The Issue At issue is whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Rudolph Gordon Mirjah, is now and has been at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0589544. Since November 2, 1994, if not before, Respondent has been employed by Post, Buckley, Schuh, and Jernigan, Inc., a broker corporation located at 2001 Northwest 107th Avenue, Miami, Florida, as a right-of-way agent. Incident to his employment, Respondent works primarily as a consultant for the Florida Department of Transportation to acquire real estate for road improvements. Elements of such activities require his licensure as a real estate salesperson. In or about early 1998, the Department provided Respondent with a renewal notice, which reminded him that his salesperson license was due to expire March 31, 1998. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the appropriate renewal fee, and the Department renewed his license. By letter of May 22, 1998,1 the Department advised Respondent that his license had been selected for audit to determine whether he was in compliance with the continuing education requirements for licensure. Pertinent to this case, the letter provided: Your license number has been selected at random for an audit of the education required to comply with Rule 61J2-3.015(2). By submitting the renewal fee to the Department, you acknowledged compliance of the "Commission-prescribed education" requirements for the license period beginning April 1, 1996, ending March 31, 1998. Please submit this letter along with the proof of the Commission approved course or equivalency education required at the time of you renewal, no later than 10 days from the date of this letter. (Emphasis in original.) In response to the Department's request, Respondent provided a certificate (reflecting 14 hours of continuing education), dated January 21, 1996. The Department responded (by letter of June 15, 1998) that the tendered certificate reflected proof of 14 hours of continuing education for the period beginning April 1, 1994, and ending March 31, 1996, and, therefore, evidenced satisfactory completion of the continuing education requirement for renewal of Respondent's license March 31, 1996, and not the renewal of March 31, 1998. The Department again requested evidence that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning April 1, 1996, and ending March 31, 1998, that would support the renewal of his license for March 31, 1998. By letter of June 19, 1998, Respondent replied to the Department's request, as follows: This letter is in reference to the attached letter from the Department of Business & Professional Regulation dated June 15, 1998, and our recent telephone conversation. I honestly was not aware that I have to take the 14 hour Continuing Education course every renewal period, although you stated it on the renewal notice. I thought this was a reminder to take the course which I had already taken. When I had completed this 14 hour course with Gold Coast School of Real Estate, I asked the instructor if I had to take any additional courses, and he told me that was the last course. It was a misunderstanding on my part. I apologize to the Department for not fulfilling this requirement, but ask for an extension to complete the course. On June 20, 1998, Respondent enrolled with Gold Coast School of Real Estate for 14 hours of continuing education (to fulfill his prior obligation), and on June 26, 1998, successfully passed the examination and was awarded a certificate of completion. Notwithstanding, on August 19, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 2 At hearing, Respondent acknowledged his failure to take a continuing education course during the renewal period at issue, and reiterated that the cause for such failure was his misunderstanding of the statement (heretofore noted) made by the instructor at the course he completed in January 1996. Here, Respondent's testimony was candid, and the explanation offered for his failure to complete a continuing education course during the subject renewal period is credited. Consequently, it is resolved that, at the time he submitted his renewal application, Respondent did not intend to mislead or deceive the Department, nor did he act with reckless disregard for the truth. In so concluding, it is observed that following licensure, Respondent duly completed the 45 hours post-licensing educational course requirement prior to the first renewal following licensure, as required by Rule 61J2-3020(1), Florida Administrative Code (Petitioner's Exhibit 6), and 14 hours of continuing education (classroom hours) prior to the second renewal of his license, as required by Rule 61J2-3009(1), Florida Administrative Code (Petitioner's Exhibit 5). It was during the later course that Respondent received the information (that this was the last course he was required to take) which he now understands he misunderstood to apply to any future educational requirements, as opposed to merely that renewal period. Also pertinent to the foregoing conclusion, it is observed that during the period of Respondent's licensure, as well as before, he actively pursued self-improvement in his profession through attendance at numerous educational courses presented by the International Right of Way Association. Such continuing education included a 16-classroom-hour course in Land Titles (completed November 5, 1993); an 80-classroom-hour course in Principles of Real Estate Acquisition (completed December 8, 1995); an 8-classroom-hour course in Ethics and the Right of Way Profession (completed September 27, 1996); a 24-classroom-hour course in Communications in Real Estate Acquisition (completed February 14, 1997); a 16-classroom-hour course in Eminent Domain Law Basics for Right of Way Professionals (completed November 14, 1997); and a 24-classroom-hour course in Interpersonal Relations in Real Estate (completed July 10, 1998). Moreover, between November 1996 and November 20, 1997, Respondent took and passed examinations offered by the International Right of Way Association in Law, Negotiations, Appraisals, and Engineering, and on October 15, 1998, Respondent was approved for registration as a Senior Member of the International Right of Way Association. Given the commitment reflected by Respondent's educational efforts to improve his skills as a right-of-way agent, it is most unlikely that, absent a misunderstanding, Respondent would not have complied with the Department's continuing education requirement. Consequently, given Respondent's candor and history, it must be concluded that the proof fails to support the conclusion that Respondent "obtained [his] license by means of misrepresentation or concealment," as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1999.
The Issue The issue in this case is whether there is just cause for Palm Beach County School Board to suspend Deborah Stark for 10 days without pay based upon the allegations made in its Administrative Complaint filed on November 8, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the Palm Beach County Public School System. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Stark was hired by the School Board in 2005. She is employed pursuant to a professional services contract with Petitioner. At all relevant times to this case, Stark was a teacher at Diamond View. She taught second grade. One of Stark's teaching responsibilities was to provide student information to the School Based Team ("SBT") such as conference/staffing notes,1 to assist the SBT in determining how best to support students who were having challenges or difficulties with reading. During Stark's last several school years with the School Board, Stark engaged in a pattern of misconduct. On June 1, 2015, Stark received, by hand delivery, her first written reprimand. She was disciplined for falsifying three memos by inappropriately using the School Board's letterhead and creating misleading and false documents under co-workers' names without permission. One problem area Respondent had was that she failed to keep her classroom organized and neat. Because of the disorganized book area and unkempt cluttered classroom, Respondent's classroom failed to be an environment conducive to learning and impacted the students' morale negatively. On September 30, 2015, Principal Seal, by memorandum, addressed two of Stark's work deficiencies. Seal pointed out to Stark that her classroom management did not correspond with the School Wide Positive Behavior Support Plan and that Stark's 2014-2015 Reading Running Records ("RRR")2 were not accurately and properly administered. Seal instructed Stark to sign up for a classroom management course through eLearning within a week and notify Seal of the enrollment. Seal even specifically suggested a two- day course that started on October 6, 2015, at the Pew Center. Seal also outlined Stark's RRR inaccuracies and deficiencies in the September memo, which included Stark's failure to provide an accurate report on September 25th for a student during a scheduled SBT meeting, improper use of school materials as a benchmark, and writing in the teacher materials with student's information inappropriately. As a result of Stark's RRR shortcomings, Seal directed Stark to sign up for the next RRR training available on either October 13, 14, 23, or 24, 2015, through eLearning and instructed Stark to verify the RRR training enrollment. The memo ended with the following: "Failure to comply with these directives will be considered insubordination and may result [in] disciplinary action to include up to suspension or termination of employment." On November 10, 2015, Seal specifically directed Stark to clean up her classroom and update her students' progress on the class bulletin board. Stark was provided a deadline of on or before November 24, 2015, to correct the performance deficiencies. Stark did not do so. In December 2015, Stark still had student work posted from August and her classroom was not up to date. On December 18, 2015, a pre-disciplinary meeting was held. In that meeting, Stark informed Seal that she went to training, but admitted that she did not provide the required documentation of attendance. Stark's performance with RRR had not improved. By February 2016, Respondent had failed to comply with Seal's directives of November 10, 2015. Stark's classroom was unacceptable and had not been cleaned up, updated, organized as directed. The closet was cluttered from the floor to the ceiling with boxes, papers, and books. Additionally, Stark's student work bulletin board still was not changed and up to date. On February 12, 2016, Seal met with Stark to address the issues and gave Stark a verbal reprimand with written notation. The verbal reprimand with written notation memo stated that Respondent was insubordinate for fail[ing] to comply with "directives given to her in the memorandums dated September 30, 2015, and November 10, 2015." On May 24, 2016, a pre-determination meeting was held with Stark and she acknowledged that she had fallen behind in the RRR and math/reading assessments but planned to catch up by the end of the year. On June 2, 2016, Seal held another disciplinary conference with Stark. Seal provided Stark a written reprimand by memo detailing that Stark exhibited: poor judgement, lack of follow up, inappropriate supervision of students, excessive absence without pay, failure to properly and accurately administer and record Reading Running Records as well as Math and Reading assessments, during the school year 2015/2016 with fidelity and insubordination. Seal also instructed Stark in the memo: Effective immediately, you are directed to provide the appropriate level of supervision to your students, follow your academic schedule, meet deadlines with respect to inputting reading and math date into EDW, accurately complete Running Reading Records, cease from taking unpaid time and follow all School Board Policies and State Statutes. Finally, pursuant to the CTA contract, I am directing you to provide a doctor's note for any absences going forward. This requirement will be in effect until December 22, 2016. Respondent failed to follow the leave directive of the written reprimand of June 2, 2016. Stark's duty day started at 7:50 a.m. On October 14, 2016, Stark notified Diamond View at 8:26 a.m. that she would not report to work because she had a ride to an appointment. On November 29, 2016, Stark notified the school at 7:40 a.m. by stating, "I have a meeting boo," as she took the full day off. On December 16, 2016, she notified the school at 6:24 a.m. that her husband requested a shopping day and family activities for the day. On February 10, 2017, Stark notified the school at 7:38 a.m., "I am going to a friend's house today to help them." On March 2, 2017, she notified the school at 7:14 a.m. that "I am finalizing a college class today." On March 7, 2017, Stark notified the school at 6:18 a.m. that Nationals verses Boston were at the new park and she would not be in to work. On April 5, 2017, Stark notified the school at 7:34 a.m. that she had a meeting and missed half the school day. Stark's absences of September 21, September 23, October 14, November 29, and December 16, 2016, were unauthorized leave and her leave of March 2, March 7, April 5, and February 10, 2017, were days without pay. Stark's excessive absenteeism disrupted the learning environment for her students and caused Respondent to miss out on valuable School Board resources she needed to perform her job duties and correct her work performance deficiencies. By missing work, Stark was neither able to obtain the needed available professional development nor obtain support from the Literacy Staff Developer. Stark's ineptness continued throughout the 2016-2017 school year. Stark failed to provide requested student information needed to assist in creating report cards for several former students, which adversely impacted the school and the students because, among other things, the school was not able to provide the students' new teachers with accurate data for placement. Stark was offered coaching services to improve her work performance through Peer Assistance Review ("PAR"). Stark failed to show up and meet with the trainers assigned to provide her support on January 20, February 1, and March 7, 2017. Stark failed to submit the required SBT documentation for five students timely. Stark's duties included meeting with the parents of each student to communicate the students' academic concerns. Stark did not meet with the parents. Instead, Stark submitted five untimely falsified student records indicating parent meetings that did not take place. She also forged translator Torres-Vega signature like she was present at the meetings, when Torres-Vega had not participated. On or about April 24, 2017, an investigation report was completed detailing Stark's misconduct for the 2016-2017 school year. The investigative summary concluded Stark failed to comply with numerous directives given by the principal and vice principal. Stark failed to complete and submit SBT documentation for five students who could have benefited from additional supportive services. Respondent falsified student records indicating she contacted and conferenced with the parents for each student. She also falsified that a translator had participated in the parent conferences. At the same time, Stark sent last minute notification emails to the principal as to why she would not be reporting to work, failed to notify Seal in a timely manner when she would not be reporting to work, and did not prepare substitute lesson plans. Stark's unexcused absences totaled approximately 40 hours without pay within a five month period and did not adhere to the 24 hour advanced notice requirement of the Collective Bargaining Agreement. Respondent's absences from work also caused her to miss valuable School Board training and support. Ultimate Findings of Fact Stark failed to fulfill the responsibilities of a teacher by not preparing and submitting the documents to the SBT so that the students could qualify for the support and services after multiple follow-ups and reminders by her supervisors. Stark's actions of falsifying the five students' records with Torres-Vega's signature and indicating that she met with the parents when she did not was ethical misconduct, failure to exercise best professional judgment, failure to provide for accurate or timely record keeping, and falsifying records. Stark misused her time and attendance when she had exhausted her paid time, but continued to use leave without pay when her work was not up to date and after she had been reprimanded and warned regarding absences by Seal. Stark's explanation of her absences failed to fall in the category for extenuating circumstances and her absences disrupted the learning environment. Stark was insubordinate and also failed to follow procedures, policies, and directives of the Diamond View principal and vice principal. Stark never cleaned up her classroom and failed to protect the learning environment. She also did not update her RRRs as instructed by Seal. On February 1, 2017, Vice Principal Diaz had also instructed Stark to always follow and adhere to an academic schedule with the students in order to provide structured learning. Instead, Stark continued to constantly allow the students to walk around the classroom, draw and eat snacks, without an academic schedule. By letter dated September 19, 2017, Respondent was notified that the School Board was recommending she receive a 10 day suspension without pay because of her misconduct. On or about October 4, 2017, the School Board took action by voting to suspend Respondent for 10 days without pay. Petitioner ultimately filed charges against Stark by Administrative Complaint dated November 8, 2018, that alleged Stark violated the following School Board policies: Failure to Fulfil the Responsibilities of a Teacher pursuant to School Board Policy 1.013(4), Responsibilities of School District Personnel and Staff; School Board Policy 2.34, Records and Reports; Collective Bargaining Agreement with CTA, Article II, Section U, Lesson Plans Failure to Protect the Learning Environment pursuant to School Board Policy 0.01(2)(3), Commitment to the Student, Principle I-(formally 0.01(2)(c); 6A- 10.081(2)(a)(1), F.A.C., Principles of Professional Conduct for the Education Profession Misuse of Time/Attendance pursuant to School Board Policies 3.80(2)(c), Leave of Absence; Collective Bargaining Agreement with CTA, Article V, Leaves, Section B Ethical Misconduct pursuant to School Board Policy 3.02(4)(b), (4)(d), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 3.02(5)(c)(iii), Code of Ethics; 6A-10.081(1)(c) and (2)(c)(1), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Failure to Exercise Best Professional Judgment pursuant to School Board Policy 3.02(4)(a), Code of Ethics; 6A-10-081(1)(b), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Insubordination: Failure to Follow Policy, Rules, Directive, or Statute pursuant to School Board Policy 3.10(6), Conditions of Employment with the District; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: Finding Deborah Stark in violation of all six violations in the Administrative Complaint; and Upholding Deborah Stark's 10-day suspension without pay for just cause. DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 25th day of July, 2018.
Findings Of Fact Respondent, Gloria E. Walker, holds Teaching Certificate No. 294140, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of music education. Respondent has been employed as a Music Teacher by Petitioner, School Board of Dade County since 1970. From 1973 until 1986, Respondent taught music at Dunbar Elementary School in the Dade County School District. During the 1970-71 through 1977-78 school years, Respondent received either unacceptable or marginally acceptable scores for five of the seven years on her annual evaluations. (Petitioner's Exhibits 29). During the 1973-79 school year, the School Board altered its evaluations System for instructional Personnel. During the 78-79 through 83-84 school years, Respondent's annual evaluations were rated as acceptable. However, during the school years 1981- 82 through 83-84, school and district Personnel made comments concerning Respondent's need to improve her performance and development in certain areas. (TR 298). Commencing with the 1973 school year, Respondent received assistance from Charles Buckwalter, music specialist for elementary schools for the Dade County School District. Respondent was initially contacted by Mr. Buckwalter that year because of concerns the school's Principal expressed regarding Respondent's lack of classroom management. During that year, Mr. Buckwalter visited and provided assistance to Respondent approximately seven (7) times. Mr. Buckwalter's assistance to Respondent continued during the following three (3) years. During the 1981-82 school year, Mr. Buckwalter assisted Respondent on more than four occasions during which time he attempted to demonstrate lessons concerning management techniques and the use of new materials; objectives of instruction and on January 26, 1982, Buckwalter, along with Dr. Howard Doolin supervisor of music for Dade County, visited Respondent so that Dr. Doolin could observe Buckwalter's assistance to Respondent. On April 26, 1982, Respondent and Mr. Buckwalter met for approximately three and one half hours. Buckwalter visited several of Respondent classes and demonstrated the use of certain new materials. As a part of that visit, he observed Respondent's teaching and noted that Respondent abandoned the new materials and returned to teaching the old curriculum. On November 11, 1982, Mr. Buckwalter spent approximately three hours with Respondent in which time he visited two classes and had a conference with Respondent concerning the new curriculum for level 1 students. On November 18, 1982, Mr. Buckwalter made a follow-up visit concerning Respondent's lesson plans and objectives. Additionally, he demonstrated a lesson to one of Respondent's classes. On or about November 29, 1982, Respondent was formally observed by assistant principal, H. Elizabeth Tynes. Ms. Tynes has a wealth of experience lasting more than thirty years in both Hillsborough and Dade Counties. Respondent was rated unacceptable in the areas of classroom management, teacher/student relationship and in a subcategory of assessment techniques. (Petitioner's Exhibit 7). Respondent was rated unacceptable in the area of classroom management based on a large number of disruptive students in her music class and Respondent's inability to control the students' behavior through either verbal or nonverbal strategies. Respondent was rated unsatisfactory in the area of teacher/student relationship based on her failure to demonstrate consistency as concerns student behavior, failing to praise good behavior and reprimand students for disruptive conduct. On another occasion, assistant principal Tynes listened to a musical program Respondent's students were giving over the intercom system. Ms. Tynes rated the program a "total disaster". Ms. Tynes and the principal were "ashamed" of what they heard from Respondent's music class. Respondent demonstrated skills preparation for the program as observed by Ms. Tynes. On May 19, 1983, Respondent was formally observed in the classroom by Katherine Dinkin, who was then principal of Dunbar Elementary School. Following the observation, Respondent was evaluated unacceptable in areas of classroom management, teacher/student relationship, and techniques of instruction. (Petitioner's Exhibit 17). Principal Dinkins observed that Respondent's students were not on task, the classroom was chaotic and the students only responded to directives of the Principal, as a Person of authority. Respondent was rated unacceptable in techniques of instructions based on Ms. Dinkin's observation that students were being taught at levels beyond their ability; class openings and closings were not done appropriately and Respondent failed to develop a plan for the individual needs, interests and abilities of students. Respondent was rated unacceptable in the category of teacher/student relationships based on her failure to demonstrate warmth toward the students and her inability to command respect. During this period in 1983, principal Dinkins prescribed help for Respondent as concerns observing and working with other teachers for guidance. On April 12, 1984, Respondent was again formally observed by principal Dinkins and rated unacceptable in classroom management and techniques of instructions. (Petitioner's Exhibit 21). Respondent was rated unacceptable in the area of classroom management based on her demonstrated inability to keep students on task or to develop strategies to control their behavior. Respondent was rated unacceptable in the area of techniques of instructions based on an inadequately prepared lesson plan and an inability to deliver the instructional components to students. Principal Dinkins observed that the material Respondent attempted to teach was too complicated for the students and she failed to Properly sequence her instructions. Principal Dinkins, who was tendered and received as an expert in the areas of teacher observation and assessment, was unable to observe any continuum of improvement by Respondent over the extended period of Principal Dinkins' supervision. Principal Dinkins opined that Respondent deprived her students of the minimal educational experience in music. During the 1983-84 school year, Respondent again received help from Mr. Buckwalter. As part of this help, Mr. Buckwalter organized small study groups in order to improve instructions throughout the music education department. These groups met on September 28, October 19, November 9 and 30, 1983. Respondent was asked to become part of the study group. The study group was Particularly concerned with focusing on the scope and sequence of curriculum, students' achievement and implementation of certain aspects of the curriculum, particularly as concern level 1 and 2 students. On or about August 30, 1983, Mr. Buckwalter spent the day with Respondent and a new music teacher, Ronald Gold. On or about September 27, 1983, Mr. Buckwalter visited Respondent for approximately 3 and 1/2 hours in which time he visited three of her classes and again attempted to discuss some work with Respondent concerning student management techniques including the use of a seating chart. On or about October 18, 1983, Mr. Buckwalter visited Respondent approximately four hours during which time he visited several classes and observed her using ideas gleaned from the study group. On or about November 7, 1983, Mr. Buckwalter again visited with Respondent for approximately four hours. After the conference, he taught classes with her and implemented the use of instruments to enrich the class lesson as well as the implementation and use of progress charts. On or about December 9, 1983, Mr. Buckwalter visited with Respondent for approximately 3 hours. At this time, Mr. Buckwalter expressed concern in that Respondent was not clearly understanding the intent of the school board curriculum. Respondent was rated unacceptable in the areas of classroom management, techniques of instructions, teacher/students relationships, assessment techniques and professional responsibility during her annual evaluation for the 1984-85 school year. On or about October 29, 1984, Respondent was formally observed in the classroom by assistant principal, Edwardo Martinez. Although Respondent was rated acceptable, this class was not a typical situation but rather a rehearsal of a specific program. On other occasions, assistant principal Martinez had opportunities to walk by Respondent's classroom. He often noted loud noises emanating from her classroom. During these instances, he would enter the room and immediately settle the students down. On March 26, 1985, Respondent was formally observed in the classroom by Maybelline Truesdell, Principal of Dunbar Elementary. Based on this formal observation, Respondent was rated unacceptable in the areas of classroom management, instructional techniques and teacher/student relationships. (Petitioner's Exhibit 2). As a result of the unacceptable evaluation, Respondent was given a prescription form suggesting methods in which she could improve areas in which she was rated unacceptable. (Petitioner's Exhibit 2). Respondent was rated unacceptable in the category of classroom management based on her inability to retain the students attention; her failure to open and close classes appropriately and her general observation of students being off task. Respondent was rated unacceptable in the area of instructional techniques based on the observation that she did not interact verbally with students; students were inappropriately excluded from participating in discussions of the lesson and Respondent did not use instructional methods/materials which were appropriate for the students' learning levels. (TR pages 30-35). Respondent was rated unacceptable in the area of student/teacher relationships based on her improper focusing on a small number of students; inappropriately criticizing a student assistant in the presence of other students, and a failure to use sufficient positive interaction to maintain class control. On may 3, 1985, Respondent was again formally observed by Maybelline Truesdell and rated unacceptable in the areas of classroom management; instructional techniques; student/teacher relationships and assessment techniques. (Petitioner's Exhibit 3). Respondent was rated unacceptable in the area of classroom management as she failed to properly discipline students; failed to maintain classroom control and students were off task. In the area of techniques of instruction, Respondent received an unacceptable rating in one category which remained unremediated pursuant to a prior prescription issued by Ms. Truesdell. Respondent was again rated unacceptable in the area of teacher/student relationship based on her inability to display any of the indicators considered necessary to become acceptable and her continued rejection of students who volunteered or attempted to participate; her failure to involve the entire class by focusing her attention on a small number of students to the exclusion of others and her failure to appropriately address students by their name rather than "you." (TR 39-41). Respondent was rated unacceptable in the area of assessment techniques based on her failure to follow county and state guidelines for assessing students. Specifically, Respondent failed to provide substantial evidence of (documentation) to justify grades assigned to students and her grade books did not indicate if or when she was giving formal quizzes or tests. In addition, there was no letter grade or numerical indication in Respondent's grade books to gauge academic progress. Additionally, there was insufficient documentation in the student folders to back-up student progress or to otherwise substantiate the grades assigned to students. During the 1984-85 school year, Mr. Buckwalter returned to Dunbar Elementary to again assist Respondent. On September 6, 1984, Mr. Buckwalter visited Respondent for approximately three hours during which time he visited a class; co-taught a class and attempted to assist Respondent concerning improvement in areas of student behavior and management. On November 2, 1984, Mr. Buckwalter visited one of Respondent's classes. He thereafter visited Respondent on March 22, 1985 at which time he spent approximately two hours in her classroom. He taught five classes to demonstrate strategies of progressing students from one level to another. He thereafter conferred with Respondent concerning the need to reflect a positive attitude toward students.. On March 29, 1985, Mr. Buckwalter again visited Respondent. Respondent was then using materials suggested by Mr. Buckwalter although she utilized them in a "rote" manner and included too many concepts within a single lesson. On April 18, 1985, Mr. Buckwalter returned to observe Respondent. The students were going over materials that had been taught in past years and the new curriculum was not being taught. On May 23, 1985, Mr. Buckwalter spent four hours with Respondent. They concentrated on the development of lesson plans; planned activities concerning class objectives and stressed the need to remain-on one concept until it was understood by a majority of the class. Respondent's evaluation for the 1985-86 school year was unacceptable in the areas of subject matter knowledge instructional techniques; teacher/student relationships; assessment techniques and Professional responsibility. On October 10, 1985, Respondent was formally observed by assistant principal William J. Kinney. Respondent was rated acceptable in the area of assessment techniques. Mr. Kinney offered certain suggestions to Respondent including the fact that the lesson taught would be more beneficial by more student participation. Respondent was advised of a need to immediately cure problems respecting students who were observed hitting bells with pencils and pens and the need to immediately address problems when students were observed off task. During the school year, Mr. Kinney made numerous informal visits to Respondent's classroom at which times he observed loud noises coming from Respondent's classes, chanting, fighting, furniture pushed into the walls, student misbehavior and other indications that Respondent's classroom management was ineffective. On December 3, 1985, Respondent was officially observed by principal Truesdell and was rated unacceptable in the areas of instructional and assessment techniques. (Petitioner's Exhibit 6). Respondent was made aware of her continuing problems and was provided with an acknowledged receipt of a summary of the conference-for-the-record dated Thursday, December 12, 1985. (Petitioner's Exhibit 7). Additionally, Respondent was given specific instructions in the form of a prescription concerning her grade book and instructed to strictly follow the conduct prescribed. (Petitioner's Exhibit 7). In the opinion of principal Truesdell (received as an expert in the area of teacher assessment teacher evaluation, teacher observation in the role of school principal) Respondent was unacceptable for further employment by the school district, was continuing to demonstrate ineffective classroom management, instructional techniques, assessment techniques and had done so for such an extended period of time that improvement appeared unlikely. Additionally, Ms. Truesdell considered that Respondent was unable to make sufficient competent analysis of students' individual needs and potential in the classroom; failed to ensure and promote the accomplishment of tasks to the proper selection and use of appropriate techniques; failed to establish routine and procedures for the use of materials and physical movements of students in her class; failed to employ the appropriate techniques to correct inappropriate student behavior; failed to demonstrate competence in evaluating learning and goal achievement by her students and failed to demonstrate appropriate interpersonal skills required of a teacher to maintain discipline and effectively teach in a classroom environment. On February 7, 1986, Respondent was officially observed in her class by Marilyn Von Seggern, music supervisor for Dade County and by Ms. McCalla, assistant principal at Dunbar, under the provision of the TADS program. (Petitioner's Exhibit 23). Following that observation, Respondent was rated unacceptable in the areas of subject matter knowledge, instructional techniques, assessment techniques and teacher/student relationships. In the Professional opinion of Marilyn Von Seggern, received herein as an expert in the areas of music education, teacher observation and assessment, Respondent was depriving students of the minimum educational experience and had serious problems concerning her ability to communicate and relate to students respecting the music curriculum. On January 16, 1986, Respondent was formally observed in her classroom by Dunbar's assistant principal Carolyn Louise McCalla, and was rated unacceptable in the areas of classroom management, techniques of instruction and assessment techniques. (Petitioner's Exhibit 24). Based on Mr. Buckwalter's repeated observation of Respondent's classroom and teaching techniques, Mr. Buckwalter opined that Respondent's students were not receiving the minimum education required by the Dade County School System as concerns the curriculum for music. As example, on one occasion Mr. Buckwalter observed Respondent presenting an organized lesson to students which was quite successful and upon his return approximately five minutes later, Mr. Buckwalter observed that Respondent was not teaching the new successful lesson but had instead reverted back to an old lesson and her students were observed inattentive and generally off task. (TR pages 250-254). On March 26, 1986, Respondent was having difficulty maintaining her students' attention to the point that the students were out of control. While Respondent was attempting to stop a certain student from chanting and beating on the desk, Respondent tried to restrain the student and in so doing, Respondent broke her watch band and scratched the student on her face. The student required hospitalization and although the injury was deemed an accident, Respondent's lack of classroom control and management played a major part in causing the incident. Pursuant to a request by the School Board, Respondent, on April 30, 1986, was evaluated by psychiatrist, Gail D. Wainger. Dr. Wainger took a medical history from Respondent which included Respondent's revelation of previous psychiatrist treatment. Dr. Wainger observed that Respondent had a very flattened, blunted affect with little emotional expression. She related that this was a sign of a patient who was recovering from a major psychiatric episode. Additionally, Respondent showed difficulty recalling recent events. Dr. Wainger diagnosed Respondent as having chronic residual schizophrenia with a possible personality disorder including impulsive and avoidance features. Dr. Wainger opined that a person with such diagnosis would have difficulty being an authority figure and that this would be especially Problematic for students who needed positive reinforcement. On April 28, 1986, Respondent attended a conference-for-the-record with the school board's administrative staff. A past history of performance and evaluations was reviewed. Additionally, the investigative report concerning the injury of the student which occurred March 26, 1986 was also reviewed. Respondent was informed that the matter would be referred to the School Board for possible disciplinary action. (Petitioner's Exhibit 31). On May 21, 1986, the School Board took action to suspend Respondent's employment and initiated the instant dismissal proceeding against her. (Petitioner's Exhibit 32). For the 1985-86 school year, Respondent's annual evaluation indicated that she was rated unacceptable in five of seven categories and was not recommended for re-employment. (Petitioner's Exhibit 13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, School Board of Dade County, enter a Final Order sustaining the suspension, without pay, of Respondent, Gloria E. Walker and dismissing Respondent, Gloria E. Walker as a teacher in the Dade County Public Schools. That the Petitioner, Ralph D. Turlington, as Commissioner of Education, entered a Final Order finding Respondent guilty of incompetency and incapacity. It is further Recommended that the Education Practices Commission enter a Final Order suspending Respondent's Florida Teacher's Certificate No. 294140, issued by the Department of Education, State of Florida, for a period of three years based on incompetence and incapacity. DONE and ENTERED this 2nd day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 February, 1987.
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2015.
The Issue The issues are whether Respondent committed the acts alleged in the Amended Administrative Complaint; whether the alleged conduct constitutes violations of Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes,1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(5)(d), and 6B-1.006(5)(e); and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent holds Florida Educator Certificate No. 544113 that covers the areas of educational leadership, business education, teacher coordinator of cooperative education, and vocational office education. At all times relevant to this proceeding, and since about 1983, Respondent was employed by the Hillsborough County School Board. During most of her tenure with the Hillsborough County School Board, Respondent has worked as a classroom teacher. Respondent's employment with the School Board was terminated on October 13, 2004. 2001 Fall Semester In the 2001 fall semester, Respondent was a teacher in the business department at Jefferson High School ("Jefferson"). At all times relevant hereto, Virginia McGinn, was also a teacher in the business department at Jefferson. As a professional colleague, Ms. McGinn communicated and had contact with Respondent during the workday. During the 2001 fall semester, Respondent was teaching her second-period class in the classroom that was right across from the teaching planning area. Ms. McGinn had a planning period during that time and was walking toward the teacher planning area, when she heard a lot of yelling coming from Respondent's classroom. Observing that the door to Respondent's classroom was open, Ms. McGinn stood in the doorway for a minute and looked in the classroom to see what was going on and to make sure everything was okay. While standing in the doorway, Ms. McGinn observed and heard Respondent yelling and noticed that Respondent seemed and sounded very agitated. After Ms. McGinn determined that everything was all right, she left the doorway of Respondent's classroom and went to the teaching planning area. When Ms. McGinn arrived at the teaching planning area, one other teacher was there, Ms. Zale. A few minutes later and after her class was over, Respondent came to the teacher planning area "in a huff" and immediately took off her blouse. Respondent was wearing a camisole underneath the blouse. According to Respondent she took off her blouse that day because she was extremely hot. Respondent then began "ranting and raving" about what had just occurred in her classroom and seemed to be very agitated and angry. Ms. McGinn and Ms. Zale asked Respondent what had happened in her classroom. Respondent explained that she had been correcting a student, and when she told him something, the student started sucking his teeth. Respondent then stated that when the student started sucking his teeth, she "just went off." As Respondent was recounting what had happened in her classroom (the student sucking his teeth), she still appeared to be very agitated. Ms. McGinn and Ms. Zale tried talking to Respondent in order to get her to calm down. Eventually, Respondent "did calm down some." However, Ms. McGinn described Respondent's behavior during the episode and prior to her calming down, as "abnormal" and "overly agitated." The camisole that was revealed when Respondent took off her blouse was a sleeveless undergarment with thin straps. However, the camisole was not lacy or made of transparent fabric and did not reveal any inappropriate parts of Respondent's body. In fact, the camisole looked similar to some shirts that are worn as outer garments. Nonetheless, that type of undergarment was not typically the kind of top that would be worn as a blouse or other outer garment by a teacher in a school. The teaching planning area is an area used primarily by teachers. According to Respondent, she took off her blouse that day because she was extremely hot. At that time, there were only two female teachers in the teaching planning area. However, there are times when male teachers are in the teaching planning area and times when students and visitors are in the area. Accordingly, the teaching planning area was not an appropriate area for Respondent to remove her blouse even though she was wearing a camisole underneath the blouse. September 20, 2001 Incident In September 2001, in addition to her responsibilities as a business education teacher at Jefferson, Respondent was assigned a senior homeroom class. The classroom in which Respondent's homeroom class met was used by Respondent only for the homeroom period. The homeroom period was immediately after the first period and, generally, was about five or ten minutes. However, on certain days, the school's rotating schedule allowed for a 30-minute homeroom period during which students attended "club" meetings or remained in homeroom for study hall or a silent reading period. On September 19, 2001, Respondent rearranged the student desks in the classroom where her homeroom class met to address disciplinary issues with some of her homeroom students. Prior to making this change, Respondent conferred with Gwendolyn Henderson, then chairperson of the business department, who thought the change would be fine. On September 20, 2001, Respondent arrived for the homeroom period in the assigned classroom. Most of Respondent's homeroom students were already in the classroom and in their seats when Respondent arrived. Upon entering the classroom, Respondent discovered that the student desks/tables were not arranged as she had placed them the previous day. After looking around the classroom for about a minute, Respondent yelled out, "Which one of [you] changed my tables around? This is my class. Everyone move to the back of the room now." Respondent then began pushing one of the tables around and, while doing so, the table hit a student's hand as that student was trying to move out of the way. After the table hit the student's hand, Respondent yelled out, "[You] better move out of my way." Respondent then quickly pushed another table, and as she was doing so, that table hit another student's knee. As Respondent was moving the tables, she kept repeating, "This is my room. This is my room. No one [should] touch anything in my room." Respondent again asked the students, "Who moved my tables around?" She stated, "This is not the way I put them [tables/student desks]." Finally, Respondent asked if someone in the first-period class, the class immediately before the homeroom period, moved the tables. A student in Respondent's homeroom, who was also in the first-period class, told Respondent that the tables "were like this in the first period class." By this time, all the students had moved to the back of the room as they had been instructed to do. Respondent then ran out of the classroom. After Respondent left the classroom, her homeroom students worked together and placed the tables in the "formation" Respondent had them the previous day. At some point during the incident, two students in Respondent's homeroom left the classroom, went to Gwendolyn Henderson's office and told her what had happened in their homeroom. Based on Ms. Henderson's observation, the two students were upset when they came to her office to report the incident. While the two students were in her office, Ms. Henderson heard Respondent come into the area and go to the teacher planning area. Ms. Henderson left her office and went to the teaching planning area to talk to Respondent. When Ms. Henderson entered the teaching planning area, Respondent asked her who had moved the furniture in the classroom. Ms. Henderson did not know who had moved the furniture and could not answer Respondent's question. However, it was apparent to her that Respondent was very upset about the furniture being moved. Henderson attempted to calm Respondent by repeatedly telling her to "calm down, [and] breathe." At some point, Respondent picked up the telephone, called the school office, and demanded that the school principal immediately come to the teacher planning area. In response to Respondent's call, Mr. Cugno, assistant principal at Jefferson, came to the teacher planning area. By the time Mr. Cugno arrived, Respondent, though still upset, was beginning to calm down. When Mr. Cugno entered the teacher planning area, Ms. Henderson was standing near Respondent, holding Respondent's arm and telling her to breathe. Mr. Cugno then approached Respondent and told her to calm down. It is unclear how close Mr. Cugno was to her, but according to Respondent, he was "right up in [her] face" and telling her to calm down.4 Respondent's perception was that Mr. Cugno had yelled at her and, as a result, she became upset and told him, "I will not calm down." At that point, Mr. Cugno used his radio to call for the school's resource officer for assistance. After he completed that call, Respondent asked, "Mr. Cugno, how dare you?" Ms. Henderson was "shocked" that Mr. Cugno had called the "police" (school resource officer) in this situation. For her part, Ms. Henderson had no concerns that anyone's safety was in jeopardy, and she was not "in fear," notwithstanding Respondent's behavior that day. Prior to the school resource officer's arriving, Respondent told Ms. Henderson and Mr. Cugno that she was going for a walk and left the teacher planning area. At some point after Respondent left the teacher planning area, Daniel Rivero, principal at Jefferson, found Respondent sitting on a bench outside the main office. Mr. Rivero, who was aware of the situation that had transpired that day, asked Respondent if she would come into his office, but she refused to do so. He then asked Respondent for the second time if she would come into his office. Respondent again refused to go into Mr. Rivera's office; instead, she just sat on the bench outside the office. Unsure of what to do in this situation, Mr. Rivera contacted Linda Kipley, the general manager for Professional Standards of the Hillsborough County School District ("School District"), for guidance. Referral to Employee Assistance Program On October 2, 2001, Respondent was directed by the School District to participate in the Employee Assistance Program ("EAP"). The School District officials required this mandatory referral due to concerns about whether Respondent should be in the classroom with children. After being referred to the School District's EPA, Respondent participated willingly in the program. Once the School District makes a mandatory referral, Ms. Kipley's office receives information from the provider pertaining to the employee's progress and compliance with the referral, as well as the employee's readiness to return to work. On or about October 12, 2001, after meeting with Respondent, Judy Kuntz, Petitioner's EAP provider, telephoned Ms. Kipley and provided the following general information: (a) Respondent was very cooperative; (b) Respondent wanted to make changes; and (c) the provider and Respondent had discussed some things that had gone on in Respondent's past. The provider also advised Ms. Kipley that Respondent would need to continue with counseling on a regular basis and needed to be out of the classroom "a week or more." Finally, the provider indicated that she would contact Ms. Kipley later in October to "officially" release Respondent from mandatory referral. On October 29, 2001, Ms. Kuntz, called to update Ms. Kipley on Respondent's progress. According to Mr. Kipley's notes, Ms. Kuntz reported that she had diagnosed Respondent with post-traumatic stress disorder ("PTSD") and that Respondent "understands where her anger is coming from and realizes that she needs to redirect it in another way [and] cannot take it out on others." Ms. Kipley's notes also reflect that the provider recommended six to 12 months of additional counseling, reported that Respondent is very agreeable to counseling, and advised that Respondent was not ready to return to the classroom. Finally, according to Ms. Kipley's notes, the provider reported that she "perceives [Respondent] as extremely intelligent and willing to improve." As a result of the October 29, 2001, report from the EAP, Respondent remained on paid leave status from about November 2001 through early-May 2002. 2002-2003 and 2003-2004 School Years From May 10, 2002, through the end of her contract year (end of May or June 2002), Respondent was assigned to Erwin Technical Center, a vocational school for adults. During the 2002-2003 and 2003-2004 school years, Respondent was assigned to Bloomingdale High School ("Bloomingdale"). Respondent was a business education teacher at Bloomingdale in the 2002-2003 and 2003-2004 school years. During the 2002-2003 school year, there is no indication that Respondent was involved in incidents or behaviors that are at issue in this case. Incident With Colleague (2003-2004) In 2003-2004 school years, Jeffrey Peltzer was a teacher at Bloomingdale who taught computer support and web design. One morning Respondent came into Mr. Peltzer's classroom demanding an installation CD for Microsoft Office. Even though Mr. Peltzer sometimes helped the business education classes, he did not have access to software and was not responsible for providing software to those classes. As Mr. Peltzer was attempting to explain this to Respondent, she put her hand near his face and said, "Oh, no you don't." Respondent then ran over to Jack Pallin, a teacher who was in the classroom and said, "You saw what he did to me." Mr. Pallin responded, "I didn't see him [Mr. Peltzer] do anything." Respondent filed a grievance against Mr. Peltzer, presumably related to the installation CD. The grievance was resolved through e-mail communication between Ms. Kipley and Respondent. Mr. Peltzer had no first-hand knowledge about the grievance. Rather, it was his "understanding" that Respondent attempted to file a grievance against him, but he never saw any official grievance. In fact, Mr. Peltzer considered the matter between him and Respondent resolved and simply viewed it as a disagreement between two teachers. Media Center Incident (Fall 2003) At hearing, Clara O'Dell, then department chair at Bloomingdale, testified that on October 23, 2003, Respondent's students came to the media center/computer lab ("media center"). She also testified that the students began arriving at 2:08 p.m., and by 2:15 p.m., all of Respondent's students were in the media center; and that Respondent came into the media center at 2:15 p.m., stayed there for 15 minutes and then left. According to Ms. O'Dell, after Respondent left the media center, she went to the main office, signed out at 2:32 p.m., and noted that she had the approval of the principal to leave early. In a memo dated November 12, 2003, Ms. O'Dell states in part: It has been brought to my attention[5] that you sent your classes to the Media Center with a substitute teacher on the two days that you had CRISS training. [October 28 and November 4]. This caused problems and is against District Policy. . . On the first day of CRISS training your sub was sent back to the classroom. On the second day, your sub was allowed to stay because (1) she had served as a sub in the Media Center . . . . The November 12, 2003, memo indicates the following: on October 28, 2003, Respondent's students were not supervised in the media center because someone sent the substitute teacher assigned to cover Respondent's class back to the classroom; (b) on November 4, 2003, a substitute teacher was in the media center with the students; and (c) on October 28 and November 4, 2003, Respondent was released from her classes to attend some type of training. Student Schedule Change (January 2004) Chris Bowden was assistant principal for student affairs at Bloomingdale in the 2003-2004 school year. At the beginning of the semester, students at Bloomingdale were given the opportunity to change their class schedules. In January 2004, a student in Respondent's business education class, D.W., received a schedule change that moved her from Respondent's seventh-period class to her fifth-period class. The schedule change was necessary to accommodate the student's geometry course. Respondent received the schedule change for D.W. on Tuesday, January 6, 2004. Upon learning of the schedule change, Respondent sent Mr. Bowden an e-mail expressing her concern that the change would impact the "balancing of her class." Respondent also indicated her preference was that D.W. stay in the seventh-period class. In an e-mail response, Mr. Bowden advised Respondent that he would continue to monitor her class loads. Mr. Bowden also indicated that once the elective schedule change period was over, he would make the necessary adjustments to balance Respondent's classes, but that D.W.'s schedule change should be honored. On January 7, 2004, D.W. reported to Mr. Bowden that she went to Respondent's fifth-period class, but was not accepted in the class by Respondent.6 Mr. Bowden decided to escort the student to class to help her earn entry in the class and to clarify any misunderstanding Respondent may have had regarding D.W.'s schedule. At that point, even though Mr. Bowden had sent Respondent an e-mail asking her to honor D.W.'s schedule change, he was not sure Respondent had opened and read the email. Before Mr. Bowden could escort D.W. to Respondent's fifth-period class, the student asked if she could be removed from Respondent's class, and Mr. Bowden granted that request. Although Mr. Bowden made a commitment to allow D.W. to take a fifth-period class other than Respondent's class, prior to such change, D.W. had to "sign out" of Respondent's class. This school-wide procedure was required to provide teachers with notice when students were no longer assigned to their classes and, thus, could be taken off the class roll. In accordance with that procedure, D.W. was instructed to go and "sign out" from Respondent's fifth-period class and then present the schedule change to her new fifth-period teacher. When D.W. returned to Respondent's class, Respondent did not sign the student out of her fifth-period class because she did not believe that D.W. was not in her fifth-period class. Even though Respondent did not complete or sign D.W.'s form as required for the student to be "signed out" of Respondent's class, Respondent wrote a note on the form which stated, "[D.W.] is not in my fifth period [class]. She attended 5th yesterday. I think she skipped her 5th [with] Mr. M. Mason." Under the note, Respondent signed her name. The student returned to Mr. Bowden's office and told him that Respondent would not sign her out of the fifth-period class. Mr. Bowden then signed the schedule change form so the student could begin attending her new fifth-period class. On January 7, 2004, after Respondent did not execute the form allowing D.W. to "sign out" of Respondent's fifth- period class, Mr. Bowden went to Respondent's classroom to explain that there was obviously a misunderstanding. Respondent's class had just left for lunch, and no students were in the class during the following interaction. In his discussion with Respondent, Mr. Bowden attempted to clarify what he presumed to be a misunderstanding on Respondent's part. However, Respondent told him that there was no misunderstanding and that she understood perfectly. At the time, Respondent was sitting at her desk writing a student referral, which is a request for disciplinary action for an infraction of school rules. The referral was for D.W. based on Respondent's belief that the student had skipped her assigned fifth-period class with another teacher the previous day. Mr. Bowden believed that because D.W. had already signed out of Respondent's fifth and seventh-period classes, the student was no longer in any of Respondent's classes or Respondent's responsibility. In accordance with that belief, Mr. Bowden directed Respondent to cease writing the referral and told her that if she wrote the referral, it would not be acted upon. Respondent then told Mr. Bowden that she was going to keep the referral for her records. After the disciplinary referral issue was resolved, Mr. Bowden again reiterated to Respondent that there had been a misunderstanding concerning D.W.'s schedule change. During Respondent' and Mr. Bowden's exchange about the misunderstanding about the schedule change, Mr. Bowden observed that Respondent seemed disturbed and agitated. He also noticed that the issue concerning the schedule change for D.W. appeared to be very upsetting to Respondent. Attempts to Meet With Respondent (January 2004) Based on Respondent's reaction to the schedule change issue, Mr. Bowden decided he needed to meet with Respondent. He then attempted to talk with Respondent about scheduling the meeting, but Respondent cut him off in mid-sentence and told him, "This conference is over." She then stood up from her desk, let out an audible sound of "frustration, distress, a sigh, a moan," walked past Mr. Bowden, and then hurried down the hallway. At that time, the students in the corridor were in the midst of going to lunch. Meanwhile, Respondent continued hurrying, though not running, down the hallway in an apparent attempt to gain space between her and Mr. Bowden. The reason she left the classroom was that Mr. Bowden had insulted her, and she wanted to get away from him. Before Respondent left her classroom, it was clear to Mr. Bowden that: (a) D.W.'s schedule change issue had been resolved; (b) Respondent had agreed to not submit a disciplinary referral on D.W.; and (c) Respondent was upset about the scheduling issue and did not want to talk about that issue. Nonetheless, Mr. Bowden felt it was necessary to meet with Respondent about the scheduling issue and to do so as soon as possible. After Respondent exited her classroom, Mr. Bowden went to his office, confirmed that Respondent did not have a sixth-period class, and determined that that was a convenient time to meet with Respondent. What he did not know was that part of the sixth period was also Respondent's lunch period. Before he could contact Respondent about scheduling the meeting and between the fifth and sixth periods, Mr. Bowden saw Respondent sitting outside of the student affairs office at the beginning of the sixth period. Mr. Bowden then approached Respondent, indicated he had verified that she did not have a class that period, and told her that he needed to meet with her. Respondent then stated in a loud voice, "I am not going to meet with you; you know I do not like to meet with you and I am not going to do it."7 Respondent eventually moved from a side corridor that ran between the student affairs office and the main office and into the main corridor of the school. While in the main corridor, Respondent stopped walking and turned to Mr. Bowden and said, "Why do you want to meet with me?" At some point, Respondent was standing with her hands behind her back, staring at the ceiling. Mr. Bowden attempted to persuade Respondent to go into his office in the main office suite, which was about 15 feet away, rather than have this discussion in the main corridor. During that exchange, students were exiting the lunchroom, which was across from the main office. One teacher who was on duty and was very close to the main office area, heard the interaction between Mr. Bowden and Respondent. However, it was his impression that none of the students and staff members heard the exchange. This was evidenced by the fact that no students or staff members in the corridor at that time stopped and looked toward Mr. Bowden and Respondent. Mr. Bowden tried to direct her from the corridor into his office so he could gauge Respondent's mental state and determine whether she could teach her seventh-period class. Mr. Bowden also wanted to determine if he and Respondent could reach closure on the D.W. scheduling issue. Respondent followed Mr. Bowden's directive and came into the lobby of the main office, but would not go into Mr. Bowden's office. Instead, she told him, "I will meet you right here." She also asked him on what authority was he requesting to meet with her. Mr. Bowden explained that as the administrator on campus, he had the authority to request the meeting. Respondent then said to Mr. Bowden in a condescending manner, "I've told you, I am not going to meet with you. Do you understand that?" Respondent asked Mr. Bowden if she could make a telephone call, and he then directed her to an office where she could use the phone. While Respondent was using the telephone, Mr. Bowden left the main office to arrange for someone to cover Respondent's seventh-period class. After Respondent completed her call, she left the main office. At some point thereafter, Mr. Bowden learned from his secretary that Petitioner had left the office. Prior to the sixth period's ending, Mr. Bowden eventually found Petitioner in her classroom with another teacher, Fadia Richardson. After Ms. Richardson left the classroom, Mr. Bowden told Respondent that her seventh-period class would be arriving soon and that she should not be in the classroom when they arrived. Respondent went over to her desk where she had a jacket, put her arms through the jacket, pulled the jacket over her head, and turned her back to Mr. Bowden. From that point, when Mr. Bowden was trying to talk to Respondent, she placed her hands over her ears or fingers in her ears, looked away from Mr. Bowden into the corner and said, "I'm not listening to you anymore. I'm not listening to you anymore." Mr. Bowden was concerned about Respondent's behavior and found it disturbing to watch a person get to this point. Mr. Bowden acknowledged that he was not a mental health professional or law enforcement officer, and did not "know what [he] was dealing with." However, Mr. Bowden believed "that we were in the middle of some sort of breakdown." While Respondent continued to display the behavior described above, Mr. Bowden continually and repeatedly said to Respondent, "You can not be here when your students arrive." At that point, Mr. Bowden's primary concern was that Respondent leave the classroom before the 25 or 30 students arrived for Respondent's seventh-period class. Prior to the students' arriving for the seventh period, Respondent left the classroom. Because Mr. Bowden did not know what Respondent's mental state was at the time, he decided not to pursue her. Instead, Mr. Bowden followed up to make sure there was another teacher to cover Respondent's seventh-period class. He then went to his duty area, the main corridor outside the main office, to supervise the class change. While he was in the main corridor, Mr. Bowden's secretary informed him that Respondent was waiting for him in the main office. Mr. Bowden went to the main office, saw Respondent sitting quietly on a sofa waiting for him, and observed that she now had a "normal demeanor." Mr. Bowden was surprised that Respondent had come to the office, but given her calm demeanor at that time, he asked if she was there to meet with him. In response, Respondent stated emphatically that she was not going to meet with him. Elizabeth Stelter, the school principal at Bloomingdale, came into the area and heard the exchange between Mr. Bowden and Respondent and offered to sit in on the conference as a third party. Respondent then again stated, "I'm not meeting with him." At that point and with only about an hour remaining in the school day, Ms. Stelter told Respondent that she was free to leave school for the day. After the January 7, 2004, incident involving Respondent's failure to meet with Mr. Bowden, Respondent was removed from the classroom at Bloomingdale. The Jefferson and Bloomingdale incidents were similar in that both involved a male school administrator directing Respondent to come into the office area to meet with that administrator about her (Respondent's) conduct. Grievance Filed by Respondent On January 8, 2004, Ms. Kipley spoke with Respondent about the incident involving Mr. Bowden that happened the day before. Respondent discussed her feelings about the incident and indicated that she felt that the administration was out to get her and that she was being harassed by Mr. Bowden. Respondent also indicated she was upset that Mr. Bowden had interrupted her during her lunch time and believed that he should have approached her at another time. During the meeting, Respondent was visibly upset, but she was even-tempered and not loud. On an unspecified date, Respondent filed a grievance against Mr. Bowden. That grievance was determined to be unfounded. Fitness-for-Duty Evaluation On January 26, 2004, Ms. Kipley informed Respondent that she would have to undergo a fitness-for-duty evaluation. This evaluation was being conducted because of the School District's concern about what appeared to be unstable behavior and insubordinate behavior. The School District wanted this in-depth evaluation to determine: (a) whether Respondent was fit to perform her duties as a classroom teacher; and whether she could safely instruct children and interact appropriately with her colleagues, peers and administrators. Evaluation Results The School District referred Respondent to James Edgar, M.D., for a fitness-for-duty evaluation "because of a pattern of unstable and insubordinate behavior toward parents, students and administration." Dr. Edgar conducted the evaluation in or about early March 2004 and prepared a report summarizing the results of that assessment. Based on the evaluation, Dr. Edgar reached the following conclusions: I find no psychiatric disorder that would account for "pattern of unstable or insubordinate behavior toward parents, students and administrators". From a psychiatric perspective, [Respondent] has no impairment that would interfere with her ability to safely instruct minor children, appropriately interact with students, parents, staff and the administration. Dr. Edgar's report notes that the results of the evaluation are based on information provided by Respondent and records provided by the School District and collateral sources. The specific records provided by the School District were not described or identified. Dr. Edgar's report notes that Respondent advised him of Dr. Feldman's diagnosis of PTSD and that she had been seeing Dr. Feldman for "problems with anger" since 2001. With regard to the PTSD diagnosis, Dr. Edgar indicated that he had not reviewed the records of Dr. Feldman and his evaluation had found no evidence to support that diagnosis. Notwithstanding his conclusion, Dr. Edgar's report states that "additional information not disclosed to [him] could significantly alter the assessment results." Respondent's Current Status During this proceeding, Respondent explained, but did not attempt to defend or excuse her conduct that is at issue in this proceeding. According to Respondent, she realized only after the fact, and after therapy, that Mr. Cugno's voice was almost identical to one of the people who had been aggressive toward her and that Mr. Cugno's "getting in her face" definitely did trigger an episode. Respondent acknowledges that when she went in for her mandatory EPA evaluation in 2001, she was experiencing intense and sudden anger, but felt powerless to prevent it. However, years after receiving that diagnosis and therapy, Respondent is better able to deal with that issue. In therapy, Respondent has learned (a) what will trigger an episode with her and how to guard against it; (b) how to remain aware of the surroundings; (c) how she is interacting with those surroundings and to remove herself from the situation whenever possible; and (d) how to use relaxation techniques, such as deep breathing. Respondent's Disciplinary/Professional Record Except for this case, there have been no disciplinary actions brought against Respondent's educator's certificate. Throughout Respondent's teaching career, she has consistently earned satisfactory ratings on her performance evaluations. Even with the conduct at issue in this proceeding, there have been no allegations regarding Respondent's overall effectiveness in terms of instruction and classroom management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission dismissing, in its entirety, the Amended Administrative Complaint against Respondent, Debra Satchel. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
The Issue This issue in this case is whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Dale Davis (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent has received satisfactory performance evaluations until 1993 when she received an "improvement expected" evaluation in the area of judgement. During the 1994-95 school year, the Respondent received "improvement expected" evaluations in several areas. The Respondent attributes her performance difficulties to personal stress related to the illness of her parents, school violence, and teaching classes outside her field of expertise. On May 30, 1995, the Respondent, while teaching at Boca Ciega High School, received a written reprimand from Dr. Martha O'Howell, Administrator of the Pinellas County School Board Office of Professional Standards. The letter states as follows: I met with you, Barbara Paonessa, Principal, Allyn Ramker, Assistant Principal and Betty Shields, PCTA Representative on May 11, 1995....The purpose of the conference was to discuss several concerns regarding your failure to follow school and district procedures as well as specific directives given by your supervisor(s). I reviewed the following specific concerns which had been reported to the Office of Professional Standards by Ms. Paonessa: you have left students unattended and failed to supervise your students at all times; you have allowed students to come to your class at times other than when they are assigned to you; you have allowed and encouraged a "loose" classroom atmosphere, allowing students to eat and drink, play cards, talk to each other, and watch videos during instructional time; you have transported one or more students in your personal car; you have not followed the established curriculum; you failed to cooperate with the School Resource Officer in the performance of his duties. Ms. Paonessa and I both expressed grave concerns that your conduct has reflected a lack of sound professional judgement and exposes yourself and the district to possible liability. You acknowledged the validity of the aforementioned concerns but emphasized that philosophically you could not conform to the expectations described and defined by Ms. Paonessa and me. You stated "I'll do what I have to do by my conscience." I acknowledged that I believed you to be a strong student advocate with a great deal to offer. However, I emphasized that you must adhere to school and district policies and procedures and exist within the parameters defined by those policies and procedures. This letter of reprimand is for insubordination by your failure to follow the directives of the school administration. In addition, you failed to exercise sound professional judgement by your refusal to adhere to school and district policies and procedures. You are advised to supervise your students at all times, refrain from transporting students in your vehicle, follow the established curriculum for the subject areas you teach, and adhere to all policies of Boca Ciega High School and the school district. Failure to do so could result in further disciplinary action which may include suspension without pay or dismissal. The letter of May 30, 1995 contains a signature appearing to be that of the Respondent. The Respondent voluntarily transferred to Largo Middle School as an eighth grade language arts teacher for the 1995-96 school year. Prior to her transfer to Largo Middle School, the Respondent had taught only high school grades. On or about September 5, 1995, the Respondent found a letter signed "your neighbor" in a stack of mail. The letter from the "neighbor" was critical of the Respondent's supervision of her dog, and included vulgar language and threats related to the dog and the Respondent. On September 6, 1995, the Respondent took the letter to Largo Middle School. She discussed the letter with several students in her TAP ("homeroom") class prior to the beginning of scheduled academic classes, telling them that her dog was missing. Apparently, students were familiar with the Respondent's dog. Some students read the letter. On September 6, 1995, the Respondent gave her first period class three assignments which she noted on the chalkboard at the front of the school room. Assuming that the students would be familiar with her dog and would be interested in responding to the letter, one of the assignments was to respond to the letter from the "neighbor." Prior to beginning the assignment, the Respondent read portions of the letter to the students in her first period class. She did not read the vulgar language to the students, but provided verbal clues indicating she was omitting inappropriate language. After reading the letter, she instructed the students to write responses to the letter which could be shown to the "neighbor." A student asked whether they were permitted to use vulgar words in their responses. She advised them to express themselves as they saw fit in order to respond to the letter. At the end of the class period, the Respondent collected the assignments and reviewed the work. A number of the student letters contained vulgar and profane language. As was her usual practice, she read some of the work to the class, again substituting verbal clues for the inappropriate language. Apparently amused by the student work, she and the class laughed at some of the responses as she read them. During the second period class, the Respondent gave essentially the same assignment. She told the class to express their feelings about the letter, but said she would prefer that they not use vulgar language. At the end of the class period, the Respondent collected the assignments. A number of the student letters again contained vulgar and profane language. She read the same letters as had been read in the first period to her second period class, substituting verbal clues for the inappropriate language. Again, the Respondent and some of her students were amused by the responses. During the third period class, the Respondent gave essentially the same assignment. The third period class was composed of honors students. Again in response to a student inquiry, the Respondent told students to express their feelings, but directed the students to use asterisks or other symbols to substitute for inappropriate words in their responses. During the third period, a substitute teacher arrived in the Respondent's class. The substitute was to fill in for the Respondent, who had been advised by Principal William Harris to take personal time off in order to resolve a matter regarding her housing situation. Before the Respondent left the school on September 6, 1995, she advised the substitute teacher of the student assignments for the remainder of the day. The Respondent left the classroom with approximately ten minutes remaining in the third period. During the fifth and sixth period classes, the substitute teacher carried out the tasks assigned by the Respondent, including reading the letter to the students and having the students write responses. During the fourth period, another teacher at the school learned of the writing assignment from students who had been in the Respondent's earlier classes. Some students showed their responses to the teacher. The responses contained inappropriate language. According to the teacher, the students claimed the Respondent permitted them to use vulgarity in the responses. After the fourth period had concluded, the teacher notified Edward Cunningham, the school's assistant principal, of her concern regarding the situation. At some point during the day, two students approached Dr. Harris, the principal, and advised him of the writing assignment they had received from the Respondent. Dr. Harris went to the Respondent's classroom and spoke to the substitute teacher. The substitute teacher advised the principal of the Respondent's assignment. Dr. Harris collected the remaining student responses from the substitute teacher and left the room. When Dr. Harris returned to his office, he notified Dr. Martha O'Howell, Administrator of the Pinellas County School Board Office of Professional Standards. He was advised to discuss the matter with the Respondent upon her return. The Respondent returned to Largo Middle School on September 11, 1995, at which time she and Dr. Harris discussed the matter. In meeting with the principal, the Respondent acknowledged reading the "neighbor" letter to the class and assigning the students to respond. She acknowledged telling the students to express themselves as they believed appropriate. The principal requested and received the remaining student responses from the Respondent. During the meeting on September 11, Dr. Harris advised the Respondent that the assignment was inappropriate because it involved personal matters unrelated to her teaching responsibilities and because she had permitted the students to use inappropriate language in their responses. He directed the Respondent to refrain from discussing her personal life with the students. He directed the Respondent not to discuss the letter with the class and not to respond to any student inquiries made to her about the situation. He directed the Respondent to teach according to the approved curriculum. On September 13, 1995, Dr. Harris spoke with Dr. O'Howell and advised her as to the result of his discussion with the Respondent. He provided the student responses to Dr. O'Howell, who initiated an investigation into the incident. On September 21, 1995, Dr. O'Howell met with the Respondent and a representative of the Pinellas County Teachers Association (PCTA). The Respondent acknowledged bringing the letter to school, reading it to students, and assigning them to write responses. During the meeting, Dr. O'Howell advised that the assignment was inappropriate because it was outside the approved curriculum, because the content of the letter was personal, and because the Respondent had failed to direct the students to refrain from using vulgar language. Dr. O'Howell directed the Respondent not to discuss the situation surrounding the letter assignment or her personal issues with her students. On September 22, 1995, Dr. Harris entered the Respondent's second period class and observed students engaged in pillow-fighting, card playing and socializing. Dr. Harris discussed the student behaviors with the Respondent, who replied that it was a "free day" on Fridays. Dr. Harris explained to the Respondent that she was expected to teach the eighth grade curriculum every school day and that classroom management procedures were to be in effect at all times. He also told her that card playing was prohibited. Following the September 22 conversation between the Respondent and Dr. Harris, the Respondent told her classes that Fridays would no longer be "free days" but would be "enrichment days." The evidence establishes that the Respondent's Friday classroom activities remained essentially the same after the change in terminology. On September 25, 1995, Dr. O'Howell met with the Respondent and the PCTA representative. The purpose of the meeting was to execute a settlement stipulation related to the September 6, 1995 classroom reading of the "neighbor" letter and the related writing assignment. Disagreeing with certain statements in the settlement documents, the Respondent refused to execute the settlement documents. At that time, Dr. O'Howell again directed the Respondent to refrain from discussing the situation or her personal life with students. A proposed ten day suspension related to the September 6, 1995 classroom reading of the "neighbor" letter and the related writing assignment was forwarded to the School Board. During this period, copies of the student responses to the letter were released to news media representatives by the Petitioner and were the subject of articles in local newspapers. During a September 27, 1995 conference on an unrelated matter which was attended by Dr. Harris, Mr. Cunningham and the Respondent, the Respondent was again advised to discuss only curriculum matters with students and to refrain from discussion of personal issues. On October 9, 1995, the Respondent gave her students a journal assignment, directing them to write their feelings about the "neighbor" letter, the response writing assignment and subsequent events. At some point after being directed to refrain from discussing the situation with students and prior to October 11, 1995, the Respondent received a call at school from someone claiming to represent a national television talk show. The caller expressed interest in having the Respondent discuss the events surrounding the student responses to the letter on the talk show. The Respondent told her classes about the phone call and wrote the talk show representative's phone number on the chalkboard, explaining that she would not go on the show unless her students could accompany her. On October 11, 1995, the Respondent read an editorial to her students entitled "Teaching hate to eighth graders." The editorial, which had been published in the St. Petersburg Times, criticized the Respondent's behavior regarding the classroom reading of the letter and the related writing assignment, the School Board's response to her assignment, and the writing ability of her students. After reading the editorial to the students, the Respondent instructed her students to write responses to the editorial. The Respondent did not tell the students how to respond to the editorial. She told them that they might want to show the responses to their parents and, with parental consent, send the responses to the newspaper. During the second period on October 11, 1995, Dr. Harris observed the Respondent in her classroom holding a newspaper article while her students were writing. Dr. Harris directed Mr. Cunningham to enter the Respondent's classroom and ascertain the situation. Mr. Cunningham observed the Respondent discussing and assigning students to write rebuttals to the newspaper editorial. Mr. Cunningham observed the Respondent telling students that they could not send their rebuttals to the newspaper without permission from their parents. Mr. Cunningham also observed some students playing cards and others listening to music while the Respondent read the editorial and gave the assignment. Mr. Cunningham reported his observations to Dr. Harris. Dr. Harris contacted Dr. O'Howell and advised of the Respondent's classroom assignment related to the editorial. Dr. O'Howell advised she would be coming to the school campus and directed Dr. Harris to retrieve the student responses to the editorial. Dr. Harris directed Mr. Cunningham to obtain the responses from the Respondent. Mr. Cunningham went to the Respondent's classroom and asked for the responses. The Respondent refused to turn the materials over to Mr. Cunningham. Mr. Cunningham advised Dr. Harris of the Respondent's refusal to provide the materials. Dr. Harris contacted the Respondent over the school intercom system and directed the Respondent to come to his office with the materials. The Respondent came to Dr. Harris' office, but refused to provide the materials. Dr. O'Howell arrived at the school while Dr. Harris and the Respondent were discussing the issue. Dr. O'Howell requested the materials from the Respondent and she again refused to provide them. The Respondent left the school campus before the end of the day and subsequently notified the Petitioner as to the location of the editorial responses. By letter of October 17, 1995, the Respondent was notified by the Superintendent of Pinellas County Schools that she was being suspended with pay. The letter also advised the Respondent that the Superintendent was recommending her dismissal from employment. The letter states: My recommendation is based on the fact that on September 6, 1995, you read a "hate letter" you had allegedly received from a neighbor to your classes and directed your students to write a response to the author of the letter as a writing assignment. The letter contained profanity and other inappropriate language and the student responses also contained a great deal of profanity and other inappropriate language. After being directed on September 21, and September 25, 1995, to refrain from discussing this matter with your students, you gave your classes a journal assignment related to your "hate letter". On October 11, 1995, you read an editorial from the St. Petersburg Times regarding your situation to your students and assigned them to write a letter of response. You refused to provide the students' letters when directed to do so by three different administrators on October 11, 1995. In addition, you received a district reprimand on May 30, 1995, for insubordination and refusal to adhere to school and district policies. Your actions are a violation of The Code of Ethics and The Principles of Professional Conduct of the Education Profession in Florida and School Board Policy 6Gx52-5.31(1)(u)(v), and constitute just cause for your dismissal pursuant to Section 231.36(6)(a), Florida Statutes. Newspaper articles related to the events described herein were published in the St. Petersburg Times and the Tampa Tribune. The evidence fails to establish that the Respondent referred to the letter from the alleged neighbor as a "hate letter" during her conversations with students. The evidence fails to establish that the Respondent actually intended to show the student letters to the "neighbor." There is no evidence that the Respondent knew the identity of the "neighbor."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Pinellas County enter a Final Order terminating the employment of Dale Davis. DONE and ENTERED this 30th day of May, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5534 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6-7. Rejected, subordinate. 11, 14. Rejected. The evidence fails to establish that the Respondent referred to the letter as a "hate letter" during these conversations or that students were told their responses would be shown to the "neighbor." Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-6, 8. Rejected, subordinate. 9. Rejected, suggested reconsideration of the assignment is not supported by greater weight of the evidence. Rejected, as to the Respondent learning of the problems related to the letter "at some point in the next few weeks," not supported by greater weight of the evidence. Rejected, as to date of referenced conversation, not supported by greater weight of the evidence. Rejected as to alleged changes from "free days" to "enrichment days," not supported by greater weight of the evidence. Further, there is no credible evidence to support the assertion that either "free days" or "enrichment days" were part of any organized and approved curriculum. The greater weight of the evidence establishes that in such days, students were occupied in non-academic pursuits, including physical horseplay, card playing, etc. Rejected, subordinate. Rejected, immaterial. Rejected as to assertion that Respondent avoided discussing the matter "as much as was feasible," not supported by greater weight of the evidence. Rejected as to reason for assigning a journal writing assignment, irrelevant. Rejected as to reason for assigning an editorial response writing assignment, irrelevant. Rejected as to reason for refusal to provide student responses to officials, irrelevant. 24. Rejected, unnecessary. 25-26. Rejected, not supported by greater weight of credible and persuasive evidence. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street Northwest Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Longoria, Esquire Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675
The Issue The issues are whether Respondent has violated Sections 231.28(1)(b), 231.28(1)(f), and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida teaching certificate number 335745. He is certified to teach Social Science Education through June 30, 1998. The Duval County School District employed Respondent as a teacher at Highlands Middle School for the 1993-1994 school year. Respondent taught geography during his first period class at the middle school. On or about February 10, 1994, a student in Respondent's classroom, C. L., was talking to a student in an adjacent classroom through a hole in the wall. Respondent lost his temper and threw a geography book at C. L., hitting him in the head. Respondent's testimony that the book slipped from his hand is not persuasive. After the book-throwing incident, the Duval County School District transferred Respondent from Highlands Middle School to the district's book depository. Two months later, the school district transferred Respondent to Joseph Stilwell Middle School for the remainder of the 1993-1994 school year. The principal of Highlands Middle School, George Reynolds, prepared Respondent's annual evaluation on March 1, 1994. Mr. Reynolds found that Respondent's performance was unsatisfactory in the following two areas: (a) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (b) shows sensitivity to student needs by maintaining positive school environment. These ratings resulted in a deduction of four points and an overall "unsatisfactory" evaluation. Mr. Reynolds, however, inadvertently marked Respondent's overall evaluation as "satisfactory." The Duval County School District transferred Respondent to Landon Middle School for the 1994-1995 school year. Within weeks, it became apparent that Respondent had difficulty controlling the students in his classes. In September 1994, Respondent called one of his student's a "trashy kid." During a subsequent parent-teacher conference, Respondent referred to his students as "bad" kids. As to classroom control, he stated that "a teacher can only do so much" and that "his hands were tied." After the parent-teacher conference, the Landon Middle School principal, Elaine Mann, had a conference with Respondent. During this conference, Respondent stated again that he had trouble maintaining classroom control because he had a number of bad students. Ms. Mann and Respondent agreed that she would observe his second period class on October 3, 1994. Ms. Mann observed Respondent's sixth grade World History class on the agreed date. Respondent's performance during this observation was unsatisfactory in the following ways: (a) Respondent allowed students to spend too much time on one activity; (b) Respondent's lesson did not include a way to evaluate classwork; (c) Respondent's lesson did not include an introduction or summary; (d) Respondent's lecture was disjointed; and (e) Respondent's stated objectives were not appropriate. In a memorandum dated October 6, 1994, Ms. Mann described Respondent's strengths and weaknesses and included recommendations to improve his teaching techniques. Ms. Mann conducted a conference with Respondent on October 10, 1994, to discuss her observations and recommendations. Ms. Mann observed Respondent's eight grade U.S. History class on November 14, 1994. For the second time, Ms. Mann found that Respondent's performance was unsatisfactory. A memorandum dated November 16, 1994, lists the following weaknesses: (a) Respondent did not require students to be in class on time; (b) Respondent wasted instructional time; (c) Respondent permitted students to sleep in class; (d) Respondent did not introduce the lesson or use a handout appropriately; (e) Respondent's lecture/discussion lacked organization; (f) Respondent turned his back to one side of the room for most of the period; and (g) Respondent only interacted with six students. Ms. Mann provided Respondent with a written memorandum dated November 16, 1994, setting forth his strengths, weaknesses, and recommendations for improvement. She advised Respondent that she would request assistance for him from the Professional Development office. Ms. Mann wanted that office to establish a support team to work on a "success plan" to improve Respondent's performance. Ms. Mann set a goal for Respondent to achieve a satisfactory evaluation by March 15, 1995. On January 3, 1995, Ms. Mann observed Respondent's class informally. She found that the students were not under control. Their behavior towards Respondent was disrespectful. Ms. Mann and Respondent signed a written success plan on January 11, 1995. The plan included strategies to meet the following objectives: (a) demonstrate effective classroom management skills; and (b) demonstrate effective presentation of subject matter. A member of the support team, Marlene Rasmussen, observed Respondent on January 19, 1995 and January 23, 1995. The focus of the observations was Domain Four, presentation of subject matter. Based on her observations, Ms. Rasmussen recommended that Domain One, lesson planning, be added to Respondent's success plan. Ms. Rasmussen also recommended that Respondent attend a workshop to learn effective teaching behaviors. Ms. Mann arranged for Respondent to attend this three-day workshop. On January 13, 1995, Ms. Mann received a complaint that Respondent used the word "shit" in addressing a student in his class. Ms. Mann admonished Respondent regarding his inappropriate language in a written memorandum dated January 30, 1997. Peggy Clark, a member of the in-service support cadre, provided assistance to Respondent beginning in February 1995. She worked with Respondent in the area of lesson planning. Ms. Clark observed Respondent's classroom performance on two occasions. She conducted two post-observation conferences with Respondent. Ms. Clark was unable to complete her duties in assisting Respondent because of his absences. Louise Peaks, the eight-grade house administrator, was a member of Respondent's success team. As a resource person, she assisted him, on an informal basis, by providing him with feedback from his student disciplinary referrals. She counseled him during casual conversations in the hallway and in his classroom. Respondent never implemented any of the advice or suggestions that Ms. Peaks gave him. Ms. Peaks received complaints from Respondent's fellow teachers concerning his failure to follow school procedures. He allowed his students to come and go as they pleased. His classroom was very disorganized. Pat Barker, the sixth-grade house administrator, was a member of Respondent's success team. She observed him on March 10, 1995, and March 13, 1995. Ms. Barker found that Respondent's students were disorganized. She saw no evidence of classroom management. According to Ms. Barker, Respondent appeared to be unaware whether certain students were in or out of the room. Ms. Barker observed that a majority of the students were uninvolved in Respondent's lesson. Some of the students were asleep. Respondent was not alert to student misbehavior. Ms. Mann issued her annual evaluation of Respondent on March 15, 1995. She found that his over-all performance was unsatisfactory. Specifically, Respondent's performance was unsatisfactory in the following areas: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. On May 26, 1995, Ms. Mann received a written complaint from the teacher whose classroom was located above Respondent's classroom. The complaint concerned disturbing noise from Respondent's room on May 25 and 26, 1995, days during which standardized tests were being administered. Following receipt of Ms. Mann's evaluation, Respondent requested a transfer to another school for the 1995/1996 school year. In response to this request, the Duval County School District transferred Respondent to Paxon Middle School. On August 24, 1995, Respondent's new principal, Quentin Messer, held a private conference with Respondent to develop a plan to improve Respondent's teaching performance. That same day, a written success plan was signed by Respondent and Mr. Messer. The objective of the plan was to provide Respondent with assistance in demonstrating effective classroom management skills and effective presentation of subject matter. The success plan identified support team members, outlined strategies to meet the objectives, and set timelines for completion of proposed activities. Ms. Arnette Smith was a cadre assistant and trainer from the Professional Development office during the 1995/1996 school year. On September 18, 1995, Ms. Smith received a request to assist Respondent in improving his lesson planning skills. Ms. Smith met with Respondent and Dr. Ben Titus, assistant principal, on September 22, 1995. During this meeting, Ms. Smith reviewed Respondent's success plan and arranged a time for an informal observation in Respondent's classroom. In a subsequent meeting, Respondent and Ms. Smith discussed the ways she could assist him with his lesson plans. Respondent expressed a negative attitude toward his students during his conversations with Ms. Smith. He told her that his students did not have values and did not want to learn. Ms. Smith observed Respondent informally on October 11, 1995. After the observation, Ms. Smith discussed her suggestions with Respondent and provided him with a copy of her notes, which outlined specific recommendations. Ms. Smith offered to demonstrate the planning and teaching methods that Respondent could use to enhance his classroom effectiveness. Principal Messer observed Respondent formally and informally through out the 1995/1996 school year. Most of his informal observations were in response to complaints from students, parents, and other teachers. On October 25, 1995, Mr. Messer conducted his first formal observation of Respondent. Mr. Messer found that Respondent's performance was at the lowest or next to the lowest level in 17 out of 24 criteria. Mr. Messer found that Respondent's lesson plan, consisting of one word, was inadequate. Respondent wasted valuable class time collecting papers, sharpening pencils, and arguing with students. Mr. Messer noted that there was no rapport between Respondents and his students. Ms. Smith, personnel development cadre assistant, met with Respondent again on November 7, 1995. The purpose of the meeting was to prepare for her observation of Respondent's class at a later time. Ms. Smith and Respondent reviewed the planning- data form in detail. She advised Respondent to have the form complete prior to the planned observation on November 9, 1995. After observing Respondent on November 9, 1995, Ms. Smith found that Respondent needed improvement in thirteen of twenty-four indicators. Respondent had not adopted or followed any of Ms. Smith's suggestions. He was inadequately prepared and had not completed the planning documents. Ms. Patricia Downs, house administrator of the sixth grade, provided Respondent with assistance in the 1995/1996 school year. She conducted formal and informal observations of Respondent in November 1995, in the area of classroom management, Domain Two. Classroom management was an area of concern due to the number of complaints received from students, parents, and faculty regarding the noise and confusion in Respondent's classroom. Ms. Downs observed Respondent's sixth grade social studies class on November 13, 1995. During that observation, Respondent exhibited a total of 10 effective behaviors and 44 ineffective behaviors. For example, she observed that students were sleeping, working off-task, and otherwise not participating in the lesson, while Respondent proceeded as if those students were not present. The following day, November 14, 1995, Ms. Downs reviewed her findings with Respondent. She discussed specific incidences showing Respondent's lack of classroom control and made suggestions to improve his classroom management. On December 4, 1995, Mr. Messer made a written suggestion that Respondent contact the Duval County School Board's Wellness Center because he appeared nervous and disoriented. On February 6, 1996, Mr. Messer conducted his second formal observation of Respondent. Mr. Messer concluded that Respondent's performance was only marginally satisfactory. That same day, Mr. Messer advised Respondent that if his performance was not elevated to an acceptable level by March 15, 1996, he would be given an unsatisfactory evaluation for the 1995/1996 school year. Mr. Messer continued to observe Respondent informally after February 6, 1996. Based on these informal observations, Mr. Messer concluded that Respondent had not improved over the course of the school year in any of his areas of deficiency. Principal Messer asked Dr. Titus, assistant principal of Paxon Middle School, to assist Respondent with his success plan. Dr. Titus coordinated cadre support for Respondent. On March 7, 1996, Dr. Titus observed Respondent in his classroom. When Dr. Titus arrived for the observation, three students in the hall said that Respondent would not let them enter the room. Respondent explained that he closed the door because the students were late. During his observation, Dr. Titus noted a lack of order, confusion, and negative interaction between Respondent and his students. A majority of the students were off-task because Respondent had no apparent system for classroom management. Respondent's performance was very unsatisfactory. Ms. Downs, sixth-grade house administrator, observed Respondent for the second time on March 8, 1996. She again concluded that Respondent's performance was unsatisfactory. Ms. Downs reviewed her observations with Respondent on March 13, 1996. During that meeting, Respondent told Ms. Downs that he considered the school to be a "cesspool." He also stated that the students were impossible to teach. On March 29, 1996, Mr. Messer issued an overall unsatisfactory annual evaluation for Respondent. This decision was based on the results of Mr. Messer's formal and informal observations and the input he received from Dr. Titus, Ms. Smith, and Ms. Downs. Pursuant to a resignation agreement with the Duval County School District, Respondent resigned his employment effective June 12, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's teaching certificate for one year. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Francis W. Keefe 6176 Fordham Circle Jacksonville, Florida 32217 Kathleen M. Richards, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-2500 Jerry W. Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact The parties stipulated that for Fiscal Year 1987-1988, the vocational- technical-adult education division of the Pinellas County Schools suffered a $7,000,000.00 budget deficit. The parties further agreed that if Dr. Cecil Boris, Executive Assistant Superintendent for Curriculum and Instruction were present, she would testify that she determined that as a result of the budget deficit, it would be necessary to eliminate $1,000,000.00 from the budget for the 1988-1989 fiscal year. She instructed her staff to implement that reduction based on two considerations. The first involved the cost effectiveness of individual programs and the second related to the need for the school system to service the community. The parties further agreed that in their respective departments, Mr. Poole and Mr. Muckle were the least senior instructors. Mr. Poole and Mr. Muckle both were continuing contract teachers at PVTI. Mr. Poole taught welding and Mr. Muckle taught heating, ventilation, and air conditioning. The terms of their employment are governed by the Agreement between The School Board of Pinellas County and the Pinellas Classroom Teachers Association, (Union), for 1985-1988. Other than the slots occupied by both Respondents as described above, and with the exception that as to Mr. Poole, a possible slot for him existed at SPVTI, there were and are no other open slots within the school system for which either Respondent is certified to teach. The parties agreed that the use of the term "open" means unoccupied by a continuing contract teacher or a teacher serving under a professional service contract. The parties further agreed that negotiations were conducted by the School Board with each Respondent in an effort to place him in other positions subsequent to his termination but the negotiations were unsuccessful. Pertinent Florida statutes relative to the issue here indicate that unless a teacher's contract is terminated for cause, it must be terminated at the end of the school year. Though the contracts of Mr. Poole and Mr. Muckle were not so terminated at the end of a school year, the parties agreed that failure was not and would not be raised as a defense to their termination. In November or December of each year, the various county school boards, including Petitioner, receive from the State the number of full time equivalents, (FTEs) they will be authorized for the following school year. A FTE equates to 900 hours of instruction per pupil and is authorized in various categories, including secondary education, post-secondary education, adult education, etc. If the Board feels the authorization allotted to it is inadequate or erroneous, it can appeal that allotment. Ordinarily, however, once the number of FTEs is received, the Board then examines the various programs it proposes to offer and establishes the number of units which it can employ for the coming school year. A unit equates to one full-time teacher. In addition, on the basis of the FTE authorization, the Board can figure what part time hour programs it can offer by the number of hours available to it. The post-secondary vocational-technical-adult education area is divided into several basic curriculum areas including, but not limited to, business education, distributive education, agricultural education, building trades, and health occupation education. The areas are not all funded equally but are weighted on the basis of projected student population relating to FTEs. The weights change year by year and the effect of weighting creates, in some cases, an opportunity to have a lower teacher/pupil ratio, (TPR). Some areas, by law, require lower TPRs. As a result, the weight for these programs is higher. Conversely, if the requirement is not as high, then the weighting given to the FTE is lower. When the Pinellas County School Board received its authorization for FTEs, a staff model implementing these authorizations was prepared by Dr. Herbert Ross, Assistant Superintendent for Vocational-Technical-Adult Education, under Dr. Boris' direction. This staff model, which defines where the FTEs are to be assigned, is prepared by the staff which, in doing so, evaluates the prior years programs, the TPR, the placement of students, and the future of the various authorized programs based on input from the various school advisory committees. This staffing model, when promulgated, is not fixed. If additional economies can be generated as a result of factors which occur later on in the school year, these economies will be implemented. By the same token, if a vacancy occurs subsequent to the preparation of the staffing model which does not warrant replacement based on projections of student population, the Board will not hire a replacement. The staff model pertinent to this case, prepared by the Division of Curriculum and Instruction, as it related to vocational teachers, reflects that SPVTI's staffing level for vocational teachers was to be reduced from 109 to 102 (7 teachers), and PVTI's teacher staffing was to be reduced from 120 to 111, (9 teachers). Elimination of these 16 teacher positions would result in a savings of $518,400.00. The entire reduction generated by staff reductions throughout the Division of Curriculum and Instruction totaled $1,085,612.00. The reductions identified in the staffing summary were based on the 1988 student load reports and the registrar's reports of enrollment in the various schools. Student load reports were not the sole factor considered. TPR's were also considered as were the number of sections in a program, (a program with one section only, involving one instructor, would not likely be cut as to do so would result in the loss of the entire expertise in that area), the various course placement records, the need for the course within the community, and other factors of a similar nature. When the evaluations were made, individual instructors were considered. The determination as to which programs required cuts generally resulted in identification of those programs with the lowest TPR being singled out for reduction. In this regard, Counsel for Respondent strongly contested Mr. Wagner's analysis of which programs were cut and why. Documentation prepared by her from records furnished by the Board in response to discovery would tend to indicate that many programs with a much lower TPR than either that of Mr. Muckle or Mr. Poole's classes were spared reduction while Poole's and Muckle's programs were cut. Mr. Wagner logically and reasonably justified each one of the judgement calls he made in determining whether a particular program should or should not be cut and no evidence was presented by Respondents to indicate that his judgement was incorrect or unsupported. Neither Mr. Wagner nor Dr. Ross played any part in the identification of the individuals who were to be terminated. Once the programs to be reduced were identified, they were forwarded to the school district personnel officer where identification of individual instructors was made on the basis of number of students, number of teachers, and projections for the future. Both the welding program, in which Mr. Poole teaches, and the heating, ventilating and air conditioning program, in which Mr. Muckle teaches, are in the same weighted category of courses, (trade and industrial). Based on the weight factors for trade and industrial courses, a unit, (teacher), needs a 12 to 14 TPR of full time students or part time equivalents. In making his identification of programs to be reduced, Mr. Wagner relied on several documents produced within his facility. The first is the registrar produced enrollment documents reflecting each course's student enrollment by nine week period, (quintmester or quint), for the prior two years. These quint rolls are prepared at the opening of each quint by the registrar from registration forms submitted by students for each class in session. As students come and go during the quint, adjustments are made as required. These forms, however, give the student enrollment only at the beginning of the term, and in order to get an accurate figure of class enrollment at any given time, Mr. Wagner periodically requests his instructors to prepare student load reports which list, by class period, the number of students each instructor has enrolled in his class and present on the day the report is submitted. Since some students are full time and some only part time, in determining the TPR, 3 part time students equal 1 full time student. This is a reasonable method of analysis. After making his study, Mr. Wagner identified the heating, ventilation, and air conditioning courses and the welding courses for reduction because these two technologies had been suffering a decline over several years. In fact, Mr. Muckle was warned that his job might be in jeopardy the prior year. In addition, whereas the institute had been previously getting central office support for various programs during a period of decline, this support was no longer forthcoming. When Wagner recommended cuts to the district personnel office, his recommendation was to cut a unit in the department. The choice of instructor was based upon seniority. The TPR in the heating, ventilating and air conditioning program had shown a pattern of continuous decline and enrollment at the time of identification was even lower than in previous years. Major appliances, a part of that program, had suffered a reduction through retirement of an instructor during the past year and this year, with the number of students enrolled being even smaller, it was necessary to cut an additional instructor. This same situation applied to the welding technology where though there was higher fluctuations than in heating, ventilating and air conditioning, the pattern of decline was consistent. Because of the impact that reduction has on the instructors within the system, the administration attempts, wherever possible, to do away first with vacancies. When those are gone, the remaining necessary cuts are attempted through attrition. In the instant case, Mr. Wagner cut two open units and got three more by not replacing retirements. Once these five units were cut, he was forced to look to annual contract teachers. A teacher who resigned was not replaced. Finally, when cuts were still required, it became necessary to look to continuing contract teachers to make up the difference between the six spaces mentioned above and the sixteen needed. Night course programs cannot be considered in the same category with day programs as they are "supplemental" programs. Teachers within these programs are usually part time teachers hired at an hourly rate. Mr. Wagner did not consider placing those teachers identified for cutting into the night program as teachers. Generally an instructor under continuing contract which calls for 25 hours of instruction per week cannot get enough teaching hours in a night program, (four nights per week, at four hours per night), to make absorption of the remaining nine hours cost efficient. Mr. Poole was not the only instructor identified for cut in the welding program. At the beginning of the identification process, four teachers were in the program, but Mr. Poole, the most junior, was identified and his position cut. That left three instructors. By May, 1988, Mr. Wagner had to recommend another reduction in that program, reducing the number to two and the prognosis was for even further decline. Even with the reductions imposed and identified for future imposition, it would appear that the welding program was not cost effective, notwithstanding Mr. Poole's testimony, uncontroverted, that it was well received in the community and the placement record for students coming out of the program was good. The May/June 1988 enrollment figures showed 25 students in the programs. This is just enough for two instructor positions. Consequently, when Mr. Wagner identified the third unit, rather than cut it, he transferred it to SPVTI along with the incumbent instructor effective July 1, 1988, the start of the 1988/1989 fiscal year. Mr. Poole was junior to that instructor. Quint reports for the HVAC program showed for the January - March 1988 period 49 students in the program with 7 teachers, generating a TPR of 7. In the previous year, there were 69 students at the beginning of the school year and during the same months of that year, the count was 75 students. Mr. Wagner projected that the student population would go down even further in the future. As for the welding program, during the January - March 1988 period, the program served 28 students with 4 teachers. At the beginning of the school year, the student population was 29 and during the same period for the previous year, it was 33. Heating, ventilation, and air conditioning and welding were not the only programs identified for reduction during this round of budget cuts. Several others, including electromechanical studies and practical nursing were also reduced as were the architecture/civil program. All of these had TPRs of 10 or less. No program with a TPR of over 10 was affected by the cuts. Once Mr. Muckle and Mr. Poole were identified by the district personnel office for cut, Mr. Wagner looked to see if, consistent with their certification, they could be moved into another department. Mr. Poole is certified in welding and Mr. Muckle is certified in heating and air conditioning. Both are certified in related technology. However, both instructors are continuing contract teachers and changing to a related technology is not normally done for continuing contract instructors. Several departments at PVTI which have a lower TPR than welding and HVAC were not affected. In one case, Mr. Wagner reduced a teacher to a 10 month contract from a 12 month contract status and also generated 39 more part time students in an effort to raise the TPR and keep the course. One-teacher departments, even with a lower TPR, were kept open in order not to lose the expertise. In other cases, the nature of the student population involved might have justified keeping a course open even with a low TPR, (handicap). The determination as to where to impose cuts was, in most cases, a question of judgement wherein Mr. Wagner, as Director of the school, had to consider other factors in addition to the TPR in deciding where to recommend the cuts. Mr. Poole had previously taught at night and was willing to again teach at night on a part time basis. However, he had chosen to withdraw from teaching night classes in the past and notwithstanding he stated he had offered to teach them again, he did not communicate this to Wagner. As to whether Poole could be reassigned to the welding program at SPVTI, there are currently two instructors, (including a transfer in from PVTI), on board and at the close of July, 1988, there were only 9 or 10 students for both teachers. This does not justify a third teaching position for Mr. Poole to fill. Respondents, offered several statistical surveys of teacher/pupil ratios which indicate there are numerous programs within the school system which appear to have lower TPRs than either the welding or HVAC programs. However, numerous factors other than TPR were considered in determining and identifying various programs for reduction. There has been no evidence whatever to indicate that Mr. Wagner's judgement was inaccurate, incorrect, or flawed. There was no evidence that his decisions were either arbitrary or capricious or based on an improper attempt to impose an adverse action on either Respondent or to improperly give benefit to others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the termination of employment of Respondents Jeffrey Muckle and Thomas Poole be upheld and their employment contracts with the School Board of Pinellas County be cancelled. RECOMMENDED this 29th day of September, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2005, 88-2008 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 4. Accepted and incorporated herein. 5 - 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8 - 9. Accepted and incorporated herein. 10 - 11. Accepted and incorporated herein. 12 - 13. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 16 - 23. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. For the Respondents: 1 - 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Sentence one is rejected as contra to the weight of the evidence. The remainder is accepted. 7 - 8. Accepted and incorporated herein. 9 - 10. Accepted. 11 - 12. Accepted. Rejected. Information is available. The issue is one of credibility and weight. Rejected and irrelevant. Rejected. Petitioner admits some records are not complete. The issue, however, is not one of statistics but of concept and the evidence is clear that Mr. Wagner's decision was based on reliable evidence which fairly presented the overall picture. Rejected and irrelevant. Conclusion in last sentence is rejected. 18 - 19. Accepted but irrelevant. Accepted but not controlling. Accepted and incorporated herein. Explained. Accepted. Accepted and incorporated herein. Accepted but not controlling. Accepted. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688 Charleen C. Ramus, Esquire Kelly and McKee, P.A. 1724 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
