The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
Findings Of Fact Based upon my observation of the witnesses-and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: At all times material hereto, the Respondent held teaching certificate number 516212, issued by the Department of Education for the State of Florida. The Respondent's teaching certificate covers the area of substitute teacher. During first period on October 30, 1984, Mr. Mark Fisher, a teacher at Nautilus Junior High School in the Dade County School District, called Dr. Frederick, assistant principal in charge of curriculum, to advise that he was ill and needed to leave school. Mr. Fisher's teaching assignment consisted of five regular classes of industrial arts and one class of crafts with special education students. The special education class was held during the sixth period, from 3:00-4:00 p.m. Ten students were assigned to the sixth period class. The category of special education students in the class included learning disabled, educationally mentally handicapped and emotionally handicapped children. The Respondent was called to substitute for Mr. Fisher at the end of the first period on October 30, 1984. The Respondent reported to the Nautilus Junior High School at approximately 11:00 a.m. and was assigned to Mr. Fisher's class, Room 141. The Respondent had previously substituted at Nautilus Junior High School on October 9, 1984. On that day, Dr. Frederick reviewed the guidelines for emergency substitute teachers with the Respondent. The Respondent signed the guidelines certifying that he had read and understood the school's procedures. The Respondent received a written assignment when he reported to Nautilus Junior High School on October 30, 1984. The assignment specifically noted that the sixth period class was a special education class. Prior to leaving the classroom, Mr. Fisher wrote the lesson plans for his various classes on the black board. After the 5th period class was over and immediately prior to the commencement of the 6th period, anywhere from one to four students who were not regularly assigned to Mr. Fisher's class entered room 141. When the bell rang for the commencement of the 6th period class the Respondent called roll. There were ten students assigned to the class. Eight students responded to the roll call and the Respondent marked two students absent. After roll was called, the Respondent allowed the students to work on their projects. The students went to a closet, retrieved their projects and began working on them. The students were situated at work benches in the class actively working on projects which involved sanding, gluing, nailing and similar processes. The students were not allowed to use any of the electrical equipment or power tools. The students' activity involved a certain amount of movement within the classroom such·as standing up, comparing projects and going to the supply closets for more paste and other materials. At some point during the class period D.W., a female student, went into a closet located in the rear of the classroom. While D.W. was in the closet two male students, at separate times, went into the closet with her. While in the closet, D.W. had oral sex with at least one of the boys. While D. W. and the boys were in the closet, several other students went over to the closet and looked in. One of the students in the class got a stool and stepped up and looked through a hole at the top of the closet door. Two other students also stood on the stool and looked into the closet. (Although D.F. testified that he was on the stool for five to ten minutes, his testimony as to the amount of time that he was standing on the stool was not persuasive. Likewise, his testimony was neither clear nor persuasive enough to determine whether the two other students went back and stood on the stool at the same time or whether they went back separately.) The testimony concerning the amount of time that D. W. and the other students were in the closet was not persuasive and it is impossible to determine the amount of time that D. W. and the other students spent in the closet. Several days following the incident, D.W. informed Ms. Spearman, a special education teacher, about what had happened during the 6th period class on October 30, 1984. Official recognition was taken of the fact that two boys and one girl entered guilty pleas to charges arising from the incident of October 30, 1984. Room 141 is specially designed to be utilized as an industrial arts or "shop" class. Room 141 is larger than typical classrooms at Nautilus Junior High School. According to the diagram introduced as Petitioner's Exhibit 2 and included herein as Appendix B, the entrance is located in the upper northwest corner of the classroom. The teacher's desk is located in the extreme northwest portion of the classroom next to the main entrance. The classroom is approximately 69 feet long (east to west) and 43 feet wide (north to south). There are several cupboards or closets located along the front of the west side of the classroom and a walk-in closet located in the upper northeast corner. The doors of the walk-in closet face to the south. The rear closet is approximately 15 feet deep, 8 feet high and 8 feet wide. The rear closet has double doors and at the top of the right door there is a small cutaway portion in a rectangular shape. Wood supplies are kept in the rear closets and other , types of supplies are kept in the forward closets. The classroom contains two work tables, nine work benches and one bench saw. The teacher's desk faces the work tables and work benches. The Respondent was unable to see the front part of the rear closet from where he was sitting at the teacher's desk. The Respondent first obtained his teaching certificate for substitute teaching from the Department of Education for the State of Florida in December of 1981. The Respondent substituted at over fifty different schools in Dade County and was teaching on the average of four to five days a week prior to the incident on October 30, 1984. The Respondent was employed on numerous occasions as a substitute teacher at Biscayne Elementary School in Dade County, Florida, during the years 1982, 1983, and 1984. According to Ms. Glick, the principal of that school, the Respondent's work was very satisfactory and to her knowledge, there were no incidents in any of his classes involving student misconduct nor were there any complaints about his teaching ability. The Respondent was called to teach frequently at Biscayne Elementary School because his work was satisfactory and he was "pleasant to the children and related well to the rest of the staff." The Respondent served as a substitute teacher at Comstock Elementary School in Dade County several times during the period of 1983-1984. Mr. Levin, the principal at that school, observed the Respondent on several occasions while working at Comstock and each time the Respondent was observed, the students in his classes were involved in a learning process, there were no disciplinary problems and the students seemed to like him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE and ORDERED this 16th day of December, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1986. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 David Rappaport, Esquire 265 Northeast 26th Terrace Miami, Florida 33137 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 APPENDIX 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 4. 3. Adopted in Finding of Fact 5. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 8. Rejected as subordinate. Partially adopted in Findings of Fact 5 and 6. Matters not contained therein are rejected as recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 141. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as not supported by competent substantial evidence and/or a recitation of testimony. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as not supported by competent substantial evidence and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or a recitation of testimony. Rejected as subordinate. Adopted in Finding of Fact 15. Rejected as a recitation of testimony. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 19. Adopted in Finding of Fact 4. Adopted in Findings of Fact 4 and 6. Rejected as subordinate. Adopted in Finding of Fact 3. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in substance in Finding of Fact 10. Adopted in Finding of Fact 16. Adopted in Finding of Fact 17. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as subordinate. Rejected as subordinate and/or unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary.
The Issue The issues in this case are whether Respondent violated Subsection 1012.795(1)(j), Florida Statutes (2008),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B- 1.006(3)(f), 6B-1.006(3)(h), 6B-1.006(3)(i), 6B-1.006(4)(a), and 6B-1.006(4)(c), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Hebner holds Florida Educator's Certificate 703698, covering the areas of Educational Leadership and Emotionally Handicapped, which is valid through June 30, 2013. At all times material to the Second Amended Administrative Complaint, Mr. Hebner was employed as a fifth- grade exceptional student education teacher at Heights Elementary School (Heights Elementary) in the Lee County School District (School District). The 2008-2009 school year was the first and only year that Mr. Hebner taught at Heights Elementary. During his employment with the School District, Mr. Hebner received certified training to control aggressive behavior by students. He received the training while he was a teacher at Royal Palm Exceptional School. The students at Royal Palm Exceptional School consisted of special education students or students in the Exceptional Student Education program. The training included instruction on an elbow control and take-down maneuver. With the elbow control technique, a student is secured above the wrist with one hand and pressure is applied to the back of the elbow with the palm of the person applying the pressure. The arm of the student being restrained forms an L shape, and the technique allows the teacher applying the restraint to keep the student slightly off balance, which allows the teacher to guide the student in the direction the teacher desires. The take-down maneuver consists of the teacher extending his or her leg in front of the student, allowing the student to be taken down over the back of the teacher's thigh. The take-down maneuver has the appearance of a person being tripped. Mr. Hebner has used the elbow control and take-down maneuver in his career prior to being employed at Heights Elementary. Typically at the elementary level, a bear hug would be the appropriate method to control a student who is out of control. When using a bear hug, the teacher would put his or her arms around the student, hug the student, and guide the student to the side away from the conflict. The bear hug method had been discussed among the teachers at Heights Elementary, but there had been no formal in-service training on the use of the bear hug. The evidence did not establish that Mr. Hebner was aware that the bear hug was the typical method of student control at Heights Elementary. During the fall of 2008, C.P. was a student in Mr. Hebner's class. C.P. had problems controlling his behavior while in Mr. Hebner's class, and there had been instances of aggression towards other students. On or about September 24, 2008, Mr. Hebner met with the assistant principal, Aida Saldivar (Ms. Saldivar), and a parent of C.P., a 12-year-old male student. C.P.'s mother claimed, and Mr. Hebner admitted, that Mr. Hebner had put his hands on C.P. Ms. Saldivar warned Mr. Hebner not to put his hands on anyone, even in a behavioral situation. In addition to C.P.'s mother, Ms. Saldivar had two other complaints from female students claiming that Mr. Hebner had restrained them in the classroom, and Ms. Saldivar advised Mr. Hebner of those complaints after the meeting with C.P.'s mother. On November 21, 2008, Heights Elementary had a race called a "Turkey Trot." Some of the students in Mr. Hebner's class participated in the race. During the race, C.P. called one of his classmates, L.R., slow. After the conclusion of the race, Mr. Hebner led his students back into the school building. Mr. Hebner's classroom was located on the second floor of the school. C.P., L.R., and R.P., another student in Mr. Hebner's class, were returning from the Turkey Trot. C.P. pushed L.R., and R.P., who was a friend of L.R., pushed C.P. in retaliation. C.P. then pushed R.P. and said, "Do you want to go?" which R.P. took to mean did R.P. want to fight. This altercation took place in the hallway at the top of the stairs. Mr. Hebner did not see C.P. push L.R. nor did he see R.P. push C.P. Mr. Hebner did see C.P. push R.P. and, at that point, intervened into the situation. Mr. Hebner yelled at C.P. to stop. Mr. Hebner grabbed C.P.'s arm and raised it above C.P.'s head. C.P. continued to resist as Mr. Hebner kept telling him not to resist. Mr. Hebner told C.P., "You are going down, and you won't like it." Mr. Hebner then put his foot in front of C.P. and dropped C.P. to the floor, similar to a policeman taking down someone about to be arrested. C.P. was lying on his stomach, yelling for Mr. Hebner to let go, while Mr. Hebner still had a hold on C.P.'s arm. When C.P. stopped resisting, Mr. Hebner released C.P. and told him to go to the office. C.P. had a red mark on his cheek, which he thinks was a rug burn as a result of lying on the floor. In addition to his cheek, the nurse noticed red marks on C.P.'s arm and back. She applied ice to his cheek and to his back. When C.P. was examined by the nurse, he was upset and crying. The School District investigated the incident and issued Mr. Hebner a written reprimand on February 3, 2009. On February 6, 2009, Mr. Hebner was provided notice that the Office of Professional Practices Services and the Department of Education had initiated an investigation into the November 21, 2008, incident. On February 19, 2009, Mr. Hebner grieved the written reprimand with the School District. On or about April 21, 2009, Mr. Hebner had some of his students complete a questionnaire about the November 21, 2008, incident. He intended to use the completed questionnaire as part of his defense in the grievance procedure. The questionnaire read in part: "this questionnaire is meant to help the School Board better understand exactly what happened on 11/21/08 after the Heights Turkey Trot." The questionnaire also stated: "this exercise is entirely voluntarily and not school related." The questionnaire provided a series of questions with suggested answers. The students were requested to circle the appropriate response. The questionnaires identified C.P. and R.P. by name and had a line at the top of the questionnaire for the student answering the questionnaire to write in his or her name. Some students put their full names on the questionnaires, and others put their first names on the questionnaires. The students in Mr. Hebner's class were exceptional education students, who were reading two to four grades below reading level. Mr. Hebner quickly read the instructions to the students. Some students completed the questionnaires in class, and others took them home to complete. Mr. Hebner did not seek permission from the students' parents or administrators at Heights Elementary prior to asking the students to complete the questionnaires. Mr. Hebner did submit the completed questionnaires for use in his grievance procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Hebner violated Subsection 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(f), 6B-1.006(3)(h), 6B-1.006(3)(i), and 6B-1.006(4)(c); finding that Mr. Hebner did not violate Florida Administrative Code Rules 6B- 1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(4)(a); placing Mr. Hebner on probation for two years pursuant to terms set by the Education Practices Commission; and requiring Mr. Hebner to complete a college level course in ethics. DONE AND ENTERED this 22nd day of December, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2010.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner/Agency has established by preponderant evidence that there was just cause to dismiss Sakina A. Jones, the Respondent, for alleged misconduct in relation to her teaching of students in alleged violation of Rules 6B- 1.006(3)(a), and 6B-1.006(3)(e), Florida Administrative Code.
Findings Of Fact The Petitioner is the Duval County Florida School District or "School Board" charged with regulating the practice standards for teachers and the manner of practice of teachers who are employed by it in the Duval County School District system. The Respondent is licensed to teach in Florida, holding Florida Educator Certificate No. 831562, effective from July 1, 2000 through June 30, 2002. The Respondent has a Bachelor's Degree in Psychology received on December 11, 1998. She has worked as a substitute teacher for the Duval County School District between approximately September 4, 1998 and August 9, 2000, after which time she became a full-time elementary teacher at Annie R. Morgan Elementary School. The Respondent has a Bachelor's Degree in Psychology. Her training and experience in the field of education beyond college, at which she had no academic training as an educator, at the point she commenced her second year of teaching at Annie R. Morgan Elementary School, in August 2002, included the following: substitute teaching experience at elementary schools. teaching ESE students at DuPont Middle School as a substitute teacher. participation in the Teacher Induction Program during the 2000-2001 school year while full time teaching at Annie R. Morgan Elementary School. having a designated mentor (Mrs. Shipley) from whom to seek guidance. completion of a college level introduction to education course while teaching full time during the 2000-2001 school year. completion of a course in "Teaching Diverse Populations" in the summer of 2001. receiving a book called "Positive Discipline." attending a faculty meeting on classroom discipline which focused on steps that could be taken in the classroom before sending a child to the principal's office. The Respondent had no training in the specifics of teaching and disciplining either ESE students or the educable mentally handicapped (EMH) students which she was teaching at times pertinent to this case. The Teachers' Induction Program in which Ms. Jones participated during the 2000-2001 school year is a program for new teachers in the District which includes assessments involving at least two classroom visits a week. Six "domains" are covered in the program including classroom management, instructional planning and testing, some of which are presented in a workshop format. The program requires a year to complete, at the end of which the principal must assess whether a new teacher has passed or failed in her participation in the program. For the 2000-2001 school year Ms. Jones accepted a position as a full-time, third grade teacher at the Annie R. Morgan Elementary School. The principal that year was Delores Milton. After about five weeks, Ms. Jones was shifted to an ESE class, an area in which she had no training. Later that year she was assigned to an EMH class which she was even less qualified to handle in terms of having any specific training in teaching and disciplining EMH students. Ms. Jones, indeed, had serious reservations about taking the EMH job because of her lack of training or experience with EMH children and she related this to her principal and they had a discussion about it. Ultimately, the principal assured her that she could go to workshops and in other ways get additional training and so Ms. Jones accepted the position because it would guarantee her a position so that she would not be on the "surplus list" (being first subject to lay-offs). Carolyn F. Davis was assigned as Principal at Annie R. Morgan Elementary School on July 1, 2001, replacing Ms. Milton. Ms. Jones' EMH teaching assignment continued into the new 2001- 2002 school year. Her class included twelve boys and two girls ranging in advancement from grade one to grade three. A teacher's assistant was assigned to her on a full time basis. The teacher's assistant, at the beginning of the year, was Tiffany Bullard. Ms. Bullard had been working with Ms. Jones as a teaching assistant the prior school year from approximately November 2000 through the end of the school year in May 2001. That had been her first experience as a teacher's assistant. Due to budgetary cuts, Ms. Bullard was "surplused" (laid-off) on September 4, 2001. Several months later she was re-hired at a different school. A second teacher's assistant worked with Ms. Jones in her classroom after Ms. Bullard departed. This was Arnette Felton. Ms. Felton had a year's prior experience as a teacher's assistant at an elementary school as well as a prior year of such experience at Annie R. Morgan Elementary School. She worked with Ms. Jones from September 5, through October 16, 2001. She asked to be relieved when she claimed that Ms. Jones threw a bottle of "white-out" at a student who ducked, such that the bottle hit Ms. Felton. The totality of the credible testimony reveals that this incident did not happen at, least in that fashion, as Ms. Jones never intentionally threw a bottle of white-out at anyone. In reality, there appears to have been some personal friction between Ms. Felton and Ms. Jones which helped to cause Ms. Felton's departure. Ms. Jones' third teacher's assistant was Brenda Medlock. Ms. Medlock has approximately one year and a half of college and had been serving as a teacher's assistant for ten years in the Duval County School system. She remained with Ms. Jones until Ms. Jones was removed from her teaching duties on or about November 19, 2001. Ms. Medlock had no prior experience with EMH students although she had worked with ESE students and had some training of unknown amount and duration in behavior management while working as a teacher's assistant at a prior school. The EMH students in Ms. Jones class were all students with below average I.Q. who function at grade levels significantly below the norm for their age. Their I.Q. range was from 49 to 69. Greater patience is required in disciplining and instructing EMH students. Relevant federal law protects them from being disciplined for reasons of their disability. In all instances with respect to such students, a determination has to be made concerning whether the conduct for which discipline is about to be meted out is a manifestation of the disability, and if so, there can be no discipline. Some of the students had limited communication skills and difficulties with memory and Ms. Jones was aware of this information concerning her students upon getting to know them. Students with a low I.Q., such as Ms. Jones' students, should not appropriately be made to write sentences repetitively as a disciplinary measure. This is because they would typically not understand and cannot practicably execute the requirement. Upon learning that Ms. Jones had made students write sentences repetitively as a disciplinary measure, Principal Carolyn Davis instructed her not to use this form of discipline at a conference the two had on October 23, 2001. Student Raymond Houston testified. He was placed in the bathroom, which was in the classroom, a number of times for a few minutes as "time out" when he misbehaved. Although the light in the bathroom may have been turned off when this occurred, no one prevented any student, being placed in the bathroom as "time out," from turning the light on. Raymond Houston (R.H.) also stated that he and several other students had to do the "duck walk" or "jumping jacks" as discipline for misbehavior on a number of occasions. He was also required to write sentences such as "I will be good" or "I will pay attention" when he had misbehaved. The teacher's assistant, Ms. Bullard, confirmed that the Respondent had placed children into the classroom bathroom for "time outs." The totality of the credible testimony reveals, however, that these sessions lasted only from three to five minutes and no student had been placed in the bathroom as long as an hour or a half-day or anything of that nature. Ms. Jones also made certain male students do pushups for disciplinary reasons, such as R.H. and T.S. In this connection, some of the calisthenics her students performed were done as part of a fitness program she instilled in her daily lesson plan, including the exercise regimen known as "Tae Bo." Most occasions, when students did exercises such as pushups, were not for disciplinary reasons. Student R.H. also was required by the Respondent to wash at the lavatory and put on a clean shirt, which she had in the classroom to give him. This was because he had not bathed in several days and had a bad odor. While some other students may have observed this, it was done for hygiene reasons and was not done in order to berate the student or expose him to unnecessary embarrassment. During the 2001-2002 school year on one occasion, student "Shaquille's" book bag was taken from him by the Respondent and she put it in a trashcan. This was not a trashcan used for refuse or garbage, however, it was simply a trashcan type receptacle where she would keep students' book bags when they did not need them or when they were not supposed to be in possession of them. Ms. Jones also instituted a system which permitted the children to go to the bathroom three times per day. This system was implemented by having the students use tokens, three apiece, which they could use when they needed to go to the bathroom. This was done to help instill order in the classroom. However, those students who were unable, for various reasons, to comply with this bathroom schedule were allowed to go on an as-needed basis. In any event, the three-bathroom-visits policy was ended by the Respondent one month into that school year. All students at the Annie R. Morgan Elementary School receive a free breakfast every morning, at the beginning of the school day. Breakfast is provided in the classrooms to the students at their desks. Ms. Jones had a rigid five-minute time limit, enforced by a timer, during which the children were to eat their breakfast. She would have the students start in unison (those that were present) and when the timer rang after five minutes, she would make the children discard any portion of breakfast not eaten. Ms. Jones was not aware that there was any prohibition against the five-minute time limit for eating breakfast and for discarding unused food. After being instructed by her principal, at their meeting of October 23, 2001, that the students should be allowed fifteen minutes for breakfast, the Respondent complied. The only exception to this, established in the record, was when student James Brown arrived at school late and missed breakfast. This, however, was involved with an agreement the Respondent had with James Brown's mother, who had informed Ms. Jones that if he were late she could assume that he had already had breakfast, because his mother would ensure that he had already breakfast. The denial of his breakfast, on the day in question, was not due to any cruelty or other violation of the rules referenced herein, but rather because she knew that his mother would have already given him breakfast on that day when he was late. Although the Respondent was accused by witness Arnette Felton of throwing objects in the classroom at students, including pencils, chalk, an eraser and a white-out bottle, the preponderant, credible testimony indicates otherwise. Although the Respondent acknowledged tossing snacks, candy, chalk or pencils to students for them to use during the course of their classroom activities, she never purposely and forcefully threw any object at students in anger or as a misguided disciplinary measure or anything of the sort. Further, although as a classroom management technique the Respondent placed students in time-out in the restroom for a few minutes when she felt it necessary to restore order and decorum in the classroom, she never instructed her assistant to forcibly hold the bathroom door shut to "lock-in" a student for disciplinary reasons. Ms. Felton maintained that she observed Kenny Brown come to Ms. Jones' desk, when told not to, so that Ms. Jones, in anger, threw his book bag in the trash, took his folder out of the book bag and threw it in the sink, getting it wet. The most credible testimony does not support that assertion. It is determined this incident did not occur in this fashion. Rather, Ms. Jones, at most, took student K.B.'s book bag from him and placed it in the receptacle for holding book bags, which happened to be in the form of a trashcan, but which was not used as a trash or garbage can, as found in the other instance referenced above. It is true that Ms. Jones criticized Ms. Felton when she was unable to change a CD disc, calling her a "dummy." This was not done in a way that the other persons or students present in the classroom could hear, however. It is also true that Ms. Jones and Mr. Felton got into a verbal altercation in the classroom for which the Respondent, Ms. Jones, received a reprimand from the principal, Ms. Davis, for engaging in an argument in front of the students. Teacher's assistant Brenda Medlock succeeded Ms. Felton as the teaching assistant for the Respondent. She observed James Brown arrive at school, missing breakfast, on October 29, 2001, which has been discussed above. Withholding breakfast may have been contrary to the principal's instruction, but in this regard it was done for a justifiable reason because, due to the understanding with the student's mother, Ms. Jones knew that he had already had breakfast when he got to school that day when he arrived at school late. Ms. Medlock also observed, on October 29, 2001, that, after the students were disruptive, the Respondent put a sentence on the board, "I will pay attention," and required all of the students to write that sentence repetitively for approximately fifteen to twenty-five minutes. Some of the students had the ability to write the sentence only a few times or only once. This episode was in violation of instructions given by the principal at the meeting she had with the Respondent on October 23, 2001. The principal had a conference with Ms. Jones on October 23, 2001, in which Ms. Jones admitted that she had placed students in the bathroom for time-out for disciplinary purposes and that she had given children only five minutes in which to eat breakfast. She was informed that fifteen minutes were allowed for eating breakfast and she was directed not to use the bathroom for time-out disciplinary purposes anymore. She refrained from doing so thereafter. She was also directed not to withhold food from a child which she complied with thereafter, with the exception of the James Brown breakfast episode, which was adequately explained by the Respondent to not involve any disciplinary or disparagement reason for its occurrence. Ms. Jones did, as found above, violate the instruction from Ms. Davis about not requiring students to write sentences repetitively, as a disciplinary measure, by the incident she caused on October 29, 2001, found above. In summary, it is significant that the only sources of factual information are the testimony of the teacher's assistants who were assigned to the Respondent during the 2001- 2002 school year. An analysis of their testimony shows that none of them had any affection for the Respondent and it appears from examination of their testimony, and the Respondent's testimony, that each had specific reasons for harboring resentment or animosity toward the Respondent. Their attitudes towards the Respondent appeared less than friendly, so that their testimony, taken together, with the instances of admissions by the Respondent show that some of the situations described happened, but did not happen in the heinous way described in the testimony of the teacher's assistants Ms. Felton and Ms. Medlock. Although some of these situations, which occurred as part of the Respondent's attempt to properly deal with her classroom environment, may have justifiably resulted in criticism of the Respondent, the statement of the Petitioner's own witnesses show that there was no formal standard and no formal definition of acceptable versus unacceptable conduct imparted to the Respondent before she embarked on her duties with this EMH class. The Petitioner's representatives acknowledge that there was no advance training or instruction given to the Respondent. The Respondent was required to seek assistance and additional training largely on her own initiative with little support from the school administration. Consequently, as the Respondent attempted to develop techniques for the management of her classroom and for the instruction of her students, numerous events occurred that were later deemed inappropriate, although she had not been instructed in advance that they were inappropriate. Some of these occurrences or events were due to poor judgment on her part as well, and the resentment occasioned in her teacher's assistants or "para-professionals" was probably partly the result of her own failure to adequately control her temper on occasions. However, the fact remains that as soon as the Respondent was notified of any perceived inappropriate behavior, or classroom or student management techniques, she modified her conduct or techniques accordingly, so as to comply with those instructions. The only time she continued behavior that had been deemed unacceptable by the principal concerned the subject of the breakfast of one student, for whom she had a specific instruction from the student's parent that the student did not need to have breakfast when he arrived late, because he would already have had breakfast. The other occasion of continued behavior that was unacceptable was the single, October 29, 2001, requirement of students to write repetitive sentences, which was directly contrary to the instructions she received from the principal on October 23, 2001. Since the only complaints were made to the administration by the paraprofessionals and the investigation therefore concentrated on those individual's statements, there is no substantial, credible evidence that the Respondent's actions rose to the level of intentional embarrassment or disparagement of students or otherwise constituted a breach of the Code of Ethics for educators, as embodied in the rules on which the Respondent's termination was based. Although the Respondent's actions were mis-directed in several instances and constituted exhibitions of poor judgment on some occasions, they have not risen to the level of a violation of the ethical requirements imposed on teachers.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Duval County compensating the Respondent for the salary and benefits to which she is entitled from the date of her termination of employment (suspension without pay) forward to the end of the 2001-2002 School Year. DONE AND ENTERED this 14th day of November, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 14th day of November, 2002. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Ernst D. Mueller, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida. At all times relevant to these proceedings, Respondent has been licensed in the fields of elementary education and exceptional student education. Her Florida education certificate number is 840291. Her certificate expires on June 30, 2010. Respondent was employed by the Bradford County School District from 1994 to 1996, from 1998 to 2001, and finally from 2004 to 2007. She has worked as a substitute teacher, a parent specialist, and a teacher of varying exceptionalities. At the time of the events alleged in the Administrative Complaint, Respondent was the principal and teacher at Believer's School of Learning (Believer's School) in Bradford County School District. Believer's School was a charter school, for grades K-3, meant to give alternatives to traditional public school. Charter schools fulfill various purposes such as improving student learning and increasing learning opportunities. With respect to the Believer's School, a special emphasis was placed on low- performing students and reading. An "exceptional student" is defined by Section 1003.01(3)(a), Florida Statutes, as: ny student who has been determined eligible for a special program in accordance with rules of the State Board of Education. The term includes students who are gifted and students with disabilities who have an intellectual disability; autism spectrum disorder; a speech impairment; a language impairment; an orthopedic impairment; an other health impairment; traumatic brain injury; a visual impairment; an emotional or behavioral disability; or a specific learning disability, including, but not limited to, dyslexia, dyscalculia, or developmental aphasia; students who are deaf or hard of hearing or dual sensory impaired; students who are hospitalized or homebound; children with developmental delays ages birth through 5 years, or children, ages birth through 2 years, with established conditions that are identified in State Board of Education rules pursuant to s. 1003.21(1)(e). Respondent had Exceptional Student Education (ESE) students in her school. Believer’s School was required to follow federal and state guidelines with respect to ESE students. Those requirements include keeping complete, current and accurate records with respect to exceptional education students. These recordkeeping requirements are required by federal and state law and are necessary for the school system of Bradford County, of which Believer's School was a part, to remain eligible for federal and state funds allocated to pay costs associated with educating exceptional students. In accordance with Florida Administrative Code Rule 6A- 6.03028(3), Respondent was required to prepare an Individual Education Plan (IEP) for each ESE student attending Believer's school. Rule 6A-6.03028(3) states: (3) IEP Requirements. An IEP or individual family support plan (IFSP) must be developed, reviewed, and revised for each eligible student or child with a disability served by a school district, or other state agency that provides special education and related services either directly, by contract, or through other arrangements, in accordance with this rule. Parents are partners with schools and school district personnel in developing, reviewing, and revising the IEP for their student. An IEP is necessary to evaluate the student's educational level, to establish short and long-term educational objectives, to develop alternative ways to accomplish those objectives, and to record the progress of the plan and establish a means for review of the student's educational progress. The proper preparation and maintenance of an IEP is a basic responsibility of the Respondent for exceptional education students at Believer's School. An improperly prepared IEP is potentially harmful to the learning of an ESE student because services and accommodations must be listed on the student's IEP before they can be provided. IEP’s are created by an IEP Team during a meeting involving the parties as set out in Florida Administrative Code Rule 6A-6.03028(3)(c) as follows: (c) IEP Team participants. The IEP Team, with a reasonable number of participants, shall include: The parents of the student; Not less than one (1) regular education teacher of a student with a disability... Not less than one (1) special education teacher of the student, or where appropriate, not less than one special education provider of the student; A representative of the school district who is qualified to provide or supervise the provision of specially designed instruction to meet the unique needs of students with disabilities, is knowledgeable about the general curriculum, and is knowledgeable about the availability of resources of the school district. . . An individual who can interpret the instructional implications of evaluation results who may be a member of the IEP Team as described in subparagraphs (3)(c)3., or (3)(c)4., of this rule;. . . Upon completion, the IEP is signed by the regular education teacher, the ESE teacher, the local education agency (LEA), and the parent or guardian of the student. The LEA is ultimately responsible for what goes into the IEP. If something is in the IEP it is because the LEA determined that it was feasible to carry out. The ESE teacher examines the psycho-educational reports and the specialized needs of the student. He or she often provides strategies to the regular education teacher to use with the ESE student. The regular education teacher is the most familiar with the curriculum being used for the student’s grade level. He or she provides insight as to how that curriculum can be adapted for the ESE student. Members of the IEP Team for an ESE student are supposed to be teachers and individuals associated with the student’s current grade level and involved in the student's education, in order to provide accurate curriculum and services for the student. The IEP Team is supposed to review the child’s test scores or have access to the child, know about the curriculum being used, and what types of accommodations an ESE student of the particular grade level would need. By signing the IEP, the individual team members are stating they met to discuss the ESE student, to develop goals and objectives and services for the student, and that they will follow up on making sure those goals and objectives are met. IEP's are updated on an annual basis. The annual IEP conference is mandatory, and failure to provide such a conference is a violation of federal, state, and School Board rules and policies. Failure to hold such a conference deprives the parents of the exceptional student any meaningful participation in determining the student's educational goals and may deprive the child of the assistance to which he or she is entitled. It also jeopardizes continued state and federal funding of the School Board's exceptional education program. Respondent was instructed, as were other teachers of exceptional students in the school district, that every IEP must be reviewed at least once a year through an annual IEP conference. Respondent was trained in how to prepare IEPs by the Bradford County School District on July 19, 20, and 21, 2005. Florida Administrative Code Rule 6A-6.03028(3)(b) requires that the school notify parents of an ESE student that an IEP meeting is scheduled prior to the IEP Team Meeting taking place. This notification is more than a formality; it is meant to insure meaningful participation by parents or guardians in the IEP process. Rule 6A-6.03028(3)(b) states as follows: (b) Parental participation in meetings. Each school district shall establish procedures that provide the opportunity for one or both of the student’s parents to participate in meetings and decisions concerning the IEP for the student. Parents of each student with a disability must be members of any group that makes decisions on the educational placement of their student. Procedures to ensure participation in meetings shall include the following: Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and Scheduling the meeting at a mutually agreed on time and place. A written notice of the meeting must be provided to the parents and must indicate the purpose, time, and location of the meeting, and who, by title or position, will be attending. . . . * * * A meeting may be conducted without a parent in attendance if the school district is unable to obtain the attendance of the parents. In this case, the district must have a record of its attempts to arrange a mutually agreed on time and place, such as: Detailed records of telephone calls made or attempted and the results of those calls; Copies of correspondence sent to the parents and any responses received; and Detailed records of visits made to the parents’ home or place of employment and the results of those visits. To comply with Rule 6A-6.03028(3)(b), it is Bradford County School District’s policy to send out a Parent Notification Form 10 days prior to an IEP team meeting. A few days after the first notification was sent, a second notification is sent to the parent. After the two written notifications are sent, a phone call is made to the parent of the ESE student. Student S.B. began school in the Bradford County School District when she was in pre-K. She was identified as a student with developmental disabilities. In 2005, she was living in Richmond, Virginia, and found to be eligible for exceptional education services as a student with a developmental disability. Upon return to Florida, S.B. was enrolled in Southside Elementary on March 17, 2005. In May 2005, an IEP team met, determined that S.B. was a student with specific learning disabilities, and developed an IEP outlining the services required for S.B. Without those services, S.B. would not receive a free appropriate public education as contemplated under the Individuals with Disabilities Education Act (IDEA), or Florida law regarding the provision of exceptional education. IEPs for exceptional education students are required to be completed every year before the prior year’s IEP expires. S.B.’s next IEP was due on May 17, 2006. On February 13, 2006, S.B. enrolled in Respondent’s charter school, Believer's School of Learning, approximately three months before S.B.’s next IEP was due. There was apparently some delay in providing S.B.'s May 2005 IEP to Respondent, but the length of the delay is unclear. In order for a school district to receive the extra funding for its ESE students all the ESE students’ IEP’s must be current by "FTE week." FTE week is when the schools determine a final head count of all the students that are in attendance. The FTE week for Bradford County School District in 2006 was October 13, 2006. All the ESE students within the school district had to have their IEPs in by that date or the schools would not receive the extra funding associated with that student. If S.B.’s IEP was not turned in before October 13, 2006, Believer's School would have only received its normal funding only instead of the additional ESE funding. As of the last week of September 2006, Respondent had not completed the IEP for S.B. In late September, Respondent called Verdell Long, and asked for some assistance in preparing an IEP for a third grader. On September 28, 2006, Respondent met with Verdell Long, at Bradford County High School, during Ms. Long’s lunch break, for assistance with preparing an IEP for a third grader at her charter school. Verdell Long was a high school teacher at Bradford County High School who had worked with ESE students, with a focus on mental retardation from grades K-12. She had assisted Respondent with IEPs in the past. She understood that she was assisting with a “sample” IEP to be used as a model. However, it was Respondent’s intention to use the product created as an IEP for the student S.B. The day of the meeting Verdell Long’s computer was not working so she could not access the IEPs she had on file. She asked another high school teacher, Dr. Vivian Haynes to assist in the meeting. Dr. Haynes was an ESE teacher at Bradford County High School in September 2006. She was very experienced with preparing and writing IEPs, having just completed a doctoral dissertation which included copies of third and fifth grade IEPs. Dr. Haynes had not previously met Respondent. Dr. Haynes brought several blank “dummy” IEPs with her to the meeting in order to have examples to show Respondent. The IEP prepared at the meeting included the various components of an IEP, such as the measurable goals and objectives for a third grader, but did not include the demographic information on any student. The document prepared at the meeting did not have a student’s name or test scores on it anywhere. Respondent did not bring the student S.B. or her test scores with her to the meeting. However, neither Ms. Long nor Dr. Haynes expected to see individualized information because they did not understand that an IEP for an actual child was being prepared. Verdell Long signed the IEP as the ESE teacher, Dr. Vivian Haynes signed as the LEA, and Respondent signed as the regular education teacher. Neither Verdell Long nor Dr. Vivian Haynes was contracted with Believer's School by the Bradford County School District to provide services as an LEA representative or an ESE teacher. Both Verdell Long and Dr. Vivian Haynes believed the purpose of the meeting was to construct a model IEP in order to assist Respondent with properly preparing an IEP for an ESE student. Neither expected the document created at their meeting to be submitted as an actual IEP for S.B., or any other student, and neither considered the meeting to be an IEP team meeting. Neither Verdell Long nor Dr. Vivian Haynes was shown a Parent Notification Form indicating that their meeting was to be an IEP team meeting. Neither would have signed the IEP if they had seen such a form because they did not believe that an IEP team meeting was being conducted. After the meeting on September 28, 2006, Respondent took the IEP form prepared with the help of Ms. Long and Dr. Haynes, and inserted information specific to S.B. She then submitted the form as S.B.’s IEP and turned in to the Bradford County School District. Submitted with the IEP form was a document which purported to be the Notification of Meeting Form for the IEP team meeting. Only one notification is referenced. The form was dated September 15, 2006, and identified Dr. Vivian Haynes and Verdell Long as participants in the meeting, notwithstanding Respondent's acknowledgement that she did not meet Dr. Haynes until September 28, 2006, and did not know until that time that Dr. Haynes would be participating in the meeting. The form also indicated that the IEP meeting would take place at the Believer's School, as opposed to the Bradford County High School, where the meeting between Respondent, Ms. Long and Dr. Haynes took place. There is no other indication of other attempts of notification. The signature line reserved for a parent or legal guardian is signed by a Rudolph Williams and dated September 29, 2006, the day after the meeting took place. Respondent claims that Mr. Williams is S.B.'s stepfather. However, there is nothing in the Bradford County School District's records to indicate that Mr. Williams is a parent or legal guardian of S.B., and school district officials were not aware of anyone by that name living in the home. By her own admission, Respondent did not keep "official records" for any of her students, including ESE students. She was not particularly concerned with who signed the IEP, because she apparently considered it to be simply a matter of paperwork to be filed with the School District. In her view, the person responsible for ensuring that a child is receiving the appropriate education is her teacher, regardless of the directives in the IEP. She felt that some of the things identified as required simply could not be done at a school her size. She did not consider the role of the LEA and the ESE teacher on the IEP to be all that important. To her, the real responsibility for the child's education lay with the teacher who worked with her on a daily basis. S.B. was later withdrawn from Believer's School and now attends Starke Elementary School. Believer's School has since closed and is no longer operating as a charter school.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts Two through Seven and dismissing Count One of the Administrative Complaint; imposing a fine of $500; suspending her certificate for one year and placing Respondent on probation for a period of three years. DONE AND ENTERED this 22nd day of October, 2009, 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 22nd day of October, 2009.
The Issue Whether Petitioner has cause to terminate Respondent's professional service contract based on his failure to correct his performance deficiencies during his 90-Day Performance Probation. Whether Respondent’s performance was properly evaluated.
Findings Of Fact At all times material hereto, Respondent was a classroom teacher employed by Petitioner pursuant to a professional service contract. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Petitioner has employed Respondent as a classroom teacher since 1993. He taught at Redland Middle School from 1993 to 1996. He taught at South Miami Senior High School from 1996 to 1999. During the times pertinent to this proceeding (the school years 1999/2000 and 2000/2001) Respondent taught eighth grade math at Palmetto. Between 1984 and the school year 1999/2000 all teachers employed by Petitioner were evaluated under the Teacher Assessment and Development System (TADS). The United Teachers of Dade (UTD) is the collective bargaining unit representing all classroom teachers employed by Petitioner, including Respondent. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-day performance probation period for annual and professional service contract teachers who are observed to have unsatisfactory performance. 1/ Petitioner and the UTD collectively bargained a Memorandum of Understanding (MOU) to implement the 90-day performance probation. The new evaluation system is known as PACES, an acronym for the Professional Assessment and Comprehensive Evaluation System. The MOU amended the collective bargaining agreement between the UTD and Petitioner to authorize the replacement of TADS with PACES. During the 1999/2000 school year, the School Board piloted PACES in selected schools. During the 2000/2001 school year, PACES was utilized throughout the school district. Teacher evaluations at Palmetto were performed pursuant to PACES during the 1999/2000 and the 2000/2001 school years. The evaluations at issue in this proceeding were performed pursuant to PACES. PACES has been approved by the Florida Department of Education. PACES observers must be extensively trained to observe and evaluate teaching performance and student learning. School supervisory personnel perform PACES observations and evaluations. The principal and two assistant principals at Palmetto performed the observations and evaluations at issue in this proceeding. Respondent asserted at the final hearing that certain administrators who participated in observing and evaluating Respondent were insufficiently trained. That assertion is rejected as being contrary to the greater weight of the evidence. PACES was a major district initiative, and both teachers and administrators received extensive training in PACES. The greater weight of the credible evidence established that the principal and the assistant principals at Palmetto who observed and evaluated Respondent were appropriately trained in observing and evaluating teachers in accordance with PACES procedures. 2/ Individual schools across the district, including Palmetto, conducted PACES training for teachers. During the 2000/2001 school year each faculty member at Palmetto had a handbook which contained PACES information, including discussion on each domain, the indicators, the PACES website, and training videos on the website. Several faculty meetings were devoted to discussions of PACES. There were mini-workshops within various departments at Palmetto and all-day workshops for teachers were available in the district. The Palmetto assistant principals divided all six domains between themselves and explained and discussed them with the faculty. A projector was used to show the teachers how to get to the PACES website on the computers. There were 300 computers for teacher use at Palmetto by which Petitioner’s website could be accessed. The faculty meetings at Palmetto were mandatory. If a teacher missed any of the meetings, it was the teacher’s responsibility to come to an administrator to find out what was missed. Teachers who missed meetings were given the handouts that had been utilized at the faculty meetings. At the times pertinent to this proceeding, Respondent knew, or should have known, the evaluation criteria of PACES. 3/ Prior to the beginning of the 90-day probation under PACES an appropriately trained administrator must observe the teacher's classroom performance and find that performance to be below articulated standards. This observation is officially referred to as the “initial observation not of record.” Unofficially, this observation is referred to as the “freebie.” The freebie observation triggers the probation process, but it is not used to terminate a teacher’s employment. The same administrator who conducted the freebie observation meets with the teacher, goes over the observation, and notifies the teacher that he or she will be observed in approximately one month. The administrator offers a PGT to the teacher, the use of which by the teacher is voluntary at this point. Next is the “first observation of record,” which is unofficially referred to as the "kickoff observation." If this observation is below performance standards, a Conference-for- the-Record (CFR) is held. Next, a Professional Improvement Plan (PIP) is first given to the teacher, and the 90-day Performance Probation begins the next day. The Performance Probation lasts 90 days, not counting certain specified weekends and school holidays. There must be two official observations within the 90-day period. A PIP is given after any official observation that is below performance standards. If the second official observation is below performance standards, a confirmatory observation takes place after the end of the 90-day period to determine whether the teacher has corrected the deficiencies. The confirmatory observation must be completed within 14 days after the conclusion of the probationary period. The evaluator must thereafter forward to the Superintendent a recommendation whether to terminate the teacher's employment. In PACES, there are six domains. Each domain has components and each component has indicators. It takes only one unacceptable indicator for an observation to be rated below performance standards. If a teacher improves in a particular indicator from one observation to the next, but becomes unacceptable in another indicator, the second observation is rated below performance standards. Mr. Cromer conducted Respondent’s freebie observation on October 24, 2001. The observation did not meet performance standards. Mr. Cromer testified as to his observation of Respondent on October 24, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because he was going over 30 homework problems and simply giving out the answers, not making an effort to know whether the students understood. He did not seek input from the students. The students had no opportunity to participate. There was no interaction between Respondent and the students. There was no introduction to the lesson, thereby failing to establish motivation to learn. Respondent did not tell the students what they should learn from the lesson or why it was important that they understand the material. Respondent failed to provide a logical sequence and pace. He was going much too fast for the students. Respondent only demonstrated one math problem, failing to demonstrate any of the others, although there were six different types of problems for review. Respondent failed to utilize higher order cognition, teaching at only one cognitive level. There was no effort to clarify, using different words or examples. The students were not encouraged to make any association or consider examples from their own experience. The students were not asked questions and were not given an opportunity to answer questions. Respondent did not monitor the engagement or involvement of the students in the learning process. He made no effort to gauge whether the students understood the material. He sought no questions from the students and gave no feedback. Then Respondent sat down for approximately fifteen to twenty minutes. He did not walk around to monitor what the students were doing. Most of the students were not doing their work. Respondent failed to meet performance standards in components of Domain III, Teacher- Learner Relationships; Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom- based Assessment of Learning. Mr. Cromer met with Respondent on November 1, 2001, and went over each item on the observation and explained why Respondent did not meet performance standards. Mr. Cromer made suggestions for improvement. He advised Respondent that he would be coming back to do a follow-up observation and that Respondent was entitled to have a PGT. At first Respondent declined the PGT, but the next day, he accepted it. PGTs are for first year teachers and for any teacher on a PIP. PGTs are made up of seasoned teachers who are trained in PACES and give support and assistance to other teachers. Usually the administration chooses one member of the PGT and the teacher chooses the other. In this case, Respondent was permitted to choose both teachers. He chose Vivian Taylor and Maria Mayo. Both teachers gave appropriate assistance to Respondent. Under PACES, the same administrator who conducted the freebie observation must conduct the kickoff observation. On November 26, 2001, Mr. Cromer conducted Respondent’s kickoff observation. Mr. Cromer testified as to his observation of Respondent on November 26, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because many of the students in his class were excluded from the first twenty minutes while Respondent focused exclusively on two students at the board. One student finished her problem very quickly. The other student was completely confused. Respondent did the problem for him but did not make sure the student understood. The rest of the class was ignored during that time. The students were not given any explanations as to what the two students had done. The remainder of the class talked among themselves, looked around the class, and one student was sleeping. There was no introduction to the lesson and no transition into the second portion of the lesson. The students were not engaged in critical analysis or problem solving. Respondent did not develop any associations between the pie graph he was working on and its relationship to percentages and fractions. Respondent did not provide sufficient “wait time” after questions to encourage the students to think about the answers. Instead, the same few students called out answers. Respondent did not meet performance standards in components of Domain III, Teacher/Learner Relationships; Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. On December 5, 2001, Mr. Merker and Mr. Cromer held a CFR with Respondent and Respondent’s union representative to address Respondent’s substandard performance, his Performance Probation, recommendations to improve the specific areas of his unsatisfactory performance, and Respondent’s future employment status with the School Board. Respondent’s input was sought. Those in attendance at the meeting on December 5, 2001, met again the following day. Respondent’s input was again sought. He was given a copy of the summary of the CFR and a PIP at that time. The PIP required Respondent to read and summarize pertinent sections from the PACES manuals. Respondent’s Performance Probation began on December 7, 2001. The time frame was established with the help of OPS. Respondent was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed timeframe. Respondent's deadline to complete his PIP was January 10, 2002. On January 15, 2002, Mr. Merker conducted an official observation of Respondent in his classroom. Mr. Merker testified as to his observation of Respondent on January 15, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards because the students were not actively engaged in learning. Only six students out of 27 were involved in the lesson. Many of the students did not have the materials and were not able to follow through with the lesson. Respondent did not monitor what the students were doing. Many students were off-task, inattentive, and bored. Respondent did not re-engage the students. Respondent did not re-direct the off-task behavior, which persisted for the entire period. Learning routines were not apparent. Respondent did not give directions for the lesson. Respondent’s explanations were unclear. No adjustments were made. Respondent did not assess the learning progress during the lesson. Respondent solicited only basic knowledge in his questioning. He did not utilize a range of questions to assess student understanding. Respondent did not meet performance standards in components of Domain II, Managing the Learning Environment; Domain IV, Enhancing and Enabling Learning; and Domain VI, Classroom-based Assessments of Learning. Mr. Merker conferred with Respondent on January 24, 2002, made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes. Respondent's deadline to complete his PIP was February 22, 2002. On February 27, 2002, Mr. Meneses conducted the second official formal observation of Respondent in his classroom. Mr. Meneses testified as to his observation of Respondent on February 27, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Meneses’ testimony. Respondent did not meet performance standards because the students were not engaged in learning. After wasting 27 minutes copying numbers from the board, only three to four minutes were left for the main part of the lesson. Respondent wasted a lot of time during the lesson going over non-essential information, and the students were only presented with basic knowledge-level tasks. Inaccurate information was given by Respondent and accepted by the students. Students were not given "wait time" after a question to think about the answers. The learners were not given any introduction to the learning outcomes of the lesson. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. Mr. Meneses and Mr. Merker conferred with Respondent on March 5, 2002, made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. Respondent’s PIP required him to complete a self- assessment through the PACES website. Respondent's deadline to complete his PIP was March 22, 2002. Respondent’s Performance Probation ended on March 24, 2002. Respondent completed all of the activities required by all of his PIPs. He never indicated that he had any difficulty understanding them. Because Respondent’s second observation within the Performance Probation was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether or not Respondent had corrected his performance deficiencies. On March 26, 2002, Mr. Merker completed Respondent’s confirmatory observation. Mr. Merker testified as to his observation of Respondent on March 26, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom-based Assessments of Learning, because the lesson appeared staged. It was a lesson on fractions that had been presented approximately five weeks earlier. Respondent went full steam ahead regardless of what the students were doing. Respondent had not improved his questioning techniques since Mr. Merker’s prior observation. Mr. Merker notified Respondent on March 26, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and that Mr. Merker was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. 4/ Mr. Merker notified the Superintendent of Schools on March 29, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and recommended that Respondent's employment be terminated. On April 3, 2002, the Superintendent of Schools notified Respondent that the Superintendent was going to recommend that the School Board terminate Respondent's employment contract because Respondent had failed to satisfactorily correct his performance deficiencies during his Performance Probation. Petitioner established that it met all procedural requirements and time frames set forth by statute, by PACES, and by the MOU. Under the collective bargaining agreement and under PACES, a teacher is entitled to a fair, equitable, and impartial evaluation. Respondent’s evaluations were fair, equitable, and impartial. On April 17, 2002, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract subject to his due process rights.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the termination of Respondent's professional service contract, effective April 17, 2002. DONE AND ENTERED this 10th day of September, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2002.
Findings Of Fact The Petitioner, Russell Freeman, was employed by the School Board of Broward County, Florida, as coordinator of exceptional student education for the physically handicapped and was under a continuing contract status for that position for the 1975-1976 school year. He had been employed by the School Board of Broward County since 1969. The Respondent is the School Board of Broward County, Florida, a government agency charged with employing, regulating, supervising and managing the practices, operations and tenure of instructional and non-instructional personnel for the Broward County Public School System. During the 1975-1976 school year, the Respondent employed individual coordinators for exceptional education, each assigned to cover a single student exceptionality. The Petitioner was employed as such a coordinator, serving in the capacity of coordinator for physically handicapped students. There were four such coordinators, specializing in various student exceptionalities, one of whom was the Petitioner. During that school year, the School Board's Administrative Staff conducted a review of the exceptional student education program on a county-wide basis to determine what services were being rendered to exceptional students with a view toward determining the best method and practice to deliver appropriate educational services to the various categories of exceptional students considering problems posed by the dense population in the county and the high and growing population of exceptional students. At the time this review was conducted, the exceptional student population in the county school system was approximately 15,000. The Petitioner was responsible for coordination of the provision of exceptional education services to approximately 5,060 of these students, approximately 5,000 being in a speech handicap program and approximately 60 being in a physical motor handicap program. The Petitioner, as were the other three former coordinators, was responsible for the students in his particular category of exceptional education for the entire county. With the advent of United States Public Law, 94-142, the School Board Staff charged with conducting the exceptional student program for Broward County was required to approve, promulgate and implement individualized educational plans (IEPs) for each exceptional student in the county. This would have necessitated each of the four coordinators attempting to appropriately oversee the promulgation, drafting and implementation of an individualized educational plan for each of the 2,000 to 5,000 students under his supervision (in the Petitioner's case 5,060 students). The School Board and Administrative Staff became concerned that this task and service could not be provided students on an adequate basis from a centralized organization, wherein each coordinator had several thousand students for which he was mandated to implement such an I.E.P. Accordingly, the School Board retained the services of an expert consultant in the field of exceptional education, Dr. Sage, who ultimately prepared a report, the thrust of which was a recommendation that the School Board decentralize the provision of exceptional education services and assign a coordinator who was responsible for all types of exceptional student (rather than one category) for a smaller geographical area than the county as a whole. This report, and she consultant who prepared it, recommended, and Dr. Scalise, in his testimony for the Respondent, established that the provision of exceptional educational services, including the preparation and use of appropriate individualized educational plans could be better performed if one coordinator had less students and a smaller geographical area under his "jurisdiction." With a view toward this goal, the School Board began deliberation on a reorganization plan for the provision of exceptional educational services. Dr. Scalise at the time was one of the four former coordinators. He was asked to advise the School Board regarding this reorganization. It was felt by Dr. Scalise, others on the exceptional educational staff, and the Board, that because of the size of the population in Broward County and the population of exceptional students as well as the geographic size of the county that it was not possible for the former coordinators to each serve the entire county for a single exceptional educational category. The kind of service envisioned by Public Law 94-142 could not he provided unless coordinators were qualified to supervise all exceptionalities in a decentralized fashion, being responsible for a smaller geographical area and a smaller number of students. Dr. Scalise, in his advisory capacity to the School Board felt that a decentralized exceptional education supervisory operation would improve the quality of services rendered to exceptional students. Accordingly, with a view toward the recommendation in this report, as well as his own experience in operation of the mentally handicapped exceptional student program, Witness Scalise recommended that the county consider decentralizing the exceptional education program so that an exceptional student coordinator would be assigned to handle the entire scope of the exceptional student program and be appropriately qualified, for such, within each of four geographic areas of the county. After due deliberation, the School Board, on April 8, 1976, voted to implement a reorganization of the exceptional education office or department and, thus, accept Dr. Scalise's recommendation that the provision of exceptional student services be decentralized. Formerly, the Director of Exceptional Student Education for the entire county had to approve the eligibility of each student who entered or exited the exceptional student program and had to approve any significant change in the students individualized education plan required by Public Law 94-142. He, thus, had to supervise the eduational plans for each of approximately 15,000 students. When the decentralization plan was inaugurated the four new area coordinators who were ultimately hired were given the responsibility, because of their background, experience and qualifications in special education to approve the eligibility of each student within their own geographical area, rather than all plans having to be approved by one director for the entire county. Witness Scalise demonstrated that, based upon his experience as director of the entire program after the reorganization was implemented, that decentralized administration of exceptional education of four geographical areas of the county permitted more efficient monitoring and delivery of educational services to exceptional students than had the earlier system under the former four "at large" coordinators who had to visit each of many schools where students within their particular category of exceptionality were assigned. With the advent of the new organization, the "geographical" exceptional education coordinators work directly with the assistant county superintendent for their geographical areas in establishing programs, selecting teachers, determining curricula, the types of materials, supplies and other aids, and concomitant preparation of exceptional student program budgets for their particular geographical areas. The coordinator exceptional education for that area had to assist in the handling of due process proceedings, with obtaining transportation for exceptional students to various special programs. In short, the "new coordinator" has to handle the total scope of the delivery of exceptional education for that geographical area. Under the former system, only one person, the Director, was responsible for and handled the entire task of providing all needs of exceptional education, whereas under the new organization, four qualified people were hired to perform those varied tasks. With the approval by the School Board of the decentralized organization plan, the four new positions were duly advertised and four new coordinators were hired. All but one were certified in at least one area of exceptional education. Witness Scalise was hired as the director of the exceptional education program for the county and is certified in "varying exceptionalities," which is an overview certification issued by the State Department of Education certifying that the holder, Witness Scalise, has some qualification in all areas of exceptional student education. The philosophy or purpose behind the School Board's reorganization of this department was thus to better and more efficiently provide exceptional education services to a high population of exceptional students which has grown since the year in question to number approximately 20,000 students at the time of the hearing. The testimony of Dr. Stephenson corroborates that of Dr. Scalise and establishes that a new job description for these new coordinator positions was created with new qualifications. The School Board then openly advertised the new positions in accordance with its rules. The Petitioner applied for one of those new positions and was unsuccessful. Dr. Stephenson's testimony was uncontradicted in establishing that the Petitioner, Mr. Freeman, was not possessed of all of the qualifications necessary in order to be considered for the new position. The Petitioner's continuing contract, which is the subject of this proceeding, provides that he is to be placed in the position of "coordinator- 9560" at a salary of $21,450 per year with the beginning date being July 1, 1973 and the ending date 1984. The contract, however, provides that if the School Board adopts a lower salary schedule than the contract salary for the immediate prior year this may be done provided 15 days notice are provided the teacher (the Petitioner) at which point he may accept such salary or decide not to accept it and resign "without prejudice." The contract also has a provision at Item 9 providing that the contract will not operate to prevent the discontinuance of a position "as provided by law." The contract is, of course, for a specific coordinator position rather than as a "teacher" continuing contract. It does, however, have the escape clause of Item 9 allowing the discontinuance of a position without breach of the contract, provided it is legally performed.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That the petition of Russell Freeman for reinstatement into his continuing contract position of "coordinator-9560" for the limited purpose of obtaining full concomitant entitlement to retirement benefits should be denied. DONE and ENTERED this 10th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1983. COPIES FURNISHED: Donald J. Vestal, Esquire 4001 Hollywood Boulevard Hollywood, Florida 33021 Edward J. Marko, Esquire Post Office Box 4369 Fort Lauderdale, Florida 33338 James E. Maurer, Superintendent School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by the Petitioner against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent held Florida Educator's Certificate number 852375, valid through June 30, 2006, and covering the area of specific learning disabilities. At all times material to this case, the Respondent was employed as a teacher in an exceptional student education class at Middlebrook Middle School in the Orange County School District. Her students were 13 to 14 years of age. On more than one occasion during January of 2005, the Respondent read sexually explicit material from a book called "Dumb as Me" to her classroom. The book, admitted as the Petitioner's exhibit, includes graphic and explicit sexual content and frequent use of vulgar language. The classroom paraprofessional reported the matter to the school's principal, Valeria Maxwell. Ms. Maxwell went to the Respondent and discussed the report. During the discussion, the Respondent acknowledged that she read from the book to her students. Ms. Maxwell testified that the Respondent had not been authorized to read the book to her class. There is no evidence that the book was part of any lesson plan created by the Respondent. Ms. Maxwell testified that the students interviewed reported being embarrassed by the Respondent's reading the book to them during class, but none of the students testified at the hearing. Ms. Maxwell also testified that the Respondent's use of the text in the classroom seriously reduced the Respondent's effectiveness as a teacher and created a condition in the classroom that was harmful to learning. The Respondent's employment with the Orange County School Board was terminated on June 14, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order determining that the Respondent has violated Subsections 1012.795(1)(c), (1)(f), and (1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a) and revoking the Respondent's educator's certificate. DONE AND ENTERED this 24th day of June, 2008, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Cynthia Bradford 428 Los Altos Way, No. 201 Altamonte Springs, Florida 32714 Cynthia Bradford 30700 Wekiva River Road, No. 395 Sorrento, Florida 32776-9003 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida, 32399-0400
