The Issue The issue is whether Petitioner is entitled to damages and back salary for the period of April 22, 2004, through May 31, 2006, pursuant to Subsection 1012.33(3)(g), Florida Statutes (2007), as well as interest and attorney's fees.
Findings Of Fact Petitioner, Charles V. Keene, has been employed by Respondent, the School Board of Escambia County, as a full-time Florida-certified public school teacher since April 22, 2004, under a series of annual contracts. Prior to his employment with Respondent, Petitioner was a full-time public school teacher in Alabama for 20 years and received satisfactory performance evaluations throughout the 20 years. At the time he was hired by Respondent, commencing April 22, 2004, Petitioner received credit for salary schedule placement for the one year he had previously taught in Florida, and for the two years he had taught in Georgia. He requested, but did not receive, credit for the 20 years of instructional service in the state of Alabama that he utilized to obtain his retirement in Alabama. Respondent operates under a collective bargaining agreement known as the "Master Contract." The Master Contract includes, among other things, a salary schedule that is the result of negotiations with the Escambia Educational Association ("EEA"), the collective bargaining agent that represents teachers. The negotiated salary schedule is then recommended by the Superintendent of Escambia County Schools pursuant to Subsection 1012.27(2), Florida Statutes, to Respondent for approval and adoption. The salary schedule adopted by Respondent governs the compensation payable to instructional personnel. The salary schedule includes "steps" with corresponding "salary." Placement on the salary schedule step depends, in part upon prior teaching experience. Generally, more prior teaching experience credited for placement on the schedule results in a higher level of compensation. At the time of Petitioner's hire on April 22, 2004, the Master Contract in place was the contract for the period of 1999-2002, extended by agreement of Respondent and the EEA until July 21, 2004. According to the Master Contract in effect on Petitioner's date of hire, limitations were placed on the amount of prior teaching experience that could be used for determining placement on the salary schedule. For example, credit for prior teaching, military, governmental, or employment service, not including Florida public school teaching experience, was limited to a maximum of fifteen years. The Master Contract also contained a specific provision for placement of retired educators. The contract provided as follows: II.5(C) Placement for Retired Educators Educators who retired from Escambia District Schools and who return to full time employment in Escambia District Schools shall be placed on Step 5 of Appendix A- Instructional Salary Schedule. Educators who retired from any other school district shall be placed on Step 0 of Appendix A-Instructional Salary Schedule. The effect of this provision was that Petitioner received no credit for the 20 years of Alabama teaching when placed on the salary schedule. Employees' rights for placement on the salary schedule are determined by the date of hire. With credit being given for prior teaching experience in Florida and Georgia, but without credit for 20 years of teaching experience in Alabama, Petitioner was placed on the salary schedule in accordance with the provisions of the Master Contract in effect at the time of his hire. Petitioner received annual instruction contracts under the authority of Section 231.36(2), Florida Statutes (later renumbered Section 1012.33(3), Florida Statutes). Petitioner's annual instructional contracts set forth the contract salary on an annual basis payable through twelve monthly installments. The contract specified the number of days to be worked and the daily rate of compensation. Respondent's standard form contract provides that "[t]his annual contract shall be deemed amended to comply with all laws, all lawful rules of the State Board of Education, all lawful rules and actions of the School Board and all terms of an applicable ratified collective-bargaining agreement." Respondent, as a matter of practice, provides newly hired teachers with information on how they are placed on the salary schedule. Additionally, Respondent's website has information available with a link to the Master Contract language which demonstrates how instructors are placed on the salary schedule. Human Resources staff members are instructed that the Master Plan governs placement of newly hired instructors on the salary schedule, and they advise the newly hired instructors of placement on the salary schedule. At the time of his hire, Petitioner was told he would not be credited on the salary schedule for his Alabama teaching experience which led to his retirement in that state after 20 years. Petitioner acknowledged that he received a copy of the Master Contract in August of 2004, when the school year started. Petitioner knew, at the time of hire, that his rate of pay was based on his placement on the salary schedule. Petitioner had agreed at that time to perform the services required by his contract based upon the compensation set forth in the contract. Petitioner inquired about receiving credit for his 20 years of teaching experience in Alabama at the time he was hired by Respondent. At that time, Petitioner was told by Judy Fung, an employee with Respondent's human resources office, that Petitioner would not be granted credit for his 20 years of teaching experience in Alabama. Petitioner provided Respondent, shortly after he was hired, all the necessary paperwork to document his 20 years of satisfactory service as a teacher in Alabama. Petitioner performed the agreed-upon instructional services and was paid the agreed-upon contractual amount. Petitioner's annual instructional contract specifies the salary paid through twelve monthly installments with a daily rate of compensation identified. The amount of compensation can be further broken down into an hourly rate based upon 7.5 hours per day, and provides for annual leave and sick leave. As is customary, if the employee takes leave and has no accrued leave balance, his pay will be reduced to compensate for the hours of leave without pay taken. Respondent maintains ledgers with all the compensation information for its employees, including Petitioner. The statutory provision governing credit for prior teaching experience at issue in this hearing is former Subsection 231.36(3)(g), renumbered through amended versions to Subsection 1012.33(3)(g), Florida Statutes. Although the statute has been amended several times since 2001, the language that applies to all instructional employees (which includes public school classroom teachers pursuant to Subsection 1012.01(2)(a), Florida Statutes) hired after June 30, 2001, remains the same: "[F]or purposes of pay, a school board must recognize and accept each year of full-time public school teaching service earned in the state of Florida or outside the state." The original version of the statute effective July 1, 2001, included language that this statutory provision "is not intended to interfere with the operation of a collective bargaining agreement except to the extent it requires the agreement to treat years of teaching experience outside the district the same as years of teaching experience within the district." § 231.35(3)(g), Fla. Stat. (2001). The statute was amended effective January 7, 2003, removing the reference to collective bargaining and clarifying that the statutory provision applied only to public school teachers. § 1012.33(3)(g), Fla. Stat. (2003). The Master Contract was amended effective July 22, 2004, to include language referencing Subsection 1012.33(3)(g), Florida Statutes. The changes to the Master Contract, however, applied only to those instructors hired after July 22, 2004. Petitioner, and certain other teachers hired after June 30, 2001, but before July 22, 2004, have requested their placement on the salary schedule be revised to include credit for previous years of teaching experience. Those requesting a revised placement on the salary schedule based upon uncredited experience include teachers who had previously retired utilizing that credit and some who had not retired. Respondent, uncertain as to the proper application of the statute, has addressed claims for placement on the salary schedule and/or past compensation on a case-by-case basis. In February 2006, Petitioner became aware that Respondent's position concerning his requested credit for 20 years of teaching experience in Alabama may have been incorrect. Petitioner made a request for retroactive credit and for back salary for his 20 years of teaching experience in Alabama in June 2006, and again provided Respondent with documentation of his Alabama satisfactory teaching experience. Petitioner's request for credit and back salary was refused. The only reason given to him at the time was that he failed to make his request within two years of his hire date. At the direction of its General Counsel and after approval by the School Board, Respondent's placement on the salary schedule was amended effective June 1, 2006, to allow credit for his 20 years of teaching experience in Alabama. Respondent's human resources department does not know why the retroactive credit and salary increase were allowed for Petitioner, nor why the date of June 1, 2006, was chosen, especially when the collective bargaining agreement, according to Respondent, does not allow such credit. Petitioner seeks from Respondent 20 years of service credit and back salary for his satisfactory Alabama teaching experience for the period of April 22, 2004, through May 31, 2006, in the amount of $39,209.50. Petitioner also seeks reimbursement of reasonable attorney's fees, costs, and interest, both pre- and post- judgment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board enter a final order denying Petitioner's claim for back salary in the amount of $39,209.50, as well as pre- and post-judgment interest on this amount, and attorney's fees and costs. DONE AND ENTERED this 21st day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2007. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Michael J. Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Dr. Eric J. Smith 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 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), with respect to her treatment of students in her sixth-grade class and if so, what penalty should be imposed.
Findings Of Fact Based upon the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found: Respondent, Donna Faber-Soukey, is a licensed educator in the State of Florida, who holds Florida Educator Certificate 840010, covering the areas of elementary education and prekindergarten primary education, valid through June 30, 2015. Respondent has also obtained certification in the areas of K-12 health and K-12 physical education in the State of New York, and has a master’s degree in health administration. Respondent began teaching at Old Kings Elementary School (Old Kings) in the Flagler County School District in approximately 2004. Through the spring of 2010, she taught kindergarten and/or first grade, and received highly effective, exemplary, or very effective (depending on the rating tool) evaluation ratings each school year. In August 2010, Respondent’s husband suffered a significant health emergency that required her absence from school. As a result of events that are not the subject of these proceedings, Respondent did not teach at Old Kings for the 2010- 2011 school year, but returned in the fall of 2011. During this time, there were many issues in Respondent’s life that were causing extra stress for her, including the significant illnesses of several close family members, as well as her own diagnosis for depression. Nancy Willis was the new principal at Old Kings in the fall of 2011. While it was her first year at Old Kings, she had many years of experience as a principal. At the beginning of the 2011-2012 school year, she needed a sixth-grade inclusion teacher and understood that Respondent had taught upper grades before. She needed a veteran teacher, so placed Respondent in the sixth-grade inclusion classroom. Respondent was not comfortable with this placement and made her concerns known to Ms. Willis. Despite her request to be assigned to a first-grade or kindergarten class, she remained assigned to the sixth-grade class. Respondent found the class to be difficult to control, and admitted at hearing that she was “not on her game.” As noted above, there were other events taking place in Respondent’s life that effected Respondent professionally. However, any reference to other issues that were present is supplied only for context or for mitigation purposes. This Recommended Order deals only with those factual issues specifically alleged in the Amended Administrative Complaint. At the beginning of the school year, Respondent outlined the classroom rules and procedures that she expected the children to follow in her classroom. Students admitted at hearing that those rules were reasonable. One of the established rules was that when students came into the room, they were supposed to get the materials they would need for class out of their backpacks and were to place their backpacks in cubbies in the back of the room. This rule was important to Respondent, because she considered it to be essential for maintaining a safe environment in the classroom. However, it was common for students in the class to ignore this rule, and leave their backpacks on the floor next to their desks. Respondent would remind students of the need to place the backpacks in their assigned cubbies, but to no avail. At some point, Respondent started taking the backpacks found on the floor and placing them outside the classroom. While she testified that she simply put them outside the door, several students testified credibly that she would sometimes toss the backpacks, without regard for what may be inside them. Specifically, Respondent tossed both M.B. and J.A.’s backpacks outside of the classroom. There was testimony that J.A.’s glasses were inside his backpack and were broken as a result of the backpack being tossed, but J.A. did not testify. While other students saw Respondent toss the backpack, the testimony regarding the broken glasses was based upon J.A. telling other students that his glasses were broken, as opposed to the students who testified seeing the broken glasses themselves. Moreover, the Amended Administrative Complaint makes no mention of Respondent being responsible for breaking J.A.’s glasses. It must be noted, however, that the term “toss” conjures up different visuals for different people. According to Merriam Webster, the term means to throw with a quick, light motion; to move or lift something quickly or suddenly; or to move back and forth or up and down. www.merriam- webster.com/dictionary/toss. There is nothing in the definition that would attach a violent intent to the action, and it is possible for a person to “toss” a backpack with no intention of damaging the backpack or its contents. It is found that Respondent tossed the backpacks outside with no intention of damaging them or their contents, but did so in a careless fashion and did not take any measures to insure that nothing was in fact damaged when she did so. Some students testified that having students’ backpacks handled this way made them feel Respondent had no respect for their personal belongings. Their testimony in this regard is accepted. The students in Respondent’s classes were a challenging group. Some who testified admitted at hearing that they were not the best behaved. For example, one admitted that he enjoyed being referred to as the class clown, and another admitted that she had an “attitude problem.” There were also indications of significant bullying and conflict between students, and referrals to the office and refocus forms were issued frequently. Some students did not respect Respondent as a sixth-grade teacher and acted accordingly. Respondent had difficulty controlling the students in her class, and was exceedingly frustrated by their behavior. Simply put, teaching in a sixth-grade inclusion class was far different from the kindergarten/first-grade environment to which Respondent was accustomed. On at least two occasions, her frustration was such that she authored and provided documents for students to sign, which contained information about the behavior of other students in her classroom. For example, on December 14, 2011, there was an incident in her classroom involving student Z.M. The details related to the incident are not important, but the incident resulted in a referral for Z.M. Respondent wrote her account of the incident, comprising two pages. She asked two students who were present at the time of the incident to sign the second page of the document as witnesses. Respondent admitted authoring the document and asking the two students, H.W. and L.L., to sign it. She explained that she prepared the narrative for the benefit of the administrator who would receive the referral, and asked for the students to sign it so that the administrator would know which students had witnessed the incident. Respondent testified that she only showed the students the second page, which had a little more than one paragraph of text and a place for their signatures. H.W. did not testify, and L.L. recognized her signature on the narrative but did not recall signing it. Respondent’s testimony that she only showed the students the second page is accepted. However, it makes little difference. The second page stated: [s]uspension, today’s events and his current failing academic standing as a retention in 6th grade. I have tried to keep this child in my classroom since he is a repeater and will be going to seventh grade next year. He could easily have been written up and referred weekly. I have tried to develop a relationship with him to support and encourage him. His behavior is however, a detriment to the class as a whole. At this point, he will no longer be extended any leniency for inappropriate behavior. The line for the first signature is less than one inch from the typed text. It does not matter whether the two students signing the document were shown the first page: there is significant derogatory information about both Z.M.’s behaviors and academic issues on the page that the two students signed. The fact that page two of the document does not mention Z.M. by name is also irrelevant, given that the students were asked to sign the narrative soon after the incident where Z.M. was clearly a participant. On or about December 19, 2011, Respondent prepared a second narrative regarding problematic behaviors in her classroom. The narrative also stated that the students signing it have never witnessed Ms. Soukey use physical force to get the boys in her class to behave. She asked several students in the classroom to sign the document, and admits doing so. This narrative is signed by students R.R., S.R., S.P., N.S., C.G., G.D., and B.B. Only one of these students testified at hearing, and that student’s testimony does not reference the narrative. Respondent admitted preparing the narrative, stating that upon the advice of counsel, she was documenting those things that were happening in her classroom because she felt that she was being set up for a constructive termination. This narrative does not reference Z.M. Preparing the documents for her personal use is one thing. Having students sign the documents regarding the behavior of their classmates is another matter altogether. It was inappropriate to ask students in the classroom to sign a document detailing the misbehavior of other students in their class. Respondent must have been aware that a student had accused her of using physical force against him, in light of her including a denial of such behavior in the December 19 narrative. However, the evidence presented at hearing did not rise to the level of clear and convincing evidence that she, in fact, inappropriately grabbed, pushed or hit students in her class. There were students who testified that Respondent pushed them in order to get them moving to their seats. Some students described Respondent’s actions as placing her hands on a student’s shoulders to propel them forward toward the student’s seat. It is found that she did in fact place her hands on students to nudge them along to their seats. Beyond that, however, the students’ testimony was vague at best. The students often did not indicate who was pushed, pulled, or hit, and little or no date or time-frame was identified.3/ On the other hand, several students testified that they never saw Respondent punch, slap, or push anyone, or pull their hair. Z.M., one of the most credible students who testified, admitted his role in a fight that occurred in the classroom, and admitted that he enjoyed being considered the class clown. However, he did not recall Respondent ever punching, slapping, or grabbing a student by the hair. When asked if she ever grabbed anyone by the shirt and pulled them, he answered, “not really in an aggressive way, no.” One student, K.J., testified that Respondent deliberately stepped on his toes in class. K.J. is a tall student who could not sit comfortably at his desk with his feet under the desk, because to do so caused his knees to hit the underside of the desk. As a result, he often had his feet in the aisle in front of him. K.J. sat on the front row, and Respondent told him repeatedly to keep his feet out of the aisle. K.J. testified that Respondent stepped on his toes at least twice. He testified that he would ask her to get off of his feet and she would not respond, acting like she did not hear him, and then would ask him to put his feet under the desk. He was not aware that custodians had come to the classroom to alter his desk so that he could sit more comfortably. K.J. admitted it was possible that Respondent asked him to keep his feet under his desk for safety reasons, but believed that she stepped on his toes deliberately. However, on the totality of the record presented, while the evidence is compelling that Respondent did in fact step on K.J.’s toes, the evidence leaves more than one equally plausible alternative in terms of Respondent’s intentions. She could have deliberately stepped on K.J.’s toes to make a point to him about keeping them under his desk, or she could have stepped on them accidentally because they were admittedly in an aisle that should have been clear. Testimony was fairly uniform that the classroom was noisy. She could have heard his request that she move off of his toes and ignored it, or she could have not heard it. Given that either interpretation is plausible, the evidence is not clear and convincing that stepping on Respondent’s toes was intentional. There was no dispute that the classes Respondent taught that year were unruly and that she was frustrated with the students in her care. There was a lot of yelling, and little effective discipline. There was discussion among the students about the desire of some them to have a different teacher, and at some point in February 2012, students in Respondent’s classes were asked to go to the office and make statements about things they observed in the classroom. Ms. Willis testified that the students were asked to write a statement if there was anything that had happened in Respondent’s class. The statements were far from uniform. It is clear from reading some of the statements that the students are reacting to an inquiry concerning inappropriate touching, and responding that yes, she did touch students, or no, she did not. Whether the question that framed the responses came from Ms. Willis or from the students themselves is not clear: however, there was testimony that the students circulated a petition to try to get her fired, and that they discussed among themselves what they were going to write in their statements. Even with such discussion, there is not enough concrete detail about the alleged events to deem them credible.4/ In addition, there were several adults who came in and out of Respondent’s classroom and spent significant time there during this period. Among those adults were Ms. Christensen, Ms. King, Ms. Hammack, and Ms. Bentz. All who testified talked about the noisy, unruly atmosphere of the classroom, and there was agreement that Respondent appeared frustrated. However, none testified to ever seeing her inappropriately touch a student. Ms. Christensen did not testify. She was a paraprofessional in Respondent’s classroom. There are written statements by Ms. Christensen about various matters occurring in the classroom, in which she states that she had not witnessed Ms. Soukey physically handle a student by hitting, slapping, or punching them.5/ Ms. Hammack was also a paraprofessional who worked in Respondent’s classroom, generally every day. She identified her statement that she had never seen Respondent use physical force to force a student to comply, and testified credibly that she never saw Respondent punch or kick a student, or grab them by the hair, and that she would have seen it if it had occurred. Similarly, Ms. King was a special education teacher who worked in Respondent’s classroom approximately twice a week, in the mornings. She testified credibly that while there was not much control in the classroom, she never saw Respondent be physically inappropriate with a student. Finally, Jan Bentz was a veteran teacher who worked as a substitute at Old Kings. In January 2012, she was asked to work in Respondent’s classroom to provide classroom management support while Respondent taught. When Respondent was eventually removed from the classroom, Ms. Bentz took her place. She, like the other adults who spent time in Respondent’s classroom, testified that she never saw Respondent use excessive force with a student. More importantly, Ms. Bentz testified that the students told her about things that had happened in the classroom previously that she did not in fact witness. She gave the student’s stories little credence because she considered it to be hearsay. When asked on cross-examination about what she was told, she stated that what the students told her was mostly about thrown backpacks: “I don’t know that any actual hand-on-kid type thing happened, and I don’t recall being told about anything like that.” Surely, reporting that a teacher used excessive use of force would have been as important, if not more so, than relating instances where backpacks were tossed outside. Respondent readily admitted that she was not well- suited to teach in a sixth-grade inclusion class, and that because of the many issues going on in her life, she was not doing her best work. However, she also testified, credibly, that while she was exhausted, frustrated, and sometimes angry while working with these students, she did not touch them inappropriately. While it is found that she did guide students to their seats by placing her hands on their shoulders, and sometimes applied pressure to get them to sit in their seats; and that she stepped on K.J.’s toes, it is found that she did not take either action with the intention of harming any child in her care. Respondent clearly did not have control of the sixth- grade classroom and it was a mistake to place her there, especially given the concerns she had expressed when given the assignment. The many serious complications in her personal life, including the serious illness of her husband, mother, and father, and her own debilitating depression, certainly affected her ability to perform her job as she wanted to. Her actions in creating narratives and having them signed by students was misguided and meant as a way of documenting things happening in her classroom. However, it was inappropriate to involve the students in her classroom in her attempt to create any kind of record, whether personal or professional.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated section 1012.795(1)(j) and rule 6A-10.081(3)(a) and (e). It is further recommended Respondent be reprimanded; that she be placed on probation for a period of one year; and that as part of her probation, she be required to attend courses as determined by the Commission, in the areas of ethics and stress management. DONE AND ENTERED this 15th day of January, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2016.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint issued on October 19, 2009, and, if so, what action should be taken.
Findings Of Fact Ms. Schad holds Florida Educator’s Certificate (Certificate) No. 407935, covering the areas of Early Childhood Education, Elementary Education, English to Speakers of Other Languages (ESOL), Mathematics and Reading. Her Certificate is valid through June 30, 2013. Ms. Schad began teaching in 1978. She has taught in both the Lee County School District and Collier County School District. At all times material hereto, Ms. Schad was employed as a Reading and Math Specialist at Village Oaks Elementary School (Village Oaks) in the Collier County School District (School District). She began at Village Oaks for the 2003-2004 school year. Ms. Schad’s duties and responsibilities at Village Oaks included providing extra assistance to students who were not proficient in reading and math. Classroom teachers chose which students would receive the extra assistance from her. Typically, Ms. Schad met with the students she assisted in pull- out/break-out sessions in small groups of five students at a time and provided 30 minutes of assistance to each group of students. Some of the students to whom she provided the extra assistance spoke English as a second language (ESOL students). The principal at Village Oaks was Dorcas Howard. She has been employed with the School District for 50 years and has been a principal with the School District for over 21 years. The Collective Bargaining Agreement between the Collier County Education Association and the District School Board of Collier County (Collective Bargaining Agreement) controls the assessment of teachers. The Collective Bargaining Agreement requires the evaluation of teachers in the School District based on an evaluation system known as the Collier Teacher Assessment System (CTAS). The CTAS consists of 12 educator accomplished practices (EAPs)—Assessment, Communication, Continuous Improvement, Critical Thinking, Diversity, Ethics, Human Development and Learning, Knowledge of Subject Matter, Learning Environments, Planning, Role of the Teacher, and Technology—that are evaluated as Inadequate, Developing, and Professional/Accomplished. Also, the overall evaluation is Meets Expectation or Does Not Meet Expectation. If a professional service contract or continuing contract teacher fails to be rated at the Professional/Accomplished level in three or more EAPs or is rated at the Inadequate level in one EAP, the Collective Bargaining Agreement requires certain procedures and processes to be taken to assist the teacher. At all times material hereto, Ms. Schad was a professional service contract teacher. In order to perform an assessment pursuant to CTAS, one must be trained in CTAS. At all times material hereto, Ms. Howard was trained in CTAS. Ms. Schad’s 2004 Annual Performance Evaluation for the 2003-2004 school year was performed by Ms. Howard. Ms. Schad was rated overall as Meets Expectations, with two EAPs rated as Developing—Knowledge of Subject Matter and Technology. Ms. Schad was considered deficient in the two EAPs. Ms. Schad’s 2005 Annual Performance Evaluation for the 2004-2005 school year was performed by Ms. Howard. Ms. Schad was rated overall as Meets Expectations, with one EAP rated as Developing—Technology. Ms. Schad was considered deficient in the one EAP. Ms. Schad’s 2006 Annual Performance Evaluation for the 2005-2006 school year was performed by Ms. Howard. Ms. Schad was rated overall as Meets Expectations, with no EAPs rated as Inadequate or Developing. Ms. Schad was not considered deficient in any EAP. Ms. Schad’s 2007 Annual Performance Evaluation for the 2006-2007 school year was performed by Ms. Howard. Ms. Schad was rated overall as Meets Expectations, with no EAP rated as Inadequate or Developing. Again, Ms. Schad was not considered deficient in any EAP. On or about May 12, 2008, Ms. Schad received her 2008 Annual Performance Evaluation for the 2007-2008 school year from Ms. Howard. Ms. Schad’s overall rating was Does Not Meet Expectations (unsatisfactory), with four EAPs rated as Developing—Assessment, Communication, Learning Environments, and Planning. Ms. Schad was considered deficient in the four EAPs. As a professional service contract employee, pursuant to the Collective Bargaining Agreement, for the 2008-2009 school year, Ms. Schad was required to be assigned to Strand III, which is a probationary 90-calendar-day period to correct the deficiencies. On or about August 11, 2008, Ms. Schad was placed on a Strand III, 90-Day Improvement Plan to address the areas of deficiency. Pursuant to the Collective Bargaining Agreement, a professional assistance team (PAT) at Village Oaks was organized to assist Ms. Schad to correct the deficiencies. The PAT consisted of Ms. Schad, Ms. Howard, and two teachers—one teacher chosen by Ms. Howard, as a mentor to Ms. Schad, and one teacher chosen by Ms. Schad, as a peer teacher. The PAT met on several occasions. The first meeting was on August 27, 2008. Essentially, the discussion consisted of what was expected of Ms. Schad and what would occur at the end of the probationary period—a recommendation would be submitted to the Superintendent of the School District in 90 days. The expectations were that Ms. Schad would: provide documentation of absence in order to be paid, which should include date, time, and service; attend all planning sessions for third grade to determine the standards, targets and strategies, and activities that were to be taught; give a copy of her plans for next week to the team leader and the principal by 3:00 p.m. each Friday; follow the schedule to pick-up and drop-off students and have materials on hand and ready to begin lessons; meet each third-grade teacher to discuss progress or lack of progress; and work with five students per session and document (weekly/quarterly) their assessment results. Another PAT meeting was held on September 3, 2008. Pursuant to the Collective Bargaining Agreement, a Professional Assistance Plan (PAP) was developed and was reviewed at the meeting. The PAP contained major areas, with detailed strategies, which were Attendance, Planning, Assessment, Communication, and Role of Teacher; all were reviewed. Additionally, another area contained in the PAP was Observation, in which it was indicated that the Ms. Howard would complete at least four observations with written feedback; this too was reviewed. Implementation of the PAP occurred after the meeting. PAT meetings were subsequently held on September 24, October 15, and October 30, 2008. Other major areas of concern were discussed at the meetings, including Student Participation Progress; and Focus/Follow-Up. At each meeting, the focus of the discussions was on what Ms. Schad was not doing; what she was doing, but not doing correctly; what assistance could and would be provided. As a result of each meeting, assistance was being continuously provided to Ms. Schad by the PAT members to assist her in improving and correcting her deficiencies. At each meeting, Ms. Howard determined that Ms. Schad was not correcting deficiencies even though she (Ms. Schad) was being provided assistance to correct deficiencies. At the meeting held on September 24, 2008, the noted deficiencies included the areas of Planning and Student Participation Progress. At the meeting held on October 14, 2008, the noted deficiencies included the areas of Focus/Follow-Up, Planning, Student Participation Progress, and Assessment. At the meeting held on October 30, 2008, the noted deficiencies included the areas of Focus/Follow-Up, Planning, Student Participation Progress, and Assessment/Differentation. Furthermore, Ms. Howard was conducting observations of Ms. Schad during the Probationary period. The observations revealed continued deficiencies in spite of assistance being provided by the PAT. On or about November 7, 2008, about 64 days from the development and implementation of the PAP, Ms. Schad received a performance evaluation from Ms. Howard. Ms. Schad was rated overall as Does Not Meet Expectations (unsatisfactory), with four EAPs rated as Inadequate—Assessment, Communication, Planning, and Role of the Teacher—and three EAPs rated as Developing—Continuous Improvement, Knowledge of Subject Matter, and Learning Environments. The EAPs were areas of deficiency. The EAPs in which Ms. Howard found Ms. Schad to be deficient in the 2008 Annual Performance Evaluation that were not corrected within the Probationary period were Assessment, Communication, Learning Environments, and Planning—with Assessment, Communication, and Planning rated Inadequate; and Learning Environments rated Developing. Additional EAPs were found to be deficient at the end of the Probationary period, which were Continuous Improvement, Knowledge of Subject Matter, and Role of the Teacher—with Knowledge of Subject Matter and Continuous Improvement rated Developing; and Role of the Teacher rated Inadequate. The School District considered Ms. Schad as not competent to teach in the School District. On or about January 15, 2009, Ms. Schad was terminated from her teaching position with the School District. She has appealed her termination.3 The evidence demonstrates that Ms. Schad failed to meet the minimum standards required by the School District for teachers and was, therefore, not competent to teach according to the standards of the School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Eric J. Smith, as Commissioner of Education, enter a final order: Finding that Deborah Jane Schad violated Section 1012.795(1)(c), Florida Statutes (2008). Suspending Ms. Schad’s Certificate for six months and placing her on probation for two years under the terms and conditions deemed appropriate. DONE AND ENTERED this 23rd day of July, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2010.
The Issue May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
Findings Of Fact Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes. Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows: 231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction. On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN). Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president. On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question: Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations? Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing." On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent part: It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law. The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible. Implementation and compliance are to be at the local level. (Emphasis supplied) Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools. Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher. In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems. According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services. The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers. In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter, Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request. On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels. On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent. TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus. On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows: We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . . Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal hearing . . . . Respondent did not deny TEA's request for formal hearing. Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes. In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1 Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District. Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.) Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll. Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO. At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO. There are no professional (certificated or licensed) teachers on TEA's Board of Directors. It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either. TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development. Mr. Daniels has a background in insurance and union organization and litigation. Ms. Heard's qualifications were never clearly revealed. It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed. Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained. It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher. Also, the cost and objectives of Worwetz's courses were not explained. However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services. Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard. TEA currently has no employees, agents, or contractors who can offer continuing teacher education. TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks. TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service. TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute. Respondent School District, as represented by Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes. Respondent School District, as represented by Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions. Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows: In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation. See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990). In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993). In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996). In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998). In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999). On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena. . . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998). [Bracketed material added for grammar and clarity.] The PERC Order gave Mr. Daniels 10 days in which to respond. TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5 DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of January, 2001.
The Issue The issues in this matter are as follows: (a) whether Petitioner followed all procedural requirements before deciding to terminate Respondent's employment as a teacher; and whether Petitioner properly determined that Respondent's employment as a teacher should be terminated.
Findings Of Fact In 1985, Respondent received her Florida Teacher Certification, qualifying her to teach elementary education, Grades 1-6. She continues to hold that certification. Respondent worked as a substitute teacher in Petitioner's elementary, middle, and high schools for 13 years before she was hired as a full-time teacher in 1998. Thereafter, Respondent taught the following classes at the following schools: (a) from 1999–2003, “literacy” and language arts to sixth and seventh graders at Paxon Middle School; from 2003-2004, third graders at John E. Ford Elementary; from 2004-2006, first graders at Lake Lucina Elementary (Lake Lucina); (d) from 2006-2007, first graders at Arlington Heights Elementary (Arlington Heights); and (e) from 2007-2008, fourth graders at Sabal Palm Elementary (Sabal Palm). Throughout her tenure as a full-time teacher, school principals evaluated Respondent's performance on an annual basis. During school years 2006-2007 and 2007-2008, Petitioner used the Teacher Assessment System (“TAS”) as the primary method to evaluate Respondent's teaching ability. The TAS measures teaching performance based on nine different “Competencies.” These Competencies, listed in the 2006-2007 and 2007-2008 versions of the TAS include the following: (a) Promotes student growth and performance; (b) Evaluates instructional needs of students; (c) Plans and delivers effective instruction; (d) Shows knowledge of subject matter; (e) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (f) Shows sensitivity to student needs by maintaining a positive school environment; (g) Communicates with parents; (h) Pursues professional growth; and (i) Demonstrates professional behaviors. Under the TAS, a school administrator (usually the principal) evaluates teachers based on three scheduled classroom observations. During the observations, the principal uses the Teacher Assessment Instrument (“TAI”) to collect data and identify “indicators” associated with each Competency. In evaluating a teacher’s overall performance, principals may also consider informal, unannounced observations. The Classroom Observation Instrument (“COI”) is an earlier version of the TAI. The COI contains the same Competencies as the TAI, though they appear in different order. The “Evaluation of Professional Growth of Teacher” is a summative evaluation form used during the final annual evaluation conference. The form reflects the teacher’s final rating as to each Competency and the principal’s overall performance rating for the school year. The TAS procedures provide as follows in pertinent part: TAS Procedures-Principal/Supervisor PLEASE NOTE: One purpose of the TAS is to assist the employee to improve performance. Performance problems are best addressed early. If an informal observation or classroom visit indicates possible performance problems then the principal should immediately arrange to initiate a formal classroom observation using the TAI. Conduct an initial orientation for all instructional employees to be evaluated by the TAS. This should occur during pre- planning and include at minimum, 1) an overview of the forms and procedures, 2) a description of the competencies and their indicators, and 3) your schedule for observation activities. Pre-arrange with the employee at least one instructional session to be formally observed. Conduct a pre-observation conference with the employee. Discuss with the employee information regarding the lesson plan, targeted students and methodology. A pre-observation conference must occur. Conduct the observation using the TAI. All competency indicators that are observed during this observation will be checked on the TAI. Complete the TAI for all competencies/indicators not completed during the classroom observation. After the instrument has been completed, review and rate the data, and prepare the report to share with the employee. Within five (5) working days, schedule and conduct a post-observation conference with the employee to provide feedback. During the post-observation conference, review the TAI with the employee. Identify any problematic areas. At this time, schedule a conference to develop a success plan for employees who potentially may receive an overall unsatisfactory evaluation. This action must take place within two (2) weeks of the post conference but prior to February 1. During this time, a letter of Potential Unsatisfactory Evaluation must be given to the employee. Close the conference by signing all appropriate documents and securing the employee's signature of receipt. Follow the time line provided in the manual to ensure compliance with the reappointment process and to ensure due process for the employee. If a teacher demonstrates deficient performance under any Competency, a "Success Plan" is written in collaboration with the teacher. The Success Plan identifies areas of weakness by Competency, sets out objectives, and provides timelines to meet the objectives. A Success Plan Team includes the teacher, school administrators, colleagues that have expertise in the relevant subject matter, “resource” teachers or “coaches,” and, at times, a teachers’ union representative. According to the TAS, personnel decisions will be appropriate if the timeline and the following steps are followed: Notify the employee in clear and simple written communication(s) regarding your specific performance expectation as identified by the competency indicators on the TAI. Explain to the employee in oral and written detail the deficiency(ies) from the previously stated expectation(s). (Be specific by noting the time factors, place, circumstances, principal observations). Arrange with and/or for the employee to receive appropriate training or other assistance as needed in order to improve the deficiency(ies) noted on the TAS Success Plan. Record in writing any offers of help. Time any communication(s) to the employee so there is sufficient opportunity for the employee to correct deficiencies. The Success Plan Team (including the identified employee) must meet frequently to review the status of the implementation of the plan and the employee’s progress. While teaching first graders at Lake Lucina, Respondent elected to transfer to Arlington Heights in school year 2006-2007. Robert L. Snyder was, and still is, the principal of Arlington Heights. Upon meeting Respondent, Mr. Snyder considered Respondent as a pleasant and likeable person. However, because Respondent received an unsatisfactory evaluation the prior year, Mr. Snyder arranged for the development of a Success Plan for Respondent. With Respondent's input, the Success Plan Team drafted a Success Plan to be implemented at Arlington Heights. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. It was finalized and signed by Ms. Hunt in October 2006. The Success Plan Team included experienced teaching coaches. The coaches modeled instruction in Respondent's class on several occasions. Mr. Snyder conducted three formal observations and observed Respondent’s teaching performance informally on several occasions. During his visits to the classroom, Mr. Snyder would see students doing worksheets amounting to “busy work” which had no apparent connection to instruction or evaluation. Mr. Snyder kept personal notes documenting Respondent's tardiness to school on several occasions. He also noted her tardiness to workshops and in-service programs, including an in-service program focused on a reading assessment system for first graders known as Developmental Reading Assessment (DRA). On or about January 30, 2008, Mr. Snyder intended to deliver a letter to Respondent, advising her that she was at risk to receive an unsatisfactory evaluation for the year. When he went to Respondent's classroom, Mr. Snyder discovered that Petitioner was absent and had left no plans for the substitute teacher. The school policy required teachers to have three days of substitute plans in case of an unexpected absence. While Mr. Snyder assisted in the development of plans for the substitute teacher, he observed incomplete and blank DRA data collection forms. The forms did not indicate the students' levels of reading ability or the strategies put in place to enhance areas of weakness. Mr. Snyder also observed the teaching assistant doing work which should have been done by Respondent, such as grading papers. When Respondent submitted her lesson plans to Mr. Snyder, he observed that Respondent was not actually teaching the lesson plans to her class. Mr. Snyder also noted a lack of grades in Respondent's grade book. Mr. Snyder brought these concerns to Respondent's attention verbally and in writing. Throughout the school year, Respondent had a full-time paraprofessional/teacher’s assistant (“TA”) in her classroom. Mr. Snyder observed tensions between Respondent and her TA, as well as a second TA. The working relationship between Respondent and her TA deteriorated through the year. On one occasion, Respondent left her class of first graders completely unattended by an adult for twenty minutes. Mr. Snyder knew Respondent was in the office working on the computer when he saw Respondent's unsupervised students. On another occasion, Mr. Snyder saw Respondent who appeared to be videotaping students in a common hallway. The school did not have parental permission to videotape some of the students in another teacher's class. Mr. Snyder retrieved the videotape and discarded it. Respondent did not attend certain conferences with Mr. Snyder (including at least one formal pre-observation conference). Additionally, it was difficult to conduct meetings with the Success Plan Team because Respondent always insisted that an outside union representative instead of the building representative attend the meetings with her. Scheduled meetings with Respondent were delayed or cancelled on a number of occasions because an outside union representative was not available. Mr. Snyder formally observed Respondent and completed TIAs on December 15, 2006, February 6, 2007 and March 14, 2007. Mr. Snyder had a conference with Respondent before and after each formal observation to discuss the TIAs. Respondent signed each TIA. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 15, 2007. Reflecting the findings on the TIAs, the annual evaluation showed unsatisfactory performance in the following Competencies: Promoting Student Growth and Performance; Planning and Delivering Effective Instruction; and Demonstrates Professional Behaviors. The evaluation also showed a “Needs Improvement” rating in the following Competencies: Evaluates Instructional Needs of Students; Utilizes Appropriate Classroom Management; and Parent Communications. Respondent received and signed the annual evaluation. In school year 2007-2008, Respondent elected to transfer to Sabal Palm. At the new school, Respondent taught reading, writing and science to a fourth-grade class. Respondent's co-teacher, Kim Stancil, taught math and social studies. There were approximately 26 students in the class. The principal at Sabal Palm was, and still is, Mary Mickel. Because Respondent received an unsatisfactory evaluation the prior year, Ms. Mickel initiated a Success Plan for Respondent. Respondent signed a final copy of the plan on December 11, 2007. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. The Success Plan Team consisted of Ms. Mickel, other teachers, a “standards coach," and a “reading coach.” Ms. Stancil retired on October 29, 2007. A new co- teacher, Christie Callison, began teaching in January 2008. Ms. Mickel became concerned when Respondent failed to attend grade-level meetings. After receiving encouragement from Ms. Mickel, Respondent began attending the meetings but did not actively participate. Ms. Mickel had several parents call to complain about how Respondent treated their children or how their children were doing in Respondent's class. Ms. Mickel participated in at least one parent/teacher conference to resolve a parent's concerns. Ms. Mickel visited Respondent's classroom from time to time throughout the school year. Ms. Mickel conducted four formal evaluations of Respondent's performance. The formal observations took place on the following dates: September 13, 2007; November 19, 2007; January 28, 2008; and March 5, 2008. Ms. Mickel provided Respondent with advanced notice of the formal observations. Ms. Mickel had a conference with Ms. Hunt before and after the observations. During the formal observations, Ms. Mickel used the COI instrument to document indicators of performance under the nine Competencies. Respondent does not challenge Ms. Mickel's use of the COIs versus the TIAs. Ms. Mickel observed Respondent using materials and teaching subjects that were not age-appropriate for fourth graders. For instance, Respondent based a lesson on a book typically used with 1st graders. Ms. Mickel discussed this with Respondent and commented on the subject in the COIs. As time passed, Ms. Mickel observed Respondent's continued failure to properly assess student performance and failure to tailor instruction to student needs. Respondent had opportunities to participate in grade- level training on a weekly basis. She was allowed to observe other teachers in her school without having to take personal time. Respondent's coaches came into her class, prepared a lesson plan with her, and modeled the instruction. According to Ms. Callison, Respondent refused to collaborate with planning and instruction. Respondent did not want, give or receive assistance from her co-teacher. Respondent typically did not provide direct instruction to the students. Instead, Respondent gave the students “busy work” via worksheets that had nothing to do with the required curriculum. Respondent openly classified students by ability, using terms such as “middle group” and “low group.” Respondent would then have students grade each others’ papers and report the grades out loud to Respondent in class. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 14, 2008. Reflecting the findings on the COIs, the annual evaluation showed unsatisfactory performance under the following Competencies: Evaluates Instructional Needs of Students and Plans and Delivers Effective Instruction. Respondent obtained a “Needs Improvement” rating in the following Competencies: Promotes Student Growth and Performance; Communicates with Parents; and Demonstrates Professional Behaviors. Respondent received and signed the annual evaluation. Respondent testified that teaching fourth grade is particularly challenging compared to teaching other grade levels. According to Respondent, fourth-grade is difficult to teach because students must take the Florida Comprehensive Assessment Test (FCAT) in math, reading and writing. Although Respondent was without a co-teacher for a portion of the 2007-2008 school term, she is certified to teach all fourth-grade subjects. More importantly, Respondent has had experience teaching reading and writing to sixth and seventh- grade students, some of whom were working at the fourth-grade level. Respondent worked with and was evaluated by seven different principals throughout the last eight years of her employment. During those eight years, Respondent's summative evaluations showed her performance as follows: (a) eight consecutive years with unsatisfactory performance in the Parent Communication Competency; (b) five consecutive years with unsatisfactory performance in the Student Growth and Performance Competency; (c) five consecutive years with unsatisfactory performance in the Planning and Delivery of Instruction Competency; (d) four consecutive years with unsatisfactory performance in the Evaluation of Student Needs Competency.
The Issue Whether or not the Petitioner, Joseph E. Sedlak, is entitled to the restoration of any rights and privileges previously enjoyed, which have been removed as the result of the Respondent, University of North Florida's, notice of non-renewal of the Petitioner's contract beyond June 15, 1977, and whether or not the Petitioner is entitled to renewal of his contract with the Respondent beyond June 15, 1977.
Findings Of Fact This cause came on for consideration based upon the com-plaint filed by the Petitioner, Joseph E. Sedlak, dated July 9, 1976, as amended March 29, 1977. The answer to the amended complaint was filed by the Respondent, University of North Florida, April 15, 1977. The Complainant/Petitioner is a duly appointed employee and faculty member of the University of North Florida, who initial employment commenced on December 16, 1974. On June 2, 1976, Dr. Robert M. Siudzinskl, Chairman of the Department of Special Education, College of Education, University of North Florida, conducted an annual evaluation of Use Petitioner, Dr. Joseph E. Sedlak, a member of the faculty of the Department of Special Education. During the course of the annual evaluation process, Dr. Siudzinski told Dr. Sedlak that he had made the decision to recommend that Dr. Sedlak's contract as an employee with the University of North Florida not be renewed after June of 1977. This statement was made to Dr. Sedlak following a discussion between Dr. Siudzinski and Dr. Sedlak concerning the annual performance evaluation of Dr. Sedlak, as accurately summarized in Petitioner's Exhibit #54, admitted into evidence. Dr. Siudzinski then read from the Academic Personnel Policies and Procedures of the University of North Florida, Chapter XI-25 and 26, which states: "... the recommendation not to renew a non- tenured faculty member will originate with the Chairman of the department and be concurred in by the Dean of the College and Vice President and Dean of Faculties." After this Dr. Sedlak was informed by Dr. Siudzinski that Dr. Siudzinski had conferred with the President, Vice President and Dean of Faculties, and the Dean of the College of Education at the University of North Florida and they had concurred with his decision and had authorized Siudzinski to recommend non-renewal. (The excerpts of the University of North Florida Academic Personnel Policies and Procedures, Chapter XI are found as Petitioner's Exhibit #60, admitted into evidence.) It is unclear whether Dr. Siudzinski did in fact confer with the President and gain his concurrence with the decision and authority to recommend non-renewal; however, there were some conferences between Siudzinski and Vice President and Dean of Faculties and the Dean of the College of Education. These individuals concurred with the decision and authorized Siudzinski to recommend the non-renewal of Dr. Sedlak's contract of employment with the University of North Florida. At that time the Vice President and Dean of Faculties was Dr. Roy L. Lassitor and the Dean of the College of Education was Dr. Andrew Robinson. Dr. Siudzinski, in the course of the conference with Dr. Sedlak on June 2, 1976 stated his reasons for recommending non-renewal. Those reasons were: Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in amanner that benefited the Department. Unprofessional behavior during the assis tance quarter. Failure to contribute to the Department functioning commensurate with his rank (Reference was made to Dr. Sedlak's work on the 'Discrepancy Model.')" Finally, Dr. Siudzinski read from the University of North Florida Academic Personnel Policies and procedures, Chapter XI-26 and 27 which states: "prior to the transmission of the notice of non- reappointment, the University Officer initiating such action shall confer informally with the faculty member and explain the reasons for non-reappointment. The faculty member may request a written statement of reasons for non- reappointment within ten days after receiving the written notice. The request shall be in writing and the reasons shall be provided within ten days after the submission of the request. The notice of non-reappointment shall state in it the expiration date of the current contract and the effective date of termination and it shall indicate that the faculty member may appeal to the Committee on Rights and Responsibilities if he feels that the action is based on constitutionally impermissible grounds or to the President for review of the non-renewal decision when constitutional issues are not involved." Between June 2, 1976 and June 10, 1976, Dr. Roy Lassiter met with Dr. Sedlak and discussed, among other things, Dr. Sedlak's qualifications to remain on the faculty at the University of North Florida. Somewhere in this time period there was a discussion between Dr. Andrew Robinson and Dr. Sedlak, in which Dr. Robinson indicated that he concurred with the reasons which Dr. Siudzinski had given for the recommended non-renewal of Dr. Sedlak's contract, based upon Siudzinski's documentation and Siudzinski's reasons. On June 10, 1976, Dr. Thomas G. Carpenter, President of the University of North Florida, wrote to Dr. Sedlak recounting the conference of June 2, 1976, between Dr. Siudzinski and Dr. Sedlak, that informally notified Dr. Sedlak of the fact that his contract would not be renewed after June 15, 1976. The letter of Dr. Carpenter also indicated that formal notification of the action of non- renewal was being mailed June 10, 1976. Dr. Carpenter's letter further indicated that a new contract would be given to Dr. Sedlak effective June 16, 1976, for a contract year of 1976-77. (This letter had been prepared for Dr. Carpenter's signature by Dr. Lassiter, who is the delegated authority in matters of non-renewal of a non-tenured faculty member, in accordance with University of North Florida Academic Personnel Policies and Procedures, Chapter XI-25.) As Dr. Carpenter promised, formal notification of non-renewal of Dr. Sedlak's contract of employment was mailed from Dr. Robert M. Siudzinski, Chairman of the Department of Special Education, June 10, 1976. A copy of this letter of non-renewal is Petitioner's Exhibit #51, admitted into evidence. This letter served as official notification from the President of the University of North Florida, through his designee, Dr. Robert Siudzinski that Dr. Sedlak would not be appointed to the faculty of the Department of Special Education after June of 1977. The Siudzinski letter established that the current contract for the 1976-77 academic year would officially terminate on June 15, 1977. The letter stated that Dr. Sedlak could request a statement of reasons for the non- renewal within ten days of the date of receipt of the letter. The letter also attached the rules of the Board of Regents regarding the filing of grievances regarding non-renewal of contract. The letter went on to state that any grievance which Dr. Sedlak wished to file must be filed with the University President within 20 days after receipt of the letter, in accordance with quoted provisions. These provisions are drawn from the Chapter 6C-5.08(4)(c)5., Florida Administrative Code, which states: "any faculty member who deems himself aggrieved because of the recommendation that his contract of employment not be renewed and alleges (1) that the recommendation is based on constitutional impermissible reasons or (2) that it violates his property rights or (3) that it is not in compliance with written standards, criteria, or procedures prescribed by the Board of Regents or University regulations made within twenty days after receipt of the notice of non-renewal initiate his grievance by filing with the President, a complaint conforming to the requirements of paragraph (a) of Subsection (3) of this rule." Dr. Sedlak wrote a letter of June 14, 1976, to Dr. Siudzinski requesting a statement of reasons for non-renewal. This letter was responded to on June 22, 1976, in a letter by Dr. Siudzinski which stated four reasons for non-renewal of the contract. Those reasons being: "1. Failure to cooperate with the Department Chairman. Failure to respond to the assistance quarter in a manner that benefited the Department. Unprofessional behavior. Failure to contribute to the Department programs commensurate with rank and expectations at the time of initial appointment." Subsequent to the receipt of a statement of reasons, Dr. Sedlak filed his original letter of complaint of July 9, 1976. In accordance with Chapter 6C-5.08(4)(c)6., Florida Admin-istrative Code, Dr. Carpenter requested of Dr. Minor H. Chamblin, Acting Chairperson of the Faculty Grievance Committee of the University of North Florida, that an investigation be made of the complaint filed by Professor Sedlak in his July 9, 1976 letter. A copy of the report of that investigation may be found as Petitioner's Exhibit #59, admitted into evidence. The investigation did not lead to the resolution of the complaint of Dr. Sedlak, as indicated by the ongoing proceedings. The underlying facts involved in the dispute over the non-renewal of Dr. Sedlak's contract, began with the initial interview for employment which was conducted by Dr. Siudzinski. It was Dr. Siudzinski's contention in his testimony given in the course of the hearing, that Dr. Sedlak was told in the employment interview, that the University of North Florida program in Special Education was designed to have students obtain competencies in their field, meaning that the program at the University of North Florida was a competency based program. Moreover, Dr. Siudzinski contended that he told Dr. Sedlak that behavior modification was a strong part of the University of North Florida program and that he felt that Dr. Sedlak was weak in the behavior modification area and needed to improve. Dr. Siudzinski testified that he told Dr. Sedlak these things, notwithstanding the fact that Dr. Sedlak was hired to teach coruses other than behavior modification courses. Dr. Siudzinski indicated in his testimony that Dr. Sedlak was encouraged to sit in on Dr. Siudzinski's behavior modification course as an aid to Sedlak's achieving competency in the area. In opposition to this statement, Dr. Sedlak's testimony in the hearing indicated that he assumed his duties as a teacher at the University of North Florida, following initial interviews, but these interviews did not include a discussion of the necessity that he, Dr. Sedlak, have a competency in behavior modification. He said, as indicated by his vita filed with the University of North Florida at the time of his employment, Dr. Sedlak had never taken courses in behavior modification, and according to Dr. Sedlak those courses were not required as a prerequisite to his employment at the University of North Florida. Dr. Sedlak stated that at the initial interview there was no discussion of the philosophy of the Department of special Education at the University of North Florida, nor did Dr. Siudzinski tell him that he was expected to get a competency in behavior modification. Finally, in the discussion of the question of the necessity for competency in behavior modification at the employment stage, several other members of the faculty of the Department of Special Education, University of North Florida, offered testimony. One of those witnesses was Clement Van Nagel who testified that he had been hired to teach behavior modification and the policy that behavior modification competency was necessary had been discussed at faculty meetings which Dr'. Sedlak attended. Another faculty member in the Department of Special Education, Thomas Serwatka, testified in the hearing and stated although he was not told that he would be required to teach behavior modification, he was told by Dr. Siudzinski that. The Department of Special Education was competency based and that it was behavioral in its orientation and Siudziriski wanted to know if Serwatka had a background in behavior modification. Another faculty member in the Department of Special Education who testified was Mary D' Zamko. Mrs. D' Zamko testified that when she was hired she was expected to have a competency in behavior modification and that to her knowledge other faculty members were held to the same standard of competency. She also indicated that this expectation was made clear in the staff meetings in which Dr. Sedlak was in attendance. Finally, Robert Gonzales, a member of the faculty of the Department of Special Education, testified that when he was hired that there was an expectation that he have a competency in behavior modification. From the testimony offered in the course of the hearing it is established that Dr. Siudzinski apprised Dr. Sedlak of the expectation that Dr. Sedlak have a competency in behavior modification to be a member of the faculty at the University of North Florida and it is further established that this requirement was enunciated at intervals during the course of faculty meetings at the University of North Florida which Dr. Sedlak attended. Petitioner's Exhibit #9, is a composite exhibit which was admitted during the course of the hearing. This exhibit contains a letter of December 9, 1974, from Dr. Siudzinski setting out the period of appointment of Dr. Sedlak as Associate Professor of Education effective December 16, 1974, for a period to run through June 30, 1975. This letter sets out the major duties which Professor Sedlak was expected to perform. Professor Sedlak accepted the contract and appropriate administrative officials approved the hiring. From the time of the initial employment up to and including the date of the annual evaluation, which was held on June 3, 1975, nothing of any significance occurred. The annual evaluation of Dr. Sedlak's performance was conducted by Dr. Siudzinski on June 3, 1975. Prior to that date Dr. Sedlak was recommended for appointment for the summer quarter of 1975 effective June 23, 1975, as shown by Petitioner's Exhibit #14, admitted into evidence. Dr. Sedlak was approved for that quarter. In the evaluation session of June 3, 1975, mention was made of a problem which Dr. Siudzinski felt that Dr. Sedlak had in understanding, a so called "Discrepancy Evaluation Model." Dr. Siudzinski felt that from his observation of Dr. Sedlak's performance in instructing on this model, that Dr. Sedlak did not have a satisfactory understanding of it. Petitioner's Exhibit #15, admitted into evidence is a memorandum of June 5, 1975 dealing with the problem of Sedlak's understanding and his contribution to the underlying project. The fo1low up of the June 3, 1975 evaluation conference is found in a memorandum of June 5, 1975, which is Petitioner's Exhibit #15, admitted into evidence. In addition a memorandum was filed to the folder of Dr. Sedlak, dated June 27, 1975, from Dr. Siudzinski. A copy of this memorandum is Petitioner's Exhibit #17, admitted into evidence and the exhibit shows that Dr. Sedlak was recommended for reappointment for the year 1975- 1976. A copy of the offer of reappointment is found in Petitioner's Exhibit #19, admitted into evidence. This is an August 1, 1975, letter from Dr. Siudzinski indicating that the period of employment is from September 15, 1975 through June 15, 1976. Dr. Sedlak accepted this employment. Other action taken on the Petitioner's employment in 1975 would include a recommendation from Dr. Roy L. Lassiter, Jr., Vice President and Dean of Faculties, that Dr. Sedlak be given credit toward tenure at the University of North Florida for service at other institutions of higher education. This letter is in the form of a recommendation and a copy of the letter is Petitioner's Exhibit #21, admitted into evidence. The next notable event occurred in October or November of 1975, when an unidentified number of students objected to Dr. Siudzinski that Dr. Sedlak had assigned tests in his courses and not given those tests; to be followed by a period in which a group of tests were given to the students at one sitting. It is not clear that these complaints were made known to Dr. Sedlak and no official indication of these complaints was placed in the departmental file kept on Dr. Sedlak. In January, 1976, under a grant program, members of the faculty of the Department of Special Education, University of North Florida conducted a series of workshops on the subject of the aged. One of these workshops was conducted in St. Augustine, Florida on January 24, 1976. A part of the program was presented by Dr. Sedlak and Dr. Siudzinski observed part of the presentation. According to Dr. Sedlak, in a debriefing session Dr. Siudzinski indicated that he felt that certain of the information was irrelevant and counter to the behavioristic philosophy of the Department, to which Dr. Sedlak stated he protested and indicated that he had taught what was in the prescribed textbook. Dr. Sedlak testified that the subject then turned to Dr. Siudzinski's question of him, whether Sedlak had told anybody else about an incident which he had seen between a student and Siudzinski. Sedlak testified that the incident spoken of referred to Siudzinski being seen by Sedlak embracing and kissing a student, whom Sedlak knew. Sedlak claimed that he told Siudzinski that this incident was none of Sedlak's business and that he had said nothing. The subject, per Sedlak's testimony, then turned to whether Sedlak would be at the University of North Florida next year and Siudzinski supposedly said he really didn't know if Sedlak would fit in. The "incident" spoken of was supposed to have occurred a couple of weeks before this conversation. Siudzinski's version of the workshop debriefing was that he criticized Sedlak for being at variance with the purpose of the workshop, in that Sedlak was labeling matters and not dealing in the observable and measurable. Moreover, Siudzinski testified that some of the things that Dr. Sedlak was dealing in were contrary to what was being said by others participating in the workshop. Siudzinski claims he then brought up a complaint by a student which had been relayed through a secretary in the office of the Department of Special Education. Sedlak, by Siudzinski's statement, was kidding the student by saying that he had seen Siudzinski parked in front of her house. This was the total account of the January 24, 1976 debriefing, from Siudzinski's point of view. Dr. Siudzinski denies any incident in which he embraced a student or kissed a student. The subject was brought up again on January 27, 1976, after Siudzinski had attended one of Dr. Sedlak's classes for an hour and a half and spoke with him about the teaching. During the course of that conversation, Sedlak accused Siudzinski of "being on his back" and a heated argument ensued. Sedlak claims Siudzinski admitted being on his back about the so called "incident" with the "student" and Siudzinski claims that Sedlak told him that he would smear his, Siudzinski's name and family, so that he could not hold his head up in the community. Siudzinski said that he responded to this statement by asking Sedlak to resign. Another subject which was brought up on January 27, 1976, during the course of the discussion of the class, was Siudzinski's inquiry as to why Sedlak was teaching the I.T.P.A. tests, which Siudzinski thought was Inappropriate, by Sedlak's testimony. Dr. Siudzinski did not testify on whether he commented on teaching the I.T.P.A. or not. He simply said that he found some good things and some bad things in Dr. Sedlak's teaching. After the discussion of January 27, 1976, Dr. Siudzinski called Dr. Lassitor the next morning and told Dr. Lassiter of his concern about the accusations which Dr. Sedlak had placed against him on the subject of the student incident. Dr. Siudzinski observed another of Dr. Sedlak's classes on January 28, 1976. About this time period, Dr. Siudzinski prepared a first draft of a document entitled Discrepancy Evaluation Model Competencies which he intended to evaluate Dr. Sedlak on. Petitioner's Exhibit #24 is this document. In addition, Dr. Siudzinski submitted as a part of a memorandum of February 2, 1976, certain competencies in the behavior modification area which he expected to evaluate Dr. Sedlak on. The copies of this memorandum and the evaluation on behavior modification are found as Petitioner's Exhibit #25, admitted into evidence. These items found as Petitioner's Exhibits #24 and #25 were provided for Sedlak. These discussions mentioned above, between Dr. Sedlak and Dr. Siudzinski, were continued on February 5, 1976. On February 6, 1976, a meeting was held between Dean White, the then Dean of the College of Education, University of North Florida; Dr. Andrew Robinson; Dr. Siudzinski and Dr. Sedlak with the idea of trying to reconcile the differences between Dr. Siudzinski and Dr. Sedlak. The meeting also had as a topic of discussion, the propriety of requiring Dr. Sedlak to demonstrate his competency in behavior modification and the subject of the discrepancy evaluation model. There is a memorandum of February 9, 1976, indicating that there was a conversation between Professor Sedlak and Siudzinski. This memorandum is Petitioner's Exhibit #27, admitted into evidence. Dr. Sedlak does not recall this conversation and Dr. Siudzinski offered no testimony about it. A meeting was held February 10, 1976, between Dean White, Dr. Robinson, Dr. Sedlak and Dr. Siudzinski in which Dean White and Dr. Robinson suggested that If Dr. Sedlak had a complaint to make about Siudzinski's morals or behavior, he should state them. Sedlak's reply was that he had noting to say at that time. Dr. Robinson recalls that other subjects in the conversation were the question of Dr. Sedlak's competency in behavior modification and the possibility of offering an assistance quarter to improve Dr. Sedlak's knowledge of behavior modification. Siudzinski was to go back and think about what to do on the subject of the assistance quarter. In this same time frame there were several conversations between Dr. Siudzinski and Dr. Lassiter concerning Dr. Sedlak's performance and Dr. Lassiter had indicated that he thought that perhaps an assistance quarter was a proper aid, even though the matter concerned Dr. Sedlak's qualifications as opposed to his teaching skills. This subject of an assistance quarter was also discussed between Dr. Lassiter and Dr. Robinson at about this time. A meeting was held on February 13, 1976, between Dr. Siudzinski and Dr. Sedlak. A memorandum which summarized the results of that meeting is Petitioner's Exhibit #29, admitted into evidence and made a part of the record herein. This particular meeting was an evaluation session in which Dr. Siudzinski discussed one of the courses which Dr. Sedlak was teaching, to wit, EEC 604. He also mentioned the S.E.P.A. program audit which Sedlak was to participate in. Discussion was entered into about remedying the deficiency in behavior modification, which Dr. Siudzinski felt that Dr. Sedlak had. Suggestions offered were; taking a class and peer evaluation. The Discrepancy Model of Evaluation was also discussed and Dr. Siudzinski removed Dr. Sedlak from that project. The removal occurred because Dr. Siudzinski had talked to Professor D'Zamko and come to the conclusion, based on that conversation and his own observations, that Sedlak did not understand the project sufficiently and was not providing equitable participation with D'Zamko. Dr. Sedlak had not boon privy to the conversation between D'Zamko and Siudzinski. Dr. Sedlak complied with the request pertaining to EEC 604 and apparently complied with the request pertaining to the S.E.P.A. program audit. On February 27, 1976, a memorandum which is Petitioner's Exhibit #32, was sent from Dr. Siudzinski to Dr. Sedlak requesting an appointment between the two. Dr. Sedlak did not respond to the memorandum and a memorandum of March 8, 1976 was sent as a follow up requesting a meeting. This memorandum, Petitioner's Exhibit #33, admitted Into evidence, specifically sets out the topic of the meeting. One of the topics of the meeting, which was conducted on March 10, 1978, concerned the efforts which Dr. Sedlak had taken to cover one of his class sessions, EEC 604. The form that was filled out to have a sub-stitute teacher showed the wrong date. The form additionally indicated that Dr. Van Nagel would conduct the entire class, which was not possible since Dr. Van Nagel had a scheduling conflict for the first two hours of the four hour session, which was to be the length of time of Dr. Sedlak's class on that occasion. Dr. Sedlak had requested Dr. Cathy Hartman, another member of the faculty, to cover the first part of the class, and this was not reflected on the form. Dr. Hartman was unable to cover the class and this knowledge was only made known at 5:00 P.M. the day before the class session. The first part of the class to be covered was one in which a test was given to the students. Dr. Siudzinski took over that portion of the class and found the test instrument was not fair to those persons who did not have miniature calculators and the substance of the test was not acceptable in his view. A summary of the evaluation session of March 10, 1976, is Petitioner's Exhibit #34, admitted into evidence and made a part of the record herein. Dr. Siudzinski requested that he be provided with the test instruments involved in the EEC 604 course. One of the test instruments was the one given by Dr. Siudzinski and is Petitioner'S Exhibit #35, admitted into evidence. Of the remaining test instruments, one or more were never provided to Dr. Siudzinski. Dr. Sedlak's explanation was that some of the tests had been destroyed and some of the tests were found subsequent to the time that he was removed from the Department of Special Education. Another subject in the evaluation session of March 10, 1976 was the discussion of behavior modification. No resolution was reached on the subject of the possibility of Dr. Sedlak taking a course in behavior modification and Dr. Siudzinski agreed to look into this further. The memorandum covering the evaluation session indicates that an agreement was reached on a meeting to be held with Dr. Andrew Robinson on March 12, 1976, to discuss the assistance quarter, which was to begin March 26, 1976. Dr. Sedlak claims that no such discussion was entered into concerning the subject of assistance quarter or a meeting with Dr. Robinson. Dr. Siudzinski remembers that the subject of setting up an assistance quarter had been discussed in an evaluation session, although he does not mention which session. In fact, after a memorandum of notice, a meeting was held with the then Dean Designate Andrew Robinson on March 18, 1976. At the meeting Dean Robinson had a copy of the memorandum summary of the meeting of March 10, 1976 between Dr. Sedlak and Dr. Siudzinski which is Petitioner's Exhibit #34, admitted into evidence. Dr. Robinson indicated that he felt that the problem with the class coverage was serious. Dr. Sedlak responded that he thought this was trivial. Nonetheless, Dr. Robinson instructed Dr. Sedlak that these matters would begin to pile up. The subject of the assistance quarter was brought up, and Dr. Robinson indicated that if Dr. Sedlak refused to participate in the assistance quarter and resigned, he wanted to know what Dr. Siudzinski would provide in the way of an employment reference. Dr. Siudzinski indicated that he would not volunteer any derogatory information about Dr. Sedlak to a prospective employer. The subject of an assistance quarter was concluded by Dr. Robinson telling Dr. Sedlak that he would expect the assistance quarter to he a part of the spring quarter duties of Dr. Sedlak. Dr. Sedlak, in his testimony in the hearing, denied that any conversation on the assistance quarter was entered into. Dr. Siudzinski again asked for the test instruments which were involved in EEC 604 and Dr. Sedlak refused to give these instruments to Dr. Siudzinski but indicated that he would give them to Dr. Robinson. As stated before, some of these test instruments were never provided to Dr. Siudzinski, nor were they provided to Dr. Robinson. Dr. Robinson also asked Dr. Sedlak at the meeting were there reasons other than professional ones why Dr. Siudzinski would be putting Dr. Sedlak through an assistance quarter. Dr. Sedlak responded that he would not deal with that at that time. After the meeting between Siudzinski, Robinson, and Sedlak, Sedlak came to Robinson's office and stated that the reason Siudzinski was after him was because one day Sedlak had caught Siudzinski and a student in a compromising situation. Robinson responded to this statement by saying that if Sedlak would make formal charges against Siudzinski he would Investigate and discipline Siudzinski if it were true; however, if It was untrue, Dr. Sedlak would be disciplined. Dr. Sedlak said he would need time to think about such a complaint. He never did offer to make a formal complaint. Between the winter and spring quarters of 1976, Dr. Sedlak entered the hospital for a kidney disorder. He had signed out for a car from the University on the day he entered the hospital. The car was signed out from the University to go to Lake City, Florida to teach a workshop for the aged. When he became ill he went to the hospital and parked the car, leaving the car with the keys in the ignition. He then called Dr. Siudzinski and told him he could not attend the workshop the next day because he was in the hospital, after which he hung up. He did not indicate to Dr. Siudzinski which hospital he was in. Through the efforts of the administration and in particular Dr. Siudzinski, it was determined that Dr. Sedlak was in Memorial Hospital, Jacksonville. Dr. Sedlak did not indicate his whereabouts until the next day, at which time he called Dr. Siudzinski and indi-cated that the car was in the Memorial Hospital parking lot. Dr. Robinson was concerned about the health issue and offered to allow Dr. Sedlak to assume some other duties other than teaching in the spring quarter of 1976. Dr. Sedlak declined his offer and returned to his teaching duties. Dr. Robinson made clear that this return to teaching would cause Dr. Sedlak to be treated as any other teacher even though he was going to be on an assistance quarter. As a part of this discussion, Dr. Robinson required Dr. Sedlak to produce a letter saying he was capable of performing his teaching duties Dr. Sedlak responded by correspondence of March 29, 1976, which is Petitioner's Exhibit #39, admitted into evidence. Dr. Siudzinski followed this letter by a letter of March 30, 1970 to Dr. Sedlak which is Petitioner's Exhibit #40, admitted into evidence and indicates that in the spring quarter, Dr. Sedlak would perform duties as an Associate Professor in the Department of Special Education, as well as the additional responsibilities that had been discussed, meaning the assistance quarter. Again Dr. Sedlak denies that the assistance quarter was to be performed. On April 1, 1976, Dr. Siudzinski discussed a meeting of March 29, 1976, between he and Sedlak and reiterates his request for the exams, the five examinations which were used In the winter quarter course EEC 604. Petitioner's Exhibit #42, admitted into evidence, is a composite exhibit containing two examinations of the winter quarter of 1976 and three sets of answers. These items were found in June or July, 1976, but as stated were never given Dr. Siudzinski. Another evaluation session was held between Dr. Siudzinski and Dr. Sedlak on April 22, 1976. A summary of this evaluation session is found in Petitioner's Exhibit #43, admitted into evidence and made a part of the record herein. Some of the subjects covered in the evaluation session included a discussion of the attendance of a workshop on behavior modification, and another request that the examinations for the EEC 604 course be provided. He was also requested to provide the instruments and techniques involved in that course and other courses being taught by Dr. Sedlak. These were provided. An inquiry was made about the progress that Dr. Sedlak had made in mastering Discrepancy Model Competencies contained in the list of January 30, 1976. Other matters covered were the progress which Dr. Sedlak had made on the mastering of behavior modification competencies set up in the memorandum of February 2, 1976. It was also discussed that Dr. Sedlak was not answering his phone in the office. Finally, Dr. Siudzinski indicated that he might be visiting Dr. Sedlak's classes in the future and requested his list of competencies that were to be covered. Dr. Sedlak stated that he would not provide the exams in the EEC 604 class without speaking to the union. He made a similar reply on the request for instruments and techniques in other courses and a similar reply about progress which he had made in mastering the Discrepancy Model Competencies. Additionally, he said he refused to be tested on the Discrepancy Model Competencies, since he was an Associate Professor. He made the same response to the inquiry on progress on behavior modification competencies. He also stated that many of the behavior modification competencies were incorporated in his classes. (Sedlak also taught several sessions on behavior modification for the Duval County School Board outside his normal duties.) The complaint about answering the phone was responded to by Dr. Sedlak in which he said that when he was busy with someone in the office or working on something important, it was not necessary to answer the phone. He agreed to produce the list of competencies to be covered in his upcoming classes. The summary of the evaluation goes on to request in writting copies of the exams in the EEC 604 course for the winter quarter 1976. It also requests in writting, copies of the instruments and descriptions of techniques in evaluating courses being taught by Dr. Sedlak. It requests in writting an answer on progress made in mastering the Discrepancy Model Competencies of January 30, 1976 and the progress made in mastering behavior modification competencies attached to the memo of February 2, 1976. In connection with the discussion of instruments and techniques in evaluating students in the courses being taught by Dr. Sedlak, Petitioner's Composite Exhibit #44, admitted into evidence, is copies of classes assigned to be taught by Dr. Sedlak for the period of his stay with the Department of Special Education. On April 27, 1976, Dr. Sedlak responded to the memorandum on the meeting on April 22, 1976. In this memorandum he suggested that the tests were not kept and that he does not traditionally keep tests and asked why the matter of the tests of the EEC 604, winter quarter kept coming up. He stated that he provided evaluation instruments for EEC 500 as enclosed and stated that the other evaluation instruments were not kept for other courses. His response to the Discrepancy Model of Evaluation was that he had been removed from responsibilities in the area and made no further response. Finally, in response to the question on behavior modification competencies, he simply stated that he had given workshops in behavior modification for Duval County Schools. On May 28, 1976, a memorandum was sent to Dr. Sedlak from Dr. Siudzinski requesting a meeting for the annual evaluation to be held June 2, 1976. During the spring quarter of 1976, Dr. Roy L. Lassitor met with members of the facultv of the Department of Special Education other than Dr. Siudzinski and Dr. Sedlak and requested them to answer several questions. Me asked them if Dr. Siudzinski was involved with any female students to their knowledge, to which they responded no. He asked them if the faculty was aware of any incident between Dr. Siudzinski and some student and they responded yes, but only as a rumor. He asked them if they had confidence in Dr. Siudzinski as chairperson and they responded that they did. The persons contacted were Dr. Van Nagel, Dr. Serwatka, Mrs. D'Zamko and Dr. Gonzales. In that quarter, Dr. Robinson met several times with Dr. Siudzinski to try to clear up the progress that had been made by Dr. Sedlak on the assistance quarter. He also met with Dr. Sedlak and reminded him that he expected Sedlak to perform the assistance quarter laid out by Siudzinski. Respondent's Exhibit #2, admitted into evidence, is a list of Dr. Robinson's suggestions for the assistance quarter. In other meetings with Siudzinski, Siudzinski stated that very few things that Dr. Sedlak had been requested to do had been done, and that he thought that Sedlak should be terminated. Some of the complaints that Siudzinski related to Dr. Robinson were, intimidation of secretaries, graduate students and assistants and disparaging remarks about Siudzinski. Dr. Robinson told Siudzinski to but these matters in writting and after reviewing the case, Dr. Robinson concurred with Siudzinski that Dr. Sedlak's contract should not be renewed. There was a meeting between Dr. Sedlak and Dr. Lassiter which has been previously referred to in the body of facts, specificallv the meeting between June 2, 1976 and June 10, 1976. In that meeting Dr. Lassiter offered Dr. Sedlak the opportunity to make charges against Dr. Siudzinski for his alleged improper conduct. Lassiter stated that he would remove the Chairman if it was a true claim and proceed to terminate Dr. Sedlak for cause if the charges of improper conduct with a student wore false. Sedlak did not bring a charge. An examination of the evidential facts indicates that the recommendation of the non-renewal of the Petitioner's contract, (1) was not based upon a constitutionally impermissible reason, (2) was not violative of any of the Petitioner's property rights and (3) complied with written standards, criteria, and procedures prescribed by the Board of Regents and university regulations. The briefs filed by the parties have been examined and the elements of those briefs which are deemed to be meritorious have been incorporated into the findings of fact of the undersigned.
Recommendation It Is recommended that the Respondent, University of North Florida, not renew the Petitioner's contract of employment with the University of North Florida beyond June 15, 1977 and that the Petitioner be found unentitled to restoration of rights and privileges previously enjoyed before the recommendation of non-renewal of his employment contract with the University of North Florida. DONE AND ENTERED this 10th day of June, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June COPIES FURNISHED: Mr. Anthony Demelas American Federal of Teachers 160 College Street Burlington, Vermont Delbridge L. Gibbs, Esquire Post Office Box 447 Jacksonville, Florida 32201 Dr. Joseph Sedlak 5336 Windemere Drive Jacksonville, Florida 32211 Kenneth A. Megill Florida Education Association/United 208 West Pensacola Street Tallahassee, Florida 32304
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(5)(a), 6B-1.006(5)(d), 6B-1.006(5)(e), and 6B-1.006(5)(h), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Cardona holds Florida Educator’s Certificate 634334, covering the areas of athletic coaching, sociology, and exceptional student education. His certificate is valid through June 30, 2011. At all times pertinent to the allegations in the Administrative Complaint, Mr. Cardona was employed as a vocational exceptional student education teacher at Gateway School (Gateway) in the Orange County School District (School District). Gateway is a specialized day school for emotionally- disabled students, grades six through twelve. Valerie Simons (Ms. Simons) was an art teacher at Gateway. Kathy Nash (Ms. Nash) was also employed at Gateway as a behavior technician. Ms. Nash would help instructional staff work with students who were having emotional behavior problems. From July 2005 until April 2006, Mr. Cardona was engaged in a romantic relationship with Ms. Simons. The relationship included, but was not limited to, dating, visiting one another’s homes, and exchanging gifts. In or about March 2006, Mr. Cardona borrowed $1,400 from Ms. Simons. He later repaid $700 of the loan. Although Ms. Simons has made numerous requests for him to pay the balance owed, he had failed to do so. On or about April 7, 2006, Mr. Cardona and Ms. Simons had their last date. On or about April 10, 2006, Ms. Simons had major surgery. After Ms. Simons’ surgery, the romantic relationship between Mr. Cardona and Ms. Simons ended. Unbeknownst to Ms. Simons, Mr. Cardona had also been having a romantic relationship with Ms. Nash at that the same time that he was seeing Ms. Simons. Mr. Cardona continued his romantic relationship with Ms. Nash after the relationship with Ms. Simons ended. In the spring of 2006, W. Thomas Oldroyd, Jr. (Mr. Oldroyd), was the principal at Gateway. One of his assistant principals, Collette Rance (Ms. Rance), came to him and told him that Ms. Nash had come to her and was upset. A student had complained to Ms. Nash about a romantic relationship between Ms. Simons and Mr. Cardona. There had been rumors about romantic relationships between Mr. Cardona and Ms. Simons and between Mr. Cardona and Ms. Nash, who was married. A student also approached Ms. Rance during the spring of 2006 and told Ms. Rance that he had overheard a conversation between Mr. Cardona and Ms. Nash. Mr. Cardona had told Ms. Nash that Ms. Simons was crazy. The emotionally-handicapped student was excited and animated when he disclosed the information to Ms. Rance. Ms. Rance gathered from the student that the student understood that there had been a romantic relationship between Mr. Cardona and Ms. Simons. The day after Ms. Rance reported her conversation with Ms. Nash to Mr. Oldroyd, Mr. Oldroyd called Mr. Cardona, Ms. Simons, and Ms. Nash in his office and told them that whatever personal relationships going on among them was their business, but that he did not want the students to get involved and to discuss the personal lives of Gateway staff. He also told them that, if the talk did not cease, he would involve the employee relations office to do an investigation into the matter. Mr. Cardona, Ms. Simons, and Ms. Nash did not acknowledge that were any personal relationships among themselves; however, they did agree to act professionally and to do what they could to stop the talk among the students. During the 2006 summer school session at Gateway, Ms. Rance had to discipline a student who had yelled at Ms. Simons, telling Ms. Simons that Ms. Simons had broken up Ms. Nash’s marriage and that it was Ms. Simons’ fault that Ms. Nash was getting a divorce. It was clear that the environment that was created concerning the romantic relationships of Mr. Cardona, Ms. Simons, and Ms. Nash was being disruptive to the learning environment. In July 2006, Elaine Scott, Ph.D. (Dr. Scott), replaced Mr. Oldroyd as principal at Gateway. Dr. Scott began to hear comments about the relationships between Mr. Cardona and Ms. Nash and Ms. Simons. She asked Ms. Rance about the comments, and Ms. Rance advised Dr. Scott about Mr. Oldroyd calling Mr. Cardona, Ms. Nash, and Ms. Simons into his office and telling them to act professionally. In August 2006, during the pre-planning session prior to the students returning to school, there was an incident involving Mr. Cardona and a staff member concerning the issuance of keys. Mr. Cardona had complained to Ms. Rance that he thought that Ms. Simons was using her master key to go into his office. Ms. Rance advised him that she would not be issuing master keys to anyone. Mr. Cardona became agitated that he would not be getting a master key. As a result of the incident concerning the keys, Mr. Cardona was given a written directive dated August 28, 2006, in which he was told to conduct himself in the following ways: You are to avoid even the appearance of verbal intimidation while dealing with staff members. This includes, but is not limited to yelling, comments of a disparaging nature, or actions that subject a person to embarrassment. You must also avoid the appearance of retaliation toward any person who may have been a part of this matter. You are reminded that conduct of a sensational nature can adversely impact the professional reputation and effectiveness of a teacher. I expect you to exercise discretion and judgment, such that you do not discredit yourself, the school, or the district. Dr. Scott continued to her comments by others about the unprofessional manner in which Mr. Cardona, Ms. Simons, and Ms. Nash were interacting. Dr. Scott became concerned to the point that she asked the employee relations department of the School District to investigate, and an investigation was commenced. On or about October 19, 2006, Mr. Cardona went to Ms. Simons’ classroom during work hours. He brushed Ms. Simons’ shoulder and said he was trying to see if she had any chips on it. Mr. Cardona also unzipped his pants and pressed against Ms. Simons and asked if he could come to her house that evening. On or about October 24, 2006, Mr. Cardona approached Ms. Simons while she was in the school library, while they were there to view a video as part of the teacher training. Mr. Cardona asked Ms. Simons if he could give her proof that he was free from any sexually transmitted disease and acquired immune deficiency syndrome. On or about October 30, 2006, Mr. Cardona went to Ms. Simons’ home uninvited. He began to bang on a window and banged so hard on the front door that he dented the door. Ms. Simons went to the door, looked through the peephole, and saw that it was Mr. Cardona. He tried to convince her to let him in, but she refused. Mr. Cardona eventually left. Ms. Simons complained to the School District about Mr. Cardona’s harassment. She also filed a petition in circuit court for a restraining order against Mr. Cardona. On October 31, 2006, a Temporary Injunction for Protection Against Domestic Violence Without Minor Child(ren) was issued by the Circuit Court of the Ninth Judicial Circuit in and for Orange County, prohibiting Mr. Cardona from having contact with Ms. Simons. On November 13, 2006, a Final Judgment of Injunction for Protection Against Domestic Violence Without Minor Child(ren) (After Notice) was issued by the same court against Mr. Cardona, prohibiting Mr. Cardona from having contact with Ms. Simons. Ms. Simons advised Ms. Rance of the issuance of the injunctions. After Ms. Rance became aware of the injunctions, she observed Mr. Cardona standing near Ms. Simons’ classroom, sorting through what looked like junk mail. There was no reason for Mr. Cardona to be near Ms. Simons’ classroom. Ms. Rance confronted Mr. Cardona about standing near Ms. Simons’ classroom after the issuance of the injunctions, and Mr. Cardona became angry with Ms. Rance. On November 18, 2006, a staff meeting was held concerning a student. Present at the meeting were the student, his guardian, several vocational teachers, Ms. Simons, and Mr. Cardona. During the meeting, Ms. Simons was commenting on what she had observed of the student’s performance and was giving her professional opinion on whether the student should be on a particular diploma track. While Ms. Simons was speaking, Mr. Cardona made sidebar comments such as: “Yeah, in her professional opinion. . . . What profession is that?” Mr. Cardona also would roll his eyes and shake his head at Ms. Simons’ comments. These types of comments continued throughout the meeting. Susan Fronheiser (Ms. Fronheiser), then a teacher at Gateway, was present during the meeting. During the meeting, the guardian of the student asked Ms. Fronheiser what was going on with Mr. Cardona’s comments and actions. At the end of the meeting, other teachers asked Ms. Fronheiser what was going on with Mr. Cardona. Mr. Cardona’s conduct at the meeting was unprofessional and disturbing to the attendees of the meeting. Ms. Fronheiser advised Ms. Rance of what had occurred during the meeting. On November 30, 2006, Mr. Cardona gave notice to the School District that he would retire from his position on December 29, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Cardona is not guilty of violating Subsection 1012.795(1)(c), Florida Statutes; finding Mr. Cardona guilty of violating Subsections 1012.795(1)(f) and 1012.795(1)(i), Florida Statutes; finding that Mr. Cardona is guilty of violating Florida Administrative Code Rules 6B-1.006(5)(d) and 6B- 1.006(5)(e); finding that Mr. Cardona did not violate Florida Administrative Code Rules 6B-1.006(5)(a) and 6B-1.006(5)(h); and suspending his teaching certificate for two years. DONE AND ENTERED this 15th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2010.
The Issue The issues are whether Respondent has violated Sections 231.28(1)(b), 231.28(1)(f), and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida teaching certificate number 335745. He is certified to teach Social Science Education through June 30, 1998. The Duval County School District employed Respondent as a teacher at Highlands Middle School for the 1993-1994 school year. Respondent taught geography during his first period class at the middle school. On or about February 10, 1994, a student in Respondent's classroom, C. L., was talking to a student in an adjacent classroom through a hole in the wall. Respondent lost his temper and threw a geography book at C. L., hitting him in the head. Respondent's testimony that the book slipped from his hand is not persuasive. After the book-throwing incident, the Duval County School District transferred Respondent from Highlands Middle School to the district's book depository. Two months later, the school district transferred Respondent to Joseph Stilwell Middle School for the remainder of the 1993-1994 school year. The principal of Highlands Middle School, George Reynolds, prepared Respondent's annual evaluation on March 1, 1994. Mr. Reynolds found that Respondent's performance was unsatisfactory in the following two areas: (a) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (b) shows sensitivity to student needs by maintaining positive school environment. These ratings resulted in a deduction of four points and an overall "unsatisfactory" evaluation. Mr. Reynolds, however, inadvertently marked Respondent's overall evaluation as "satisfactory." The Duval County School District transferred Respondent to Landon Middle School for the 1994-1995 school year. Within weeks, it became apparent that Respondent had difficulty controlling the students in his classes. In September 1994, Respondent called one of his student's a "trashy kid." During a subsequent parent-teacher conference, Respondent referred to his students as "bad" kids. As to classroom control, he stated that "a teacher can only do so much" and that "his hands were tied." After the parent-teacher conference, the Landon Middle School principal, Elaine Mann, had a conference with Respondent. During this conference, Respondent stated again that he had trouble maintaining classroom control because he had a number of bad students. Ms. Mann and Respondent agreed that she would observe his second period class on October 3, 1994. Ms. Mann observed Respondent's sixth grade World History class on the agreed date. Respondent's performance during this observation was unsatisfactory in the following ways: (a) Respondent allowed students to spend too much time on one activity; (b) Respondent's lesson did not include a way to evaluate classwork; (c) Respondent's lesson did not include an introduction or summary; (d) Respondent's lecture was disjointed; and (e) Respondent's stated objectives were not appropriate. In a memorandum dated October 6, 1994, Ms. Mann described Respondent's strengths and weaknesses and included recommendations to improve his teaching techniques. Ms. Mann conducted a conference with Respondent on October 10, 1994, to discuss her observations and recommendations. Ms. Mann observed Respondent's eight grade U.S. History class on November 14, 1994. For the second time, Ms. Mann found that Respondent's performance was unsatisfactory. A memorandum dated November 16, 1994, lists the following weaknesses: (a) Respondent did not require students to be in class on time; (b) Respondent wasted instructional time; (c) Respondent permitted students to sleep in class; (d) Respondent did not introduce the lesson or use a handout appropriately; (e) Respondent's lecture/discussion lacked organization; (f) Respondent turned his back to one side of the room for most of the period; and (g) Respondent only interacted with six students. Ms. Mann provided Respondent with a written memorandum dated November 16, 1994, setting forth his strengths, weaknesses, and recommendations for improvement. She advised Respondent that she would request assistance for him from the Professional Development office. Ms. Mann wanted that office to establish a support team to work on a "success plan" to improve Respondent's performance. Ms. Mann set a goal for Respondent to achieve a satisfactory evaluation by March 15, 1995. On January 3, 1995, Ms. Mann observed Respondent's class informally. She found that the students were not under control. Their behavior towards Respondent was disrespectful. Ms. Mann and Respondent signed a written success plan on January 11, 1995. The plan included strategies to meet the following objectives: (a) demonstrate effective classroom management skills; and (b) demonstrate effective presentation of subject matter. A member of the support team, Marlene Rasmussen, observed Respondent on January 19, 1995 and January 23, 1995. The focus of the observations was Domain Four, presentation of subject matter. Based on her observations, Ms. Rasmussen recommended that Domain One, lesson planning, be added to Respondent's success plan. Ms. Rasmussen also recommended that Respondent attend a workshop to learn effective teaching behaviors. Ms. Mann arranged for Respondent to attend this three-day workshop. On January 13, 1995, Ms. Mann received a complaint that Respondent used the word "shit" in addressing a student in his class. Ms. Mann admonished Respondent regarding his inappropriate language in a written memorandum dated January 30, 1997. Peggy Clark, a member of the in-service support cadre, provided assistance to Respondent beginning in February 1995. She worked with Respondent in the area of lesson planning. Ms. Clark observed Respondent's classroom performance on two occasions. She conducted two post-observation conferences with Respondent. Ms. Clark was unable to complete her duties in assisting Respondent because of his absences. Louise Peaks, the eight-grade house administrator, was a member of Respondent's success team. As a resource person, she assisted him, on an informal basis, by providing him with feedback from his student disciplinary referrals. She counseled him during casual conversations in the hallway and in his classroom. Respondent never implemented any of the advice or suggestions that Ms. Peaks gave him. Ms. Peaks received complaints from Respondent's fellow teachers concerning his failure to follow school procedures. He allowed his students to come and go as they pleased. His classroom was very disorganized. Pat Barker, the sixth-grade house administrator, was a member of Respondent's success team. She observed him on March 10, 1995, and March 13, 1995. Ms. Barker found that Respondent's students were disorganized. She saw no evidence of classroom management. According to Ms. Barker, Respondent appeared to be unaware whether certain students were in or out of the room. Ms. Barker observed that a majority of the students were uninvolved in Respondent's lesson. Some of the students were asleep. Respondent was not alert to student misbehavior. Ms. Mann issued her annual evaluation of Respondent on March 15, 1995. She found that his over-all performance was unsatisfactory. Specifically, Respondent's performance was unsatisfactory in the following areas: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. On May 26, 1995, Ms. Mann received a written complaint from the teacher whose classroom was located above Respondent's classroom. The complaint concerned disturbing noise from Respondent's room on May 25 and 26, 1995, days during which standardized tests were being administered. Following receipt of Ms. Mann's evaluation, Respondent requested a transfer to another school for the 1995/1996 school year. In response to this request, the Duval County School District transferred Respondent to Paxon Middle School. On August 24, 1995, Respondent's new principal, Quentin Messer, held a private conference with Respondent to develop a plan to improve Respondent's teaching performance. That same day, a written success plan was signed by Respondent and Mr. Messer. The objective of the plan was to provide Respondent with assistance in demonstrating effective classroom management skills and effective presentation of subject matter. The success plan identified support team members, outlined strategies to meet the objectives, and set timelines for completion of proposed activities. Ms. Arnette Smith was a cadre assistant and trainer from the Professional Development office during the 1995/1996 school year. On September 18, 1995, Ms. Smith received a request to assist Respondent in improving his lesson planning skills. Ms. Smith met with Respondent and Dr. Ben Titus, assistant principal, on September 22, 1995. During this meeting, Ms. Smith reviewed Respondent's success plan and arranged a time for an informal observation in Respondent's classroom. In a subsequent meeting, Respondent and Ms. Smith discussed the ways she could assist him with his lesson plans. Respondent expressed a negative attitude toward his students during his conversations with Ms. Smith. He told her that his students did not have values and did not want to learn. Ms. Smith observed Respondent informally on October 11, 1995. After the observation, Ms. Smith discussed her suggestions with Respondent and provided him with a copy of her notes, which outlined specific recommendations. Ms. Smith offered to demonstrate the planning and teaching methods that Respondent could use to enhance his classroom effectiveness. Principal Messer observed Respondent formally and informally through out the 1995/1996 school year. Most of his informal observations were in response to complaints from students, parents, and other teachers. On October 25, 1995, Mr. Messer conducted his first formal observation of Respondent. Mr. Messer found that Respondent's performance was at the lowest or next to the lowest level in 17 out of 24 criteria. Mr. Messer found that Respondent's lesson plan, consisting of one word, was inadequate. Respondent wasted valuable class time collecting papers, sharpening pencils, and arguing with students. Mr. Messer noted that there was no rapport between Respondents and his students. Ms. Smith, personnel development cadre assistant, met with Respondent again on November 7, 1995. The purpose of the meeting was to prepare for her observation of Respondent's class at a later time. Ms. Smith and Respondent reviewed the planning- data form in detail. She advised Respondent to have the form complete prior to the planned observation on November 9, 1995. After observing Respondent on November 9, 1995, Ms. Smith found that Respondent needed improvement in thirteen of twenty-four indicators. Respondent had not adopted or followed any of Ms. Smith's suggestions. He was inadequately prepared and had not completed the planning documents. Ms. Patricia Downs, house administrator of the sixth grade, provided Respondent with assistance in the 1995/1996 school year. She conducted formal and informal observations of Respondent in November 1995, in the area of classroom management, Domain Two. Classroom management was an area of concern due to the number of complaints received from students, parents, and faculty regarding the noise and confusion in Respondent's classroom. Ms. Downs observed Respondent's sixth grade social studies class on November 13, 1995. During that observation, Respondent exhibited a total of 10 effective behaviors and 44 ineffective behaviors. For example, she observed that students were sleeping, working off-task, and otherwise not participating in the lesson, while Respondent proceeded as if those students were not present. The following day, November 14, 1995, Ms. Downs reviewed her findings with Respondent. She discussed specific incidences showing Respondent's lack of classroom control and made suggestions to improve his classroom management. On December 4, 1995, Mr. Messer made a written suggestion that Respondent contact the Duval County School Board's Wellness Center because he appeared nervous and disoriented. On February 6, 1996, Mr. Messer conducted his second formal observation of Respondent. Mr. Messer concluded that Respondent's performance was only marginally satisfactory. That same day, Mr. Messer advised Respondent that if his performance was not elevated to an acceptable level by March 15, 1996, he would be given an unsatisfactory evaluation for the 1995/1996 school year. Mr. Messer continued to observe Respondent informally after February 6, 1996. Based on these informal observations, Mr. Messer concluded that Respondent had not improved over the course of the school year in any of his areas of deficiency. Principal Messer asked Dr. Titus, assistant principal of Paxon Middle School, to assist Respondent with his success plan. Dr. Titus coordinated cadre support for Respondent. On March 7, 1996, Dr. Titus observed Respondent in his classroom. When Dr. Titus arrived for the observation, three students in the hall said that Respondent would not let them enter the room. Respondent explained that he closed the door because the students were late. During his observation, Dr. Titus noted a lack of order, confusion, and negative interaction between Respondent and his students. A majority of the students were off-task because Respondent had no apparent system for classroom management. Respondent's performance was very unsatisfactory. Ms. Downs, sixth-grade house administrator, observed Respondent for the second time on March 8, 1996. She again concluded that Respondent's performance was unsatisfactory. Ms. Downs reviewed her observations with Respondent on March 13, 1996. During that meeting, Respondent told Ms. Downs that he considered the school to be a "cesspool." He also stated that the students were impossible to teach. On March 29, 1996, Mr. Messer issued an overall unsatisfactory annual evaluation for Respondent. This decision was based on the results of Mr. Messer's formal and informal observations and the input he received from Dr. Titus, Ms. Smith, and Ms. Downs. Pursuant to a resignation agreement with the Duval County School District, Respondent resigned his employment effective June 12, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's teaching certificate for one year. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Francis W. Keefe 6176 Fordham Circle Jacksonville, Florida 32217 Kathleen M. Richards, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-2500 Jerry W. Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
