier years of her teaching career. On November 10 and December 4, 1989, the Respondent received written reprimands for poor judgment. The former reprimand included criticism for using inappropriate language loud enough for her pupils to hear her. Her performance evaluation for the 1990/1991 school year included criticism in the areas of judgment and interpersonal relationships with parents and children, and it expressed the need for improvement in those areas. At the beginning of the 1991/1992 school year, the Respondent was put on an annual comprehensive evaluation cycle. An October 23, 1991, appraisal of her instructional performance in a pre-arranged visit to her class by the assistant principal reflected that the Respondent was satisfactory in all areas. In mid-January, 1992, the Respondent grabbed a pupil at Azalea Middle School (the same boy who later faked falling in the broken chair) by the shoulders and shook him to get his attention. As a result, the Respondent's assistant principal cautioned the Respondent to exercise better judgment and, in keeping with School Board policy, to keep her hands off pupils she is reprimanding. A March 5, 1992, appraisal of her performance in non-instructional areas reflected improvement in that her judgment was rated satisfactory. After the March 18, 1992, incident, her rating for management of student conduct again was lowered to "needs improvement."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order that, notwithstanding evidence of poor judgment, as set above, the Respondent, Patricia Albritton, not be suspended for three days without pay. RECOMMENDED this 4th day of November, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1992.
Findings Of Fact David B. Clark, Respondent, is employed by the Leon County School Board on continuing contract and was so employed at all times here involved. By Request for Leave dated May 31, 1978 (Exhibit 2) Respondent requested leave without pay from August 1978 through June 1979 for the purpose of continuing education. The request was forwarded approved by the Respondent's principal and approved by N. E. (Ed) Fenn, Petitioner. The principal who recommended approval of Respondent's leave request testified he would not have recommended approval had he not believed Respondent would pursue graduate studies. At the time Respondent submitted his application for leave he had been assured of financial assistance from his family to provide him the necessary funds to be a full-time student at Florida State University in the Masters program in public administration. In July Respondent learned he would be unable to get the financing he had expected to allow him to attend school full time. He proceeded to the school personnel office, advised the personnel director of his dilemma and requested advice. She advised him to go to the school at which he was employed the past school year and ask for his position back for the 1978-79 school year. When he did so he found a new principal had been appointed who was unsure of the job availability but he advised Respondent that his previous year's position had been filled by someone else. Respondent went back to the personnel officer for Leon County School Board where he learned there were no jobs available but he could be listed on the rolls as a substitute. He also was told that he should attempt to take some graduate courses even if he couldn't afford to go full time. Respondent agreed to try and do so. By letter dated 31 July 1978 (Exhibit 5) Respondent applied to be placed on the rolls as a substitute teacher for the 1978-79 school year. Respondent then took a sales job at which he worked in the late afternoon and early evening while also working as a substitute teacher. After the first semester, Respondent quit his sales job and worked full-time as a substitute teacher until the end of the school year. He was then offered a summer job on a construction project in Georgia, which he took. After Respondent reapplied and was employed for the 1979-1980 school year, the charges of gross insubordination and misconduct in office followed. Respondent's evaluation reports (Exhibit 4) contain a satisfactory rating in all categories for the past three years. Only in the year 1974-1975 was a "needs to improve" rating given in any of the categories for evaluation. Subsequent to the 1974-1975 evaluation year Respondent was placed on continuing contract status.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Philip James Chase, II, was employed under a continuing contract as a classroom teacher at Dunedin High School (DHS) in Dunedin, Florida. The school is under the jurisdiction of petitioner, School Board of Pinellas County (Board). During school year 1990- 91, respondent was a physical education and driver's education teacher and also served as wrestling coach. He has been an employee of the Board since 1975 and a teacher since 1971. The facts underlying this controversy are relatively simple. On December 18, 1990, respondent was seated at his desk in the DHS physical education office talking to two students. At the same time, several other students were in line to weigh themselves on a weight scale which was located a few feet from respondent's desk. After one student had jumped on the scale, respondent, without looking up, said to the students still in line, "on the scale gently, please". The next student in line, Derek Carson, ignored respondent's instructions and jumped on the scale causing a loud banging noise. Respondent rose out of his chair and at the same time gently swung his foot and hit Carson's buttocks. He also told Carson, "I told you gently, please." Carson immediately launched into a tirade of verbal obscenities at the top of his voice against respondent. Realizing that Carson was obviously upset, respondent initially ignored the remarks, but after the verbal abuse continued, he told Carson that he (Carson) ought to try to talk to him in that manner "on the street". Carson then departed. At no time did Chase become upset or lose his composure during the incident, and he drew praise for his cool demeanor from his department chairman who was an eyewitness to the incident. There is no competent evidence that Carson "reasonably interpreted" respondent's remarks as "fighting words" as charged in the suspension letter. 1/ Since the incident occurred in the presence of a number of students and two members of the faculty, it may be reasonably inferred from the evidence that Carson was embarrassed by the incident. The student then reported the incident to the principal, John McLay, who investigated the matter and initially concluded that respondent should be given a written reprimand. However, after McLay learned that Carson's grandparents (guardians) had filed a complaint with the Board, he turned the matter over to the Board for further action rather than handling it at the local school level. Because the Board's superintendent has proposed to increase the severity of the penalty from a reprimand to a three day suspension, Chase has requested this hearing. 2/ According to McLay, the faculty is given specific training at the beginning of each school year on how to resolve conflicts of this nature and is warned that a student may react negatively to physical discipline. He added that a teacher should never place his hands on a student for any reason unless the teacher is in fear of bodily harm or is trying to break up a disturbance among students. McLay also placed importance on how the student perceived the actions of the teacher. In other words, if the student perceived a light tap from the teacher as being deliberate or malicious when in fact the teacher was only kidding, McLay felt the action by the teacher would probably be unjustified. He agreed, however, that other factors, besides the student's perception of the incident, were also relevant to a final determination. McLay also emphasized the importance of teachers maintaining a good rapport with a student's parents since the education of the child required their cooperation. Further, the Board's director of personnel services, Steven Crosby, established that the incident undermined the parents' confidence in respondent. He characterized the action of respondent as "poor judgment" and one which diminished his effectiveness as a teacher. This testimony on the issue of teacher effectiveness is accepted as being more credible than that offered by a student and fellow teacher who testified on respondent's behalf. Crosby added that simply because Chase was a coach who worked in a more informal atmosphere than did other teachers did not excuse his conduct. Crosby noted that school policy generally calls for a three day suspension without pay for a teacher "who has struck a student". Although Chase had previously been given a reprimand for using poor judgment in 1988, Crosby felt that such a penalty was especially appropriate here without regard to the previous reprimand because Chase "had lashed out at a student, physically, out of frustration or during a time of upset." However, as noted in a prior finding, Chase did not tap the student on his buttocks out of anger or because of frustration. Two witnesses to the incident described the kick to Carson's buttocks as having insufficient force to cause any injury to the student. This was not credibly contradicted. Further, one witness characterized the kick as actually being a "tap" while the other stated he was under the impression respondent was kidding when he swung his foot towards the student. Respondent added that the kick was intended to be "negative reinforcement" after his verbal instructions were ignored. He now agrees that it was a mistake to touch the student in that manner and recognizes that he violated school policy. Other than the reprimand in 1988, respondent has an unblemished tenure with the school system. The Board has adopted a Code of Student Conduct (Code) which prescribes the type of disciplinary action permitted to be taken by school personnel against students. Section (7)(a) of the Code provides as follows: (7) DISCIPLINARY ACTION AND PROCEDURES: (a) TYPES OF DISCIPLINARY ACTION PERMITTED The following types of disciplinary action may be considered. 4. Corporal Punishment: For purposes of this code, corporal punishment shall refer to physical punishment (as) opposed to other forms of punishment. The use of corporal punishment is not permitted as a type of disciplinary action. (emphasis added) Thus, corporal punishment of any form is prohibited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office and that he be given a written reprimand. DONE and ENTERED this 26th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991.
The Issue Whether Respondent, Derek E. Andrews, should be terminated for his absence without leave from April 12, 2007, until the end of the 2006-2007 school year.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter the following Findings of Facts are made: Respondent, Derek E. Andrews, is a school teacher employed by the School Board of Seminole County, Florida. William Vogel is, and has been, Superintendent of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the collective bargaining agreement, and School Board policies. Respondent's supervising principal for the 2006-2007 school year was Dr. Shaune Storch. Respondent had been granted a leave of absence that expired on March 30, 2007. Respondent's leave for the period March 16, 2007, through March 30, 2007, was an extension of a previous leave as requested by Respondent. Subsequent to the expiration of Respondent's leave on March 30, 2007, Respondent's supervising principal attempted to contact Respondent regarding his intentions for the remainder of the 2006-2007 school year. Respondent did not meet with his supervising principal or otherwise respond to her letter of April 5, 2007. Article XVI, Section I.2. of the collective bargaining agreement, provides that any teacher who is willfully absent from duty without leave shall forfeit compensation for the time of the absence and be subject to discharge and forfeiture of tenure and all other rights and privileges as provided by law. Respondent was absent without leave from April 2, 2007, through the end of the school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Derek E. Andrews, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 20th day of September, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 20th day of September, 2007. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Derek E. Andrews Post Office Box 62 Tangerine, Florida 32777-0062 Dr. Bill Vogel Superintendent of Schools Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, George L. Johnson (Johnson), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board), since 1982. 1/ The 1982-83 School Year In August 1982, Johnson was employed by the School Board as an occupational specialist, and assigned to Jan Mann Opportunity School. During the course of that employment, two events transpired which foreshadowed Johnson's conduct during the 1985-86 school year, and which precipitated this disciplinary proceeding. The first event occurred on March 9, 1983, when Johnson struck Pierre Sylla, an 8th grade student. On that date, Pierre had been disruptive in class, and had referred to Johnson by the nickname of "Flash". Pierre's conduct apparently offended Johnson's sense of decorum since he excused the class, called Pierre into a smaller room and, upon stating "this is why they call me Flash", punched Pierre in the left eye. The second event occurred on April 27, 1983, when Johnson struck Derrick Corner, a 14 year old student. On that date, Johnson was on leave, but reported to the school to pass out lunch cards. When Derrick approached Johnson to retrieve his card, he smelled alcohol on Johnson's breath and announced "I smell some Bacardi" rum. At that time, Johnson backhanded Derrick across the face, knocking him over a chair to the floor. On July 13, 1983, a conference was held between the School Board and Johnson to discuss the battery committed upon Pierre Sylla and Derrick Corner, as well as any disciplinary action to be taken against Johnson. The School Board concluded that Johnson would be referred to the employee assistance program, transferred to a regular school setting, and that no further disciplinary action would be taken. Johnson was, however, directed to comply with School Board rules for handling disruptive student behavior, and to discontinue the use of his hand in disciplining students. 2/ Notwithstanding Johnson's battery upon Pierre Sylla and Derrick Corner, Johnson's annual evaluation for the 1982-83 school year rated his performance acceptable in all categories, and recommended him for continued employment. The annual evaluation did note, however, that: Mr. Johnson's techniques for handling disciplinary problems need to be improved. Otherwise, he has potential for becoming a good teacher. The 1983-84 and 1984-85 School Years During the 1983-84 school year, Johnson was employed by the School Board as a physical education teacher at McMillan Junior High School. Johnson's annual evaluation for the 1983-84 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark contained on his evaluation was: Although your overall performance during the past year has been acceptable, I would recommend that you carefully self-evaluate your performance with regard to your professional responsibilities, i.e., punctuality. During the 1984-55 school year, Johnson was employed by the School Board as a physical education teacher at Riverside Elementary School and Douglas Elementary School. Johnson's annual evaluation for the 1984-85 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark on his evaluation was: You need to be on time every day and the same applies to lesson plans and reports. Adherence to school board policies is of the utmost importance -- also getting along with your peers. The 1985-86 School Year For the 1985-86 school year, Johnson was employed under a continuing contract with the School Board, and assigned to Silver Bluff Elementary School as a physical education teacher. The proof establishes that during the course of that school year Johnson reacted violently toward students for minor breaches of discipline, and that he failed to comply with lawful orders to refrain from the use of physical force to discipline students. That Johnson was fully cognizant of Silver Bluff's policy against the use of physical force is not disputed. At the school's first faculty meeting of August 28, 1985, Johnson was specifically advised that teachers were not to hit or paddle a child, and that they were not authorized to inflict corporal punishment. On September 16, 1985, following a complaint from a mother that Johnson had grabbed and shaken her son, the principal, Margarita Alemany, again cautioned Johnson that she did not approve of physical discipline, and that he was not to touch his students in any way. Notwithstanding the lawful directives of his principal, the evidence establishes that Johnson routinely relied upon physical and verbal abuse to discipline students for minor transgressions. From late September 1985 to December 1985, the proof establishes that Johnson committed the following abuses toward fourth grade students in his charge: Estany Carballo, who should have been standing in line, was playing in a mud puddle with a toy car. Johnson approached Estany from behind, grabbed his neck, and forced his head downward toward the water. Johnson pulled Estany up by the neck, admonished him "not to do that again", and returned Estany to his place in line. The force exerted by Johnson upon Estany was sufficient to traumatize his neck, inflict pain and limitation of movement, and require the treatment of a physician. Noah Verner and Aramis Hernandez were standing out of line and talking. Johnson grabbed each by the hair with a clenched fist, banged their heads together, and ordered them back into line. Robert Diaz, while standing in line, was talking to a girl behind him. Johnson approached Robert from behind, grabbed him by the hair and, exerting enough force to almost lift him from the ground, stated "who do you think you are asshole?" James Worthington was leaning against a fence, an apparent violation of a Johnson directive. Johnson grabbed his head between his hands and, shaking the child violently enough to induce pain, admonished James not to lean on the fence. Roberto Sanchez was attempting to perform an exercise with the rest of the class, but was unsuccessful. Johnson noted Roberto's failing to the class and opined vocally that if a boy couldn't do an exercise when he was in school, the whole class would beat the boy up. Johnson also embarrassed Roberto by referring to him as "fatso" in the presence of the class. While not exhaustive of the litany of incidents established at the final hearing in this case, the events related in paragraph 11, supra, establish Johnson's failure to abide by lawful directives of his superior, as well as a penchant toward a violent behavior which was harmful to the health and safety of his students. Due to the notoriety of his conduct, Johnson's service in the community, as well as his effectiveness in the school system, was severely impaired. In addition to its claims of insubordination and misconduct in office, the School Board also seeks to discipline Johnson under a claim of incompetence. The predicate for the School Board's charge are the results of three formal observations of Johnson's performance at Silver Bluff Elementary School between October 17, 1985 and January 10, 1986. On October 17, 1985, Ms. Catherine Day, assistant principal of Silver Bluff Elementary School, conducted a formal observation of Johnson's 1:30 p.m. - 2:00 p.m., second grade physical education class. It is worthy of note that the impetus for the October 17, 1985, observation was Johnson's request that the 1:30 - 2:00 p.m. class be observed. That class was a double class, over 60 students, and unwieldy. Ms. Day found that the session taught by Johnson did not comport with the mandatory objectives or activities contained in his lesson plan, that he did not explain to the students the objectives or activities for that day, that he provided no feedback to the students regarding their performance that day, that he allowed students to stand idle for 10 minutes and dismissed them 10 minutes early, and that his class record book contained no grades. Accordingly, Ms. Day rated Johnson's performance as unacceptable in the categories of (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction and (5) assessment techniques. Ms. Day reviewed the results of her observation with Johnson, provided Johnson with a prescription for improvement, agreed to provide Johnson with an assistant for the 1:30 - 2:00 p.m. class, and established a deadline of November 1, 1985, to correct the deficiencies. On November 20, 1985, the principal, Ms. Alemany, conducted a formal observation of Johnson's 10:15 a.m. second grade class and 10:45 a.m. sixth grade class. Ms. Alemany found, inter alia, that the lesson plan for Johnson's sixth grade class contained no objectives, that he failed to provide feedback or suggestions to improve performance, and that after 9 weeks his grade book for the sixth grade class failed to indicate the activity graded and for the second grade class failed to show any grades -- the grade book should have reflected one grade per week for a designated activity. Accordingly, Ms. Alemany, as did Ms. Day, rated Johnson's performance as unacceptable in categories (1) preparation and planning, (4) techniques of instruction, and (5) assessment techniques. On January 10, 1986, Ms. Alemany conducted the final observation of Johnson's performance. While Johnson's overall performance had improved, he was still rated unacceptable in categories (1) preparation and planning, since he failed to have lesson plans available, (4) techniques of instruction, since he failed to provide feedback or suggestions to improve performance, and (5) assessment techniques, since he failed to have any grades for the second, third, fifth or sixth grade classes. Ms. Alemany reviewed the results of her observation with Johnson, provided a prescription for improvement, and established a deadline of January 16, 1986, to correct the deficiencies. On January 17, 1986, a conference-for-the-record was held between Ms. Alemany and Johnson. At that time, Johnson's performance assessments were reviewed and he was advised: It should be noted for the record that you were advised that noted deficiencies must be remedied by your next observation which (sic) approximate date is 1-24-86. Failure to do so ... will have an adverse impact upon your employment. We will continue assisting you as we have in the past. Johnson was not, however, to be accorded any further observations. As events transpired, January 17, 1986, was his last day of employment at Silver Bluff Elementary School; thereafter, he was assigned to the South Central Area office pending School Board action. On February 19, 1986, the School Board suspended Johnson and initiated these dismissal proceedings. Johnson resists the School Board's suspension and proposed dismissal for incompetency on several grounds. First, he avers that Ms. Alemany harbored some animosity toward him because of his service as a United Teachers of Dade union representative. The proof fails to support such a finding. Second, Johnson avers that his request for an independent observation following Ms. Alemany's observation of November 20, 1985, should have been granted. While it may have been better practice to grant such a request, the School Board was bound to no such requirement. Finally, Johnson avers that the School Board's failure to accord him an independent observation following two unacceptable "summative observations" requires that his suspension and proposed dismissal for incompetence not be sustained. 3/ Johnson's final assertion is also without merit. While the proof established that the School Board routinely employed an independent observation following two unacceptable summatives before it recommended dismissal for incompetence, Johnson's removal from the classroom prevented further observation. Where, as here, the School Board removes a teacher from the classroom for cause, i.e.: battery upon a student, it is not thereby barred from seeking the suspension and dismissal of a teacher for incompetence even though an independent observation was not performed. While the School Board is not precluded from maintaining its charge of incompetence, it has failed to demonstrate that Johnson's unsatisfactory performance, observed on three occasions, deprived the students in his charge of a minimal educational experience, or that such performance failed to comply with the rules of the School Board or the terms of the parties' contract. Johnson's deficiencies, absent such proof do not demonstrate incompetence by reason of inefficiency. Further, the physical and verbal abuses Johnson was shown to have visited upon students, while improper, do not establish a lack of emotional stability. Therefore, the School Board also failed to demonstrate that Johnson was incompetent by reason of incapacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, George L. Johnson, from his employment, and dismissing Respondent, George L. Johnson, from his employment with the School Board. DONE AND ENTERED this 30th day of December, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1986.
