The Issue Whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j) and rule 6A-10.081(2)(c)4., as alleged in the Administrative Complaint and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2020). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2020). Stipulated Facts Respondent holds Florida Educator’s Certificate 766965, covering the areas of Educational Leadership, Elementary Education, and School Principal, which is valid through June 30, 2023. During the 2017-2018 school year, Respondent was employed as a Principal at GES in the LCSD, where he had been employed since 2008. During the 2017-2018 school year, Brooke Jahn (now Brooke Solz) was employed as a classroom teacher at GES, and, therefore, under the Respondent’s supervision. Ms. Jahn was married to a LCSD employee assigned to another school. Ms. Jahn was an adult during all times material to this complaint. On June 11 and 12, 2018, Respondent and Ms. Jahn attended the Instructional Leadership Team Summer Institute hosted by the Florida Department of Education at the Innisbrook Resort & Golf Club in Palm Harbor, Florida. On or about July 11, 2018, Ms. Jahn requested a transfer from GES to another school within the LCSD. On or about July 12, 2018, Mr. Solz reported to LCSD Superintendent Rocky Hanna that he was involved in a romantic relationship with Ms. Jahn. On July 18, 2018, Superintendent Hanna placed Respondent on administrative leave with pay pending the pending the outcome of an investigation. On August 31, 2018, Leon County Schools Superintendent Rocky Hanna issued Respondent a letter of reprimand. On August 31, 2018, Mr. Solz was reassigned to the LCSD Department of Teaching and Learning, effective September 4, 2018. On September 17, 2018, Professional Practices Chief John Hunkiar reported Mr. Solz to the Office of Professional Practices Services. On November 8, 2018, the Florida Department of Education, Office of Professional Practices Services, initiated an investigation into alleged misconduct by Respondent. On or about July 9, 2019, Mr. Solz was reassigned as the principal at Astoria Park Elementary School in Leon County.1 Evidentiary Findings The following findings of fact are supported by the record. Contrary testimony and evidence has been considered and rejected. David Solz Mr. Solz is, by all credible accounts, a “wonderful” principal and administrator, with a solid reputation as an LCSD administrator. Prior to this proceeding, he had not been the subject of any previous complaints or disciplinary actions during his 20-plus years in education. Testimony and recorded statements that Mr. Solz gave preferential treatment to others, including Ms. Jahn, that he targeted or “formally” wrote up teachers that were not on his preferential list, or that he “only hires young, attractive teachers,” were neither credible nor persuasive. The more credible testimony demonstrated that Mr. Solz was even-handed in his approach to the teachers at GES. If someone showed an interest in moving up in the academic system, he was willing to support them. If they wanted to 1 The Joint Pre-hearing Stipulation identified the date as July 9, 2018. The date was corrected to 2019 on the record at the hearing. stay in the classroom, he was accepting. If they felt they needed time away, even up to a year, he was accommodating. He did not show favoritism, and he did not “punish” those who disliked him. By the 2017-2018 school year, Mr. Solz had been divorced for several years. By April of 2018, he was apparently dating a woman who taught at either Ft. Braden Elementary School or Riley Elementary School. That person may have thought that she had some “power” because she was dating a principal, but there was no evidence that she did. More to the point, that person was not Ms. Jahn. Mr. Solz was an “open door” administrator. His office was in plain view, and he made it a practice to never be alone in his office with another teacher with the door closed. There was no evidence that he ever did so. The evidence unequivocally established that Mr. Solz was a good leader at GES, that he was purposefully respectful of his female colleagues, and avoided situations that could be misconstrued. Brooke Jahn Ms. Jahn was a teacher at GES starting in August 2013. By all credible accounts, Ms. Jahn was ambitious and a go-getter. She knew that she wanted to move from being a classroom teacher into administration. She set high goals, and was willing to take on the work necessary to advance in her career in education, work that others were not willing to do. During the 2017-2018 school year, in addition to her duties as a GES teacher, Ms. Jahn was taking classes to earn her Master’s Degree in Education Leadership. Holding a Master’s Degree in Education Leadership allows one to take a position as a dean, an assistant principal, a principal, or a leader at the school district in some capacity. As part of the curriculum for her degree, Ms. Jahn was required to serve an internship. Ms. Sumner supervised Ms. Jahn, which required Ms. Jahn to spend “lots of time” in the office, generally during her planning period or after school. Ms. Wyatt documented her progress. Mr. Solz was not overly involved with Ms. Jahn’s internship. Upon her completion of her Master’s program, Ms. Jahn became one of only three teachers or counselors at GES holding that degree, the others being Mr. McKhan and Ms. Wyatt. In addition to receiving her Master’s Degree in Education Leadership, Ms. Jahn took and passed the Florida Educational Leadership Exam (FELE) during the 2017-2018 school year, which qualified her to be considered for a position in education administration. During the period at issue, she had not yet applied to the administrator pool. During the 2017-2018 school year, Ms. Jahn taught third grade at GES. In previous years, Ms. Jahn taught kindergarten. Ms. Jahn wanted to move to the third-grade classroom for several reasons. She wanted experience in detecting early reading deficits. Her kindergarten students were “learning to read.” By third grade, students are “reading to learn.” Therefore, reading deficits by third grade can affect student achievement. In addition, third grade is a Florida Statewide Assessment (FSA) standardized test grade. Ms. Jahn recognized that experience in administering the FSA was almost a requirement for assignment as an assistant principal.2 During the 2016-2017 school year, Ms. Jahn was selected by her kindergarten teacher peers to be the team leader for the kindergarten section. Mr. Solz had no role in that process. Ms. Jahn’s selection as kindergarten team leader earned her a spot on the SITE Committee. The SITE Committee consists of grade-level team leaders, as well as persons representing paraprofessionals, custodians, cafeteria workers, ESE students, parents, and other school functions. As a SITE-based school, the SITE Committee serves to decentralize decision 2 Respondent suggested that Ms. Jahn’s transfer from kindergarten to third grade was evidence of favoritism. There was no evidence that the transfer was anything other than a normal and routine transfer, and showed no more favoritism than Ms. Vasquez teaching kindergarten and second grade at GES, Ms. Baggett being assigned to teach second, third, and fourth grades over the years at GES, or Ms. O’Brien teaching third and first grades at GES. making away from the Principal, and allows for a collaborative process by representatives of all segments of GES employees. Ms. Jahn was thereafter nominated and selected by the other members of the SITE Committee as the SITE Facilitator. That position required a great deal of work and effort, which Ms. Jahn gladly took on, realizing the career benefits derived from the experience. Mr. Solz had no role in that process. Ms. Jahn was also selected to serve on the Teacher Education Center (“TEC”) as a professional learning advocate. As a TEC representative, Ms. Jahn provided teachers with opportunities for training to maintain their teaching certifications and assisted them in making their way through the certification process. The TEC is also engaged in managing the professional development budget for the school. Ms. Jahn had to be involved in professional development as part of her Master’s Degree internship, and the TEC helped to fill that requirement. The TEC representative is open for any teacher who wants to apply. Other than complaints from several witnesses that they were not solicited by school-wide email, or by personal entreaty from Mr. Solz “and offered for nomination or from, you know, veteran teachers who have that experience,” there was no evidence that any teacher other than Ms. Jahn, including the complaining witnesses, had the interest, drive, or commitment to apply for the TEC. There was no evidence that the position was required to be advertised by email or subject to personal invitation. Ms. Jahn sought out the position, and applied. The process of appointment was somewhat vague, except that Mr. Solz did not unilaterally appoint Ms. Jahn to the position.3 3 Ms. Baggett, despite averring that Mr. Solz appointed Ms. Jahn to the TEC, admitted at the hearing that she had no information that Mr. Solz appointed Ms. Jahn to that position “[o]ther than it's just, I guess, common knowledge that the principal of the school would, you know, would approve these positions.” Supposition, speculation, and “common knowledge” are not substitutes for competent, substantial, and persuasive evidence. The team leader, SITE facilitator, and TEC representative positions were subject to a modest stipend, but the duties involved work that far exceeded the pay -- “probably cents on the hour” -- she received for serving. However, Ms. Jahn understood that having experience in various areas would benefit her in achieving her long term goals. Ms. Jahn was also selected to serve on the District Advisory Council (“DAC”), a group of teachers, parents, administrators, and school board members that meet to discuss issues that affect students and classrooms. It is an unpaid, volunteer position that meets after school hours. Dr. Smith asked Mr. McKhan, Ms. Wyatt and Ms. Jahn to share the role. Since Mr. McKhan and Ms. Wyatt had previously served, Ms. Jahn took on most of the duties. Mr. Solz had no role in that process. Ms. Jahn was part of a group of teachers invited by Dr. Smith to observe other schools in the District in order to implement the “Leader in Me” program at GES. Ms. Jahn was exposed to leadership techniques that she would not have been exposed to as a classroom teacher. Mr. Solz had no role in that process. Ms. Jahn routinely attended monthly faculty meetings, which were open to all faculty at GES. She was able to apply some of the faculty meetings into credit for her Master’s Degree. She was required to mark attendance and document credit for every faculty meeting. There was no evidence that Mr. Solz was involved in that process. Ms. Jahn was an active participant in the faculty meetings, which may have rubbed some less participatory teachers the wrong way, with witnesses complaining that Mr. Solz gave undue weight to Ms. Jahn’s contributions, but was dismissive of their comments, failing to take them “seriously.” The evidence, such as it was, that Ms. Jahn was given some sort of preferential treatment at the faculty meetings was not supported by a single specific instance, but was “supported” by the fall-back phrase that “it was, again, another one of the school-wide known fact.” Even if it was established that Mr. Solz valued Ms. Jahn’s input, such would not establish preferential treatment. It is just as easy to draw the inference that Ms. Jahn’s statements were more pertinent than others. The more credible testimony established that Mr. Solz was not dismissive or disrespectful to any of the staff at faculty meetings.4 The testimony that Mr. Solz afforded preferential treatment to Ms. Jahn at faculty meetings lacked even basic credibility, and is not accepted. Ms. Jahn also trained a teaching intern, Ms. Hobbs. Ms. Hobbs was effusive in her praise of Ms. Jahn, crediting her success and her teaching style to Ms. Jahn’s tutelage. Because of Ms. Jahn’s success in mentoring Ms. Hobbs, Ms. Hobbs was, by the end of the 2017-2018 school year, able to handle the class on her own, which is the goal of a successful internship. While the class was under Ms. Hobbs’ instruction, Ms. Jahn was able to leave the classroom -- though not the campus. The evidence firmly established that Ms. Jahn set her goals high, and took steps that were not easy to achieve those goals. There was no credible evidence to suggest that she expected to be given anything by Mr. Solz or anyone else. She was not, as intimated by others, appointed to her duties by Mr. Solz. By all credible accounts, she earned her accolades. Though others reacted negatively, there was nothing to suggest that others were willing to put in the effort, or that they had earned the respect necessary to be selected by their peers to one of the many available positions. Allegations in the Administrative Complaint During the 2017-2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent. 4 Mr. Solz was more forceful; stating that the allegation he was dismissive or rude during faculty meetings “is a lie, a purposeful lie.” As described, during the 2017-2018 school year, Ms. Jahn took on a steady stream of jobs designed to advance her career. As a result, she met often with members of the GES administration, including primarily Ms. Wyatt and Ms. Sumner. The previous year she met frequently with Dr. Smith. She also met with Mr. McKhan and Mr. Solz. There was nothing in any of those meetings that contained even a whiff of impropriety. The 2017-2018 school year ended for teachers the first week of June 2018. Teacher contracts end on the second day after the last day of school. If a teacher’s contract is renewed, the contract renewal becomes effective on the first day of school in August for teachers. Ms. Jahn was not under contract and did not work at GES over the summer.5 Ms. Jahn was not seeing Mr. Solz in anything other than a professional capacity during the 2017-2018 school year. Despite the rumors, gossip, and innuendo bandied about by several witnesses, there was absolutely no competent, substantial, and credible evidence to support that Mr. Solz and Ms. Jahn were engaged in any sort of romantic, much less sexual, relationship at any time prior to the last day of classes during the 2017-2018 school year. By the time the 2017-2018 school year ended, Ms. Jahn had received her Master’s Degree in Education Leadership and passed the FELE. She had been a classroom teacher for eight years, and was starting to look for other opportunities. However, for reasons related to the LCSD summer teacher transfer policy and postings, she had not yet done so. During this same period, difficulties in Ms. Jahn’s marriage began to come to a head. The reasons are unimportant, except for the fact that they had nothing to do with Mr. Solz. 5 Ms. Jahn had signed a contract for the coming school year, but it was pending board approval. She was not working as a teacher at GES, but was slated to teach private swimming lessons over the summer “to make extra summer money.” In late May 2018, Mr. Solz became aware that the 2018 Instructional Leadership Team Summer Institute was to be held over the weekend of June 11 and 12, 2018, in Tampa, Florida. The conference was limited to 25 principals from around the state. Mr. Solz applied, and was accepted. He then realized that he could bring a qualified teacher leader from his school. Since it was a leadership conference, leadership experience was a prerequisite. The only people at GES who were not already administrators and who were qualified were Ms. Wyatt and Ms. Jahn.6 Ms. Wyatt was already slated to attend the Superintendent’s Leadership Academy in Tallahassee. She did not want to pass it up because she had applied for the assistant principal pool that year. People who were interviewing applicants for the pool were leading that meeting, creating a good networking opportunity for Ms. Wyatt. Mr. Solz invited the other leadership candidate, Ms. Jahn. He extended the invitation for her family to attend as well, a common practice. Ms. Jahn accepted the invitation. She had to rearrange swimming lessons and child care in order to attend, but did so because it was important to her efforts to professionally advance. Her husband could not attend for professional reasons. Mr. Solz and Ms. Jahn travelled separately to Tampa. By the time of the conference, Ms. Jahn had come to the conclusion that her marriage was heading for divorce. She took the opportunity to visit her sister in the Tampa area. It was a stressful period. Mr. Solz and Ms. Jahn arrived separately at the convention hotel on Friday evening. Other than Mr. Solz assisting Ms. Jahn in getting checked in, they had no contact with one another that evening. After the conference sessions on Saturday, Mr. Solz and Ms. Jahn had dinner as part of a group. It was, according to both, the first time they had 6 By this time, Mr. McKhan had been appointed and was serving as an assistant principal at Pineview Elementary School. ever been alone with one another. There was no evidence to the contrary. During dinner, Ms. Jahn disclosed to Mr. Solz that she was having marital difficulties, but no more. The next morning, after a difficult conversation with her husband the night before, Ms. Jahn came down from her room in obvious distress. She indicated that she was having a “panic attack.” Mr. Solz walked with her to get coffee, talked with her, told her it would be OK, and gave her an “awkward side-ways hug.” He made sure she was engaged in the Sunday conference sessions, which eased her anxiety. After the Sunday session was over, Ms. Jahn went back to Tallahassee. Mr. Solz stayed for a while to meet with principals he knew who were coming in for a separate Florida school administrators conference. He had dinner with several of his colleagues, and drove home. Mr. Solz and Ms. Jahn did not see each other for several weeks after. Mr. Solz visited family in Savannah for a week and, upon his return, had his children for a week which entailed a trip to Disney World. Although Ms. Jahn’s divorce was moving forward, she took a pre-planned cruise with her then-husband and her children. However, during that period, Mr. Solz and Ms. Jahn had begun to text one another and spoke on the phone. They started to realize they had things in common, and might like to pursue a relationship. Before they did anything to advance any sort of sexual relationship, they mutually decided that Mr. Solz should self-report their interest to the Superintendent. At that time, the “relationship” was all verbal and through texts. Other than the “awkward side-ways hug,” there had been no physical component to the relationship. Mr. Solz testified credibly that when he met with Superintendent Hanna on July 12, 2018, “I felt like we [he and Ms. Jahn] had a friendship that was easily blossoming into a romantic relationship.”7 Prior to their decision to self-report, Ms. Jahn had already decided she needed to move from GES to diversify her experience to ultimately move out of the classroom into administration. For a person holding an Education Leadership degree, it is common knowledge that in order to advance, a teacher must move around to different schools. Ms. Jahn had been researching other opportunities with the LCSD, and had applied to be a reading coach at Griffin Middle School, as well as several other less desirable positions. On July 11, 2018, and again on July 12, 2018, Ms. Jahn requested, in writing, a transfer from GES. In describing her interview with Ms. Jahn on July 12, 2020, Ms. Kraul testified that: She indicated again that she wants an administrative experience. She used the figure 150 percent leaving Gilchrist of her own free will. That she wants a middle school experience and she was very aware that she would not be eligible for an assistant principal position straight out of the classroom. That this was her ticket to get more experience. Ms. Jahn also believed it would be easier for her to stand out professionally at Griffin Middle School. Ms. Kraul testified that Ms. Jahn was waiting out the LCSD teacher transfer period and “that's, I believe, where she was when I met with her in July.” There is not a shred of competent substantial evidence to suggest that Ms. Jahn’s desire to transfer from GES was based on anything other than her desire to pursue her long-held goal of moving from a classroom position into a position in administration. There is no evidence that Ms. Jahn was pressured 7 Though not relevant to the specific allegations of this proceeding, it merits acknowledgement that Mr. Solz and Ms. Jahn have since married, and were married as of the date of the final hearing. into seeking the transfer, or that her request had anything to do with Mr. Solz. On July 12, 2018, Mr. Solz reported to Superintendent Hanna that he and Ms. Jahn were involved in a relationship that was becoming romantic. They had not been “caught.” There was no evidence that they knew of the purported “anonymous emails.”8 Mr. Solz and Ms. Jahn were early in their “romance,” having not yet passed out of the talking and texting stage. The decision to report was a volitional act designed to avoid gossip and innuendo, and establish a path forward without “direct report” conflict. Mr. Solz was not even certain that he was required to report, since the LCSD fraternization policy prohibited contact between staff and students, and the sexual harassment policy dealt with “unwelcomed” conduct. Nonetheless, Mr. Solz decided to report their blossoming interest because it “just felt like it was the right thing to do.” The evidence conclusively established, despite the suppositions and gossip of others, that there was no sexual relationship between Mr. Solz and Ms. Jahn prior to the July 12, 2018, self-report. On July 18, 2018, Superintendent Hanna placed Mr. Solz on administrative leave with pay. There was no competent, substantial, or persuasive evidence to support a finding that, at the time of Mr. Solz’s suspension, he and Ms. Jahn had commenced a sexual relationship. 8 The first “anonymous email” was not received in evidence. The alleged recipient, Ms. Paul, had no recollection of it, other than she forwarded it to Ms. McAllister. Ms. McAllister had no recollection of receiving, reviewing, or forwarding the first email. Its contents are a mystery. That alleged email has no evidentiary value. The second “anonymous email” came to Ms. Paul on July 15, 2018, and she forwarded it to Ms. McAllister and Superintendent Hanna on July 16, 2018. The anonymous “former [formal?] complaint by teachers” could not have come from anyone with much knowledge of Ms. Jahn, since the “teachers” could not even manage to get her name right, calling her “Mrs. Garret.” Garrett is the first name of Ms. Jahn’s ex-husband. As with the illusory first email, the second “anonymous email” has no evidentiary value. On August 31, 2018, Superintendent Hanna issued Respondent a letter of reprimand which included reassignment of Mr. Solz as a Principal on alternative assignment in the Department of Teaching and Learning.”9 The allegation that “[d]uring the 2017/2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent,” was not proven. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3. of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included . . . training not offered or made available to other teachers. This allegation is predicated on there having been a “relationship.” Since there was no relationship, the allegation was not proven. However, in addition, there was no evidence that Respondent afforded Ms. Jahn preferential treatment as compared to similarly situated employees. There were only two other “similarly situated” employees who had the education and the ambition to be considered for leadership roles at GES, Mr. McKhan and Ms. Wyatt. By the time the more serious allegations in this case were alleged to have occurred, Mr. McKhan had been assigned as Assistant Principal at Pineview Elementary School. 9 Respondent appears to argue that a negative inference should be drawn from Mr. Solz’s failure to file a grievance regarding the reprimand. A review of the letter shows it to have involved an allegation of conduct in April 2018, which Ms. Kraul testified “was nobody’s business what he did in his personal time, after hours,” and an allegation of use of electronic media for non-educational purposes,” which was not an issue in this proceeding at all. Why Mr. Solz elected not to grieve the reprimand was not explained, but no inference of wrongdoing can be drawn. If anything, the decision not to grieve the letter could just as easily be explained by its giving notice of his transfer as Principal that he had already determined to be an acceptable alternative to allow his “blossoming interest” in Ms. Jahn to move forward. The testimony established that many of the opportunities provided to Ms. Jahn came from Ms. Wyatt, her mentor; Dr. Smith and Ms. Sumner, GES assistant principals; and from her peers, including her fellow grade-level teachers and those on the SITE committee. Except for the Instructional Leadership Team Summer Institute, which came after the close of the 2017- 2018 school year, and after Ms. Wyatt’s election to attend a different conference, Mr. Solz made no assignments or invitations to Ms. Jahn. Ms. Jahn earned the opportunities to advance her career. She was not “given” those opportunities by Mr. Solz or anyone else at GES. Much of the testimony critical of the “relationship” between Mr. Solz and Ms. Jahn came from employees who either could not or would not put in the work to qualify for leadership positions. They did not seek to earn degrees in Education Leadership, did not actively seek out extracurricular leadership positions, and were not elected by their peers to leadership positions, including SITE Facilitator. The evidence established that the witnesses who provided many of the statements that precipitated this proceeding were irritated by Mr. Solz for any number of reasons: that they were “angry” at Mr. Solz for being assigned to teach in a portable classroom; that Mr. Solz was monitoring their Facebook posts; that Mr. Solz used the iObservation system “against” them; that they were “formally written up” for infractions when other (non-comparable) teachers were not; or that they simply were not evaluated as highly as they believed they deserved.10 Much of the evidence provided in support of Petitioner’s case consisted of statements and testimony that were directed 10 It is not overlooked that the three primary witnesses offered by Petitioner to substantiate wrongdoing by Mr. Solz were clearly antagonistic towards him, which pre-dated anything alleged in this case. Ms. Vasquez testified that she and Mr. Solz “had a history of -- very, very hostile history,” and she “did not feel comfortable talking to Mr. Solz.” Ms. Baggett exhibited obvious animosity, feeling the Mr. Solz “was very dismissive,” and that “[p]rofessionally I don't respect his practice.” Ms. O’Brien testified that during the period from 2008 through May of 2018, “Mr. Solz and I did not see eye-to-eye most of the time.” The witnesses’s antipathy towards Mr. Solz is not a primary basis for assigning their testimony little weight. However, it does nothing to bolster their credibility. towards Mr. Solz’s previous relationships, that were imprecise and unsubstantiated gossip, or that were pure uncorroborated hearsay. The allegations that Mr. Solz “appointed” Ms. Jahn to “TEC Rep., SITE Facilitator, DAC, and Kdg. Team Leader” were either based on ignorance of the process or, more likely, a conscious misrepresentation of the criteria by which those positions are filled. As to the only allegation that had any basis in fact -- Ms. Jahn’s attendance at the Instructional Leadership Team Summer Institute -- the complaining teachers simply lacked the requisite leadership qualifications. That was not the fault of either Mr. Solz or Ms. Jahn. There was not a speck of competent, substantial evidence to establish that Mr. Solz afforded Ms. Jahn preferential treatment as compared to similarly situated employees, including training not offered or made available to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that training opportunities provided by GES administrators, including Mr. Solz, created a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.a) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [having] Jahn accompany him on at least one school related out of town trip without making the opportunity available to other teachers. This allegation has been addressed in detail herein. In addition to the fact that there was no “relationship” when Mr. Solz invited Ms. Jahn to attend the Instructional Leadership Team Summer Institute, the evidence in this case established, conclusively, that Mr. Solz did not afford Ms. Jahn preferential treatment as compared to similarly situated employees. Attendance at the conference was offered to Ms. Jahn as the only qualified attendee since Ms. Wyatt had a conflicting leadership-based conference that drew her attention, and was based on absolutely no improper motive. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz’s offer to Ms. Jahn to attend the conference (with her family) created a hostile work environment.11 Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.b) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [r]ules regarding supervision of students [being] relaxed for Jahn as compared to other teachers. In addition to the fact that there was no “relationship,” the evidence in this case established, conclusively, that rules for supervision of students were not relaxed for Ms. Jahn as compared to other teachers. The evidence demonstrates that Ms. Jahn went to various administrative offices -- primarily those of Ms. Wyatt (her mentor) and Ms. Sumner (her education leadership internship supervisor), as well as that of Dr. Smith the preceding year -- before school, at lunch, or during her planning period. It is common for intern/student teachers to earn the right to “solo” teach a class. As Ms. Jahn’s intern, Ms. Hobbs, gained in competency, she 11 On a practical note, the conference was held in June of 2018, after the conclusion of the 2017-2018 school year for teachers. By the time teachers returned to campus in the fall, Mr. Solz had been transferred from GES. If Mr. Solz was able to create a hostile work environment at GES from his post at the Department of Teaching and Learning, it would have been quite a trick. was allowed to take on more of the teaching responsibilities for Ms. Jahn’s class on her own, as was the goal. Finally, Ms. Jahn was able to leave the classroom for periods of time, which gave Ms. Hobbs valuable experience and confidence. However, the evidence establishes that Ms. Jahn did not abuse her time during those periods, but was working at necessary and requested school-related activities. The suggestion that there was some impropriety involved when Ms. Jahn left Ms. Hobbs in charge is simply not supported. Ms. Baggett complained that she was “formally written up” (by the Assistant Principal, not Mr. Solz) because she “left [her] students unsupervised.” Why she was disciplined is a matter between Ms. Baggett and the Assistant Principal. However, that disciplinary matter (which might also explain her complained-of, less-than-stellar evaluation) does not establish that Ms. Jahn violated any rules regarding supervision of students, does not establish any other teacher as a valid comparator, and does not lend support to the allegations in this case. Ms. Vasquez testified that Ms. Jahn left her class during the school day, and “made it known that she was getting her dog groomed” on one occasion, and on another occasion “she told me she was getting her hair done.” Ms. Hobbs openly scoffed at the idea, a rejection that is supported by the record. Despite the hearsay nature of Ms. Vasquez’s testimony, it might have retained some thin thread of credibility if it did not directly conflict with her written statement provided during the investigation, in which she stated: I had been made aware of, several years ago, a relationship with Jessica Scully. She was seen in [Mr. Solz’s] office quite frequently-and would talk openly about the special treatment she was getting from David. How David would allow her to leave school to run her errands. She left school to get her dog groomed and told several teachers that David knew where she was and approved it. (emphasis added). Either Mr. Solz is attracted to women with poorly-groomed dogs, or the testimony regarding Ms. Jahn’s personal off-campus errands, including dog- grooming, was a fabrication. The evidence supports the latter. There is no competent, substantial, and credible evidence to support a finding that Ms. Jahn ever left her students with inadequate supervision, that she ever left campus to perform personal errands, or that she violated any disciplinary standard regarding student supervision. There was not a shred of evidence that Mr. Solz relaxed or disregarded any rules regarding the supervision of students for Ms. Jahn as compared to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz relaxed any rules regarding supervision of students for Ms. Jahn so as to create a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.c) of the Administrative Complaint. Summary The tone of the Administrative Complaint gives the impression that Respondent and Ms. Jahn were carrying on a torrid sexual relationship from the confines of Respondent’s office, and that Mr. Solz was lavishing Ms. Jahn with perquisites as the 2017-2018 school year was ongoing. Nothing could be further from the truth. The facts show that Ms. Jahn had high professional goals, and worked hard -- on her own -- to achieve them. The suggestion that Respondent favored Ms. Jahn to advance his prurient interest in her, or that Ms. Jahn was using Respondent as a stepping stone to some higher goal are equally unsupported, and equally fallacious. The allegation that Mr. Solz engaged in harassment or discriminatory conduct which unreasonably interfered with any GES employee’s performance of their professional or work responsibilities, or with the orderly processes of education, or that he undertook any action vis-a-vis Ms. Jahn that created a hostile, intimidating, abusive, offensive, or oppressive environment is simply not supported by the facts of this case.12
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 21st day of September, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephen G. Webster, Esquire Law Office of Stephen G. Webster, LLC Suite 5 1615 Village Square Boulevard Tallahassee, Florida 32309 (eServed) Lisa M. Forbess, Program Specialist IV Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 (eServed) Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the respondent committed the acts alleged in the Administrative Complaint dated December 8, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: During the 1994-1995 school year, Ernest L. Sellars was employed as a teacher by the Broward County School Board. During that year, he taught second grade at Park Ridge Elementary School, where he had worked since the 1992-1993 school year. Prior to the 1994-1995 school year, Mr. Sellars taught a fifth-grade class at Park Ridge Elementary School. Walter L. Cooper was the principal of Park Ridge Elementary School during the 1994-1995 school year. On March 16, 1995, Mr. Cooper submitted a Personnel Investigation Request to the School Board’s Professional Standards Office regarding an allegation by Faith Williams that, at 8:15 a.m. on March 15, 1995, Mr. Sellars had physically abused her daughter, S. B., a student in his second grade class. The specific allegation stated in the request was that Mr. Sellars “grabbed her around her neck, threw her to the floor causing scratches on her knee.” Ronald S. Wright, the Professional Standards Director for the School Board, considered the request and recommended to the Superintendent that a special investigation be conducted into the allegations. The investigation was approved and assigned to the School Board’s Special Investigative Unit, a state-certified law enforcement agency. Rodney Green, an officer with the Special Investigative Unit, was assigned to conduct the investigation. He took the statements of eight students in Mr. Sellars second-grade class, S. B., J. D., L. W., J. J., B. W., C. B., C. A., and M. B., and of S. B.’s mother, Faith Williams. These statements were taken on April 3, 5, and 6, 1995. Either Mr. Cooper, Jacquelyn Haywood, the assistant principal, or a Ms. Bean were present while the students’ statements were taken. Mr. Sellars was notified of the investigation on April 7, 1995, and Officer Green took his statement on May 2, 1995. At some point before Officer Green took the students’ statements, each student was interviewed by either Mr. Cooper or Ms. Haywood. Immediately prior to taping the students’ statements, Officer Green interviewed each of the students. Photographs were taken of the classroom assigned to Mr. Sellars’s second-grade class. These photographs were of the classroom’s closet, the arrangement of the students’ desks, the rear of Mr. Sellars’s desk and the podium standing beside the desk, and the cabinet adjacent to the classroom’s sink. These photographs, which appear to be the same as those received into evidence as Petitioner's exhibit 2, were shown to the students during the April, 1995, interviews and were attached to the investigative report. Four of the students in Mr. Sellars’s 1994-1995 second-grade class testified during the hearing, J. D., J. J., L. W., and J. A.. They were the only witnesses, with the exception of Mr. Sellars, to testify who had personal knowledge of Mr. Sellars’s conduct in the classroom. The investigative report containing the statements taped by Officer Green was received into evidence without objection.1 J. D. and L. W. testified at the hearing regarding their recollection of the incident in which Mr. Sellars allegedly physically abused S. B.2 Their testimony was not only conflicting, it was not consistent with the statements they gave to Officer Green. In addition, far from explaining or supplementing the evidence given by J. D. and L. W. at the hearing, the descriptions of the incident included in the statements given to Officer Green varied widely both in the generalities and in the details, and it is difficult to conclude that the statements even dealt with the incident which allegedly took place on March 15, 1995. J. D., J. J., L. W., and J. A. testified at the hearing regarding their recollection of the ways in which Mr. Sellars disciplined or punished children who were “bad" in class. Although the testimony of J. D., J. J., and L. W. was consistent in that each testified that Mr. Sellars would put “bad” students in the closet, in the cabinet, and under the desk/podium, the testimony was conclusory and inconsistent with regard to the details of the alleged confinement.3 For example, it cannot be concluded from the testimony whether students were actually put in the closet as punishment or whether they were sent to the closet for time- out. The closet was set up as a media center. Books, games, and supplies were stored on the closet shelves, and a large television on a stand was located just outside the closet. The television was in front of the closet door and held it open, and, given the position of the television, it is unlikely that the door to the closet was ever closed. J. D. testified that Mr. Sellars would poke students in the chest with his middle finger, which was essentially consistent with information he gave in his statement to Officer Green. However, none of the students testifying at the hearing corroborated this testimony, and the statements given by the other students to Officer Green, likewise, did not corroborate this testimony. J. J. gave a graphic description in his testimony at the hearing of how Mr. Sellars put J. A. in the cabinet near the sink: “He would like, grab JA by the back of the neck and he had opened the thing and told JA get in there and JA got in there.” (Transcript at 177) J. A. testified that Mr. Sellars had never put him in the cabinet or the closet or under the podium and that he had never seen Mr. Sellars punish students by putting them in the closet or the cabinet, under the podium, or on the floor under tables or desks. He further testified that he had never seen Mr. Sellars poke students in the chest, hit them over the head with his fist, or slam them against the chalkboard or the wall and that Mr. Sellars had never done those things to him. There was no evidence presented that Mr. Sellars had been the subject of any complaint alleging improper discipline or child abuse other than the one filed by Faith Williams in March, 1995. Mr. Cooper testified that, had there been an allegation of child abuse, a report would have been filed.4 Elizabeth Anderson, J. A.’s mother, testified that her son had never told her about any instances in which Mr. Sellars had mistreated any of the students in the class. Mr. Sellars categorically denied ever having committed any of the acts alleged in the Administrative Complaint. The Superintendent has failed to present any evidence which can be used as the basis of findings of fact that Mr. Sellars committed the acts alleged in paragraphs F, G, I, J, K, L, or M of the Administrative Complaint.5 The Superintendent has failed to prove by the greater weight of the credible evidence presented at the hearing that Mr. Sellars committed the acts alleged in paragraphs D, E, H, N, O, or P of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Ernest L. Sellars and reinstating Mr. Sellars without back pay or benefits lost during his suspension. DONE AND ENTERED this 10th day of April, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.
The Issue The issue is whether Petitioners are entitled to the Best and Brightest Scholarship as established and defined by section 1012.731(3)(c), Florida Statutes (2017).
Findings Of Fact In 2015, the Legislature enacted, by way of a line item in the annual appropriations bill, the Best and Brightest Program to award cash scholarships to Florida teachers who have been evaluated as “highly effective” by their school districts and who scored at or above the 80th percentile (top 20%) on the SAT or ACT when they took the test. Ch. 2015-232, § 2, line item 99A, Laws of Fla.1/ In 2016, the Legislature enacted a stand-alone statute for the Best and Brightest Program, codifying the appropriations bill language and providing that the program is to be administered by the Department of Education (the “Department”). Ch. 2016-62, § 25, Laws of Fla., codified at § 1012.731, Fla. Stat. (2016). Rather than enacting a statutory scholarship amount, subsection (5) of the 2016 version of section 1012.731 provided that the scholarships would be awarded to every eligible classroom teacher “in the amount provided in the General Appropriations Act.”2/ The 2016 statute also explained that the Best and Brightest Program was intended to provide “categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic achievement.” § 1012.731(2), Fla. Stat. (2016). Section 1012.01(2) defines “instructional personnel,” including “classroom teachers,” as follows: INSTRUCTIONAL PERSONNEL.— “Instructional personnel” means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel: Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists. Librarians/media specialists.-- Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. Other instructional staff.--Other instructional staff are staff members who are part of the instructional staff but are not classified in one of the categories specified in paragraphs (a)-(c). Included in this classification are primary specialists, learning resource specialists, instructional trainers, adjunct educators certified pursuant to s. 1012.57, and similar positions. Education paraprofessionals.--Education paraprofessionals are individuals who are under the direct supervision of an instructional staff member, aiding the instructional process. Included in this classification are classroom paraprofessionals in regular instruction, exceptional education paraprofessionals, career education paraprofessionals, adult education paraprofessionals, library paraprofessionals, physical education and playground paraprofessionals, and other school-level paraprofessionals. In 2017, the Legislature amended section 1012.731(3) to establish that the scholarship award would be $6,000 for those classroom teachers rated “highly effective” who also had the requisite SAT or ACT scores: (3)(a) To be eligible for a scholarship in the amount of $6,000, a classroom teacher must: 1. Have achieved a composite score at or above the 80th percentile on either the SAT or the ACT based on the National Percentile Ranks in effect when the classroom teacher took the assessment and have been evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded, unless the classroom teacher is newly hired by the district school board and has not been evaluated pursuant to s.1012.34. * * * In order to demonstrate eligibility for an award, an eligible classroom teacher must submit to the school district, no later than November 1, an official record of his or her qualifying assessment score and, beginning with the 2020-2021 school year, an official transcript demonstrating that he or she graduated cum laude or higher with a baccalaureate degree, if applicable. Once a classroom teacher is deemed eligible by the school district, the teacher shall remain eligible as long as he or she remains employed by the school district as a classroom teacher at the time of the award and receives an annual performance evaluation rating of highly effective pursuant to s. 1012.34 or is evaluated as highly effective based on a commissioner- approved student learning growth formula pursuant to s. 1012.34(8) for the 2019-2020 school year or thereafter. Ch. 2017-116, § 46, Laws of Fla. The 2017 amendment to section 1012.731 also added a new subsection (3)(c), providing that lesser amounts could be awarded to teachers rated “highly effective” or “effective,” even if they could not demonstrate scores at or above the 80th percentile on the SAT or ACT: Notwithstanding the requirements of this subsection, for the 2017-2018, 2018- 2019, and 2019-2020 school years, any classroom teacher who: Was evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded shall receive a scholarship of $1,200, including a classroom teacher who received an award pursuant to paragraph (a). Was evaluated as effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded a scholarship of up to $800. If the number of eligible classroom teachers under this subparagraph exceeds the total allocation, the department shall prorate the per-teacher scholarship amount. This paragraph expires July 1, 2020. Id. By December 1 of each year, each school district must submit to the Department the number of eligible classroom teachers who qualify for the scholarship, as well as identifying information regarding the schools to which the eligible classroom teachers are assigned. § 1012.731(4)(a)-(c), Fla. Stat. For the 2017-2018 school year, the December 1, 2017, submission deadline was extended to January 2, 2018, due to a hurricane. The School Board’s deadline for teachers to apply for the scholarship was accordingly extended from November 1, 2017, to December 1, 2017. By February 1 of each year, the Department is required to disburse scholarship funds to each school district for each eligible classroom teacher to receive a scholarship. § 1012.731(5), Fla. Stat. By April 1, each school district is required to award the scholarship to each eligible classroom teacher. § 1012.731(6), Fla. Stat. In 2018, the Legislature amended section 1012.731 to provide that a school district employee who is no longer a classroom teacher may receive the $6,000 award if the employee was a classroom teacher in the prior school year, was rated highly effective, and met the requirements of this section as a classroom teacher. § 1012.731(3)(b)2., Fla. Stat. (2018). The Legislature did not add a similar provision stating that former classroom teachers who are still school district employees remain eligible for the $1,200 and $800 awards. § 1012.731(3)(c)2., Fla. Stat. (2018). The Legislature funds the Best and Brightest Program. The School Board had no role in creating the Best and Brightest Program. The School Board is required to determine the eligibility of classroom teachers who qualify for the Best and Brightest Program pursuant to the requirements of the statute. Petitioners in this case claim entitlement only to the $1,200 award established by the 2017 version of the statute. Brenda Troutman, director of Instructional Personnel, is the School Board employee in charge of the Best and Brightest Program application and submission process. Ms. Troutman has worked for the School Board for 17 years. She has been a junior high classroom teacher and an assistant principal and vice principal at the high school level. Though no longer teaching in the classroom, Ms. Troutman retains her certifications in math grades 5-9, exceptional student education (“ESE”), educational leadership, and school principal. When working as a high school administrator, Ms. Troutman was the master scheduler for her school, meaning that she built the schedule for every teacher at the school. This task required that she become very familiar with the School Board’s course code directory. Ms. Troutman also had to understand the certification system in order to hire and assign teachers. If a teacher asked to teach a certain course, Ms. Troutman had to know both the course requirements and the teacher’s certifications to determine whether the teacher was eligible to teach the course. As part of her current position in the School Board’s human resources department, Ms. Troutman is required to know the School Board’s various job titles and descriptions. She is responsible for replacing obsolete job descriptions and posting current job descriptions on the School Board’s website. Ms. Troutman testified as to how she manages the application and submission process of the Best and Brightest Program. She starts by making herself familiar with any changes the Legislature may have made to the program. She then issues a notice to teachers about the program and the current eligibility requirements. For the 2017-2018 Best and Brightest Program, Ms. Troutman prepared a draft email that Superintendent Addison Davis reviewed and sent to all of the school district’s teachers and administrators on September 28, 2017. The email explained that to be eligible for the $6,000, $1,200 or $800 scholarship, an applicant must meet the definition of classroom teacher as set forth in section 1012.01(2)(a). Ms. Troutman developed the School Board’s application for the Best and Brightest Program, based upon her understanding of the statutory requirements. All completed applications for the Best and Brightest Program come into Ms. Troutman’s office. Ms. Troutman testified that she received approximately 2,000 applications for the 2017-2018 award. Ms. Troutman, with the aid of her assistant, reviews and verifies the information on the applications. If Ms. Troutman has any questions about an application, she seeks the opinion of her direct supervisor David Broskie, the director of Human Resources. In some cases, they also have discussions with Superintendent Davis and School Board Attorney David D’Agata. The School Board employs two major data programs. FOCUS is the program/database that holds all student information, including attendance, grades, disciplinary actions, test information, and demographics. TERMS is the program/database that houses all employee information. When verifying information on the Best and Brightest Program applications, Ms. Troutman uses both FOCUS and TERMS, and on occasion conducts additional investigation. The School Board’s application asks for the teacher’s assignment. Because the application was titled “2017-2018 Clay County Application: Florida Best & Brightest Teacher Scholarship,” Ms. Troutman believed that the teachers were required to provide their 2017-2018 teacher assignments. As will be discussed in more detail below, the year of the teacher assignment was a major point of disagreement between Petitioners and the School Board. The application provided a checkmark system for the teacher to indicate which scholarship was being sought. The $1,200 scholarship line provided as follows: I am applying for the $1,200.00 highly effective scholarship. I have attached a copy of my 2016-2017 highly effective final evaluation (with student performance measures). The application’s language led Petitioners to believe that the 2017-2018 scholarship awards would be based on their teacher assignments and evaluations for 2016-2017. Ms. Troutman explained that this belief was incorrect. Eligibility for the 2017-2018 scholarship was based on a teacher’s assignment for the 2017-2018 school year. The plain language of the statute requires that one must be a “classroom teacher” in order to be eligible for the scholarship; having been a classroom teacher in a previous year does not suffice. Ms. Troutman stated that she verified with Mr. Broskie, Mr. Davis, and Mr. D’Agata that the School Board should base the award on the teacher’s 2017-2018 assignment. Petitioners, on the other hand, argue that the statutory language requires only an evaluation of “highly effective” for the 2016-2017 school year. The statute is silent as to whether a teacher applying for the $1,200 scholarship must be teaching in a classroom situation during the 2017-2018 school year. Petitioners argue that the School Board is reading a requirement into the statute that is not evident from the plain language. Ms. Troutman further explained that the applications for the 2017-2018 scholarships were to be submitted prior to the conclusion of the 2017-2018 school year. Therefore, as required by section 1012.731(3)(a)1. and (3)(c), the application requested the evaluation for “the school year immediately preceding the year in which the scholarship will be awarded.” Ms. Troutman testified that it is sometimes obvious from the teaching assignment that the teacher qualifies as a “classroom teacher.” If an application states that the assignment is “chemistry teacher” or “algebra teacher” or “fifth grade classroom teacher,” it is clear that the applicant meets the definition. Aside from verifying the assignment in the TERMS database, Ms. Troutman takes no further action. However, some applications require additional research before Ms. Troutman can conclude that the applicant qualifies as a classroom teacher. For example, Petitioner Abbie Andrews identified her assignment on her application as “classroom teacher.” Ms. Troutman went to TERMS and saw that Ms. Andrews was designated as an “ESE Support Facilitator” for the 2017-2018 school year. Ms. Troutman testified that ESE Support Facilitators are sometimes assigned to teach classes and therefore could be classified as “classroom teachers” for purposes of the Best and Brightest Program. Ms. Troutman examined both the master schedule and the teacher’s personal account in FOCUS to determine whether Ms. Andrews was assigned to teach any courses. Ms. Andrews had no teaching assignments for 2017-2018 in FOCUS. Ms. Andrews and fellow Petitioners Cherry Deaton, Donna Foster, and Danielle Perricelli held the position of ESE Support Facilitator during the 2017-2018 school year. The School Board concluded that these Petitioners did not qualify for the $1,200 scholarship because their schedules did not assign them the professional activity of instructing students in courses in a classroom situation, as required by the statute. It was undisputed that these Petitioners had been rated “highly effective” for the 2016-2017 school year. It was also undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the statutory definition of a classroom teacher for the 2016-2017 school year. The School Board’s general job description for an ESE Support Facilitator provides as follows: The teacher is responsible directly to the Principal. He/she provides for the instruction, supervision, and evaluation of assigned students on an as needed basis. He/she supports both general education and ESE teachers. He/she serves in a staff relationship with other teachers and supports and promotes ESE inclusion activities. (Emphasis added). The School Board contrasts this job description with that of “Classroom Teacher,” which provides: “The teacher is responsible directly to the principal for the instruction, supervision, and evaluation of students.” The classroom teacher is fully responsible for the “instruction, supervision, and evaluation” of the students in her classroom, whereas the ESE Support Facilitator performs those activities only “as needed.” The School Board also points out that, unlike a classroom teacher, an ESE Support Facilitator is not required to be certified in-field for the position. The ESE Support Facilitator is not the teacher of record for any particular course. Their schedule is fluid. The ESE Support Facilitator comes and goes as needed (“pushes in,” to use the teaching vernacular) in the classroom, and is expected to be wherever the ESE student assigned to them needs their services. Sometimes they push into the classroom and sometimes they pull students out of the class to work on a specific concept or skill. An ESE Support Facilitator is assigned “contact students” for whom individualized educational plans (“IEPs”) are prepared. The classroom teacher of record is responsible for giving the student course credit or a grade and is responsible for recording attendance in FOCUS. One-third of the classroom teacher’s evaluation is tied to student performance. Only the classroom teacher has default access to FOCUS in order to enter attendance and grade information for the students in the class. An ESE Support Facilitator must seek and be granted access to student’s FOCUS information. An ESE Support Facilitator is expected to meet with each contact student at least once a month; in practice, these meetings tend to occur more frequently. The ESE Support Facilitator goes over accommodations the student needs and assignments the student did not understand. The facilitator reteaches the course material if need be and stays in touch with the student’s teachers and parents, making sure all stakeholders in the student’s success are on the same page. The evidence presented at the hearing indicated that all of the students served by the ESE Support Facilitators in this case attended classes in regular classrooms, not in separate ESE classes. In such “inclusion” classes, the ESE Support Facilitator’s role is to push in and assist contact students in the regular classroom, ensuring that their IEP requirements are met and that the students are progressing satisfactorily through the course material. Based on these definitional and operative distinctions, Ms. Troutman considered ESE Support Facilitators to be “other instructional staff” as defined by section 1012.01(2)(d), rather than “classroom teachers” as defined by section 1012.01(2)(a). Ms. Andrews was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Andrews met the definition of a “classroom teacher” for the 2016-2017 school year. During the 2017-2018 school year, Ms. Andrews was a full-time ESE Support Facilitator at Middleburg High School, not assigned to teach any courses. In FOCUS, she was assigned as the “contact teacher” for approximately 60 students, meaning that she was primarily responsible for writing their IEPs and ensuring that they made adequate progress in their classes. She met with all of her contact students on an as needed basis, at least once per month but often as much as twice per week. However, Ms. Andrews was not listed in FOCUS as the teacher of record for any class. Even though she routinely pushed into classes to support her assigned ESE students, Ms. Andrews was not the primary teacher of record. She was there to assist her contact students with whatever they needed to learn the course, but the course was not assigned to her to teach. Ms. Andrews did not have a traditional classroom. She was not the teacher of record in any course for which students received academic credit, and she did not assign grades to students for the material she was teaching. Ms. Andrews prepared IEPs that were individualized to particular contact students. She did not prepare daily lesson plans in the manner of a classroom teacher. Ms. Andrews described her job as an ESE Support Facilitator as follows: My job is to teach, mentor, challenge students to make them -- make them ready for graduation, become productive members of society. I believe that’s the same thing a classroom teacher does. I am using the Florida standards to prepare lessons for remediation if a student needs it. I am constantly having conversations with not just students, but their parents, keeping them on track or making sure their students are on track because ultimately, a parent wants that student to graduate on time as well. I believe that the questions that are asked of me as a support facilitator are the same questions that parents would ask of a classroom teacher because they are very concerned. I am not just answering questions based on one classroom. I'm answering questions based on six classes. I'm responsible for that student being successful in six classes. The IEPs that I write, they're legally binding. I am involved in the academics, behavior, discipline. I deal with discipline problems. All of these things are the same things that a classroom teacher would deal with. I do not have a schedule in Focus; however, when a need arises, I'm there, I'm in a classroom, I'm helping, and I'm doing what's needed to be done for the kids to be successful. Ms. Deaton was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Deaton met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Deaton was a full-time ESE Support Facilitator at Middleburg High School, with approximately 60 contact students assigned to her in FOCUS. She was not assigned to teach any courses. If she pushed into a class to support her assigned ESE students, she was not the primary teacher of record. She was not designated as a co-teacher,3/ but she would assist teaching classes on an as-needed basis if she was not busy testing students or preparing IEPs. For those classes, she was provided access to view grades in FOCUS, but she did not have access to give grades. She would meet students as needed in her office, in another teacher's classroom, or in the computer lab. She did not develop lesson plans on her own, but provided suggestions and advice on lesson plans to the primary teacher. As an ESE Support Facilitator, Ms. Deaton did not have a classroom or teach a classroom full of students. She had no schedule assigned to her in FOCUS, but had contact students assigned to her in FOCUS. Ms. Foster was employed as an English/language arts and ESE Inclusion Teacher during the 2016-2017 school year. She taught four classes as ESE inclusion teacher. The remaining two periods were devoted to her position as ESE department head. Ms. Foster had a schedule in FOCUS. She had her own classroom and students, prepared daily lesson plans, and assigned grades. Students in her classes received academic credit. Ms. Foster was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Foster met the definition of a “classroom teacher” for the 2016-2017 school year. Ms. Foster was employed as an ESE Support Facilitator and ESE department head during the 2017-2018 school year. She retired at the end of the school year, effective June 7, 2018. As an ESE Support Facilitator, Ms. Foster did not have a set schedule. Ms. Foster’s assigned ESE students did not receive academic credit for the services she provided, but her assistance was integral in helping them pass their courses. Ms. Foster assisted with an American history class during the 2017-2018 school year, but was not assigned as the primary teacher in FOCUS. Ms. Foster testified that she did not believe she had ever been identified as a co-teacher in FOCUS, though she thought she should have been. Ms. Foster testified that she had IEPs for the American history class that listed both the class setting and the service delivery method as “co-teach.” She explained that because the class had both general education and ESE students, the teacher had to be certified in both the subject matter and ESE. Because the primary teacher was certified only in the subject matter, it was necessary for Ms. Foster to co-teach the class. Ms. Foster testified that she split lesson plan preparation with the primary teacher. Ms. Foster believed she was not listed in FOCUS as the co-teacher because the school administration never bothered to remove the name of Kristin Heard, the ESE teacher originally assigned to the class, who was moved to a science class early in the year. Ms. Foster pursued the matter with the assistant principals at Lakeside Junior High, but nothing came of it. Mallory McConnell, the principal at Lakeside Junior High School during the 2017-2018 school year, confirmed that Ms. Foster was not listed as a co-teacher on the master schedule. Ms. McConnell testified that in 2017-2018 there were no “true co-teacher” situations, by which she meant two teachers who equally shared responsibility for the instruction and grading of every student in the class. Ms. McConnell was aware of situations in which a student’s IEP mandates co-teaching in a class, but she testified that she was unaware of any student at Lakeside Junior High School in 2017-2018 whose IEP required a co-teacher. Ms. McConnell conducted infrequent walkthrough observations of the American history class. She testified that she saw Ms. Foster providing support services to the ESE students but never saw Ms. Foster teaching at the front of the class. Ms. McConnell stated that she would not have expected to see Ms. Foster teaching the class or creating lesson plans for the class as a whole because those tasks were not her job responsibility. Ms. McConnell was in no position to state whether Ms. Foster did, in fact, prepare lesson plans and teach the class. Ms. McConnell was able to state that for at least one month during the school year, Ms. Foster administered tests to her ESE students, meaning that she could not have been co- teaching the American history class. Ms. Foster did not tell Ms. Troutman that she had assisted teaching the American history class during the 2017- 2018 school year, nor did she include such information on her application for the Best and Brightest Program, because she believed the award was based upon her position in 2016-2017 and because she believed the school administration’s failure to include her as teacher of record in FOCUS was an “in-house” issue. Ms. Perricelli was employed as an ESE Support Facilitator, ESE department head, and MTSS intervention team facilitator at Orange Park Junior High School. “MTSS” is an acronym for Multi-Tiered System of Support, a framework for providing support to students who are struggling academically or have an identified need in a specific area such as speech, language, or behavior. MTSS interventions may be used for regular education or ESE students. Ms. Perricelli testified that she was not the teacher assigned by FOCUS for any class in 2016-2017. In addition to her regular ESE duties, Ms. Perricelli taught “grade recovery” to two students in language arts, science, and math. Grade recovery is a class offered to students who have failed a course and lack the credits to move on to the next grade level. Ms. Perricelli designed lesson plans and curriculum assessments for each subject, graded papers and tests, and reported the students’ grades to the school. Ms. Perricelli testified that she was not given the authority to enter the grade recovery students’ grades into FOCUS in 2016-2017. She requested a course code but was never provided one. Ms. Perricelli taught grade recovery for two periods, one for each student. For the other four periods of the school day, Ms. Perricelli would push into classrooms and work with ESE students, usually in small groups with students who needed remediation. She had around 40 contact students and developed IEPs for each of them. Most of her contact students were in the classrooms that she was going into, so she would see them throughout the week. She would meet with her other contact students about once a week. Ms. Perricelli would work with the assigned teacher to modify the course material to meet the needs of the ESE students. Ms. Perricelli was evaluated as “highly effective” for the 2016-2017 school year, based on standard classroom teacher criteria. She was observed working with her grade recovery students and in the classrooms in which she pushed in. Ms. Perricelli testified that her assignments were the same for the 2017-2018 school year. She taught one student in a grade recovery course. Due to her persistence, Ms. Perricelli was able to get a course code from Ms. Troutman for the grade recovery course in 2017-2018. The grade recovery course was named “Unique Skills.” In 2017-2018, Ms. Perricelli was assigned around 70 contact students for whom she prepared IEPs. As department head, Ms. Perricelli oversaw 22 ESE instructors. She was the only ESE Support Facilitator at the school. Janice Tucker was vice principal at Orange Park Junior High School in 2017-2018. She testified that early in the school year, the assigned teacher for seventh grade math left for another county. A long-term substitute, Lashonda Campbell, took over as teacher of record. Ms. Perricelli testified that she developed some of the curriculum in Ms. Campbell’s math classes, which included ESE and non-ESE students. She stated that she taught the class alone once a week when Ms. Campbell started, then tapered off into pulling out small groups of ESE students who needed remediation. She worked with four periods of seventh grade math classes that year. Ms. Perricelli testified that she gave grades to students in those courses and gave them to Ms. Campbell for entry into FOCUS. Ms. Tucker testified that Ms. Perricelli was not a co- teacher for the math class. Ms. Campbell was the teacher of record. Ms. Tucker testified that when she observed the math class, she saw Ms. Perricelli working with small groups in the back of the class or at a table in the hallway, and Ms. Campbell at the front teaching the class. Ms. Tucker never saw Ms. Perricelli at the front of the class teaching. Ms. Tucker conceded that she had no knowledge whether Ms. Perricelli was involved in creating lesson plans or assigning grades for the math class. Ms. Perricelli was evaluated by Ms. Tucker for the 2017-2018 school year. Ms. Tucker observed Ms. Perricelli in the seventh grade math class and in the Unique Skills class. Ms. Perricelli was again rated “highly effective.” Ms. Perricelli testified that she did not mention teaching the math class on her scholarship application. She stated that she did not tell Ms. Troutman about the math class because at the time, the school was still attempting to get a full-time teacher for the class. Ms. Troutman obviously knew about the “Unique Skills” class, having issued the course code to Ms. Perricelli. Ms. Troutman testified that she consulted with Mr. Broskie and Mr. D’Agata as to whether having one assigned class in FOCUS should qualify Ms. Perricelli for the scholarship. They concluded that teaching one class with one student was insufficient to qualify as a “classroom teacher” for purposes of the Best and Brightest Program. Ms. Troutman testified that this conclusion was consistent with the School Board’s historic practice of considering two or more classes as the “cutoff” for a classroom teacher. Ms. Troutman believed that if an ESE Support Facilitator taught two classes, then she would qualify as a “classroom teacher.” Petitioner Easter Brown taught a fourth grade classroom at Grove Park Elementary School during the 2016-2017 school year and was rated “highly effective.” It is not disputed that Ms. Brown met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Brown was a full-time SPRINT specialist. “SPRINT” stands for Supervisor of Pre-Interns and New Teachers. SPRINT specialist is a support position for teacher trainees and new teachers, operating under an agreement between the School Board and the University of North Florida (“UNF”), each of which pays half of the SPRINT specialist’s salary. Ms. Brown taught field classes at UNF and conducted workshops for clinical educator training and professional development. Ms. Brown kept Grove Park Elementary as her home base and shared a classroom there with two other teachers. She taught UNF students in classes at the university and worked with new teachers at the school. She estimated that she spent half her time at UNF and half at Grove Park Elementary. Ms. Brown had no K-12 courses or K-12 students assigned to her in 2017-2018. She had no courses assigned to her in FOCUS. She gave grades to only UNF students. Ms. Brown did not create traditional lesson plans but did assist new teachers in writing lesson plans. Ms. Brown testified that she did some teaching in a regular classroom for purposes of modeling teaching techniques for her student teachers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Finding that Petitioners Abbie Andrews, Cherry Deaton, and Donna Foster were not eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were not classroom teachers during the 2017-2018 school year; and Finding that Petitioners Easter Brown and Danielle Perricelli were eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were classroom teachers during the 2017-2018 school year, and directing staff to take all practicable measures to secure the scholarship monies for Ms. Brown and Ms. Perricelli. DONE AND ENTERED this 18th day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2019.
Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
The Issue Validity of Respondent's placement decision concerning Petitioner, as set forth in letter of Wylamerle G. Marshall, dated March 28, 1978. This cases arises from Petitioner's request for a hearing to review a decision of the Director, Exceptional Child Education, Dade County Public Schools, that placement of the Petitioner in a learning disabilities program was an appropriate placement in the Dade County School System. The decision was effected by letter of March 28, 1978 from Wylamerle G. Marshall to Mrs. Constance Garrett, the mother of petitioner Thomas Garrett. She-thereafter requested review on behalf of her son by letter from legal counsel dated April 6, 1978. The case was referred to the Division of Administrative Hearings for appointment of Hearing Officer on April 12, 1978. Although the hearing in this matter was originally set for May 11, 1978, the Hearing Officer granted Petitioner's request for a continuance and the case was heard on June 14, 1978.
Findings Of Fact Petitioner Thomas Garrett, a seven year old boy, who is the son of Constance Garrett, Miami, Florida, was enrolled in the first grade at Orchard Villa Elementary School, Miami, Florida, in September, 1977. Several days after school began, Thomas brought home classroom papers indicating that he had failed on certain tests. Mrs. Garrett spoke to his teacher who informed her that Thomas was hyperactive, disruptive and not able to do classroom work properly. She then went to the principal who told her that letter grades should not have been given in the first grade classes and suggested that the child be placed again in kindergarten. Mrs. Garrett asked that Thomas be tested to determine if he had any learning deficiencies and the principal agreed to initiate administrative processing in that respect. (Testimony of C. Garrett) The normal procedure followed in the Dade County Public School System for placement of a child in a learning disabilities program is for the student's teacher to bring the matter to the attention of the local school authorities who refer the case to a school "team." The team assists the teacher in dealing with any problems arising in the classroom. If the team recommends that the child needs evaluation, the school sends a visiting teacher to the home to obtain the social history of the child to prepare for possible psychological testing and evaluation of the particular case. This information, together with routine school hearing and visual tests, and evaluation of the student's teacher are provided to a psychologist in the school system who performs psychological testing at the school to determine the need for special education. The results of testing are thereafter reviewed by a committee of the county area concerned and final approval of any placement is made by the area staff director of student services for special education. Normally, the local schools are reluctant to test a small child early in the year until school personnel have worked with the child for a reasonable period of time. (Testimony of Shkoler) On September 15, 1977, a visiting teacher was sent to the Garrett home where he obtained necessary data as to the child's background and procured the parent's consent for psychological testing. He turned this material over to school authorities on the same day. At the time of his visit, Mrs. Garrett informed him that she intended to have a private psychologist test her son, and also utilize the services of a public school psychologist, after which she would compare the results. (Testimony of Walton) In the middle of September, a school psychologist was assigned to test Thomas but did not actually perform the testing because Mrs. Garrett obtained the services of a private psychologist who tested her son on September 20. It was therefore necessary for him to postpone any testing until he could see what testing had been done by the private psychologist. In the meantime, however, Mrs. Garrett had been urging the area director of student services, Mrs. Betty Shkoler to hasten psychological testing, but had not made her aware of the fact that private testing had been accomplished. It was not until the latter part of October, however, that Mrs. Garrett took the report of the private psychologist to Mrs. Shkoler, although she had shown it to the Orchard Villa principal. The report stated that Thomas had a need for a fully clinical school with emphasis on motor and perceptual skills and academic learning experiences presented with manipulative-associative techniques. The director of student services had the report reviewed by an area psychologist and it was determined that Thomas should be placed in a learning disabilities program. Mrs. Garrett was contacted and agreed to placement at Westview Elementary School after personal visitation there. Thomas was thereafter placed in the first grade class of Martha L. Chinn at that school. The authorization for placement, dated October 27, 1977, stated that the child's primary educational needs were activities to remediate visual motor deficits, visual closure activities, visual association, and visual sequential memory activities, and a program for gross motor development. Mrs. Garrett signed a consent form to the placement on November 4, 1977. (Testimony of Armour, Shkoler, C. Garrett, Exhibits 1, 3 - 4) Normal transportation arrangements were made by area school authorities whereby the parent is responsible for taking the child to the home school -- in this case Orchard Villa -- where school bus transportation would be provided to the new school, Westview Elementary. However, since Mrs. Garrett had specifically asked that Thomas be picked up by bus at his home for delivery to Orchard Villa, a special request was made to the school transportation office for this type of transportation. Pending receipt of information concerning such transportation, Mrs. Garrett personally transported Thomas to and from Westview Elementary on his first two days of class, October 31 and November 1, 1977. Although she anticipated having him picked up by bus on the following school day, November 3, as a result of Information provided in a note sent to her by the school teacher, this was not done because the school bus transportation office had not received a formal written request for such special treatment. Accordingly, Mrs. Garrett took Thomas to school on that day and was thereafter assured by school bus personnel that he would be picked up that afternoon from school. Conflicting testimony was presented at the hearing as to whether or not Mrs. Garrett was informed that the teacher would be notified as to the fact that Thomas would be picked up by bus that afternoon. In any event, Mrs. Chinn was not so informed and Thomas proceeded to wait for his mother outside the school after class. He was observed by his teacher waiting for his parent at the customary place, and she reassured him after some lapse of time that his mother would be there. She had assumed that Mrs. Garrett would pick him up since she had brought him to school that morning. Thomas later wandered off the school grounds and Mrs. Garrett, who had been waiting to meet the bus, became apprehensive when it did not arrive. She was later informed by the school secretary that Thomas had been found by a man some 24 blocks away from the school and returned there. Mrs. Garrett proceeded to school to pick him up and Thomas would not tell her what had happened, but was like a frightened animal." The next day Mrs. Garrett took him back to school, although he had had nightmares and did not want to return. She talked to a new assistant Principal at the school concerning the incident and was upset by what she perceived to be a callous attitude. On the following Monday, November 7, she took Thomas to the Orchard Villa School for bus pickup, but he was frightened and remained on the floor of the car. She thereafter did not let him return to Westview. Several days later, she was informed that bus pickup could be provided at home; however, she enrolled Thomas in Vanguard School, a private school in Coconut Grove in late November. (Testimony of C. Garrett, Chinn, Shkoler, Hart) The class at Westview Elementary School where Thomas attended for several days is a full-time class for students with learning disabilities. It is taught by a teacher certified in that specialized area who is assisted by an aide certified in elementary education. By the end of the 1977-78 school year, there were 19 children in the class. However, individual attention is given by the teacher to each student to deal with their "deficits" and prepare "prescriptions" to assist in improving weak areas. It was found by Mrs. Chinn that Thomas was weakest in the "motor" area and consequently she prepared materials to deal with this problem. Although he had no particular problem in understanding instructions, he possessed a visual motor perceptive defect which causes difficulty for him to process and retain visual and auditory information. His condition results in inconsistent actions in response to auditory commands whereby in some instances he is capable of carrying out instructions but sometimes cannot do so. Although ideally he should be in a class with a low teacher/child ratio of ten or less children, this ratio may be higher in situations where an aide is present to assist the teacher. Thomas's teacher at Westview found that he seemed no different than any other child in her class and when he returned to school on November 4 after the unfortunate bus incident, he did not appear to be upset or pose any difficulty. (Testimony of Chinn, Armour, Cullen, Exhibit 2) The learning disabilities program in the Dade County Public Schools is adequate for most children and Respondent refers children to private schools only in extreme cases involving children who cannot be properly handled in the public school system for unusual reasons. Although Thomas initially could have received a negative image of public schools from his receipt of failing grades at Orchard Villa, this would not necessarily predispose him against public schools. Although the bus incident undoubtedly produced a temporary stress and fear reaction, there is no evidence that it resulted in a phobia or any other permanent adverse result, although Thomas has never told his mother the details of the incident. (Testimony of Cullen, C. Garrett) Mrs. Garrett paid tuition of approximately $350 a month at the Vanguard School, including transportation by van to and from school. (Testimony of C. Garrett)
Recommendation That Petitioner's request for relief be denied by the Dade County School Board. DONE and ENTERED this 7th day of July, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phyllis O. Douglas, Esquire Dade County School Board Lindsey Hopkins Building 1410 N.E. 2nd Avenue Miami, Florida 33132 Harold Long, Jr., Esquire Suite 2382 - One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
Findings Of Fact The Respondent Myers holds teaching certificate number 329276. The Respondent's certificate is a Rank 3 covering the area of elementary education. The Respondent Myers holds a fourth annual contract as a teacher with the Dade County public schools which expires at the end of the 1983-84 school year. During the 1982-83 school year, she was employed at North Hialeah Elementary School as a second grade teacher. Allen C. Starke was the principal of that school. Mr. Starke and Ms. Myers met during the first week of the school term when Starke asked Myers to balance a student's grades, which Myers had neglected to do the previous year. A student's grade is balanced when the teacher gives a final grade balancing all four nine-week reporting period grades. The Respondent took the student' file home and notwithstanding that there was nothing in the file to warrant a failing grade, gave the student all F's. Starke requested that the Respondent regrade the project, giving the appropriate grades. The task was accomplished. The 1982-83 school year was the Respondent's third year of service with the Dade County public schools. Had her performance that year been satisfactory, she would have been eligible for continuing contract (tenure) status. As a third year teacher, she was subject to being observed in the classroom by her supervisors. Maria Pernas, the assistant principal at North Hialeah Elementary School, scheduled such an observation of the Respondent for October 5, 1982. However, when Ms. Pernas arrived in the classroom, it was in such a state of chaos and confusion that she approached the Respondent and told her that she would come back at a later date, hoping to give the Respondent the benefit of the doubt. Ms. Pernas returned to Respondent's classroom on November 2, 1982, but found the same state of affairs which she had observed on October Again she decided to give the Respondent another chance and did not officially observe her on that date. Ms. Pernas' official observation of the Respondent took place on November 18, 1982. The classroom climate was again chaotic and confused. The Respondent, however, appeared unaware of the lack of student interest or of the difficulties being encountered by her students. When students raised their hands, the Respondent either did not notice or paid no attention to them. The Respondent was attempting to conduct a reading lesson but she lacked the basic elements for implementing the same. It is an accepted technique in the teaching of reading for the teacher to physically divide the class into approximately three ability groups. The teacher then conducts approximately 20 minutes of teacher-directed lesson with one of those groups while the other groups do independent, previously assigned work. The teacher concludes with the first group, assigns them independent study, moves to the next group, etc. until the School Board mandated one consecutive hour of reading is complete and she has conducted a teacher-directed lesson with each group. The Respondent conducted no teacher-directed reading lesson and assigned no independent work. She did not have appropriate lesson plans and the class did not last the required one hour notwithstanding the fact that the Respondent was aware of this requirement. Ms. Pernas recommended several sources of help to the Respondent, including books and documents. Subsequent to this observation, Mr. Starke, Ms. Pernas and the Respondent participated in a conference-for-the-record held on November 30, 1982. The Respondent was advised to study various texts and to enroll in a course in "techniques of instruction" through the Teacher Education Center. The Teacher Education Center is an educational center mandated by the Florida Legislature. Its purpose is to provide in-service staff development courses and workshops for instructional personnel. Cathia Darling had also been called in to assist the Respondent. Ms. Darling is a teaching specialist who implements workshops for beginning teachers in the Dade County school system who may be having difficulty. On October 18, 19, and 21 1982, she had been at North Hialeah Elementary School providing teachers an update on the PREP program, a Dade County program designed to give students expanded services, both academically and physically, in the classroom. She was called back by Ms. Pernas on November 4 and 10 to go over the implementation of a reading program (RSVP) 1/ with two of the teachers at North Hialeah Elementary School who required further help. The Respondent was one of those teachers and Ms. Darling met with her for approximately one-half hour to 45 minutes at that time. Ms. Pernas observed the Respondent again on January 21, 1983. At that time she was teaching a science class and the topic was "Body Temperature." Pernas noted that the Respondent had insufficient visual aids and/or manipulative devices. Further, she did not appear to understand the substance of what she was teaching. She wrote a "102 degree Fahrenheit temperature" as "1.02." Pernas advised her that there should be no decimal point when recording such a temperature. When a student answered a question in Celsius (the student was Hispanic and accustomed to Celsius), the Respondent said the answer was wrong. Pernas suggested that the Respondent review literature regarding Fahrenheit and Celsius. She also recommended that the Respondent attend a TEC workshop in preparation and planning. The Respondent did not attend the prescribed workshop on preparation and planning, because the course was too far away from her home. Another course was offered but she did not attend that one either, stating that her sister was ill. Subsequent to Pernas' second evaluation, the Respondent told Mr. Starke that she believed Ms. Pernas was being unfair. Accordingly, Starke offered to observe the Respondent and she agreed. The observation took place on February 11, 1983. Starke found the classroom to be disorganized and confused. When he entered the classroom, the Respondent picked up a book and began to read. The children did not have their books open. They were walking about the classroom, generally entertaining themselves. They were not involved in the lesson and they were not paying any attention to the Respondent who continued to read verbatim from the book. From time to time, she would say "Sit down, sit down, can't you hear I'm reading?" The children continued to walk about. Starke felt they exhibited this behavior because they didn't know what they were supposed to be doing. After observing the classroom for a period, Starke began to check the Respondent's student folders. Teachers in the Dade County school system are required to keep folders to show samples of students' work. He found that as of February 11, 1983, no papers had been graded and placed in the folders since November 18, 1982. Starke pointed out that if the children's work had not been graded, a diagnostic, prescriptive approach to teaching could not be utilized. In short, the Respondent could not possibly have known at what level her students were functioning if she did not grade their papers. Accordingly, she could not teach them what they needed to know. Starke made several suggestions in his recommended prescription as to how the Respondent could improve her performance. He asked her to become familiar with the lesson before attempting to deliver it and he told her to read the teacher's guide and use it throughout the period as appropriate. He prescribed that in order to cut down on classroom disruption, she obtain the children's attention before attempting to introduce a lesson and that she distribute the books and other needed materials before the class activities began. He asked her to use the grade level chairperson as a resource. She was directed to report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and let him know what she had done. The Respondent did not report back to Mr. Starke and did not see the grade level chairperson. The Respondent was also told to correct and grade the students' papers as mandated and to place at least two graded papers per student per subject matter per week in each work folder. She did not comply with this directive, nor did she comply with Starke's repeated direction to contact the TEC to enroll in the course. At this point, Starke advised the Respondent that since her teaching performance had been unsatisfactory during that school year, he would not recommend her for continuing contract for the school year 1983-84. He did state, however, that he would recommend that she be granted a fourth year annual contract. He had not given up on her at that time and wanted to give her all the possible assistance he could. Starke observed the Respondent again on March 24, 1983. According to Starke's master schedule, the Respondent was to be teaching a reading lesson. However, when he entered the class- room, she was not teaching reading. Again, the class was chaotic. The students were unprepared for work. The Respondent herself had no lesson plans for the lesson. The students in the Respondent's class never moved into reading groups and she never gave a teacher-directed lesson to any group. Instead, she called on four students to read orally out of four different texts, each book representing an ability group. The students who were not studying a particular book derived no benefit from the reading. After 30 minutes, the Respondent asked the students to put their reading books away, and started a spelling lesson. Starke noted that she had only one grade in her record book for eight weeks of instruction. She should have had 16 or 18 or at least one grade per week per subject. Additionally, the Respondent had not graded any papers since November 18, 1982. Starke gave her another prescription telling her to have lesson plans before attempting to teach and to arrange her students into reading groups. He asked that she introduce all lessons and make sure materials were in place before instructions were given. She was told again to teach reading for 60 consecutive minutes and she was directed to grade her students' papers -- at least one grade per student per subject per week. Starke, at that point, kept eight of the folders that he had been going through in Ms. Myers' room. Subsequently, he replaced five of them, and three were introduced into evidence in this case. A review of these files indicates that when the papers were graded (prior to November 18, 1982), they were graded incorrectly. Credit was given for obvious errors. Sometimes the corrections themselves were incorrect. Corrections were written as "Not rite," or "Not finiseb." A math paper was graded A when 6 of the 15 problems were done incorrectly. Incorrect answers were marked "correct," correct answers were marked "incorrect," and some answers were not marked at all. The Respondent testified that all of the grades which appear in Exhibits 10A, B and C are marks which she did not personally put there and that she does not know who graded those papers or when. The Hearing Officer finds that the Respondent's explanation lacks credibility and that the Respondent graded the papers incorrectly. Another conference-for-the-record was held on March 30, 1983. At that time, the Respondent and Starke discussed her inadequate lesson plans. The Respondent stated, "I had lesson plans, but they did not represent what I was teaching." When questioned about not grading her students' papers, the Respondent stated that some of the papers were graded but that she didn't have time to grade them all. At that conference, Starke also noted that he had come upon the Respondent sitting with her grade book in front of her and placing grades in that book. He noted that there were no papers in front of the Respondent from which she could be recording the grades. When he inquired about it, she said that she was putting grades in the book. He asked how she could put grades in her book with no papers to copy from and she said she just knew what the children had done. Starke believed that this was impossible, considering the size of her class. Subsequently, at the conference of March 30, the Respondent said that, in fact, the grades had always been in the book but that she just hadn't seen them, and that when Starke had come upon her she was just checking students present or absent. Starke advised the Respondent that based upon her total performance, he was changing his recommendation from an extended annual contract to dismissal for cause. Notwithstanding this recommendation, Starke testified that if the Respondent had suddenly given some evidence that she was going to become a competent teacher, he would have changed his recommendation. On April 5, 1983, Mr. Starke gave the Respondent a memorandum from John N. Ranieri, the director of the Dade-Monroe Education Center, outlining numerous courses which Starke felt would be of benefit to Ms. Myers in improving her deficiencies. These were courses which he had prescribed for her and which she had not taken. John Ranieri testified that the Respondent did in fact enroll in three TEC courses during the 1982-83 school year. She enrolled in Techniques of Instruction twice and she enrolled in a class in Classroom Management. The system does not permit credit for taking a course over, therefore she did not get credit for the second time she took the Techniques of Instruction course. She did receive credit, however, for taking that course once. The Respondent failed the Classroom Management course. The records of the Teacher Education Center indicate that she did not turn in her assignments, she did not pass the test (she received the second lowest test score in a class of 90) and she was late to class three out of the four times the class met. Each time she was late over twenty minutes. The Respondent had numerous excuses for her lack of success in this class. She stated that she was late for the first class because the traffic was heavy. She stated that even though Starke had told her she could leave school 15 minutes early, her relief teacher did not show up on time and she therefore did not leave on time. She testified that she told Starke about her problem with the substitute teacher, but Starke testified that this was not so. The Respondent said that she failed the test in the course because the instructor gave her the wrong test and that when he gave her the right test, she only had 20 minutes left out of an hour class to take the test. The Hearing Officer finds this testimony by the Respondent not credible. On April 29, 1983, Cathia Darling returned to North Hialeah Elementary School to once again attempt to assist the Respondent in establishing a reading program. While Darling had been working with the Respondent in November, she had explained how to initiate the pre-testing, instruction, and, finally, post- testing. When Darling returned in April, the Respondent had still not mastered what she had been taught in November, and the process had to be started over again. Darling returned again in May to follow up, and the Respondent still had not implemented any of the testing. This testing should have been started at the beginning of the school year. At that point, Darling implemented the Respondent's testing program and charted the results. In Darling's opinion, the Respondent never implemented a reading program in her second grade classroom. In an attempt to explain her failure to implement the program, the Respondent stated that she asked for an RSVP kit four or five times but was never given one. Allen Starke testi- fied that the Respondent never asked him for any instructional materials and that he had never denied her request for an RSVP kit at any time during the 1982-83 school year, nor to his knowledge had anyone ever denied her access to the kit. Cathia Darling noted that the booklets necessary to implement the program were in the school, although they were not in Daisy Myers' classroom when Darling visited that classroom. No teacher at North Hialeah had complained to Darling about not having access to the RSVP kits or booklets. On May 5, 1983, Eneida Hartner, a school system area director who supervises 18 schools including North Hialeah Elementary School, observed the Respondent teach a reading class. Hartner was called in to observe the teacher as an objective outside observer. She noted for the record that it is always possible that an outside observer might feel that a teacher could improve her performance. Hartner observed that a significant amount of class time was wasted by students talking to each other. This occurred because they had not been given any clear direction as to what they were to do, The Respondent was not using a lesson plan nor was she using the teacher's guide for the reading lesson. She interacted with the children for a very limited amount of time when she should have worked with each group of children for 20 minutes. She was not teaching decoding skills, which she should have been teaching (decoding teaches the sound a letter makes). Ms. Hartner looked at the student folders and found that the answers in the fo1ders were not marked right or wrong. Grades were given to the students but there was no indication as to whether the answer to the question was correct. When Ms. Hartner asked the Respondent about her diagnostic/prescriptive folders (testing, teaching, testing) which every teacher is required to maintain, Myers said that she did not have any. She had no records of what the children knew or what they did not know. Hartner saw no visible evidence that any child had learned anything from the Respondent. Subsequent to her observation of the Respondent, Ms. Hartner gave Mr. Starke a prescription to be delivered to the Respondent. The prescription consisted of a group of activities having to do with self-assessment, self- analysis, making changes and trying them out in the classroom. The Respondent did not fully comply with the prescription, and Hartner testified that it was her opinion that no further remediation would he successful in making the Respondent a competent teacher. The Respondent was observed one more time during the 1982-83 school year. On June 9, 1983, Maria Pernas observed what was scheduled as a reading lesson. In fact, the Respondent was teaching writing. Pernas noted that the Respondent's plans did not match what she was teaching. She also found that the Respondent continued to be unacceptable in teaching techniques, assessment techniques and professional responsibility. Pernas testified that if she were to rank all of the teachers that she has evaluated during her years as an assistant principal, the Respondent would be in the very last place. She does not believe that the Respondent's students gained anything by being in her class during the 1982-83 school year. Allen Starke agreed with Ms. Pernas' evaluation. In fact, he felt that the Respondent's second grade students had learned so little during their year in Respondent's class that he broke the class up into smaller groups, assigning them to numerous other teachers for the third grade. He did this because he felt that the students might learn more from other students who had had a successful experience in the second grade than if they were all kept together. Starke does not believe that the Respondent should be a classroom teacher. The last witness to testify for the Petitioners was Patrick Gray, Executive Director of the Division of Personnel Control for the School Board of Dade County, Florida. He stated that having reviewed the file of the Respondent, based on his extensive experience in the field of personnel control and education, it was his judgment that she had been provided every opportunity to demonstrate competence or to become competent in an instructional capacity in the public school system, that she had failed to evidence the required standard of instructional competence and that she should therefore not be licensed to teach children by the State of Florida; neither is she competent to be employed by the school in the Dade County public school system. Dr. Gray testified that the Respondent had been ranked acceptable for her performance for the 1980-81 school year and the 1981-82 school year; however, that both of the principals who evaluated her those years noted that there were categories which required improvement. He also noted that in a letter from the Respondent's 1980-81 principal, Ms. Culver, the principal declined to testify on her behalf at this hearing. She stated that she recalled that the two areas in which the Respondent required improvement as a teacher in 1980-81 were preparation and planning and classroom management and that her reviews of the observations of Myers' teaching made during the 1982-83 school year showed that time and time again the same areas were listed as unacceptable. Ms. Culver felt that the Respondent's planning should have been greatly improved by the end of her second year of teaching. She also noted that during the 1980- 81 school year, she had released the Respondent on several occasions to observe and work with other classroom teachers who excelled in the area of classroom management. Both Ms. Culver and the assistant principal had recommended books in both areas to the Respondent. Ms. Culver observed that the Respondent had taken courses in RSVP as early as 1980-81, which she felt should have benefited her in teaching reading. Yet, the 1982-83 observations showed that the Respondent lacked competence in the area. Ms. Culver concluded that the Respondent is a fine person but, apparently, she lacks the basic skills to be a teacher.
Recommendation Based on the foregoing, it is recommended that: The teaching certificate of Respondent Daisy Myers be permanently revoked; and The suspension of the Respondent, Daisy Myers by the School Board of Dade County, Florida, be sustained, and that Respondent Myers be dismissed from employment with the School Board of Dade County, Florida, and any claim for back pay be denied. DONE and ORDERED this 11th day of January, 1985, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1985.
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
The Issue The issue is whether the Education Practices Commission should impose a penalty or sanctions against Respondent’s teaching certificate pursuant to Sections 1012.795 and 1012.796, Florida Statutes, and Florida Administrative Code Rule 6B-1.006, based upon the allegations contained in the Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator’s Certificate No. 602255, which encompasses Elementary Education and English to Speakers of Other Languages, which is valid through June 30, 2003. After beginning her teaching career working in its Reading Lab, Respondent began teaching a fourth-grade class at Ft. Pierce Elementary School. After a year in that position, she taught for approximately nine years at Bayshore Elementary School, also teaching fourth grade, then transferred to St. Lucie Elementary School, where she also taught a fourth-grade class her first year. St. Lucie Elementary School was a new school, which had opened in August, 1996. Respondent taught third grade during the 1998-1999 and 1999-2000 school years at St. Lucie Elementary School after being reassigned from her fourth-grade class. Dr. Jane Hartman is, and was, at all material times, principal of the school. Among her many duties, Dr. Hartman evaluates the instructional staff and attempts to be in the various classrooms frequently. Dr. Hartman provides feedback and support to her teachers in a variety of ways, including staff development days, written suggestions to teachers, and grade chair meetings. Teachers at St. Lucie Elementary School are given a copy of the school handbook, which is discussed at the beginning of each year. In the event Dr. Hartman receives a parent complaint, she first contacts the staff member to discuss the issues. Thereafter, Dr. Hartman arranges a face-to-face conference with the parent, administration, and the teacher, to ensure that everyone is “comfortable that the relationship has mended” so they can “move forward.” During Respondent’s first year at St. Lucie Elementary School, 1997-1998, Dr. Hartman received some complaints from parents concerning Respondent’s dealings with the parents of her students and with various classroom management issues. Dr. Hartman engaged in informal counseling with Respondent concerning these complaints, and observed some changes on Respondent’s part, although not enough. Dr. Hartman and other members of her administration frequently sent notes to Respondent concerning recommendations and criticisms about her classroom performance. Dr. Hartman reassigned Respondent to a third-grade class at the end of her first year teaching at St. Lucie Elementary School, believing that Respondent would have more success with a smaller number of students who, being younger, might be easier to teach. The average age of a fourth-grade student is nine years old. During her career as an educator, Dr. Hartman has both taught fourth graders and had the opportunity to observe fourth graders in the classroom. Fourth graders are normally at that age where they love their teacher; are able to read and write; are creative; and are ready to learn about their world. Dr. Hartman believed Respondent’s class to be an average class of students, a “sweet class in that they not only cared what was said to them personally,” but also, “what was said to their friend, what was said to someone who wasn’t as strong academically.” Respondent referred to many of the students in the class as having behavior problems. Ms. Drew, a music teacher at St. Lucie Elementary School, taught many of Respondent’s students the year they were in her class. Ms. Drew found these students not to be “bad,” but to be “children who had some bad experiences.” Ms. Drew “felt bad” for many of the students who were in Respondent’s class and agreed to teach a fifth-grade class the next year to help many of Respondent’s former fourth graders. Petitioner’s witnesses at hearing consisted primarily of students from Respondent’s fourth-grade class and their parents. The students complained that Respondent had belittled them in her class and made their fourth-grade year a miserable experience. The former students related comments having been made that they were “slow,” “stupid,” “babies,” “stupid idiots,” and that Respondent was “smarter and had more education than all your parents put together.” The students testified that Respondent yelled at them, “was mean,” told them to “shut up,” embarrassed them in front of the other students, and threatened to tape record them so that their parents could hear how much they misbehaved in class. One student was embarrassed in front of the class when Respondent insisted she call her mother on a speakerphone to address why she had not returned her paperwork and money for a candy sale. Another student reported to his mother that Respondent, an African-American herself, told him he was “acting like a stupid nigger.” Many of the students testified that, while they had previously enjoyed school, after being in Respondent’s class, their self-esteem had been shattered by Respondent’s behavior in class. St. Lucie Elementary School followed “Loving Discipline A to Z,” a guide for teachers to follow regarding discipline. Respondent failed to follow these guidelines. Respondent would punish the entire class for the actions of a few students by making them write sentences that, in some cases, were grammatically incorrect. Respondent would also punish the entire class for the actions of a few students by not allowing them to have recess or go to music or art classes outside the regular classroom. Respondent, for another form of punishment, would not choose “Lynx Leaders,” an award given to students who performed well. Respondent enforced inconsistent policies concerning use of the restroom. Although she testified that students could use the restroom whenever they needed as long as it was vacant, at times she refused to allow students to use the restroom, resulting in at least one student wetting his pants in class on more than one occasion and being ridiculed by other students in the class. The allegations by the students against Respondent were made at the time the students were in her class, both verbally to their parents and in writing to their parents and school officials, as well as in testimony at hearing, six years after they had been in Respondent’s fourth-grade class. Respondent’s disciplinary measures were too harsh for fourth graders. Assistant Principal Linda Applebee testified that Respondent had problems following directions. Respondent failed to participate in a bus evacuation drill in February of 1998, and failed to perform a required book check at the end of a nine-weeks' period, which resulted in the school not billing parents for missing books and therefore having to pay for books that were not returned. Dr. Hartman testified that “chaos” reigned in Respondent’s classroom, and that there had never been a teacher, either before or after Respondent, who had such difficulty maintaining classroom management. Dr. Hartman suggested that Respondent observe other classrooms where her students experienced physical education, art, or music, and did not experience the same disciplinary problems. Respondent never took Dr. Hartman’s suggestion. Respondent admitted to some chaos in her classroom when she described one day when a student was simulating a sex act on the floor while another one scribbled on her desk with a marker. Respondent blamed these problems on “poor parenting skills” rather than on her inability to control the classroom. Respondent had a policy of calling a student’s parents when a student refused to follow a warning to behave, but she failed to follow her own procedure. Dr. Hartman believed that Respondent did not follow school procedures and had difficulties with classroom management. Dr. Hartman repeatedly gave Respondent advice and support, but Respondent failed to change her behavior. For example, Dr. Hartman met with Respondent on September 7, 1998, to discuss the resources available at the school for dealing with classroom management. Dr. Hartman informed Respondent that 1) Level I infractions should be handled by the individual staff member involved, rather than immediately calling the front office, which Respondent often did; 2) Discussions about a student should not be held in front of the student or the class; 3) Students should be given supplies needed to participate in class; 4) Students need to be told what to do; 5) Students should be praised for doing what is expected; 6) Students should not be placed in the planning room for time out; and 7) Respondent should point out only positive behaviors of the students. Dr. Hartman explained that violations of these items as set forth in her letter dated September 7, 1998, would have a negative effect on her competence to perform as a teacher. Respondent refused to attend monthly faculty meetings on a regular basis. Further, when she did attend, Respondent often had to be called and reminded to attend, then arrived late and refused to sit with her team members, sometimes even typing at a computer during the meeting. Faculty meetings are important because they help the administration achieve its goals of having a school act with consistency and a common vision and purpose. Respondent sometimes failed to cooperate with parents and the administration in the scheduling and conducting of parent-teacher conferences. At least one family had to involve both Dr. Hartman and the School Board in order to hold a meeting with Respondent. Often, the meetings proceeded badly with Respondent taking little or no responsibility for the issues expressed by the parents. In January of 1998, an incident occurred involving Respondent at a basketball game in St. Lucie County between Lincoln Park Academy and its cross-town rival. Respondent’s daughter, along with one of her friends, was arrested at the game because they refused to listen to law enforcement officers who attempted to remove them from a confrontation with other students who had congregated outside the over-filled gym where the game was taking place. When Respondent arrived at the rowdy scene outside the basketball game, she began to argue with the two law enforcement officers who were arresting Respondent’s daughter and her friend. Respondent used racial epithets directed at the two officers and engaged in disorderly conduct. She called Officer Terry Miller, an African-American, an “Uncle Tom” which he took to mean an African-American person who takes the side of white people rather than people of his own color. She called Lieutenant David Trimm, who is white, a “cracker,” a racial slur used to describe a white person who is prejudiced against African-Americans. In addition to the racial epithets, Respondent attempted to incite the crowd by yelling about the Ku Klux Klan getting away with whatever they want, and that no arrests would have been made had the crowd been predominately white rather than African-American. Based upon Respondent’s actions, both Officer Miller and Lieutenant Trimm feared for their safety. Both officers had dealt with arrests of minors in the past and with their parents who become upset when they see their sons or daughters in handcuffs, but Respondent’s behavior was “totally different” from what they had experienced in the past. Officer Miller “was shocked” at Respondent’s behavior, especially in light of the fact that she was a teacher, and Lieutenant Trimm would have arrested her had he known at the time she was a teacher. Respondent’s behavior at the basketball game was unprofessional and so racially charged that a riot could have resulted from her actions. Dr. Hartman did not reprimand Respondent at the time of the incidents giving rise to this hearing because she believed Respondent could actually improve and change her behavior. After Respondent failed to take Dr. Hartman’s and Ms. Applebee’s advice, Dr. Hartman decided to change Respondent’s position so that she taught third-grade students, in hopes that “a little bit younger would soften her a bit.” Dr. Hartman’s reassignment of Respondent to a third- grade class for the following school year necessitated that her classroom be moved. Some of Respondent’s classroom items had been moved at the beginning of the 1999-2000 school year, and Respondent attempted to take compensatory leave at the start of the year, but failed to follow the proper procedures which included seeking prior permission from Dr. Hartman. Dr. Hartman called Respondent into her office to discuss Respondent’s failure to follow school policies concerning attendance and attitude at faculty meetings and unauthorized use of compensatory time. Respondent did not respond to Dr. Hartman’s questions, but handed her a letter of resignation, accompanied by an anonymous letter criticizing her teaching abilities that had been left in Respondent’s school mail slot. Respondent claims to have written the resignation letter the night before in response to the anonymous letter that she considered to be “harassment.” The substance of the letter, purportedly from a “very concerned parent,” was that Respondent “will always be remembered as a miserable, nasty, uncaring, cruel teacher that does not deserve to teach anyone, especially children.” Respondent further claims that she wrote the letter of resignation in an attempt to be transferred from St. Lucie Elementary to another school. Respondent is aware that, in order to be considered for a transfer to another school, she must first interview with that school and be offered a position. No other school had offered Respondent a position at the time she handed her resignation letter to Dr. Hartman. Therefore, Dr. Hartman could not have considered her request for a transfer. Initially, Dr. Hartman only read the first part of the resignation letter since, once she realized she was going to be without a teacher on the first day of school, she acted quickly to inform her assistant, Ms. Applebee, so that she could immediately seek a substitute to start the next morning. Once Ms. Applebee read the letter, she perceived it to be a threat to the safety of the students and faculty of St. Lucie Elementary School. Dr. Hartman did not read the entire letter until 6:00 p.m., on August 19, 1999, the first day of school because she was busy with all of the special challenges the first day of school presents every year. Once she read the letter, however, Dr. Hartman had “extreme concerns” about the following paragraph: After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I’ve been under your supervision. This included lack of administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude toward students, minorities, and me. These are conditions in [sic] which no one should be subjective [sic] in the workplace. In fact, it seems to almost define going postal. (Emphasis added) Dr. Hartman believed the “going postal” language meant that Respondent might come in and shoot people. Assistant Principal Applebee was concerned for their safety, after she read the letter. Ms. Jane Grinstead, Executive Director of School Operations for Zone 2, St. Lucie County School District, thought the letter constituted a threat. Even Respondent admitted that her husband warned her that “somebody might take your letter offensively,” yet she still gave it to Dr. Hartman. The letter came to Dr. Hartman at a time that was close to the shootings at Columbine High School in Colorado. Dr. Hartman was trained to be on alert for the type of traits that might be exhibited by a person who would do violence at a school. Those traits include antisocial behavior and failure to follow procedures, two traits exhibited by Respondent during her tenure at St. Lucie Elementary School. Further concern arose because this was a time when some United States Postal workers had assaulted, shot and killed their supervisors and some innocent bystanders. As a result of her concerns, Dr. Hartman contacted Ms. Grinstead who put her in touch with Dave Morris, head of security for the St. Lucie County School District. Mr. Morris arranged for a school resource officer to follow Dr. Hartman around the next school day, August 20, 1999. At the end of the day, Assistant School Superintendent, Russell Anderson, spoke with Respondent and informed her that if she wanted to resign, she must leave the school premises, and the resignation would be accepted at the next School Board meeting. During the meeting with Respondent, Mr. Anderson discussed her claims of harassment with her and offered her the chance to file a formal complaint for harassment against Dr. Hartman. Also, Respondent’s union representative, Ms. Clara Cook, informed her that she could file a formal complaint, yet Respondent declined to do so. Based upon his safety concerns, Mr. Anderson asked the school resource officer, Mr. McGee, to escort Respondent off campus. He then drafted a Notice of Temporary Duty Assignment which informed Respondent that she is “further prohibited from being on any school district property.” Respondent requested to rescind her resignation on August 23, 1999. On August 24, 1999, Respondent’s letter of resignation was rescinded and she was suspended without pay by the St. Lucie County School District. On October 6, 1999, Respondent was suspended without pay and notified that the St. Lucie County School District would recommend that she be terminated at the next School Board meeting based on her violation of School Board policies. After a hearing, Respondent was terminated by the St. Lucie County School District as a result of the contents of the resignation letter. As a result of the incidents culminating in her dismissal, Respondent’s effectiveness as a teacher has been called seriously into question. Dr. Hartman explained that an effective teacher is one who “cares about children, cares about their learning, knows how to communicate, [is] open to learning themselves at all times, [is] very caring, compassionate, willing to work with others, realizing the accountability and responsibility that we hold each day, celebrating. You have to be very intelligent because you’re constantly thinking on your feet, planning and preparing and organizing.” Assistant Principal Applebee believes that Respondent did not like the children she taught because she noticed Respondent was not always nice to them; she complained about them; and the children believed they had no one in the classroom who cared about them. Ms. Grinstead, a school district administrator with 35 years of experience, believes that an effective teacher is one who is 1) sensitive; 2) caring toward children; 3) communicates well with peers; 4) communicates well with parents and students; and 5) can give suggestions on ways the parents and the school can work together for the children. Other teachers at St. Lucie Elementary School “rallied to assist” Respondent’s class. Ms. Drew decided to teach fifth grade so she could teach the same students who had been in Respondent’s fourth-grade class. Dr. Hartman would not reemploy Respondent. Assistant Superintendent Anderson would not recommend Respondent for re-employment in the St. Lucie County School District based on the seriousness of the charges. Assistant Principal Applebee would never re-employ Respondent because she did not believe Respondent to be an effective teacher. Officer Miller believes that Respondent should not be reemployed as a teacher by the St. Lucie County School District. Each of Respondent’s former students and their parents does not believe that Respondent should be employed as a teacher anywhere. Respondent takes no responsibility for any of the allegations made against her. She believes that she did nothing wrong, but that the problems complained of by the administrative staff, law enforcement personnel, her former students, and their parents are the result of either discrimination, harassment, or manipulative children and their parents who refuse to take responsibility for their children’s behavior. Despite all the complaints lodged against Respondent by her former students and their parents, her former principal, assistant principal, school district administrators, and law enforcement officers, Respondent received satisfactory evaluations from Dr. Hartman for the period in question in this case. Respondent currently works for the Head Start program, caring for three- and four-year-old children. Before the Administrative Complaint was filed in this case, a substantially similar Administrative Complaint (the same except for the statutory citations which were renumbered by the Florida Legislature) was filed and scheduled for hearing before DOAH. The case proceeded to hearing and the prior Administrative Law Judge opened the record. Petitioner then attempted to amend the Administrative Complaint to correct statutory citations that had been renumbered by the Legislature. Respondent objected to Petitioner’s ore tenus motion to amend. When the Administrative Law Judge announced that he would not rule on the motion to amend at the hearing, Petitioner announced that it was voluntarily dismissing the Administrative Complaint without prejudice and would thereafter file a new complaint with the revised statute numbers. Respondent asserted at that time that she believed Petitioner’s voluntary dismissal would be dispositive of the claims and allegations in it; that she did not agree to a voluntary dismissal; and that she was prepared to proceed. Nonetheless, Petitioner voluntarily dismissed the Administrative Complaint, and DOAH entered an Order Closing File.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s teaching certificate be revoked for a period of 10 years, with reinstatement subject to the provisions of Subsection 1012.795(4)(b), Florida Statutes. DONE AND ENTERED this 11th day of June, 2004, 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 11th day of June, 2004. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Mark F. Kelly, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The central issue in this case is whether Respondent is guilty of the conduct alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner is authorized to operate, control and supervise all public schools within the School District of Dade County, Florida. At all times material to the specific charges in this case, Respondent, Norris L. Barker, was employed by Petitioner as a teacher with the Dade County school system. Pursuant to a one-year contract, the terms of which are not in evidence, Respondent was employed in September, 1987, as a math teacher at Miami Southridge Senior High School (Southridge). During the spring of 1987, prior to his employment with Petitioner, Respondent wrote to several school systems offering to donate Xerox memorywriters to the respective schools through a fund raising project which the various school systems were requested to endorse or promote. It was Respondent's goal to raise $8 million to be used to purchase the equipment. The Dade County Public Schools, through the then Superintendent, declined to endorse the fund raising project. After Respondent became employed with the Petitioner, he continued with his plan to raise money for education. Eventually, the project became known to Mr. Rodgers, the principal at Southridge, who advised Respondent that the school could not sanction the fund raising activities and that Respondent would have to obtain permission from a higher administrative source. Respondent did not receive permission to utilize the school name or the endorsement of the school district. As principal, Mr. Rodgers routinely makes informal observation visits to classrooms. These visits are intended as an informal review of the particular class or teacher. The duration of such visits is generally brief, lasting only a few minutes, and no written report or evaluation is made as a result of such visits. During Respondent's time at Southridge, Mr. Rodgers made several such informal visits to Respondent's class. Mr. Rodgers determined, as a result of the informal visits, that Respondent needed assistance with classroom management. This was indicated due to the number of students who were "off task" in Respondent's class. Mr. Rodgers felt that Respondent needed help in finding ways to keep the students working, not talking. On November 23, 1987, Respondent wrote a letter to Mr. Rodgers which expressed Respondent's concern that discipline problems among the ninth graders would adversely affect their performance on the SSAT. Apparently, Respondent believed the disruptive behavior of a few students was adversely influencing the learning conditions for the rest of the class. On November 24, 1987, William Machado, assistant principal in charge of the math department, performed a formal observation of Respondent. This observation was in accordance with the teacher assessment and development system and recorded Respondent's deficiencies in several specific areas of performance. It also provided a prescription plan for performance improvement which offered constructive comments to assist Respondent in deficient areas. Of the six areas evaluated, Mr. Machado found Respondent had problems and was deficient in four: knowledge of the subject, preparation and planning, classroom management, and techniques of instruction. Respondent was required to complete the prescription plan activities before January 11, 1988. All four of the prescription plan activities required Respondent to refer to the Prescription Manual which was available to Respondent. Further, with regard to Respondent's lesson plans, he was to seek the assistance of Jean Freedman, the math department head. Respondent talked briefly with Ms. Freedman and she offered him the benefit of her lesson book as an example of the type of plan Mr. Machado wanted Respondent to provide. As a means of further assistance, Respondent was to visit peer teachers' rooms to observe how the suggested activities might be incorporated into the teaching setting. Respondent did not submit the lesson plans in accordance with the prescription for performance improvement. There is no evidence as to whether or not he visited peer teachers' rooms. He did not observe Ms. Freedman's class as recommended. In the period immediately following Respondent's formal evaluation, he was absent from school a number of days the total of which exceeded his authorized sick leave. On December 19, 1987, Respondent climbed a 150 foot Southern Bell relay tower located on private property. It was Respondent's stated intention to remain atop the structure to raise $8 million for education. Respondent left a note stating that if the money were not raised by January 4, he would "meet God." Respondent did not have provisions for an extended stay. He was dressed in short pants, tennis shoes and a short-sleeved shirt. The weather conditions that evening were quite cool. Officer Collins responded to a call regarding Respondent's presence atop the tower. He unsuccessfully attempted to talk Respondent into coming down. When his efforts failed, Officer Collins requested negotiators who then talked with Respondent for several hours in further effort to have him voluntarily come down. These efforts also failed. After some four hours, the SWAT team came in to remove Respondent from the tower. Members of this team scaled the tower from Respondent's blind side and forced Respondent into the bucket of a fire truck extension ladder. Afterwards, Officer Collins took Respondent to the crisis intervention center where he was involuntarily committed for observation. He was released following a two day period of observation. The incident of Respondent's tower climbing was widely published in Miami newspapers and received coverage on local radio and television stations. These accounts of the incident identified Respondent as a Dade County high school teacher and, in some instances, identified Southridge. As a result of the media coverage, Mr. Rodgers received telephone calls from concerned parents and teachers regarding Respondent's conduct. On January 7, 1988, Mr. Rodgers recommended that Respondent be dismissed from employment at Southridge. The recommendation was based upon Respondent's performance in the classroom (TADS observation 11/24), Respondent's lack of professional judgment as shown by his conduct on December 19, 1987, the concerns expressed by parents and students regarding Respondent's emotional and mental fitness to regain control of students assigned to his classes, and the degree of public notoriety given to the incident of December 19. When Respondent attempted to return to Southridge on January 6, 1988, he was referred to the Office of Professional Standards and has not returned to the classroom.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order confirming the administrative decision to terminate the employment of Respondent for just cause stemming from his misconduct in office. DONE and RECOMMENDED this 21st day of November, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0599 Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted to the extent that it provides Respondent was employed by a one year contract and assigned to Southridge. It is presumed the year intended was the entire 1987-88 school year. Paragraphs 2-6 are accepted. Paragraph 3 is rejected to the extent that it concludes Respondent did not try to improve. While the evidence established Respondent did not complete lesson plans as requested, there is no evidence that he did not try to do so. Also, while he did not visit Mrs. Freedman's class, he may have visited other master teachers for assistance. The record does not establish whether or not he could have met the prescriptions had he not been absent or had he been able to return after the holidays. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraphs 10, 11, 12, 13 and 14 are accepted. Rulings on Respondent's proposed findings of fact: Respondent's paragraphs while not identified as findings of fact will be treated as such and considered in order as presented. The first paragraph is rejected as argument, or conclusions unsupported by the record. The first two sentences of the second paragraph are accepted. The remainder of that paragraph is rejected as speculation, unsupported by the record in this cause. With regard to the numbered paragraphs the following rulings are made: Paragraph 1 is rejected. While it is clear that the evaluation cannot be considered proof of Respondent's inadequate knowledge of the subject matter, there is no evidence as to how the computation was made to reach that conclusion (the TADS criteria) nor is there evidence that Mr. Machado was "over zealous." The deficient area was one of four which Respondent would have had to work on had he chosen to refrain from other conduct which further eroded his effectiveness as a teacher. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as argument, unsupported by the record. Paragraph 4 is accepted. Paragraph 5 is rejected as, contrary to the weight of the evidence. Paragraph 6 is accepted only to the extent that it suggests the fund raiser was not done in the name of the school or the board. When a private interest is pursued, the teacher must take reasonable steps to assure that the activity is not associated with the employer. To the extent that failing to take reasonable precaution would lead to public notoriety and adverse publicity, Respondent is accountable. Paragraph 7 is rejected as comment, argument or contrary to the evidence admitted in this cause. There is, however, no finding that Respondent wrongfully utilized the school name or misrepresented the board's interest in his project. Paragraph 8 is rejected as contrary to the weight of the evidence. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is rejected as conclusion or argument. No finding has been made to suggest Respondent suffers from a mental illness. Paragraph 11 is rejected as conclusion or argument. Paragraphs 12-17 are rejected as conclusions or argument in some instances unsupported by the record or contrary to the weight of the evidence presented. COPIES FURNISHED: Norris L. Barker 420 Northeast 18th Avenue, Unit #9 Homestead Florida 33030 Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building Annex 1550 North Miami Avenue Miami, Florida 33136
The Issue Whether Respondent's employment should be terminated based on the allegations contained in the Notice of Specific Charges.
Findings Of Fact At all times relevant to this proceeding, Petitioner has been a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32. Petitioner has continuously employed Respondent since 1992 as a custodian at Melrose Elementary School, one of the public schools in Miami-Dade County. At all times relevant to this proceeding, Cynthia Gracia was the principal of Melrose Elementary School. Respondent is a non-probationary "educational support employee" within the meaning of Section 1012.40, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 1012.39. . . . "Employee" means any person employed as an educational support employee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. (b) Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . At the times material to this proceeding, Respondent was a member of the AFSCME collective bargaining unit. AFSCME and Petitioner have entered into a CBA, which provides in Article XI for discipline of covered employees. Article XI, Section 4 provides that covered employees who have been employed by Petitioner for more than five years (such as Respondent) may only be discharged for "just cause." Article XI, Section 4 of the CBA pertains to types of separation from employment. Article XI, Section 4(B) pertains to excessive absenteeism and abandonment of position and provides as follows: (B) An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall be grounds for termination. . . . School Board Rule 6Gx13-4E-1.01 provides as follows: Except for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave. Pursuant to Section 1012.67, a school board is authorized to terminate the employment of an employee who is willfully absent from employment without authorized leave, as follows: Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee, unless the employee can demonstrate that he or she was wrongfully incarcerated. At the times material to this proceeding, Respondent was not wrongfully incarcerated, and he was not eligible for a leave of absence under Petitioner’s leave polices. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. On September 25, 2002, Respondent was charged with assault and battery (domestic violence) involving his then girlfriend. Those charges were pending at the time of the final hearing. On or about November 14, 2002, Respondent appeared at a court hearing. Because he had missed an earlier court date, Respondent was incarcerated in the Miami-Dade County jail. Shortly after he was arrested, Respondent attempted to contact Ms. Gracia at Melrose Elementary School. Respondent testified he tried to call the school five or six times on the day he was arrested, but the call from jail was long distance and the school would not take a collect call. That same day, Respondent called his new girlfriend (Leanne Perez), told her that he was in jail, and asked her to tell Ms. Gracia that he was in jail. On November 14, 2002, Ms. Perez told Ms. Gracia by telephone that Respondent had been detained. When questioned, Ms. Perez explained that Respondent was in jail, but she did not provide any additional information. Respondent returned to his job site on December 16, 2002. Between November 14 and December 16, Respondent was absent from work without authorized leave. Neither Respondent nor anyone on Respondent's behalf contacted or attempted to contact Ms. Gracia between Ms. Perez's telephone call on November 14 and Respondent's reappearance at the job site on December 16. Prior to his incarceration, Respondent had absences from work without authorized leave. From April 11, 2002, to December 16, 2002, Respondent had 29.5 days of unauthorized absences from the worksite. Respondent's unauthorized absences impeded the provision of the custodial services that are necessary to keep a school clean and safe. During Respondent's unauthorized absences, the other members of the custodial staff had to perform their duties and had to perform extra work to cover for Respondent's absence. On December 5, 2002, Ms. Gracia wrote a memorandum to Respondent styled "Employment Intention." After listing the dates Respondent had been absent between October 10, 2002, and December 5, Ms. Gracia wrote as follows: These absences have caused the effective operation of the worksite to be impeded, and/or efficient services to students to be impeded. I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; or Effect leave procedures (request for leave [form] attached); or Implement resignation from Miami-Dade County Public Schools. (Resignation letter attached.) You are directed to notify the worksite within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Ms. Gracia's memorandum was mailed to the address Respondent had given Petitioner as his residence, and a relative of Respondent, who was not named at the final hearing, signed for the mailing. Respondent testified, credibly, that he did not receive the memorandum until after he got out of jail. Respondent did not respond to the memorandum. Respondent testified, credibly, that he did not intend to abandon his employment. Respondent worked between December 16, 2002, and April 9, 2003, the date Petitioner suspended Respondent's employment without pay and instituted these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in this Recommended Order, sustains the suspension of Respondent's employment without pay, and terminates that employment. DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2003.
