The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of August, 2002.
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent.
Findings Of Fact At all times material to this case, the Respondent was a certified teacher, employed by the Petitioner under a professional services contract and working at the Lehigh Acres Middle School. On or about February 6, 2002, the Respondent received two written reprimands from Gerald B. Demming, the school principal, related to the Respondent's behavior towards students. The first written reprimand related to incidents occurring on January 17 and 22, 2002, during which the Respondent verbally disparaged students, calling them "sorry" and "no good" and advising them that they would be unsuccessful "in life." The second written reprimand related to an incident on February 5, 2002, during which the Respondent apparently mocked a student in the classroom. In meeting with the Respondent, Principal Demming clearly expressed his concern regarding the Respondent's behavior towards students, and advised that such actions were unacceptable and were viewed as violations of the Principles of Professional Conduct. The Respondent signed and received copies of the written reprimands. The written reprimands were not the first time such concerns had been addressed with the Respondent. During the 2000-2001 school year, Mary Ann Moats, then employed as the Lehigh Acres Middle School principal, had verbally expressed concerns of a similar nature, specifically the use of derogatory language directed towards students (such as "stupid," "no good," and "ignorant"). Students became so unhappy with the Respondent's behavior that, on one day, an entire classroom of students walked out of the Respondent's class and walked to Principal Moats' office to express their dismay with his treatment of them. She attempted to resolve the dispute and urged the Respondent to modify his behavior. During Ms. Moats' employment as principal, the Respondent's behavior toward students continued to be of concern. Complaints were received from students, parents, and from other faculty members. She met more than once with the Respondent to discuss matters raised by the complaints. A written memo dated December 5, 2000, specifically related to allegations of verbal abuse directed towards students was provided to and signed by the Respondent. Further, such concerns were identified in paragraphs 5-7 of the Respondent's 2000-2001 performance evaluation dated April 9, 2001, where he received "Below Expectations/Unsatisfactory" marks in several areas including: Human Development and Learning: Uses an understanding of learning and human development to provide a positive learning environment which increases student achievement and supports the intellectual, personal and social development of all students. Learning Environment for Student Achievement: Creates and maintains a positive learning environment which fosters active engagement in learning, social interaction, cooperative learning and self motivation and manages student behavior; and Communication for Student Achievement and Parental Satisfaction: Uses effective communication techniques with students, parents (i.e., one-to-one telephone calls, conferences, newsletters, etc.), and all other stakeholders. Despite the clearly expressed concerns related to the Respondent's behavior towards students, the behaviors generally continued during the 2001-2002 school year, and culminated on February 13, 2002, in two specific events that resulted in the Petitioner's decision to terminate the Respondent's employment. During the 2001-2002 school year, the Respondent was assigned to teach a seventh grade class during the first period. K.R. was a student in the Respondent's first period class, and generally was an "A" or "B" student. On February 13, 2002, K.R. returned to the Respondent's first period class after more than a week of absence related to a family vacation. Prior to going on vacation, K.R. had obtained one week of advance class assignments in order to maintain her school work while on vacation, but the vacation apparently extended beyond what was originally planned. During the time for which K.R. had not obtained class assignments, the Respondent directed the students to prepare speeches related to Black History Month. The speech assignment was written on the chalkboard, as was the Respondent's usual practice, but had not been assigned at the time K.R. left for vacation. After class started, K.R. began to repeatedly question the Respondent about the assignment and went so far as to interrupt other students as they presented their speeches. The Respondent told K.R. to "shut up," called her "ignorant," and directed K.R. to go to a table at the rear of the classroom, remarking to the other students in the class that they did not want to be like K.R. Thereafter K.R. sat in the back of the classroom and cried. When class ended, the Respondent required K.R. to remain in his classroom while he called her mother and reported the behavior to her. K.R. spoke briefly to her mother during the call, but otherwise remained in the classroom, during which time other students began to enter for the second period class. When K.R. arrived at her second period class, she was still upset and her teacher sent her to the office to speak to a school official, at which time, concern related to the Respondent's behavior was apparently heightened. During the 2001-2002 school year, the Respondent also taught a seventh grade class during the sixth period. M.C. and J.A. were students in the Respondent's sixth period class. At the beginning of the period, M.C. was standing near the Respondent's computer located close to his desk. Attempting to quiet the class, he instructed the students to take their seats and settle. Standing behind M.C., he placed his hands on her shoulders and gently pushed her towards her chair, leaning down to tell her that when he told the class to sit down he intended for her to be seated as well. M.C. testified that when the Respondent told her to take her seat, the Respondent kissed the back of her neck. The Respondent denies kissing the student. The evidence related to the alleged kiss is not persuasive. The Respondent asserts that at the time of the alleged kiss, he was advising M.C. that she was part of the class and his instruction to the class to settle was applicable to her. M.C.'s testimony related to the Respondent's statement corroborates the Respondent's recollection and indicates that she understood that he was including her in his instruction to the class to settle. Of the students who were in the classroom at the time and who testified at the hearing, only one student testified that she saw the alleged kiss. Although she testified that she saw the kiss occur, her recollection of what the Respondent said to M.C. at the time of the alleged kiss is completely different from the statement claimed by the Respondent and corroborated by M.C.'s recollection. Other students in the classroom who testified did not recall seeing the Respondent kiss M.C. Although there is no evidence suggesting that such a kiss would have been typical of the Respondent's interaction with a student, no student recalled any type of noise or verbalization from the other students at the time of the alleged kiss. There was some evidence presented indicating that M.C.'s hairstyle on that day would have made it difficult to kiss her neck without having moved her hair, and suggesting that in leaning down to speak to M.C., the Respondent spoke closely enough to cause her hair to brush her neck. M.C.'s recollection of what hairstyle she wore on that day was uncertain. In any event, M.C. believed she was kissed and was unhappy about it. She eventually requested and received a bathroom pass from the Respondent, but after leaving the classroom, she went directly to the school administration office and reported the incident. After speaking to M.C., school personnel called the Respondent on the classroom telephone and asked him to send another student, J.A., to the office for early dismissal. After arriving at the office, J.A. was asked whether she had witnessed the incident. At that time, she was apparently advised not to discuss the matter with anyone else. While in the office, M.C. asked J.A. to return to the Respondent's classroom and to retrieve M.C.'s belongings. J.A. was permitted by assistant principal to return to the Respondent's classroom and to retrieve M.C.'s possessions. A teacher who had been in the office, Kevin Richter, escorted J.A. through the school on her way back to the Respondent's classroom. Mr. Richter then returned to his classroom. After arriving back at the Respondent's classroom, J.A. entered and began to collect M.C.'s belongings. The Respondent asked J.A. to tell him what she was doing. Believing she had been instructed not to discuss what she was doing, she did not respond to him, but finished collecting the items after which she walked out of the classroom and into the hallway. The Respondent followed J.A. into the hallway, and began yelling at her for being "disrespectful." J.A. began yelling back, telling the Respondent she was doing what she was asked to do. Apparently the confrontation between the Respondent and J.A. continued for a period of time and at sufficient volume as to attract the attention of a student affairs specialist in the office across the hallway as well as Mr. Richter, who by that time was two hallways removed from the scene. Mr. Richter, hearing the commotion and assuming that some students were preparing to fight, ran to the commotion and realized that the yelling was coming from the Respondent and a student. At that point, Mr. Richter went to the school office and summoned Principal Demming. After the yelling had subsided, the principal contacted the school district's personnel office and requested an investigation of the day's events. The investigation ensued and eventually resulted in the Petitioner's decision to terminate the Respondent's employment. The Respondent asserts that he was not sufficiently placed on notice of the behavioral issues to suggest that termination of employment is warranted. The evidence establishes that the Respondent received notice sufficient to comply with the School Board's NEAT process (Notice of deficiencies, Expectations, Assistance, and Time to improve). The Respondent asserts that the students were disrespectful and presented disciplinary problems. The Respondent had a classroom telephone and other means of communicating with school officials if a disciplinary situation became unmanageable. There is no credible evidence that any of the students addressed in this Recommended Order presented disciplinary problems that could not be managed through the normal policies and practices of the school, including referrals to school officials.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lee County enter a Final Order terminating the employment of Roger J. Phillips. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. _____ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: J. Paul Carland, II Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Robert J. Coleman, Esquire Coleman & Coleman, P.A. 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Dr. John W. Sanders, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner has just cause to terminate Respondent's employment with Petitioner due to unsatisfactory performance in accordance with Subsection 1012.34(3) (d), Florida Statutes (2009) .*
Findings Of Fact 1. Petitioner is the duly-authorized entity responsible for providing public education in Manatee County, Florida. 2. Respondent is employed as a teacher by the Petitioner, pursuant to a professional services contract. At the beginning of the 2007-2008 school year, Respondent began working as a sixth-grade mathematics teacher at Buffalo Creek Middle School (Buffalo Creek). The principal of Buffalo Creek was Scott Cooper (Cooper). During the 2007-2008 school year, Janet Roland (Roland) was the assistant principal at Buffalo Creek. 3. In or around December 2007, Respondent met with Cooper to discuss a parent telephone call. Cooper received a complaint from a parent about the grade the parent’s child received in Respondent's class. During the meeting, Cooper asked Respondent to detail her grading system. Respondent informed Cooper that she used a point system and explained how the system was beneficial to the students in her class, most of whom were below grade level and did not test well. 4. During the meeting in December 2007, Cooper logged into Respondent’s Pinnacle account in her presence and changed the weighting of her grades in various ways to see how the change would affect the students’ grades. Respondent did not agree to weight her grades and continued to use a point system. 5. Later in December, Respondent noticed that some of her grades were changed. She did not tell anyone of the alterations, but merely changed the grades back to be accurate. However, Respondent noticed that her grades where changed a second time and contacted the Manatee County School District’s (District) grade book administrator, Don Taylor (Taylor), out of concern. Taylor looked into the matter and, eventually, referred it to the District’s Office of Professional Standards, which conducted an investigation. The result of the investigation, which concluded in or around July 2008, showed that Cooper logged into Respondent’s Pinnacle account, without her knowledge or consent, and altered many of her grades. 6. Cooper was responsible for counseling teachers regarding performance issues. He walked through Respondent’s class every two-to-four weeks, but did not discuss with Respondent any other alleged performance deficiencies during the 2007-2008 school year. 7. Cooper was found guilty of misconduct by the District and was given a letter of reprimand. Cooper was soon thereafter demoted to a teaching position. During the first week of school of the 2009-2010 school year, Cooper apologized to Respondent for altering her grades. 8. Prior to becoming employed at Buffalo Creek, Respondent taught language arts at Lincoln Middle School (Lincoln). During her tenure at Lincoln, Respondent received all positive evaluations and was not informed of any perceived deficiencies in her performance. 9. During the 2008-2009 school year, Petitioner adopted the Manatee Core Curriculum (MCC) as a standardized curriculum to be implemented in the District’s four core subjects: math, language arts, social studies, and science. The MCC aimed to promote a consistent curriculum among the schools within the District, many of whom serve a transient population. The MCC is composed of prescribed units of study intended to promote student achievement of specific educational benchmarks, which are established by the state and assessed through statewide FCAT testing. Each unit is prescribed a specific duration of study to ensure that all units are covered during the course of the academic calendar and to ensure that the students are provided an opportunity to learn the skills and information required for promotion to the next grade level. In addition to traditional assessments such as homework, quizzes, and tests, students are required to complete a Unit Performance Assessment (UPA) at the end of each unit to assess progress and understanding of the covered concepts. 10. Petitioner has also adopted a standardized grade book, called Pinnacle, which all teachers in the District are required to maintain. Pinnacle is a computerized grade book system, in which teachers are required to enter all grades, assignments, and assessments provided to the students during the school year. Pinnacle can be accessed by both parents and administrators and was adopted by Petitioner as a means of communicating students’ progress to parents by providing instant and up to date access to their students’ grading history throughout the various stages of the MCC. The main benefit of Pinnacle is that it provides both teachers and parents a tool for identifying, in a timely manner, those students who may be having difficulties achieving the benchmarks evaluated by the MCC. Teachers are required to enter all of the students’ assessments in a timely manner in order to maintain an accurate and up-to-date picture of the students’ progress. District policy does not require weighting, but does require that grades be input into Pinnacle. Petitioner’s expectation is that teachers enter grades within two weeks of a given assessment. Thus, Pinnacle became a source of communication between parents and teachers. 11. Unfortunately, very few of the parents of Petitioner’s teachers requested a username, and other identifiers, and, thus, did not have access to the tool. 12. During the 2008-2009 school year, Petitioner employed Respondent, under a professional services contract, as a sixth- grade mathematics teacher at Buffalo Creek. The principal of Buffalo Creek during the 2008-2009 school year continued to be Cooper, and the newly-appointed assistant principal was Sharon Scarbrough (Scarbrough). Scarbrough was assigned the responsibility of evaluating the performance of certain teachers, including Respondent. Respondent was included in Scarbrough’s responsibility in order to avoid the appearance of impropriety. 13. During the first quarter of the 2008-2009 school year, Scarbrough identified certain issues relating to Respondent's performance, including the inordinately high failure rate among students in Respondent’s class. Several parents requested the transfer of their students out of Respondent’s class due to concerns that the students were not learning. 14. In grading her students, Respondent assigned different point values to each type of student assessment. Tests and UPAs were worth 100 points each, quizzes were worth 50 points each, and homework was worth ten points. As a teacher, Respondent had discretion as to how many tests and quizzes to administer, as well as how much homework she assigned and what point value to assign each assessment. 15. UPAs are project-based assessments given at the end of each unit of the MCC. UPAs are required by the MCC. 16. Respondent generally assigned homework to her students two or three times a week. When the students returned to class, they would grade their own homework for accuracy, while Respondent went over the answers on an overhead (ELMO) projector. Respondent required that the students redo the problems that they got wrong on the homework while they were reviewing it. The students then passed the homework forward to Respondent, who would grade the homework for effort, and would eventually log the grades in Pinnacle. Only the students who completely failed to complete the assignment were given a zero. 17. In addition to Pinnacle, Respondent communicated with the parents of her students through an agenda (initialed daily by Respondent and parents), progress reports, grading their own homework, and grade reports sent home every couple of weeks for parents’ signature. 18. All teachers at Buffalo Creek are required to prepare and have available for inspection, on the Friday before the next week, weekly lesson plans. They are critical not only as an established agenda to assist the teacher in maintaining pace with the MCC, but also as a mechanism to assist the administration in identifying those teachers who are not maintaining the required pace. 19. Scarbrough noted that Respondent was not submitting lesson plans in a timely fashion. Scarbrough engaged Respondent in informal conversations concerning these issues on at least three occasions in the fall of 2008. Respondent admitted to turning in her lesson plans late on occasions, but explained that she was always prepared for class and that she kept more detailed plans in her own lesson plan book. 20. During this same time period, Petitioner’s mathematics curriculum specialist, Joseph McNaughton (McNaughton), noted that Respondent had fallen well behind the pace for instruction established by the MCC. The MCC prescribed ten units of curriculum to be covered in sixth-grade math classes at set times during the school year. By the end of the first quarter, Respondent had completed only one of the ten units and had fallen 25 to 30 days behind the instructional pace established by the MCC. Respondent explained that she was behind in the curriculum due to the fact that: (1) it was her second year teaching math, (2) it was the first year of the MCC, (3) the unit itself included many components, and (4) many of her students lacked the requisite basic skills to comprehend the lesson. 21. On October 28, 2008, Scarbrough held a formal conference with Respondent, identifying various concerns with Respondent’s performance and addressing her expectations for improvement. Scarbrough noted that Respondent submitted untimely lesson plans eight of the ten weeks and informed Respondent that she was expected to submit her lesson plans the Friday before the week’s lessons are taught. Scarbrough addressed the fact that Respondent only completed Unit 1 of the McC during the first quarter and that Respondent was well behind the required pace of instruction. McNaughton was asked to assist Respondent in getting caught up with the curriculum. Respondent expressed a concern to McNaughton that the students did not possess the requisite knowledge coming in from fifth grade to complete the unit. 22. Scarbrough noted various omissions and inconsistencies in Respondent’s Pinnacle grade book entries and informed Respondent of the expectation that her grade book be timely and accurately maintained. Respondent admitted to failing to input the grades of approximately 23 students who had recently transferred to her class. However, she explained that the failure to input the grades was due to the failure of the original teachers to give the grades to Respondent, despite her repeated requests for the information. 23. Scarbrough noted that 59 percent of Respondent’s students received a “D” or “F” for the first quarter, which Scarbrough characterized as “an excessively high number of students not being successful” in comparison with other sixth- grade classes. Many of the students receiving failing, or near failing, grades in Respondent’s class were successful in their other subjects. Respondent admitted that she occasionally failed to comply with the District’s policy requiring teachers to input grades within two weeks of the assessment, but she 10 generally adhered to the policy. Further, teachers often used an X or Z to represent grades not assigned a numeric value in their grade books. Respondent explained to Scarbrough that in certain reports, the X or Z did not print and appeared to be blank. 24. Scarbrough noted that Respondent had failed to enter a grade for Unit 1, which was a requirement of the MCC. Respondent administered the UPA Unit 1 during the last week of the first quarter and input the grades into Pinnacle. Scarbrough also informed Respondent that grading and record- keeping are essential to basic teacher skills. Respondent denied having 59 percent of her students receiving a “D” or “F” in her class. She explained that the grades were inaccurate, due, at least in part, to the lack of transfer grades from the other teachers. 25. As a result of these concerns, Scarbrough issued Respondent a formal notice of return to documentation, dated October 28, 2008. Documentation is a procedure utilized by Petitioner to allow administration to formally observe its professional service contract employees at a date and time determined by the employee and to draft performance evaluations. The purpose of observing Respondent was to identify the root cause of her performance issues, so that Scarbrough could assist Respondent to improve upon them. Respondent understood that she 11 was being placed on documentation due to the issues outlined in the letter, dated October 28, 2008, from Scarbrough. She began an attempt to remedy the perceived deficiencies immediately by working with two resource teachers. Respondent also amended her policy of not accepting late work from students in an effort to boost the students’ grades. She also put together a packet of work and sent it home with the students over winter break, conducted an academic “boot camp,” asked administration to meet with parents, and asked Scarbrough to send out an automated telephone message to parents to make them aware of the makeup work. In addition, Respondent input her grades into Pinnacle in a timely manner. 26. Petitioner also provided Respondent professional development coaching with Specialist Amy Booth (Booth), who was hired by Petitioner to assist instructional staff with various issues relating to grade book maintenance, organization, time management, and execution of daily lessons, and Peggy Wolfe (Wolfe), who was hired by the Manatee Education Association (MEA) for the same purpose. Upon Wolfe’s request, Scarbrough agreed to delay formal observation of Respondent, until March of 2009, to allow Booth and Wolfe additional time to assist Respondent in improving her performance issues before being formally observed. 12 27. Petitioner also provided Respondent the opportunity to work directly with McNaughton to develop strategies and techniques for maintaining the instructional pace required by the MCC. McNaughton assisted Respondent in making revisions to the MCC in an effort to cover all the instructional units before the end of the school year. 28. McNaughton intended to present a “model lesson” to Respondent's classes while Respondent observed. The model lesson would provide Respondent the opportunity to observe beneficial instructional techniques demonstrated by McNaughton, while providing McNaughton an opportunity to assess whether any nuances existed within the classroom, or among Respondent's students, that might reveal the cause of the issues related to the instructional pacing and lack of student achievement. 29. At the request of Respondent, however, the model lesson was cancelled. Instead, Respondent accompanied McNaughton to another middle school within the District to observe another teacher present a lesson. 30. In January or February of 2009, Scarbrough conducted her first formal observation of Respondent. Students are assigned “bell work” at the start of each class, which is “start up” work for students to complete while the teacher performs administrative tasks such as attendance. Bell work assignments should typically take five-to-ten minutes to complete. 13 Respondent spent nearly half of the class period assisting her students complete bell work, which left only half of the class period for the scheduled instruction. Respondent did not complete the scheduled instruction. 31. On February 24, 2009, Cooper and Scarbrough held a formal conference with Respondent to discuss continued concerns with her performance. Respondent's Pinnacle grade book entries indicated that 66 percent (69/104) of the students in Respondent's combined classes were receiving an “F” at the time of third-quarter progress reports. Respondent’s Pinnacle grade book entries also revealed that Respondent was not recording student assessments in a timely manner and that Respondent failed to enter grades of any type for the first half of the third quarter. Cooper and Scarbrough reiterated Petitioner's expectation that students’ grades be entered within two weeks of a given assignment and that frequent and ongoing assessment of students’ progress and timely feedback to students are essential components of effective teaching and vital for student learning. Cooper and Scarbrough also reiterated the expectation that lesson plans be submitted in a timely manner, as Respondent continued to fall short of this expectation. 32. On March 2, 2009, Scarbrough conducted another formal observation of Respondent. Scarbrough noted that Respondent was still well behind the required MCC pacing, despite McNaughton’s 14 assistance and revision of the curriculum. Respondent's Pinnacle grade book entries demonstrated a lack of variety in the type of assessments utilized by Respondent to monitor students’ progress and failure on the part of Respondent to record assessments in a timely manner. However, on the appraisal form, Scarbrough indicated that Respondent had successfully demonstrated each of the requisite areas, except Area 7, regarding using technology in instruction. Scarbrough marked they are “not yet demonstrated” due to a question as to how often Respondent entered her grades into Pinnacle. 33. On March 24, 2009, Scarbrough conducted a third formal observation of Respondent. Respondent took nearly the entire class period to review one problem and held the students after the end of class to assign homework. During their post- observation conference, Scarbrough emphasized the need for Respondent to utilize a lesson plan as a schedule of topics to cover to assist Respondent in maintaining pace with the MCC. 34. On March 25, 2009, Cooper issued Respondent a formal written reprimand for “failure to meet expectations for curriculum implementation, and for lack of adequate, timely and appropriate student assessment, and grade reporting.” Respondent remained three units behind the pacing required to successfully complete the MCC by the end of the school year, which placed her students at risk of not acquiring the math 15 skills needed to advance to the next grade level. Respondent failed to record expected UPA grades in her Pinnacle grade book. Cooper reiterated that completion of a UPA for every unit is a “non-negotiable requirement for implementation of the [MCC].” Respondent failed to adequately assess student progress through tests and quizzes and continued to record grades in an untimely manner. Cooper stated that the high failure rate among students in Respondent’s classes was directly related to these deficiencies and that further recurrence of the actions identified would result in further discipline. 35. On April 2, 2009, Scarbrough placed Respondent on a 90-day probation, due to unsatisfactory performance. Despite instruction and modification of the curriculum from McNaughton, Respondent failed to complete required UPAs and remained three units behind the pacing required by the MCC. Respondent demonstrated poor time management, lesson planning, and lesson execution, as evidenced by her observed inability to complete her daily lessons within the allotted class time and her failure to maintain pace with the MCC. Respondent performed little or no assessment of her students’ progress during the third quarter through homework, quizzes, and tests, as evidenced by her Pinnacle grade book entries. 36. Respondent’s students continued to receive an inordinate number of failing and nearly failing grades. In the 16 first quarter of the 2008-2009 school year, 59 percent of Respondent's students received a final grade of “D” or “F.” In the second quarter of the 2008-2009 school year, 62 percent of Respondent’s students received a final grade of “D” or ‘F.” In the third quarter of the 2008-2009 school year, 47 percent of Respondent’s students received a final grade of “D” or “F." The inordinate number of students failing to succeed was particularly troubling since Respondent's class load was the lowest on campus, and her class size average was the smallest in comparison to other core classes. Numerous parents indicated that Respondent was not keeping them adequately informed of students’ progress and requested that their students be transferred from Respondent’s class. Parents complained that Respondent failed to respond to telephone calls and e-mails ina timely manner. 37. Scarbrough provided Respondent written notice of these deficiencies and of the procedural requirements relating to the probationary period. Scarbrough also provided Respondent a Formal Improvement Notice, reiterating her performance deficiencies and expectations for improvement and identifying the assistance available to her, including continued coaching and instruction from Booth, Wolfe, and McNaughton. Scarbrough met with Respondent, Booth, and Wolfe to formulate strategies for Respondent’s continued evaluation. 17 38. On April 24, 2009, Scarbrough conducted a fourth formal observation of Respondent. Respondent again took nearly half of class to complete bell work and utilized only minimal time for actual instruction. Scarbrough noted in her post- observation conference that Respondent needed to reduce/eliminate this time management issue. Respondent also failed to maintain her Pinnacle grade book entries in a timely manner. 39. On May 20, 2009, Scarbrough conducted a fifth formal observation of Respondent. Respondent failed to continue to adequately assess students’ progress and to provide a variety of assessments, as evidenced by the fact that she had given only one quiz and completed only one UPA at the time of the observation. Respondent continued to enter assessments in her Pinnacle grade book in an untimely manner and failed to enter any grade for UPA Unit 7. Respondent continued to submit her lesson plans in an untimely manner. 40. Scarbrough observed Respondent on May 20, 2009, and made notations on the teacher appraisal form. After this observation, Scarbrough marked Respondent demonstrated all of the requisite areas aside from Areas 10 and 14, regarding demonstrating improvement in students’ performance through assessment and adhering to the Code of Ethics and Principles of Professional Conduct, respectively. Scarbrough felt Respondent 18 did not demonstrate Area 10, because Respondent had administered only one quiz and one UPA in a month, and the quiz grades were not entered into Pinnacle timely. Scarbrough marked Respondent deficient in Area 14, because she did not turn in all of her lesson plans in a timely manner. 41. On June 2, 2009, Scarbrough completed the Teacher Performance Appraisal Feedback Summary Form, summarizing Respondent’s performance during probation. Scarbrough found that Respondent demonstrated all areas with the exception of Areas 10 and 14. She noted that Respondent still has some areas to improve upon such as lesson planning, assessments, and grading. Scarbrough gave her opinion that Respondent had not improved upon her identified deficiencies and that her performance remained unsatisfactory. 42. However, on cross-examination, Scarbrough reluctantly agreed that Respondent did improve in many areas outlined in the probation notice, including proper use of daily agenda and bell work. The number of “D’s” and “F’s” in Respondent’s classes decreased. Scarbrough also admitted that Respondent completed the MCC by the end of the year, without skipping any units. She also admitted that after receiving only two complaints from teachers whose classrooms were located a far distance from Respondent, she spoke to Respondent about letting her students out on time, and the situation was remedied. Scarbrough 19 admitted that she did not compare the amount of assessments administered by other sixth-grade mathematic teachers when deciding that Respondent did not administer enough tests or quizzes. 43. Effective August 18, 2009, Respondent voluntarily transferred to Electa Lee Magnet Middle School (Electa Lee), upon the retirement of another teacher. Respondent received approval for transfer up the chain of command to the superintendant. 44. The law provides that a teacher who holds a professional services contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies. 45. In light of Respondent’s transfer, Scarbrough met with Scot Boice (Boice), principal of Electa Lee, and Darcy Hopko (Hopko), Petitioner’s director of Human Resources, to review Respondent’s performance issues, the process associated with the statutory probationary period, and the deadline for the end of probation. Teachers were required to report for the 2009-2010 school year on August 18, 2009. At the meeting, Scarbrough, Boice, and Hopko determined that Respondent’s probation expired on September 19, 2010. When Respondent transferred to Electa Lee, she had completed 58 of the 90 days’ probation. He also 20 reviewed only the letter placing Respondent on probation. He did not review her personnel file or other relevant documents. 46. Boice assigned Respondent a position as a sixth-grade math teacher at Electa Lee. On August 25, 2009, Boice and Electa Lee Assistant Principal Wally Hunter met with Respondent to discuss her continued formal observation and the remaining probationary process. 47. On September 3, 2009, Boice again met Respondent to schedule her formal observation. Respondent chose September 10, 2009, at 1:30 p.m., as the date and time for Boice to observe her. 48. Prior to the September 10, 2009, formal observation, Boice did a few walkthroughs of Respondent’s classroom, but never for more than five minutes. 49. On September 10, 2009, Boice conducted his formal observation of Respondent. Boice noted that Respondent took 26 minutes to complete administrative tasks and to assign bell work at the start of class. Respondent did not begin the scheduled lesson until the final ten minutes of class. Boice also observed Respondent releasing students from class late, because they were unable to complete the lesson during the allotted class time. 50. Boice was unable to sufficiently observe some of Respondent’s identified performance deficiencies due to the 21 limited time Respondent worked at Electa Lee prior to the end of her probation. For example, Boice was not able to sufficiently observe the manner, variety, and adequacy of the assessment tools used by Respondent to evaluate student progress, such as homework, quizzes, and tests. Respondent had not yet completed UPA Unit 1 at the time of the formal observation. Respondent provided Boice, as an example of her assessment of the students, a short, handwritten quiz composed of only four or five questions. Boice determined that the quiz was not adequate, but did not give her an opportunity to correct the problem. 51. Boice was also unable to sufficiently observe Respondent's performance in communication with parents, including her timely maintenance of the Pinnacle grade book. Boice informed Respondent that training on proper use of technology in assessment of students, including Pinnacle training, would be provided to all staff at Electa Lee during in-service on September 25, 2009, six days after the 90-day probationary period ended. 52. Despite her prior observed deficiencies, during her probation, in the area of Pinnacle, Respondent failed to attend the in-service training. However, Respondent also failed to schedule her absence in advance, but stated that she was on campus that day, but did not have access to a computer, so she did not attend the in-service. 22 53. On October 1, 2009, Scarbrough and Boice authored a letter to the superintendent of schools, detailing Respondent’s continued unsatisfactory performance. Based on their combined observations and assessments, Scarbrough and Boice concluded that Respondent was still not competent in planning, implementing, and presenting effective lessons and communicating effectively with parents. 54. On October 13, 2009, the superintendent recommended the termination of Respondent’s employment pursuant to Subsection 1012.34(3)(d), Florida Statutes. 55. In the letter to the superintendent, Boice and Scarbrough relied almost exclusively on Respondent’s past performance, in coming to the conclusion that Respondent had not satisfactorily corrected her performance deficiencies. The reasons cited in the letter were those identified in the initial April 2, 2009, probation letter, including lesson planning, students’ assessment, instruction/presentation of subject matter, and communication. The basis for purported deficiencies was Respondent's behavior at Buffalo Creek and, to a much lesser degree, the short observations while Respondent was at Electa Lee. 56. Boice conducted a single observation of Respondent, of less than one class period, on September 10, 2009. Boice took notes regarding the observation on a Teacher Performance 23 Appraisal Feedback Summary Form and provided a copy of that form to Respondent at a meeting the following day. Boice marked that Respondent had demonstrated four of the 14 areas and that she did not demonstrate three areas. Boice felt he did not have enough information in the short time he observed Respondent to form an opinion as to the other seven areas. 57. Boice marked that Respondent did not demonstrate Area 1 because the bell work her students completed took a long time to complete, due, in part, to the fact that Respondent walked up and down the aisles to initial the students’ agendas. Boice also marked Respondent deficient in Area 7, regarding using technology in instruction, because she only employed the use of an ELMO and Pinnacle. Finally, Boice marked Respondent as not having demonstrated knowledge and enthusiasm for the subject matter based upon his understanding that she tolda student that she did not know how to complete a problem. 58. At the meeting with Boice to discuss his notes regarding the observation, Respondent told Boice that she believes she promotes the students’ independent development and learning and that she is extremely enthusiastic about math. Respondent denied having told a student that she did not know how to complete a problem, but explained that she told the class she would calculate an answer and have it for them in the next class period. Respondent further explained that she used an 24 ELMO and Pinnacle during the class and that she did not have computers present in the classroom to use other types of technology. While working at Electa Lee, Respondent received only one parent concern. After a parent-teacher conference, the parent appeared satisfied. Respondent requested that Boice observe her for a second time, but Boice declined and indicated that they were on a timeline. 59. The administrators at Buffalo Creek and Electa Lee had never put any other teacher on performance probation other than Respondent. Cooper and Roland each testified that they did not believe Respondent was incompetent during the 2007-2008 school year. Cooper stated that during his walkthroughs during the 2008-2009 school year, he did not witness any behavior by Respondent that made him feel she was ineffective or having any problems. McNaughton also testified that he did not observe any behavior by Respondent that would lead him to believe she was incompetent or ineffective. 60. The District expected the FCAT math scores of sixth- grade students to be lower after implementation of the MCC. Students at Electa Lee in 2008-2009 followed that pattern, and their scores were lower than the previous years’ scores. The summaries provided by the District showed that the number of students ranked at a level one, who were in fifth grade in 2008, increased by 13 percent by the time they took the FCAT in 2009. 25 Also, the number of students in that same group who were ranked at level four decreased 11 percent during that same time. Further, the Student Dashboard reports showed that overall, Respondent’s students at Eletra Lee were improving their math FCAT scores from the previous year (comparing previous FCAT scores to first-quarter benchmark scores). 61. Many other teachers turned their lesson plans in late while working at Buffalo Creek. Further, Respondent did not teach any advanced classes during 2008-2009 or 2009-2010 school years. Of all of Respondent’s students during the 2008-2009 school year, she had two students who were ranked at a level four on a scale of one to five. The rest of the students were ranked at a three or lower. 62. Other mathematics teachers in the District fell behind during the first year of the MCC, including every mathematics teacher at Electa Lee. Pacing, although it was described as “suggestive,” was treated as mandatory to Respondent. 63. The purpose of performance probation is to allow a teacher an opportunity, through coaching and other assistance, to remedy any performance deficiencies. 64. At the hearing, under cross-examination, Boice testified that he had no problem with Respondent inputting grades or otherwise using the Pinnacle online grade book. Boice also testified that Respondent's grade distribution was 26 acceptable and that he did not have a problem with her not having her lesson plans complete in a timely manner. 65. Respondent weighted her grades while working at Electa Lee. The Grade History Verification report dated September 1, 2009, shows that ten of 80, or 12 percent, of Respondent’s students were earning a “D” or “F” at that point. 66. Boice testified that Respondent did not have any problems in her assessment of students and that Respondent was not having trouble keeping up with the MCC during her time at Electa Lee. In general, Boice found that Respondent’s grading and recordkeeping were acceptable. He also found that Respondent was working within the guidelines of the UPA Unit 1 and the MCC. 67. Boice did not consider extending the probationary period to allow Respondent an opportunity to establish that she had remedied all of the perceived deficiencies in her performance. Instead, he deferred to the information provided to him by Scarbrough for the prior year and related Respondent's present performance in August and September 2009 to her past performance at Buffalo Creek. This was clearly wrong. Respondent appeared to have made significant progress in remedying her performance deficiencies. Boice’s conduct short- circuited that progress and did not permit a thorough observation to be complete before recommending termination. 27
Conclusions For Petitioner: Brian Ussery, Esquire Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. Post Office Box 639 Tampa, Florida 33602 For Respondent: Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order that: (a) finds that Petitioner has not proven that Respondent has not satisfactorily corrected the performance deficiencies noted against her; that, (b) Respondent’s contract be reinstated; and that (c) Respondent be awarded back salary, plus benefits, to the extent these accrued during the suspension period. DONE AND ENTERED this 19th day of August, 2010, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2010. 39
The Issue Whether Polk County School Board ("School Board") has just cause to terminate Judy Gail Vann ("Respondent" or "Vann") pursuant to Section 1012.34, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent started working for the School Board in 2000. During the last ten years, she has taught English. In November 2008, the School Board recommended Respondent's termination for excessive absenteeism, dishonesty, ongoing gross insubordination, and not preparing lesson plans. The case came before the Division of Administrative Hearings in Case Number 09-0955.1 On August 20, 2009, a Recommended Order was entered concluding that a preponderance of the evidence in that case did not support the alleged acts in the charging document, and Respondent was reinstated with full back pay. After the School Board reinstated Respondent, for the 2009-2010 school year, she was assigned to Traviss Career Center ("Traviss") to teach 11th and 12th grade English. Prior to this assignment, Respondent had never taught in a high school. Traviss is a school for high school students and adults. Both high school diplomas and certificates in a career field or vocational trade are available to graduates. Traviss students that are trying to achieve a regular high school diploma take the FCAT. Seventy-seven percent of the student population at Traviss who took the 2008-2009 FCAT were reading at level two or below. Level two is a fifth-sixth grade reading level. Polk County requires that the 11th and 12th grade students do the same work as their counterparts at the traditional schools and follow the same curriculum maps.2 Alan Harrell ("Harrell"), the assistant director of curriculum, was Vann's supervisor at Traviss. His primary responsibility is to oversee the academic programs. Such duties include monitoring lesson plans and learning guides, and keeping the curriculum maps on target. Harrell also oversees students' grades and makes sure students are getting the right courses for their diploma. Harrell supervised Vann during the six periods she taught a day. Three of the classes were English III for juniors and three were English IV for seniors. Vann tried to be creative when teaching the curriculum maps. When the students were required to study Shakespeare, Chaucer, and epic works such as Beowulf, she would often-times show modern movies like Hercules to keep the students interested. Harrell did not think the movies were the best teaching methods for the students. Harrell made regular visits to Vann's classroom and met with her about various issues periodically. During Harrell's second meeting with Vann on October 16, 2009, some items discussed were students' grades, homework, and lesson plans. On November 17, 2009, Harrell emailed Vann to instruct her about her lesson plans for the two previous weeks. The email stated: Please post your lesson plans for week of 11/09/2009 and for week of 11/16/2009. They should be posted on Friday prior to the next week so we have some guideline for the substitute to be able to follow when the teacher is absent. During Harrell's fifth meeting with Vann on November 30, 2009, Harrell discussed several areas of concern. The first was her lesson plans not being posted. During the first semester, Vann was absent from school approximately 15 days. On December 11, 2009, Harrell met with Vann again to discuss proper protocol and procedures for preparing lesson plans. Harrell also discussed Vann's numerous absences and the effect on the students. On January 11, 2010, Harrell contacted Vann again about incomplete lesson plans by email. It stated: In reviewing your lesson plans for the week of 1/11/2010, I observe a number of discrepancies that need to be corrected. "same as above" under PLANNING does not define the objectives. "same as above" under PLANNING does not define the Standards/Benchmarks. Under Procedures/Activities, a description of what the intended activity is going to be needs to be described. As previously discussed your lesson plans need to be in line with the curriculum map. On January 13, 2010, Vann emailed Harrell and informed him that she had "reposted the completed version of the lesson plan template for 1/11/10." Deficiencies in Vann's performance as a teacher and absences from school continued into the second half of the school year. Vann's posted lesson plans were incomplete or insufficient, and she would email lesson plans to the school on the mornings when she was absent. Vann was absent approximately 10 days without pay between January 7, 2010, and February 11, 2010, including the 11th. The emails Vann sent during that period listed the following explanations for her absences: January 7, 2010, "I have no voice."; January 11, 2010, "Sick . . ."; January 12, 2010, at 5:19 a.m., "Sick since Friday . . . trying to see doctor today"; January 12, 2010, at 5:24 a.m., "As stated my lesson plan template was incomplete for 1/11/10 because I have been sick and was unable to complete the template."; January 19, 2010, "I have been down with a Migraine for three days and I hope to be able to see the doctor today."; February 9, 2010, "I am having very severe back problems and have a doctor's appointment today."3 On February 12, 2010, Respondent was in a car accident on the way from school on Thornhill Road. A car slammed into her going approximately 55 miles per hour in the drizzling rain. Vann first sought medical treatment on February 25, 2010, from a chiropractor, Dr. Sundermeyer.4 Vann was treated the rest of the school year for her back and spine by the chiropractor. As a result of Vann's continuing decline in performance, on February 25, 2010, Respondent received a Notice of Unsatisfactory Performance, which advised that she had performance deficiencies and was being placed on a 90-day probationary period pursuant to Section 1012.34(3)(d), Florida Statutes. The Notice of Unsatisfactory Performance informed Respondent that she had failed to perform satisfactorily in the following aspects or duties of her job: You have had excessive absences. You have failed to prepare and maintain current lesson plans for your classes. In addition to the fact that the preparation of lesson plans is a requirement of your job, your failure to prepare such plans has made it extremely difficult to maintain the educational process for your students during your absences. The management of your classroom environment, including student discipline, has been extremely poor. You have failed to prepare and deliver appropriate or effective teaching strategies for your students. You have failed to maintain an appropriate and distinct relationship as a teacher with your students. A meeting was held on March 1, 2010, with Vann to discuss recommendations and a plan of action to provide assistance in correcting the deficiencies identified in the Notice of Unsatisfactory Performance. Dr. Dickens, Harrell, Mrs. Amy Hardee("Hardee"), Ms. Angela Dawson, and Vann with her PEA representative attended the meeting. At the March 1, 2010, meeting Vann was informed that she needed to correct the following deficiencies: excessive absences, lesson plan preparation, classroom management, effective teaching strategies, and maintaining an appropriate and distinct relationship with her students. After the meeting, Vann and her union representative met with Hardee, the senior curriculum coordinator of language arts. Vann indicated that her textbook resources were out of date and requested Hardee fix the problem. Hardee immediately located literature and grammar books and made arrangements to have them delivered to Vann. On March 2, 1010, Vann received her 90-Day Corrective Action Plan that specified the following five areas that Respondent was to correct during her probationary period from March 2, 2010, to May 30, 2010: Excessive Absences-It was agreed that you will provide Traviss Career Center a doctor's note when you are ill. You will also make a diligent effort to contact Ms. Loretta Stewart(Principal Secretary) before 6:30am when you are not going to be at work. This will allow sufficient time to obtain a substitute instructor for your class. Lesson Plans-To assist you with improving your classroom management skills, it was suggested that PD 360 be used. Outlines of the segments are attached for your use. Classroom Management-To assist you with preparing lessons for your class, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Effective Teaching Strategies-To assist you in developing effective teaching strategies, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Maintaining a distinct relationship-It was recommended that you refrain from use of unprofessional language and allowing disruptive student behavior during instructional time. You are to work on building a better instructional relationship with your students and expect the respect you deserve. * * * Traviss will provide a substitute for you on Mondays and Thursdays for the remainder of this school year to allow you time to work in the above mentioned areas of deficiency. It is your responsibility to be present at school and working on the criteria listed above. To address the issues with lesson plans, classroom management, and effective teaching strategies, Hardee assigned Vann 39 segments of Professional Development 360 ("PD360") training to view and complete the questions during her probationary period.5 Vann had less than seven hours of PD360 training to complete during her 90-day probationary period. Respondent was provided a list of the 24 modules addressing classroom instruction and 15 modules on differentiated instruction. Each module included a video Vann was to view, followed by approximately six reflection questions that were to be answered on-line by her. On March 2, 2010, Vann acknowledged her understanding and agreement to adhere to the corrective action plan with her signature. To ensure that Vann was successful in completing her PD360 training, a substitute instructor was hired for classroom instruction to allow Vann some time to complete the professional development plan during the 90-day probationary period. However, Respondent chose not to come to work and was absent most of the remainder of the school year. While on probation, from March 3, 2010 to May 5, 2010, Respondent was absent without pay 12 days during March and 17 days during April 29 days.6 Respondent claims that she was not at work because she was sick and couldn't attend. However, Respondent only provided one medical note excusing her from working due to illness. Vann provided the School Board a note that excused her from work from March 17, 2010, until March 18, 2010, which was on an Auburndale Chiropractic, LLC Authorization for Absence form.7 Respondent also provided the School Board a letter dated May 10, 2010, that specified treatment but did not indicate Vann was prohibited from attending work. The letter was from the same chiropractor, Dr. Sundermeyer, on Auburndale Chiropractic, LLC letterhead, not an Authorization for Absence form as previously submitted by Respondent for the March 2010 excused absence. The letter on her chiropractor's letterhead stated: To Whom It May Concern: I am writing in regards of my patient, Judy Gail Vann. I have been treating Ms. Vann for neck pain and lower back pain since February 25, 2010. She has been under my constant care 3 times per week since she started her treatment in this office. Please feel free to contact me if you have any questions concerning my patient's health. Thank you, Dr. Sara Sundermeyer8 During her probationary period, Vann never sought treatment from a medical doctor other than the chiropractor, Dr. Sundermeyer. Respondent was not prohibited from attending work due to her illness.9 Vann failed to provide a doctor's note indicating that she could not attend work for her 29 days of absences without pay during her probationary period. Vann improved with her lesson plans. However, starting April 13, 2010, Respondent submitted the same lesson plans for all classes, no matter whether for the 11th or 12th grade students, and did not distinguish between the separate curriculums required for each grade. While on probation, Vann viewed only 15 of the assigned 39 PD360 modules.10 She completed one of the 15 reflection questions and answers, which was a total of two and one-half hours of the seven hours assigned. Vann also failed to meet either the criteria of contacting Ms. Loretta Stewart (Principal's Secretary) when absent or making the contact before 6:30 a.m. some mornings including: April 5, 2010; March 17, 2010; and April 15, 2010.11 By letter dated May 14, 2010, Principal Dickens ("Dickens") informed Vann that a decision had not yet been made on her reappointment at Traviss. The letter further informed Respondent that she had failed to fulfill several of the requirements for her 90-day Corrective Action Plan, including not providing a doctor's note covering all of her absences for illness when she was ill and unable to report to work and failing to complete the PD360 segments designed to help her with her classroom management skills, lesson plans, and effective teaching strategies. On June 3, 2010, Dickens recommended to Superintendent Gail McKenzie that Respondent's employment be terminated for failure to comply with the 90-day Corrective Action Plan, and her failure to perform her duties as an English teacher. The following items were identified as not being completed during the probationary period: failure to provide physician's notes when absent; Dr. Dickens' secretary was not contacted on days Respondent was absent; and the failure to complete the PD360 training. By letter dated July 15, 2010, Respondent was informed that the Superintendent would recommend her termination because Vann had "failed to correct [her] performance deficiencies, failed to complete [her] Professional Development Plan, and that there is 'just cause' for [her] termination pursuant to Section 1012.34, Florida Statutes."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Polk County School Board enter a final order ratifying Vann's termination from further employment in Polk County Public Schools. DONE AND ENTERED this 21st day of December, 2010, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2010.
The Issue The issues in this case are whether Respondent, Neil A. Merica, committed the offenses alleged to have begun in 1994 through 1999 as stated in the Amended Administrative Complaint dated May 7, 2003, and, if so, what penalty should be imposed.
Findings Of Fact Based upon observation of the demeanor and candor of the witnesses while testifying; the documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); stipulations and arguments of the parties; and the entire record compiled herein, the following relevant, material, and ultimate facts, arrived at impartially, based solely upon the extensive evidence adduced at the final hearing, are determined: Respondent's Qualification and Teaching Experiences Mr. Merica holds a degree in speech communication from the University of South Florida. He is also certified in specific learning disabilities (SLD) by that institution. Early in his 13-year tenure as a teacher at Foster Elementary School (Foster), he acquired a degree in computer science from Florida Metropolitan University. Mr. Merica holds Florida Educator's Certificate No. 532934, covering areas of English Speakers of Other Languages (ESOL), SLD,2 and Speech. His Florida Educator's Certificate expired June 30, 2003. As of the date of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. Mr. Merica also holds a teaching certificate from New Hampshire. Mr. Merica has a very demonstrative and expressive personality. His voice, when speaking at his normal conversational tone, resounds from the back of his throat in a louder than average volume. During his testimony, the pitch of his voice and his rapid speech pattern was accompanied by an unexpected and sudden outburst of spastic energy. Hillsborough County School Board's "Pull-out" Classroom Policy In 1987, the Hillsborough County School Board (Board) operated a Pull-out Classroom Policy (Pull-out Policy) for SLD and Physically Impaired (PI) students. Pursuant to the Board's Pull-out Policy, SLD and PI students were pulled out of their regular classes, divided into various numbered groups, and sent to a designated "resource" class teacher during the school day. Respondent's Initial Teaching Assignment Under the Pull-out Policy in 1987-1988 Mr. Merica began teaching at Foster as a SLD resource class teacher in October 1987 when the Board's Pull-out Policy was in effect. A resource teacher is the teacher whose class consisted of SLD students who were "pulled out" of regular classes of non-SLD students and sent to a resource class consisting of all SLD students for teaching and instruction. In 1989, the Board changed its Pull-out Policy to a "Self- contained" Classroom Policy (Self-contained Policy). The Self- contained Policy was designed to keep all SLD students together in one identified class throughout the school year. Mr. Merica taught SLD students under the Self-contained Policy at Foster until the 1992-1993 school year. Beginning at the start of the 1992-1993 school year, Foster's administration assigned Mr. Merica to teach a resource class consisting of PI and Learning Disabled Resource (LDR) students. PI classes consisted of students with a variety of physical impairments, including students who required various assistance devices such as wheelchairs, walkers, braces and "talkers," a machine device that assists the student with speaking difficulties to communicate. Mr. Merica continued as a PI and LDR teacher from the 1992-1993 school year through the 1998-1999 school year. Foster Elementary Exceptional Student Education Student Population from 1998 to 2000 During the two-year period of the 1998-1999 and 1999- 2000 school years, Foster had a large exceptional student education (ESE) population among its general student population. Foster's ESE community population consisted of 22 units, composed of full-time ESE students. There were six units of mentally handicapped students, with mental handicaps ranging from severe and profound mentally handicapped to mild emotionally mentally handicapped. There were four units of autistic students and four units of PI students. Foster had approximately five units of early exceptional learning programs, and three units of SLD students. Policy Change to Self-Contained Classes in 1998-1999 During the fall of the 1998-1999 school year, the Board changed their Pull-out Policy for SLD and PI students to a Self- contained Policy. The Self-contained Policy was instituted because of the severity of the students' learning disabilities, their struggles with academics, and the administration's conviction that the daily routine of shifting the SLD and PI students from "regular class to resource class" did not sufficiently address the students' individual learning disabilities and individual educational needs. Foster's administration identified students whom they believed did not handle transition well and recommended them as candidates for self-contained classes. The primary objective of the administration was to provide more "direct teaching time" and "direct teaching services" to each SLD or PI student. In the self-contained classes, SLD and PI students were assigned to one class and one teacher with a teacher's aide and/or a Department of Education for Exceptional Students (DEES) attendant throughout the day. The teacher's aides were those persons who were permitted to assist, under the oversight of the teacher, the classroom teacher with all facets of teaching, instruction, and classroom control. The DEES attendants were those persons whose duties consisted primarily of assisting the teacher by attending to individual and personal needs of SLD and PI students, i.e. changing their clothing, providing restroom assistance, etc. Respondent's 1999-2000 Reassignment to Teach Self-contained SLD Class In mid 1998, Brenda Griffin (Principal Griffin) was appointed principal of Foster replacing Janice Payne, f/k/a Pils (Principal Payne). At the start of the 1999-2000 school year, Principal Griffin changed Mr. Merica from his PI and LDR class and assigned him to teach a self-contained class of SLD students. A self-contained SLD class is a class composed of SLD students, each of whom has an individual educational plan (IEP) designed as the teacher's guide to assist in teaching each student to achieve specific, individual, and predetermined educational goals. Each IEP is developed by joint agreement of the SLD student's parent, his/her teacher and the assigned therapist (teacher). The IEP also identifies special educational services and supports that may be necessary to achieve desired outcomes and short-term objectives, and it establishes student educational benchmarks. An IEP may or may not contain daily, weekly or monthly checklists to evaluate a student's progress in achieving the benchmarks contained in his or her IEP. To make an objective determination of whether a student with an IEP has made progress (advanced from or to an ascertainable educational position), knowledge of the educational benchmarks contained in the student's IEP are essential. During the earlier years as a teacher at Foster, Mr. Merica served as the school's Classroom Teacher's Association (CTA) representative. In this capacity, he would address and argue those issues he believed to have had direct impact upon teachers who were members of the CTA. Mr. Merica attributed many of the comments made during staff meetings to addressing issues he believed had an impact upon teacher members of the CTA. During the 1997-1998 school year and after lengthy discussions with Principal Payne, but before Principal Griffin was appointed principal, Mr. Merica resigned as CTA representative. In September of 2000 and after 13 years of annual employment contract renewals, the Board terminated Mr. Merica's employment. At the time of this proceeding, Mr. Merica had not exercised his right to renew his Florida Educator's Certificate. In this proceeding, the Commissioner seeks to permanently revoke Mr. Merica's right to renew his Florida Educator's Certificate. The Amended Administrative Complaint The Amended Administrative Complaint alleged specific instances of specific conduct, specific acts, and specific speech to have occurred at unspecified dates and at unspecified times during a five-year span of time from 1994 through 1999. Accordingly, only incidents specifically alleged and proven by evidence of record to have occurred on or after January 1, 1994, through December 31, 1999, are considered in determining whether the Commissioner proved each allegation charged in the Amended Administrative Complaint. STATUTE VIOLATIONS Count 1: The Respondent is in violation of Section 1012.795(1)(b), Florida Statutes, in that Respondent has proved to be incompetent to teach or perform duties as an employee of the public school system or to teach in or to operate a private school. Count 2: The Respondent is in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving mortal turpitude. Count 3: The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 4: The Respondent is in violation of Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession Prescribed by State Board of Education rules. RULE VIOLATIONS Count 5: The allegations of misconduct set forth herein are in violation of Rules 6B-1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 6: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(5)(d), Florida Administrative Code, in that Respondent has engaged in harassment or discriminatory conduct which unreasonably interfered with an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment; and further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination. WHEREFORE, Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 1012.795(1) and 1012.796(7), Florida Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension of the teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or combination thereof, for the reasons set forth herein, and in accordance with the Explanation and Election of Rights forms. Amendment to Amended Administrative Complaint to Correct Scrivener's Error. On December 24, 2003, Petitioner filed a Motion for Leave to Amend Complaint to Correct Scrivener's Error, which was granted and provided the following: On November 6, 2003, Petitioner Amended the Administrative Complaint in this matter. Paragraph 5 of the Amended Administrative Complaint should be further amended to correct the scrivener's error. Paragraph 5 of the Amended Administrative Complaint currently states: "During the 1998-99 school year, Respondent sexually harassed several different co- workers." That portion of Paragraph 5 should be amended to state: "Between 1994 and 1999, Respondent sexually harassed several different co-workers," to conform the time period for the allegations of Paragraph 5 with the time period for the allegations of all other paragraphs of the Amended Administrative Complaint. Janice Payne, Principal at Foster from 1987-1998 Principal Payne was principal at Foster from May 1987 to May 1998. An illness forced her to retire midyear in the 1997-1998 school year. After Principal Payne’s retirement, the Board appointed Principal Griffin as principal of Foster. Principal Griffin held that position during the time of this hearing. During Principal Payne's 1987 to 1998 tenure as principal at Foster and as required by statute, she performed yearly evaluations of Mr. Merica's professional performance as a teacher of SLD and PI students. Consideration was given to annual performance evaluations for the 1994-1995 and 1998-1999 school years. During the 1994-1995 through 1997-1998 school years, Principal Payne identified, in her annual evaluations of Mr. Merica's overall professional teaching performance, specific areas in which she independently determined Mr. Merica was in need of professional growth and improvement. At the end of each of those four evaluation periods, she met with Mr. Merica and discussed and identified for him those specific areas in which he was in need of professional growth and improvement. She provided him with specific, constructive advice and assistance to facilitate his professional growth and improvement as a professional teacher in the areas she identified. Undisputed evidence established that Mr. Merica accepted Principal Payne's constructive advice and assistance; he complied and implemented her suggestions in each area identified as in need of growth and improvement, and he grew and improved his performance in each identified area. It is noted, however, that Mr. Merica would sometimes suffer relapses and revert into his old pattern of voicing his personal opinions on a variety of subjects, described by Principal Payne as just: "talking up and rumoring everybody." Even with his propensity to occasionally "talk up and rumor everybody," Principal Payne concluded that he was a very good teacher and that he could be better. Principal Payne's methodology of assisting her young professional teachers' growth was to identify areas in need of improvement followed by personal conferences with each teacher explaining areas in need of improvement, making individualized suggestions tailored to the need(s) of the teacher, and, after an appropriate time interval, completing a follow-up assessment to evaluate the teacher's growth, improvement, and compliance with her suggestions. The record evidence demonstrated the existence of a professional and respectful relationship between Principal Payne and Mr. Merica, spanning the eight or more years they worked together, including the few occasions when there were disagreements. 1998-1999 Performance Evaluation of Mr. Merica In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE co-worker. Nevertheless, when Principal Payne evaluated his overall professional teaching performance for the 1998-1999 school year, including his personal conduct, she gave him a "satisfactory" rating in every area, without comments. Principal Payne made her independent written evaluation of Mr. Merica without assistance of any criteria or standards, other than as indicated on the evaluation form.3 In reaching her independent assessment of Mr. Merica's proficiency and effectiveness, scoring them on the characteristics and numerical scale indicated, she relied upon his teachings, his problems, and his improvements experienced. Her professional judgment of Mr. Merica was based upon her personal observation and day-to-day association with her teachers. Mr. Merica's 1998-1999 Performance Evaluation is the most accurate, reliable, and undisputed evidence of his competence and overall professional performance as a teacher during the 1998-1999 school year. There is no credible evidence of record that Mr. Merica engaged in unprofessional conduct evidencing either a past, an onset or a continuation of professional incompetence as a teacher in the school system during the 1998-1999 period covered by Principal Payne's annual evaluation. In response to the general inquiry of “whether or not her previous discussions and her prior improvement expectations of Mr. Merica as a teacher over the [unidentified] years were successful,” Principal Payne, convincingly, testified: Yes, temporarily, absolutely. My philosophy about Mr. Merica--first of all, he could be a good teacher if he wanted to be because I have observed him. I know that. He could behave if he wanted to. He could be a strong staff member. But, you know, he could do that probably for maybe four months or five months and all of a sudden it was just--he was just doing the same old thing, just going around, talking to everyone, rumoring people or getting rumors to people. It's just like this school was his life. Continuing, Ms. Payne testified: Mr. Merica would frequently apologize and realize what he had done was wrong, because at one time he's like a lamb and help to do whatever he can do and other times he just be so angry and upset to the point of where I said his behavior would frighten me. As the professional supervisor who worked with Mr. Merica for more than a ten-year period, Principal Payne was the most experienced and most knowledgeable person from years of hands-on experiences to have observed "the beginning of professional teaching incompetence that was not responsive to assistance provided by other professionals and continued unabated throughout her tenure." The Commissioner failed to prove, through the testimony and documentation of Principal Payne, "a beginning of demonstrated professional incompetence in 1994" or even as late as the school year of 1996-1997, as alleged in the Amended Administrative Complaint. Based on the testimony of Principal Payne, it is a reasonable inference, and I infer, that the "behavior of anger" sometimes demonstrated by Mr. Merica in Principal Payne's presence was directed toward the subject matter of "what he had done was wrong" and not directed toward the person of Principal Payne. Through the above testimony, the Commissioner failed to prove that between 1994 and 1998-1999, Respondent was insubordinate and confrontational towards Principal Payne during her tenure as principal. The Commissioner failed to prove the allegation that Mr. Merica's personal conduct began to demonstrate "incompetence" as a professional teacher during the period of the 1994-1995 through mid-year of the 1997-1998 school years while Principal Payne was principal of Foster. A review of the record demonstrated, and the undersigned so finds, that no other witness called by the Commissioner provided credible, material and substantive evidence, based on personal knowledge contradicting the testimony of Principal Payne, that related to Mr. Merica's professional "teaching skills" during the period of the 1994-1995 through mid-year 1997-1998 school years. Brenda Griffin Principal at Foster Elementary beginning in 1998 After the 1997-1998 midyear resignation of Principal Payne, the Board appointed Principal Griffin as principal of Foster. The professional relationship between Principal Griffin and Mr. Merica became tense, and, based upon the collective testimonies of teachers and administrative staff members hereinafter, the tension was known by both the professional staff and administrative employees at Foster Elementary. Principal Griffin recalled that during her first year as principal at Foster (approximately the latter half of the 1997-1998 school year), she made an unannounced visit to Mr. Merica's self-contained classroom of PI students. Recalling her visit, she testified: [T] hey [students], all had IEPs that have specific goals for each student and what I observed was group instruction, but I felt like the PI students were not being stimulated. (Emphasis added) There is no record evidence of the particular teaching materials being used by Mr. Merica during this single visit. There is no record evidence establishing ascertainable professional expectations or teaching standards below which Mr. Merica was performing during Principal Griffin's initial visit. There is no record evidence of specific educational benchmarks or educational goals contained in the PI students' IEPs. Within the situational circumstances of this one visit as testified to, Principal Griffin's conclusiory opinion that Mr. Merica's "PI students were not being stimulated" lacks an objective benchmark for evaluation, as well as any reasonable degree of reliability to produce a firm belief as to the truth of the matter sought to be established. Continuing, Principal Griffin testified: Mr. Merica would go to the board, where there may or may not have been written some vocabulary words, and he would start some kind of instruction and I felt that was because I was in the room--sometimes the aides would get up to work with the kids and sometimes not, and I was sure they were waiting on the direction from their teacher at that time. (Emphasis added) Principal Griffin recalled another separate incident, but omitted providing the month or year, when she "observed Mr. Merica sitting at his computer--she "did not know what he was doing at his computer"--but she had been in his classroom on a previous (unidentified time) occasion when a golf game was on the computer and she--"knows that he was not tending to the students." Principal Griffin's conclusions, her feelings, and her opinions in findings 24 and 26 herein above, minus evidence of the situational circumstances surrounding each incident, lack reasonable reliability to produce a firm belief of the truth of the allegations sought to be established. Principal Griffin also recalled (unspecified) occasion(s) on which she observed Mr. Merica outside his classroom. She characterized those observations as having seen Mr. Merica: verywhere- in the hallways, in the lunchroom, at the PE field, in the back of the school--in the ESE wing building, where the buses are for the kids, in the clinic, in the office, everywhere-at any period of time during the day. There is no record evidence of personal knowledge by the witness or evidence of the situation and/or circumstances that caused Mr. Merica to be outside his classroom on those occasions when he was observed by this witness. The witness' summary characterization, "everywhere-at any period of time during the day," lacks certainty, reasonableness, and a degree of believable reliability to produce a firm belief as to the accuracy of the matters to which she testified. Viewed most favorably, Principal Griffin's testimony failed to establish that on each of those occasions she observed Mr. Merica outside his classroom; his presence outside his classroom was not within the scope of his professional responsibilities and duties as a professional staff member at Foster. The credibility of this witness is further diminished by her exaggerated testimony of facts at issue. This testimony and the intended inference that his absence from his classroom caused a direct and negative impairment on his students' learning, lack essential details to provide a reasonable degree of reliability and cast insurmountable doubt as to the truth of the allegations sought to be established. Principal Griffin testified she talked with Mr. Merica about not being in his classroom and he told her: [H]e needed a break or that it was his break time and that his aides were in the classroom and they were capable of instructing his students. Mr. Merica disputed and denied making the particular statement, i.e. "that his aides were capable of instructing his students." His version of the reason(s) for absences from his classroom were reasonable explanations(s) corroborated by other witnesses as found infra. Even if Mr. Merica's denial of the inferred accusation is unbelievable, it does not prove the accusation by the Commissioner to the contrary. The acceptable and unacceptable reasons or situations a teacher may or may not be out of his or her classroom, and personal knowledge of those unacceptable occasions that Mr. Merica was not in his classroom, were not established through the testimony of Principal Griffin. The evidence does not support the frequency or extent of her assertions but, instead, casts doubt on the accuracy of the witness' testimony. The Commissioner failed to prove through the testimony of this witness that on each occasion Mr. Merica was observed outside his classroom, his presence was unreasonable, unprofessional, and caused a direct and negative impairment on his students' learning. Principal Griffin testified, unconvincingly, regarding another incident (again with no record evidence of the month, school year or the situational circumstances) that "a mother" called her to bring to her attention "that the teacher was not using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The witness did not provide the mother's identity. The witness did not provide the child's identity. The witness did not provide the teacher's identity though those three persons were allegedly involved in this undocumented incident. The presumed inference(s) that Mr. Merica was "the teacher" referred to by the unidentified mother, who (inappropriately) disciplined "a child" by taking away the unidentified child's touch-talker, is unreasonable. The vague, non-specific testimony of this witness, and her inability and/or her refusal to identify the mother, the child, and the teacher, create an unacceptable level of credibility due to the absence of three significant points of identity. The credibility of this witness' testimony was further diminished by the lack of corroborating testimony by other witnesses, and the witness' credibility disappeared because no recording was made of such an important call from a parent to the principal of a school. The testimony by this witness does not establish or corroborate other testimony regarding the issue of "some teacher using the touch-talker in the classroom and at one point took it away from the child as part of a discipline." The Commissioner, through the testimony of this witness, failed to demonstrate that Mr. Merica "inappropriately disciplined a student," as alleged in the Amended Administrative Complaint. The testimony of this witness, based solely on debatable expressions as her personal "feelings" and personal "opinions" regarding alleged conduct in the past reflected in findings 24 through 32 herein above, viewed most favorably, lacked reasonable reliability and substantial weight to produce a firm belief as to the truth of the allegations sought to be established. Respondent's 1998-1999 Personnel Performance Evaluation At the end of the 1998-1999 school year and notwithstanding her testimony in findings numbered 24 through 32 above, Principal Griffin, independently, determined that Mr. Merica's overall professional teaching performance, to include his personal conduct and, by reasonable and objective implication, his teaching competence, was satisfactory in every category for the 1998-1999 school year. The overall "satisfactory" performance evaluation given Mr. Merica by Principal Griffin for his professional teaching competence and personal conduct in the 1998-1999 school year is significant when juxtaposed to her testimony at the final hearing. As late as May 1999, this witness' independent evaluation of Mr. Merica's professional teaching competence and his personal conduct was reflected on his 1998-1999 performance evaluation as "all satisfactory." However, the testimony contained in Findings of Fact 24 through 32 in this 2004 proceeding is a direct contradiction. This aspect of the witness' 2004 testimony and written 1999 evaluation raised substantial issues of the witness' intent and cast insurmountable doubt on the witness' credibility. The lack of consistency in opinion and the ambiguity created by the 2004 testimony of conduct having occurred from pre-termination to post-termination are resolved in favor of Mr. Merica. Mr. Merica's competence as a teacher, his teaching skills, classroom management, and student discipline, as evaluated and determined by Principal Griffin, for the 1998-1999 school year, ending May to June 1999, is the more substantial, reliable, and persuasive indicator of his past performance and competence as a professional teacher during the preceding 1998-1999 school year. Debora Bragdon, Secretary to Principals Payne and Griffin Debora Bragdon testified that during the 1999-2000 school year (ending May to June 2000), Mr. Merica came into the administrative office a minimum of once and "sometimes" twice a day, depending upon the day. According to Secretary Bragdon: Mr. Merica and Principal Griffin had discussions in the principal's office a minimum of once and sometimes twice a day throughout the entire school year. Secretary Bragdon could not recall the subject matter discussed nor did she recall hearing Principal Griffin's voice at any time during the alleged daily office discussions. Mr. Merica's voice, however, she heard stating that "Mr. Merica would be screaming so loud that I could hear him clearly." However, she could not recall a word or phrase spoken by Mr. Merica. Secretary Bragdon did not enter the principal's office when Mr. Merica and Principal Griffin were having their daily conferences. Secretary Bragdon surmised, from the tone of Mr. Merica's voice only, that Principal Griffin was in danger. Secretary Bragdon further testified that during those daily conferences she would buzz Principal Griffin on the intercom asking if she needed assistance, and Principal Griffin repeatedly assured her that "she did not need assistance." Principal Griffin did not corroborate or confirm Secretary Bragdon’s testimony on the issue "once and sometimes twice a day throughout the entire school year she had discussions with Mr. Merica in her office." Any reasonable consideration of Secretary Bragdon's above recollection requires acceptance of the fact that a minimum of 180 (once a day) to a maximum of 360 (sometimes twice a day) conferences occurred in Principal Griffin's office during the 1999-2000 school year between Principal Griffin and Mr. Merica. The intended inference that during each daily office conference, whether 180 times or more, Mr. Merica was always screaming at Principal Griffin while she sat silently in her office is rejected. Secretary Bragdon's exaggerated testimony lacks any appreciable degree of reasonableness, reliability or credibility. Her entire testimony failed to produce a firm or a precise belief as to the truth of the allegations sought to be established, and the Commissioner failed to prove through this witness that Mr. Merica was confrontational and argumentative with Principal Griffin during unspecified conferences while in her office. Negative Statements Continuing, Secretary Bragdon testified, unconvincingly, regarding unidentified sounds she overheard on the intercom system: rom the sounds I overheard on the intercom system when Mr. Merica called the administrative office for help with control of his students,-not all the time but sometimes you could hear disorder, confusion, kids maybe not under control. (Emphasis added) From unidentified sounds she allegedly overheard on the intercom, Secretary Bragdon concluded that the sounds she heard were "disorder," and, from that, she inferred that the "kids were maybe not under control" in Mr. Merica's class. The intended inference that Mr. Merica's "student behavior management and student control" was not effective at unspecified times, alluded to by this testimony, is rejected for want of reasonable credibility. Secretary Bragdon's testimony in findings 33, 34, and 35 consisted of exaggerated and speculative conjectures. As such, her testimony was not substantial in specifics nor competent in knowledge to establish as fact the allegations testified to in findings 33, 34, and 35 hereinabove. Secretary Bragdon was secretary to both Principal Payne and Principal Griffin, but there is no record evidence of the school year the alleged intercom activities she purported to have overheard, and of which she testified, occurred. The Amended Administrative Complaint alleged misconduct during the period 1994 through 1999 (1999 ending December 31, 1999), not throughout 1999-2000. The ambiguity regarding the time period the alleged conduct occurred is resolved in favor of Mr. Merica. Subversive Statements Secretary Bragdon also testified about a personal conversation between her and Mr. Merica "shortly after the Oklahoma City bombing."4 Although she could not remember the day, month or year, she specifically recalled: I was in the cafeteria getting coffee and Neil was also in the cafeteria. He brought his children in there to have breakfast. And he was up at the same table that I was and he basically just said that, you know, - - everybody was basically talking about it and I don't know word for word, but basically what he said was it would be good if we could do something like that here, but we just have to make sure the administration are in the building. This statement, if true, demonstrated, at its worst, bad taste on behalf of Mr. Merica. When considered within the context (everybody was talking-about it), circumstances (just after the news report of the occurrence), and the location (at a table in the cafeteria) with everyone talking, the alleged statement does not evidence a manifested "subversive" intent of Mr. Merica, as alleged in the Amended Administrative Complaint. Sectary Bragdon's demeanor, attitude, and manner of responding to questions seemed calculated to provide little light on the substantive facts of the situation, but rather an exaggerated version of the nature and circumstances of the incidents. I find the testimony of Secretary Bragdon unworthy of reliance upon as a true foundation to support findings of fact as to the matters testified to hereinabove. Negative Attitude Toward Administration Statements Cynthia Blake, a DEES attendant at Foster from 1985 to 2002, testified regarding "statements" allegedly made by Mr. Merica that demonstrated his negative attitude (state of mind) toward the school administration. When asked the following question: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration," Ms. Blake gave the following answer: Well, there was a lot and sometimes he would just walk away. He did not want to hear it. He would walk behind me, say it again, and would say, you know, be careful or whatever and it never changed. At this one given time, we was just outside and I was watching some kids, I think, and he came up and they was painting the school and he just said that ought to get all the kids out of the school and blow the school up and leave the administration in the school. During her earlier deposition, Ms. Blake was asked: "[W]hat comments were made or what comments have you overheard that would support your belief that Mr. Merica had a negative attitude about the administration?" As seen below, her response then differed from her present testimony. Q. Do you remember a situation where Mr. Merica said something about blowing up the school? A. Yes. Q. Can you tell me about that? A. Well, we at some point always told Neil, you know, to you know, you'd better calm down because you never, you know, people -- the teachers and -- I mean the administration -- you have to just watch yourself. There are certain things you just can't say and probably in a joking way, but it was a lot of stuff going on at the time. The schools had been with firearms and up in Columbine and different situations, so probably it was in a -- I don't know what to say -- but he just spoke of we need to get all the kids about and leave the administration in and blow up the school. Q. Do you remember saying that it was probably in a joking manner back when your deposition was taken? A. Well, basically when Neil spoke about things, he laughed about it, so at the time, like I said, there was so much going on between the news and that, I would never know anymore. Q. All right. So he might have though it was funny, but you didn't think it was funny; is that fair? A. No, sir. The testimony of Ms. Blake, mirroring the testimony of Secretary Bragdon, demonstrated bad taste on behalf of Mr. Merica. When subject to cross-examination about the statement or other aspects of her prior testimony, Ms. Blake became vague and uncertain about her prior versions and was inconsistent on matters that seriously undermined her credibility. Consideration of the situation and circumstances when Mr. Merica made the alleged statement supports a reasonable inference that Mr. Merica's statement was a crude and boorish attempt at making a joke, not in good taste, but nonetheless a joke. The Commissioner did not prove by the above testimony that Mr. Merica was hostile and subversive or intended his comment as derogatory and disrespectful toward his principal as alleged in the Amended Administrative Complaint. Physical Restraint and Classroom Management Allegations Pat Drennan, assistant principal at Foster, by her admission was primarily responsible for the school's educational curriculum. In her "educational curriculum" capacity, Ms. Drennan assisted teachers, students, and parents in curriculum matters and assisted teachers in discipline in the classroom, student testing, and student grades. She was unable to recall the year and date, but she recalled she had been in her position as assistant principal for four years, approximately 1998 through January 2004. When asked about the Board's policy regarding an educator's physical restraint of students, Ms. Drennan responded that her "understanding" of the Board's policy was: [B]asically teachers are not to restrain students unless they have been trained-- unless they have ACT training they can not bring a child down on the ground or anything. She did not know whether Mr. Merica was ACT trained or not at all times pertinent and at the time of her testimony. No writing in the record speaks to this issue, and no predicate was laid to show that the witness was in a position to know the Board's policy. This witness stated her "understanding" of the applicable rule. A finding of fact that a violation of a penal statute or rule occurred cannot be based upon loose interpretations and problematic evidence, but on evidence as substantial as the penalty for violation of such statue or rule. The testimonial evidence given by this witness failed to establish the "rule." Thus, her opinion regarding violation of a rule she does not know, lacks a foundation upon which a reasonable degree of reliability will support. Ms. Drennan recalled one occasion on which (no evidence of the month and year) on which she instructed Mr. Merica "not to restrain a student she 'thought' he had restrained." She recalled making one general suggestion (not explained) to Mr. Merica regarding classroom behavior management, adding, but "he did not have to do it." Ms. Drennan did not know whether during his last year at Foster (1999-2000) Mr. Merica taught the entire year. When asked if she knew why Mr. Merica left Foster she answered: [I]n my mind, the situation was that he no longer was able to control himself and the class--the management of the class. No evidence of record speaks to the issue of a standard of classroom management from which to evaluate Mr. Merica's conduct. To demonstrate this issue the Commissioner's reliance on witnesses who could but state their "understanding" from various and dubious vantage points, failed to prove what was required of Mr. Merica and the specific conduct that fell below the required standards. The intended inference to be drawn from the above testimony of Foster's assistant principal, that Mr. Merica was "unable to control himself" and "unable to manage his class" and thus incompetent, is rejected for a lack of personal knowledge on behalf of the witness and evidence of an objective standard from which to evaluate "control" and class "management" by a teacher. The Commissioner failed to establish, by the testimony of Ms. Drennan, that Mr. Merica was unable to control himself and unable to manage his class and, thus, demonstrated incompetence, during the (unspecified) period inferred by Ms. Drennan's testimony, as alleged in the Amended Administrative Complaint. Ms. Drennan testified, unconvincingly, about hearsay from another teacher, Ms. Parson, who told her, "for information only." According to Ms. Drennan: Ms. Paula Parson, a teacher who did not want anything done about it but for information only, told her she was apprehensive about Mr. Merica bringing her lunch and giving her unwanted attention. Paula Parson was not called to testify. The intended inference of unwanted attention is not accepted by the undersigned. The Commissioner failed to prove by the uncorroborated hearsay testimony of Ms. Drennan that Mr. Merica sexually harassed several different co-workers, as alleged in the Amended Administrative Complaint. Code of Conduct and Rules of Professional Responsibility When asked if she was familiar with the Code of Conduct and the Rules of Professional Responsibility, Ms. Drennan again, unconvincingly, testified: I think yes, basically, the rule that deals with personal conduct that seriously reduces an educator's effectiveness in the school district,--when someone coming into the district-I would want to look at previous-- what had happened previously with the person and I would think they would be ineffective; I would find them ineffective in the fact if they were not open to interaction with faculty and staff in an appropriate, professional way; They are ineffective if they don't know how to deal with children in the proper way. If they couldn't tell me that they could do a management plan--have one before they walked in. I would find them ineffective if they were not--didn't have the right tools for teaching, basically, and those tools are many. Besides a degree, it would be how you get along with people, how open you are to learning new things, and that type of thing. There were no incidents of Mr. Merica being insubordinate or confrontational with Principal Payne witnessed by Ms. Drennan. This witness presented no evidence that she had personal knowledge of Mr. Merica's classroom management skills or the lack thereof. Her "opinions" about what conduct would be inappropriate and what conduct that would seriously reduce an educator's effectiveness (and competence) in the school district are her "opinions" and nothing more. The "right tools for teaching, basically, and those tools are many," standard coming from an assistant principal does not establish an objective and acceptable standard by which to evaluate a teacher's competence as a professional teacher. Viewed most favorably, the "opinions" of Ms. Drennan are not appropriate, objective standards by which to determine whether the professional conduct of a fellow teacher fell below the Code of Conduct and/or violated the Rules of Professional Responsibility. The Commissioner failed to prove, by the testimony of Ms. Drennan, that during the period starting approximately in 1998 and continuing through December 1999 Mr. Merica engaged in conduct that fell below the Code of Conduct and/or violated the Rules of Professional Responsibility as alleged in the Amended Administrative Complaint. Confrontations with Principal Griffin Ms. Drennan testified that at some point in time (of which she was not sure and unable to identify) her office was located next door to Principal Griffin's office, and she would "intentionally" leave her door open. According to Ms. Drennan, by leaving her door ajar she "could overhear and 'tell from the tone of the voice'--when someone was loud and confrontational like that [sic] you just never know and I just worried that there could be something else happening." Asked what she meant by "loud and confrontational," Ms. Drennan responded: Well, anger. Obviously, the man was angry when he was in there sometimes. I'm not saying every time, but the times that we're talking about like that, he was angry and anger sometimes can lead to other things, so . . . Ms. Drennan purportedly could overhear Mr. Merica speaking with her door open, but she gave no testimony of what, if anything, she overheard Mr. Merica say. Ms. Drennan's testimony, regarding loud talking by Mr. Merica toward Principal Griffin, inferring his state of mind as being emotionally out of control while conferencing with his principal, is speculative conjecture. There is no record evidence that this witness observed nor personally confirmed with Principal Griffin that Mr. Merica was, in fact, angry with Principal Griffin on each of those "sometimes" occasions she heard "someone was loud." This witness did not observe nor subsequently confirm with Principal Griffin that Mr. Merica pointed his finger her face, during those unspecified occasions when she sometimes left her office door ajar and sometimes heard someone was loud, as alleged in the Amended Administrative complaint. Secretary Bragdon recalled Mr. Merica yelling “everyday all the time,” and Ms. Drennan contradicts that testimony recalling he was loud and angry, but, qualifying that statement, she added she was “not saying every time [he was in the office].” The testimony of both witnesses, considered separately and together, failed to produced a firm belief, without hesitancy, as to the truth of the allegations sought to be established. Refusal of Failure to Comply with Requests and Instructions When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of any failure or the refusal by Mr. Merica to comply with an identified request or instruction given by either Principal Payne or Principal Griffin. When asked, Ms. Drennan could not provide testimony based on personal knowledge or personal observation of Mr. Merica having made derogatory and/or disrespectful remarks about Principals Payne or Griffin in her presence. Ms. Drennan's opinion that Mr. Merica deviated from her "understanding" of the principles contained in the Code of Conduct and Rules of Professional Responsibility standards were speculative and insufficient to establish as fact that Mr. Merica deviated from or violated the Code of Conduct and the Rules of Professional Responsibility. The Commissioner failed through this witness to establish any violation or any deviation from standards found in the Code of Conduct and the Rules of Professional Responsibility by Mr. Merica. Ms. Drennan failed to establish an objective, ascertainable standard of professional level of effective teacher behavior and teacher classroom management for SLD and IP students. Her testimony and the intended inferences regarding Mr. Merica's alleged ineffective and unprofessional student behavior, teaching, classroom control, and student management is incompetent to establish as fact that Mr. Merica deviated from clearly, established professional standards as alleged in the Amended Administrative Complaint. Ms. Drennan testified as did other co-workers who were present that Mr. Merica's had occasional disruptive verbal conduct in faculty and staff meetings and that during collegiate discussions he often demonstrated an argumentative attitude. The Commissioner proved, through the testimony of Ms. Drennan and other witnesses who were present and testified, that at one or more (unspecified) faculty and/or staff meetings that Mr. Merica occasionally engaged in disruptive verbal conduct accompanied by an argumentative attitude. Derogatory and/or Disrespectful Remarks About Principal Shelley Opila worked as a PI and ESE teacher at Foster from August 1996 to July 2001. When asked to give an example of "bashing the principal," Ms. Opila testified that during (unspecified) faculty meetings, Mr. Merica would often state: "Oh, that will never work," in response to unspecified matters under discussion. There is no record evidence of the situation or circumstances of the particular subject matter under discussions when this witness overheard the statement. Viewed most favorably, the isolated statement, "Oh, that will never work," is a personal opinion and, as such, does not evidence a manifest intent by Mr. Merica to make derogatory statements about the Foster administration as alleged in the Amended Administrative Complaint. Ms. Opila testified that she overheard Mr. Merica several times voice his personal opinions "[t]hat you have to be blonde or a female," and "It's who you know to be a principal." Without evidence of the situational circumstances when the statement was made, Ms. Opila assumed that Mr. Merica was referring to one or both, Principal Payne and/or Principal Griffin. There was no corroboration from either Principal Payne or Principal Griffin that Ms. Opila conveyed her concerns to either of them regarding Mr. Merica's alleged derogatory and/or disrespectful remarks. Viewed most favorably, the general statement "You have to be blond or a female," could have been a true statement if the record evidence established the color of Principal Payne and Principal Griffin's hair during their respective tenure as principal. The record evidence, however, does not. As reflected in the record, the testimony of this witness does not evidence a specific intent of Mr. Merica to make derogatory comments about Principal Griffin or Principal Payne. The record evidence reflects that approximately 120 educational personnel worked at Foster during the time in question and among that number only five or six were males. The reference to "blond and female to be principal" applied equally to approximately 100 females at Foster who, if they were not at the time the opinion statement was made, were capable of being blond and also capable of being a principal. Neither Principal Payne nor Principal Griffin testified regarding their respective hair colors during times pertinent to when the alleged statements were made by Mr. Merica, and the undersigned did not notice and can not recall with any certainty, the hair color of each of the twenty-plus female witnesses who testified in the proceeding. With the presence of more than 100 other females at Foster, and no evidence of the hair color of the principals at any time, an inexplicable ambiguity of "intent" is here presented. The ambiguity is resolved in favor of Mr. Merica. The Commissioner failed to prove, clearly and convincingly, through the testimony of Ms. Opila, that Mr. Merica intended to, and did specifically, make the derogatory comments about Principal Payne and/or Principal Griffin by the "blond [hair color] to be principal" statement as alleged in the Amended Administrative Complaint. Mr. Merica's Students Performance Ellen Lipari was a teacher of third and fourth grade PI students with various physical ailments and/or traumatic brain impairments from the 1992-1993 school year to approximately the 1997-1998 school year. She taught forth grade PI students during the same five-year period Mr. Merica taught first grade PI students. According to Ms. Lipari: [U]nder the pull-out school board policy in effect during that time, Mr. Merica would pull out and send his kindergarten and first grade level PI students to her third and fourth grade level classes. At some unspecified period during the five-year time period, she and Mr. Merica switched grade levels, Ms. Lipari moved down and taught the kindergarten and first grade level PI students, and Mr. Merica moved up and taught the third and fourth grade level PI students. After the switch, she would send her kindergarten and first grade level PI students to his third and fourth grade level classes. According to Ms. Lipari, during the 1997-1998 school year she had many opportunities to observe students Mr. Merica taught when they were thereafter assigned to her class. During that year, she personally observed Mr. Merica's teaching methodologies, his classroom management methods, and his in- class teaching conduct and style. Ms. Lipari described her impressions, gained from close, extended, daily and weekly contact, of his classroom control and management skills and his teaching skills of PI students with various physical ailments and traumatic brain impairments as: Well, you know, he was a very technically-he was technically doing his job, but there was a lot of humanized things that you do with younger children to try to get them to learn to read and those kinds of things that primarily he did not do. He was mostly teaching out of the textbook and trying to teach very specific things and not doing the kinds of things and that's why we decided it would be better if I moved down so that I could do more mothering and maternal type activities and maybe the older children would respond better to having a man teacher. Alleged Complaint from an Unidentified Mother Ms. Lipari moved down to teach the kindergarten and first grade level PI students, and to provide what she described as "mothering and maternal type activities," in keeping with the stated policy and goal of Principle Griffin as chief of the Foster administration. As a male teacher, Mr. Merica could not provide "mothering and maternal type activities to first grade level PI students," and it was not established that "mothering and maternal type activities" were requirements of all teachers, male and female, by this policy. During an unspecified period after she moved down to teach the kindergarten and first grade level PI students, unidentified parents of her former kindergarten and first grade student(s) called her complaining to her about the differences in the curriculum used to teach their children who were then in third or fourth grade levels under Mr. Merica. According to Ms. Lipari, some unidentified parents of PI students complained to her that "their former kindergarten and first grade children had been allowed to do certain things, like watch TV programs to which they had become accustomed." Based upon complaints from parent(s) she could not identify, Ms. Lipari reached conclusions and, based upon those conclusions, offered her opinion: I personally did not see any educational benefit to students watching TV because our kids [PI] are at least developmentally delayed, if not mentally handicapped, as well as being physically impaired because those children are primarily mentally impaired. Most of our children's IQs go maybe up to 70-75, so the kind of math that you would do in The Price is Right [TV program] would not be valid for those age level of children. During her years of working with Mr. Merica and observing Mr. Merica's teaching methodologies, his classroom management, and his in class teaching conduct, she never once personally observed Mr. Merica's students watching TV programs. Ms. Lipari's recollection of one phone call and her failure to identify the parent(s), who were so concerned about their children that they personally called Ms. Lipari, fairly detracted from the weight and believability of her testimony rendering it unreliable to establish facts alleged therein. Her testimony was further diminished by the lack of corroborating testimony from other witnesses. Ms. Lipari's testimony failed to produce a firm belief, without hesitancy, as to the truth of the allegation sought to be established. Ms. Lipari's opinion regarding educational benefits derived from watching a TV program, based upon the hearsay of unnamed parent(s), failed to prove, such activity actually occurred, or if it did occur, failed to prove that Mr. Merica’s use of such methods and skills were ineffective teaching methods and deviated from the Code of Ethics or Standards of Competent Professional Performance standards as alleged in the Amended Administrative Compliant. IPE Preparation and Assistance Ms. Lipari testified that she assisted Mr. Merica, on unspecified occasions, by "explaining the particulars of an IEP and the mechanics of writing an IEP." According to Ms. Lipari: [F]or every student with an IEP, the teacher, parent and therapist [another teacher] agree on goals and objectives that in their collective determination can be achieved by the child during the forthcoming school year. The IEP is a joint collaborative endeavor requiring discussions, disagreements, compromises and finally an acceptable document; subject to subsequent modifications. Ms. Lipari gave her personal belief that: [T]he teacher(s) has to find different ways of handling their PI students' problems because each child is different, according to their disability, according to their ability to write or not be able to write. Some PI children cannot write at all. Some PI children cannot speak at all. Therefore, the teacher has to find some ways to show that the child can read. Because he can't read out loud to the teacher, the teacher would find different methods that can used to show the student is making progress. IEPs are personalized crafted documents designed to address the perceived needs and method of instructions to address the need(s) of each handicapped student. The evidence of record does not speak to the issue of accepted standard(s) for writing an IEP nor is there evidence that Mr. Merica did not comply with accepted standards for writing an IEP. The Commissioner's reliance on Ms. Lipari's "belief" that Mr. Merica needed her assistance in writing one IEP, without more, failed to establish that Mr. Merica was incompetent in his professional teaching skills and/or in IEP writing and/or implementation skills. Viewed most favorably, Mr. Merica had five to six years of writing IEPs with other teachers and counselors before Ms. Lipari's offered assistance which she characterized as "explaining the particulars of an IEP and the mechanics of writing an IEP." The intended inference of this testimony requires first a belief that other teachers and counselors who had worked with Mr. Merica on IEPs during the preceding five years (1987-1992) either did not know "the particulars of an IEP and the mechanics of writing an IEP" or were unable or unwilling to recognize a need for "the mechanics of writing an IEP" and to offer and suggest methods of improvement to Mr. Merica, to include Principal Payne who worked with Mr. Merica for almost 10 years. The testimony of this witness was not corroborated. The testimony of Ms. Lipari failed to include essential details that are central to the facts sought to be established and, thus, failed to produce any belief of conviction as to the truth of allegations sought to be established. The testimony of Ms. Lipari also failed to demonstrate a single refusal by Mr. Merica to accept and implement one positive necessary suggestion that was, in fact, made by Ms. Lipari to Mr. Merica relating to teaching students with IEPs. This testimony failed to establish the existence of, the beginning of, or the continuation of, a demonstration of professional teaching incompetence as alleged in the Amended Administrative Complaint. Physical Restraint and Control of Unruly Male Students Ms. Lipari recalled one occasion an unidentified male student in her class was unruly in the hall. During the time her male student was being unruly, Mr. Merica came along with his class. He asked her if he could be of help with her unruly student and according to her, without waiting for her to reply, physically restrained her unruly male student. No evidence of record establishes an injury to any unruly male student that resulted from the physical restraint by Mr. Merica. This testimony demonstrated that on one occasion Mr. Merica restrained one unruly male student in the hallway who was in Ms. Lipari's class. This evidence also demonstrated that PI and SLD students were routinely unruly in the hallways and elsewhere in the school, when Ms. Lipari was the teacher in control and in charge as well as when Mr. Merica was the teacher in control and in charge of a class. This evidence also demonstrated the propensity of young male students to react to female teachers and to male teachers in a different manner. Ms. Lipari's testimony regarding unruly conduct of students, in the hallways when Mr. Merica was the teacher in charge, does not evidence his lack of ability to control and manage his unruly students, as alleged in the Amend Administrative Complaint. This testimony does establish as fact that Mr. Merica restrained an unruly male student during a period when his ATC certification was expired. This technical violation of ATC certification by Mr. Merica is accompanied by the fact that the unruly student was unhurt; other PI students were not harmed; and Ms. Lipari, a female, who provided "mothering and maternal type activities," was rendered assistance by a male co-worker, in keeping with the school's policy, according to Ms. Lipari, of having a male teacher in charge of the older and larger male PI students. Ms. Lipari further testified that on one unspecified occasion when she was present in the school hall, Mr. Merica's class was "very loud and unruly." This is the same witness whose class had an unruly male student in the hall when Mr. Merica restrained him. According to Ms. Lipari, during Mr. Merica's loud and unruly class in the hall incident, her class was under her supervision and her volunteer, an unnamed "grandmother," who was assisting her with her class on that unspecified date. According to Ms. Lipari, she and the grandmother observed Mr. Merica: [M]oving from the front of his class line to the back of his class line, swinging his arms back and forth for his unruly students to get in line and stay in line; but, he was not swinging his arms at his students or in their faces. "Grandmother(s)" are community volunteers who come in to assist teachers with PI and SLD students. According to the witness, the objective of grandmother assistants is to provide a soothing and calming presence in the classrooms. Assuming the intended inference to be drawn from this vague, non-explicit, testimony was to demonstrate Mr. Merica's inability to control his class and his unprofessional conduct in the presence of an unidentified member of the community, it failed. The testimony in finding 70 above was not corroborated by other witnesses and was sufficiently vague so as to cause doubt and raise substantial issues of credibility. Viewed most favorably, the above testimony failed to produce a firm belief of the truth of the allegations sought to be established. The Commissioner failed to prove, through the testimony of this witness, that Mr. Merica's conduct was inappropriate or unprofessional in any manner toward his students in the hall at some unspecified period or in the presence of a member of the public/community as alleged in the Amended Administrative Complaint. Negative Feelings About School Administration Ms. Lipari acknowledged that Mr. Merica was a very outspoken person on all issues he addressed. From that observation she went on to testify about an incident in the teacher's lounge when she overheard him make the statement: "[n]o woman was going to tell him what to do." From overhearing that part of a single statement at some unidentified time and without providing the circumstances and context in which the alleged statement was made, Ms. Lipari assumed she knew how Mr. Merica felt about Principal Payne, Principal Griffin and, in general "all females." Based on her assumptions, Ms. Lipari concluded Mr. Merica's statement was specifically intended to be derogatory about a particular unnamed principal. She further assumed the statement "no woman was going to tell him what to do" included her. Based upon those assumptions, she inferred Mr. Merica was speaking first, in a negative fashion; second, he was speaking about all women in general; and third, he was speaking about Principal Griffin in particular. Ms. Lipari's testimony regarding Mr. Merica's general opinion statement "no woman was going to tell him what to do," without establishing the context, situation, and/or circumstances at the time the statement was made failed to establish anything other than the statement was made. To this non-specific and ambiguous testimony, any number of meanings can reasonably be attributed, including his private and personal relationships with women in his past. Testimony of this isolated statement is not competent to establish a manifested intent on behalf of Mr. Merica to be disrespectful toward Principal Griffin or Principal Payne or women in general. The testimony in finding 72 was not placed in a situational circumstance that would have enabled the undersigned to render an objective evaluation. The alleged out-of-context statement is not competent to establish as fact allegations that Mr. Merica intentionally made derogatory and disrespectful statements about Principal Griffin and other female co-workers as alleged in the Amended Administrative Complaint. IEP Preparation and Principal Griffin/Mr. Merica Relationship Linda Thomas was an ESE specialist at Foster from 1997 through 2002. Her duties included giving suggestions for curriculum or classroom management, assisting teachers with paperwork, and assisting resource teachers as needed. The usual method of contact would originate from a principal who would call Ms. Thomas and request her to lend assistance to a specific teacher. Answering the open-ended question, "what caused her concern about the Principal Griffin-Teacher Merica relationship," Ms. Thomas, without providing the year or month, answered: In my opinion, I don't believe that Mr. Merica had much respect for Ms. Griffin- -that he demonstrated that in the school setting. A number of times I overheard him say things such as that he would be around longer than she would. He was frequently making comments in faculty meetings just in general about the leadership and the administration in the school and his dissatisfaction with it. Ms. Thomas' testimony confirmed testimony of others that Mr. Merica often spoke out in faculty and staff meetings. Her opinion regarding what she "believed" to be Mr. Merica's opinion about the administrative leadership, even if true, was based on the alleged "frequency of unspecified comments," and her opinion that "I don't believe that Mr. Merica had much respect for Ms. Griffin--that he demonstrated that in the school setting," failed to establish as fact any allegation contained in the Amended Administrative Complaint. Answering the question regarding Mr. Merica's preparation for IEP meetings, and without identifying the number of IEP meetings she attended with Mr. Merica during the 1994 through 1999 period in question, Ms. Thomas stated: I believed preparation was very minimal. There was not -- he was not always ready. Most of his IEPs were all the same. Yet, it's -- an IEP is an individual education plan which is written specifically for each child, so every child in your class should not have the same thing written for them. Regarding his preparation of IEPs during the five-year period from 1994 to 1999, and without evidence of the number of IEP prepared by Mr. Merica and/or the number of occasions she personally inspected one or more of those IEPs, Ms. Thomas concluded that "[f]requently he wasn't prepared." This witness’ "belief" was not a "belief" based upon personal knowledge or facts. Though she believed "most of his IEPs--frequently not prepared," there is no evidence of record that she had personal knowledge or had occasion to review the content of an IEP prepared by Mr. Merica upon which to base her "belief," and, without more, her belief is speculative. Ms. Thomas was not qualified as an expert on IEPs and her personal "beliefs" and opinions regarding unidentified IEPs that she may or may not have reviewed, is lacking in preciseness to produce a firm belief as to the truth of the allegations sought to be established. As such, Ms. Thomas' testimony is not competent to corroborate and does not corroborate or support Ms. Lipari's testimony purporting to support the allegation that Mr. Merica's preparation of IEPs "in the school year of 1994- 1995 evidenced his ineffective teaching performance and demonstrated the beginning of his alleged incompetence that allegedly continued undiminished until not later than the end of the 1999 calendar year," as alleged in the Amended Administrative Complaint. The Commissioner failed through the testimony of Ms. Thomas to establish as fact or to prove that Mr. Merica initially or began to demonstrate an inability, refusal, improper, or any other negative aspect of his professional teaching responsibilities at any time during the 1994-1995 school year. Ms. Thomas testified of overhearing statements made by Mr. Merica of which she shortly thereafter made the following written notation dated August 12, 1999: This morning at bus arrival time Mr. Merica left his students unsupervised to go into the clinic to talk with the nurse. His conversation consisted of suggestions that the clinic should have cell phones that could be used at home. He also commented that he should talk to the television reporters who were outside to let them know how the county runs things. He came in and out of the clinic at least 3 times in a 10 minute time span and made these comments in the presence of staff and at least one student. Ms. Thomas' testimony and her subsequent written notation regarding a conversation consisting of "suggestions" that the clinic should have cell phones and that Mr. Merica "should talk to the television reporters who were outside," if true, were suggestions and nothing more. The witness did not know why or for what reason Mr. Merica entered the clinic. The identification of the staff member (other than herself) or identification of the unnamed student alleged to have been present and presumably overheard Mr. Merica's suggestions are not in the record. The witness' testimony demonstrated a distinct lack of a specific memory of the facts at issue to which she testified. The testimony in findings 77 through 80 failed to establish a firm belief without hesitancy as to the truth of the allegations sought to be established. Classroom Visits and Observations Ms. Thomas testified that over an unidentified three- year period she visited and observed Mr. Merica teaching his PI class approximately ten times with each visit lasting ten to 30 minutes. Ms. Thomas' visits and observations were neither made at the request of the principal nor were they made after notice was given to Mr. Merica. She did, however, make note of a single incident outside the school cafeteria, apparently for future reference and not to help a fellow teacher; but of the ten visits she made to observe and presumably help a fellow teacher, she made no written notations evidencing the dates of her visits and observations, at or near the time of each visit. Her alleged visits to Mr. Merica's class, without specifying the reasons for her visits, were more or less one co-worker visiting another co-worker; if, in fact, those ten, undocumented visits actually occurred. Documents Prepared Critical of Mr. Merica's Performance Ms. Thomas did, however, within a 45-day period, prepare seven documents, each critical of either Mr. Merica's conduct or professional teaching methods, and purportedly gave a copy of each document to Principal Griffin. The seven documents prepared by Ms. Thomas were all dated over a three-month period (August 11, 1999 to October 27, 1999), when from evidence of record, Foster administration was preparing to recommend to the Board termination of Mr. Merica's contract employment with the county. Ms. Thomas dated her first document August 11, 1999. She dated her six additional documents Augusts 12, October 19, 20, 21, 25, and 27, 1999. The seven documents prepared by Ms. Thomas did not include any of the alleged ten visits she made over the three-year (from 1997 through August 11, 1999) observation period of Mr. Merica to which she testified from long past memory in Finding of Fact 81 hereinabove. No other witness, including Mr. Merica, corroborated Ms. Thomas' alleged ten visits to Mr. Merica's class. I find the lack of documentation and the witness' lack of recall ability regarding specifics that occurred more than four years past an insurmountable barrier in accepting the witness' testimony as creditable on those significant points sought to be established. When asked on cross-examination whether Principal Griffin requested her to prepare the two August 1999 documents and the five October 1999 documents, Ms. Thomas suffered a sudden lapse of memory. When asked about each document individually, Ms. Thomas gave answers of either "I don't remember," "I couldn't say for sure" or "I couldn't guarantee." The seven documents prepared by Ms. Thomas in August and October 1999 contained alleged statements made by Mr. Merica, some personal observations, a prepared historical statement beginning with her first meeting with Mr. Merica in 1996 throughout 1997 and 1999, and hearsay statements from several students that were not recorded at or near the time they were made. The witness' failed memory, coupled with her inability to recall if she was asked by her principal to prepare those seven documents within such a short time span, rendered suspect and unreliable both the author and the content of her seven documents. The witness was defensive, evasive, and reluctant on significant points, evidenced by her lack of memory and confusion regarding who made the request and for what purpose she wrote seven different documents in a short time period. Her answers were not forthright and this aspect of her testimony raised insurmountable issues regarding her credibility. The testimony of Ms. Thomas lacked sufficient reliability, due to her uncertainty, to produce a firm belief in the mind of the undersigned as to the truth of the allegations sought to be established. Classroom Management by Mr. Merica Compared to Classroom Management by Other Teachers When asked about problems regarding classroom management Mr. Merica had with his PI classes as "compared with class room management problems of other teachers," Ms. Thomas answered "[t]here are children in most classes who present behavior problems." Her memory was better on this issue and she recalled observing a few instances with two or three students creating problems in Mr. Merica's class. However, she did not identify the "other teachers" to whom she compared Mr. Merica nor did the witness establish "the other teachers" class room management standards. I find the witness' testimony was intentionally slanted to exaggerate the nature of Mr. Merica's classroom management without providing specific incidents from which an objective evaluation could have been made. The Commissioner failed, through the testimony of Ms. Thomas, to prove allegations that Mr. Merica demonstrated incompetence as alleged in the Amended Administrative Complaint, by evidence that he had "more" behavior problems in his ESE and PI classes than other unidentified ESE and PI teachers similarly situated. Classroom Management by Mr. Merica as Compared to Classroom Management by New Teachers with Less Teaching Experience Ms. Thomas testified, unconvincingly, that after Mr. Merica left Foster in 2000, new unidentified teachers came in and taught self-contained SLD classes with acceptable classroom management style. With improved memory on this issue, Ms. Thomas recalled that she observed the new teachers' classroom management style but could not remember if she documented classroom management problems observed with the new teachers, as she had with Mr. Merica. Assuming the intended purpose of this particular testimony was to demonstrate an appreciable difference between Mr. Merica's classroom management skills and teaching methods, after years of experience, to the classroom management skills and teaching methods of new teachers with much less experience, it failed. The testimony of Ms. Thomas regarding the issue of her comparison of class management and teaching skills of Mr. Merica to those of new unidentified teachers, including documents she prepared, those referred to, and the alleged acts therein, whether used for comparison or not, occurred beyond the 1994 through 1999 time period alleged in the Amended Administrative Complaint or some comparable pleading. On that basis, this testimony of Ms. Thomas must be, and is, rejected in toto. It is a basic tenet of common law pleading that "the allegata and probata must correspond and agree." See Rose v. State, 507 So. 2d 630 (Fla. 5th DCA 1987). The documents Ms. Thomas prepared and the testimony she presented herein above in findings 78 through 85 failed to establish as fact that on those occasions Ms. Thomas observed Mr. Merica, he failed to perform to professional expectations as a competent teacher as alleged in the Amended Administrative Complaint. Statements Made to Principal Griffin's Daughter Tamiko Council believed, but was not certain, that she was a DEEDS attendant at Foster the 1997 to the 1999 or the 2000 school year. She testified that during a (unspecified) summer school session, Principal Griffin's daughter had been introduced to her earlier in the day but she was unable to give the date of the incident. As she recalled, she and Principal Griffin's daughter were coming from the bus ramp in route to the cafeteria when Mr. Merica noticed Principal Griffin's daughter and, in her presence, said to the child: You need to tell your mom to quit worrying about teachers around the school. She needs to focus more on what the children are doing. Later that day Principal Griffin called Ms. Council into her office and made inquiry regarding the incident, as told her by her daughter, and Ms. Council confirmed the incident had occurred. Mr. Merica acknowledged making a statement to Principal Griffin's daughter. The Commissioner proved that Mr. Merica made a statement to the daughter of Principal Griffin. The appropriateness of a teacher stating his opinion to a young person who was a student attending a Hillsborough County school was inappropriate. However, the statement alone, under the above circumstances, does not demonstrate a "failure to protect student[s] attending for educational purposes from harmful conditions." There is no evidence of record offered to demonstrate that Principal Griffin's daughter, after the comments by Mr. Merica, "experienced harmful conditions to her educational purposes," during the summer she was at the school of which her mother was principal. Pamela Wilkins was a teacher of educable mentally handicapped students at Foster for a five-year period from 1993 to 1998. During the three-year period of approximately 1995 through 1998, Ms. Wilkins was an ESE specialist. Harassment and Unreasonable Interference with Co-workers Ms. Wilkins testified regarding an incident that allegedly occurred when she asked Mr. Merica into her office for an unspecified discussion. Ms. Wilkins did not remember the school year or the month the incident of which she testified occurred nor did she remember the situational circumstances, the context or the issue over which she and Mr. Merica had their alleged discussion and subsequent disagreement. With no memory of any specifics as to why she would ask him into her room, Ms. Wilkins only recalled Mr. Merica’s discussion with her that she characterized as "his getting upset and her saying nothing." Ms. Wilkins did not know why she invited him into her office, but emphasized her "only reason" for inviting "him into her office would have been to discuss an ESE issue." There is no record evidence regarding the ESE issue of such importance that this witness called Mr. Merica into her office for a discussion of an issue she does not recall, when her "only" time calling him into her office was so memorable. Having established her ability to ”call Mr. Merica into her office" for reasons unknown to her, this witness then testified about some purported disagreement between she and Mr. Merica. Even assuming the alleged disagreement occurred and was, in fact, over an ESE issue between she and Mr. Merica during their single discussion the witness testified: I really don't recall the entire situation. The main thing 'is just his response.' We were talking about--obviously it was ESE issues and he ended up getting upset, and I was on one side of the desk and he was on the other side. He ended up leaning over the desk and was in my face. His veins in his neck were bulging and kind of trembling and just was yelling at me and I was completely stunned and shocked the way he had responded and so I really did not say anything else at that time. The testimony of Ms. Wilkins evidenced her characterization of one party's reaction to an alleged disagreement over an alleged and unidentified ESE issue. Absence evidence of the context, circumstances, and the ESE issue that precipitated the purported disagreement between co- workers, the record contains no basis upon which to determine with reasonable certainty the appropriateness of one party's alleged reaction to the other party's input during a collegiate disagreement. The referenced reaction, even if accepted as factually true, absent evidence of the issue, context and circumstances, failed to clearly and convincingly establish an unprofessional, hostile behavior on behalf of Mr. Merica toward a co-worker, Mr. Wilkins, as alleged in the Amended Administrative Complaint. The witness' apparent stunned and shocked reaction to a co-workers' disagreement with her over an unidentified ESE issue was not so unprofessional and shocking, at the time of occurrence, to compel Ms. Wilkins to report such shocking disagreement to the school administration. It was not of such importance, at that time, to prompt Ms. Wilkins to document her shocking outrage for future reference and possible investigation by proper school authorities. Ms. Thomas' lack of recall of the circumstances to an incident to which she was a major participant, and the record evidence of scant circumstances surrounding the alleged one-party reaction to a two-party discussion and alleged violent disagreement, created an insurmountable credibility gap in her testimony. Based on the foregone, it is found that the testimony of this witness lacks credibility. This testimony is rejected because it is wholly unreliable regarding the truth of the allegations sought to be established. The testimony of Ms. Wilkins in findings 90, 91, 92 and 93, hereinabove, absent record evidence of the issue which caused the alleged disagreement between colleagues, is sufficiently vague and imprecise that it failed to establish a firm belief, without hesitation, of the truth of the allegations sought to be established. The alleged conduct by one party over an unidentified issue during a mutual disagreement between colleagues does not establish unprofessional conduct or a violation of established standard of professional protocol. The Commissioner failed, through the testimony of Ms. Wilkins, to prove that Mr. Merica, while in Ms. Wilkins' office engaged in conduct that was unprofessional, belligerent, hostile, confrontational, and subversive in the workplace toward his co- worker as alleged in the Amended Administration Complaint. Sexual Harassing Statements Made in Presence of Child Evelyn Tait, at all times material, was the administrative data processor at Foster. Before her promotion to administrative data processor, she was a teacher's aide for a few years. Ms. Tait is the sister of Secretary Bragdon. Ms. Tait first qualified her testimony stating that she "believed but was not certain," that the Investigation Manager for the Board (Michael Saia) came to her and asked her if she would write a statement about Mr. Merica. In her effort to comply with the request of the Board's investigator, and on October 2, 2001, Ms. Tait wrote the following document purporting to detail a "forgotten and previously unreported incident" that allegedly occurred, some three years earlier, in 1999. Ms. Tait's efforts to comply with the request of the Board Investigator resulted in Ms. Tait writing the following October 2, 2001, addendum to her 1999 written statement: On August 27, 1999, I wrote a statement regarding Mr. Neil Merica. The statement that I wrote was true and accurate [sic] as I recall. However, I would like to add a time that I was out in the pickup area picking up my son from school. I was in my care [sic] and Mr. MERICA came over to my window and made a commet [sic] regarding to what was under my shirt. I was made to feel very uncomfortable, and was inappropriately addressed [sic] from a teacher to a pa [sic] and also to a parent of a child in this school. Back in August 27, 1999, Ms. Tait wrote: To Whom It May Concern: I am writing this letter to you regarding the actions of Mr. Neil Merica that I have observed. I am a paraprofessional at Foster Elementary School and have only been employed as a permanent employee since the beginning of this school year.[1999] On several occasions, I have seen Mr. Merica screaming at a student with his face being very close to theirs. The child on each occasion looked very scared. Since I am such a new employee at the school, I am not familiar with the discipline procedures of the instructors, but being a parent of an eight year old, I know that the behavior that I have seen him display with the students is very uncalled for. As a parent, I would be very upset if I thought for once that a teacher was yelling at my child in such a manner. I have also witnessed Mr. Merica when he was upset for one reason or another with the administration. He sometimes appears to be out of control, saying things that are unnecessary. I am writing this letter for documentation of what I have observed and for the welfare of the children involved. I am requesting that my name not be revealed to Mr. Merica because being "a smoker", I am in contact with him daily. I am afraid of retaliation from him if he were to find out. Sincerely, Signed by Evelyn B. Tait /s/ The two documents signed by Ms. Tait, and her explanations when questioned, evidenced not truth, but rather confusion caused by this witness' attempt to comply with the request by Mr. Saia, in preparation for her testimony at this hearing. The truth and accuracy of the documents as well as Ms. Tait's understanding, explanation, and lack of credibility regarding these two documents are best demonstrated by her cross-examination: Q. Would you look back at number exhibit 23 again? You wrote that statement on October 2, 2001; is that correct? A. Um-hum. Q. And the first sentence says: "On August 27, 1999 I wrote a statement regarding Mr. Merica." (as read) Were you referring the Exhibit 22? A. I think I was --- Q. All right. You were referring to the other statement when you write that? A. I think I was. Q. I want you to take your time and made sure. That one is dated August 27th, 1999; correct? A. Yes. This happened on two separate occasions. Q. That's what we're going to get to in a minute if you'll let me walk you through this. A. Yeah, it did. Q. You go on to state that you gave a statement back in August '99 and everything you said in that was true, but you want to add something. And what you want to add is this incident that happened at the pickup circle: correct? A. Yes, sir. Q. How long ago had that incident happened at the pickup circle? A. What do you mean, how long ago? Q. How long prior to the time when you wrote this statement? A. I would say probably close to the date that it was signed. Q. Okay. So the incident at the circle would have been close to October 2001? A. I don't remember the dates sir. I don't remember the dates that I wrote the statements. I don't remember the dated. Q. Al right. The incident at the circle -- did you complain about it when it happened? A. Yes, I did. Q. Who did you complain to? A. I went and obviously told the principal's secretary again. I don’t' know who I would complain to. I'm just not going to -- you know, I wasn't out to get Mr. Merica in trouble. Q. I'm not suggesting that -- A. I was just --- Q. I'm not suggesting that you were. [Witnesses instructed by the undersign to answer the question asked by counsel without editorializing] Q. All right. Let's walk back through it. An incident happened at the pickup circle; correct? A. Um-hum. Q. And at some point after that incident, you reported the incident to someone; is that correct? A. It was immediately. Q. Immediately? That day? A. Yes. Q. All right. You got out of your car when you picked up your child? A. No. It wasn't immediately that day. It was -- like I said, the principal's secretary is my sister, so I probably reported it that afternoon. Q. After you picked up your child? A. Um--hum. Q. Is that a "yes"? A. Yes, sir. Q. All right. You took your child home? A. Yes. Q. And then went back to the school to report it? A. No. I probably called her on the telephone. Q. All right. You've said "probably a number of times. Do you -- A. I called her on the -- I don't remember. I'm sorry. I don't remember. You know, I don't remember when it was placed, to be honest with you. I don't remember exactly when it was reported, how it was reported. I don't remember. Q. All right. Did anyone ask you to write a statement about the incident that occurred at the pickup area? A. I don't remember that, either. I guess someone must have asked me to write a statement or I wouldn't have written one. Q. And when you say you wrote one, you're talking about Exhibit 23; correct? A. I wrote this statement as well. Q. Is there another statement besides Exhibit 23 that addresses the incident that allegedly occurred at the pickup circle at the school? A. No. It's this one. Q. So to your knowledge that is the only statement that you made; correct? You made that statement a couple of years after the incident occurred; correct? A. That would be 10-02 -- I mean, 01. Q. All right. A. August 27th is the first statement. Q. Of '99; correct? A. Right. Q. So here we are a couple of years later in 2001 and you're making a statement for the first time about the traffic circle incident; correct? A. Right. Q. That's the only statement that you're written about that? A. Yes. I am very sorry. This is very confusing to me. I wrote statement when they were reported -- you know, when I reported them. I don't remember dates. We're taking how many years ago and I apologize you know. Q. Could it be, ma'am that the first time that you reported the incident that occurred at the traffic circle was around October 2001 when you wrote this statement? A. Yes. When subjected to cross-examination about her two written statements, her confusions, and her lack of personal knowledge of specific details of the alleged curb-side incident, Ms. Tait contradicted her entire testimony as reflected in findings 96, 97, and 98 above, to include the two documents she authored. It is apparent that Ms. Tait's preparation for this hearing, at a minimum included writing a statement three years after the alleged occurrence. It is also reasonable to infer that Ms. Tait's testimony and her 1999 and 2001 documents were an attempt to exaggerate "negative personal conduct on behalf of Mr. Merica" in a decided attempt to appease her employer. Ms. Tait's entire testimony hereinabove, lacks credibility and failed to produce a belief to the undersigned as to the truth of the allegations sought to be established therein. Sexual Harassment of Co-workers Allegations Kelley Kolinsky (f/k/a Toms), a self-employed Occupational Therapist (OT) since 1998, worked at Foster for two and one-half years, doing evaluations and arranging treatment protocol for ESE children. As an OT, she recalled one pre-K evaluation she covered for Kathy Prado, Ph.D., another occupational therapist. Though she tried to recall the persons present at the meeting, she was unable to do so. She recalled an unnamed parent and a unnamed male who were also present. Ms. Kolinsky testified that she was not going to cover any more meetings at Foster. When asked why? Ms. Kolinsky answered: I don't know exactly. It's been like -- I don’t' even know how long, but I just remember being uncomfortable with -- I don't even remember if it was comments or notes, looks, whatever, but something like with the male teacher that was present at the meeting. But it's been so long that I really can't give any more specifics. When asked if during the meeting there was anything of a sexual nature, Ms. Kolinsky replied: I can't say. I mean, I remember I was uncomfortable, but I don't remember specifically now. The Commissioner, by the uncertainty of Ms. Kolinsky's testimony, failed to establish as fact that during the 1994-1999 school years, Mr. Merica sexually harassed a co-worker by making inappropriate comments to Ms. Kolinsky, an occupational therapist, in the presence of other colleagues and/or in the presence of a parent as alleged in the Amended Administrative Complaint. Kara Twohy was an ESE teacher at Foster from December 1996 through 2000. Ms. Twohy first met Mr. Merica when she was a teacher-intern in an EMH class at Foster during the 1995-1996 school year. Ms. Twohy testified that Mr. Merica made her "feel uncomfortable" giving as an example the following incident: He would do things like put his arms around me. One thing I can remember is he said I had an ink spot on the back of my shirt and he was attempting to rub it off. He would come -- and this is afterwards when I became a teacher -- he would come to the classroom and he brought a rose at one time, and he was constantly -- whether I was at art or I was in the classroom, he was constantly visiting the classroom. I can remember an incident where I was really ill and he came to an assembly and brought me some tissues. All in all, it just made me very uncomfortable. When she was "really ill," Mr. Merica brought her tissues and once gave her a rose. Bringing tissues to one's colleague when the colleague was "really ill" may have been either an appropriate or an inappropriate gesture. However, the act itself does not prove it was sexual harassment. According to Ms. Twohy, she initially expressed her uncomfortable feelings to other unnamed co-workers and Principal Griffin, but not to Mr. Merica. When she told Principal Griffin about her uncomfortable feelings around Mr. Merica, she testified that Principal Griffin said to her: "there's nothing really that anyone could do, but to start writing everything down. So I began writing them down." There is no evidence of record that Principal Griffin initiated an administrative investigation into the "uncomfortable incidents" related to her by the young teacher, Ms. Twohy. It is, thus, reasonable to infer, and I so infer that at the time and under the circumstances, Principal Griffin did not consider that Ms. Twohy's "uncomfortable" feelings resulting from Mr. Merica's attention to have been "sexual harassment" as that term is generally understood when placed in the above situational context. According to Ms. Twohy, after she told Mr. Merica that his presence, his attention, and his conduct made her feel uncomfortable, she recalled he apologized: There was in incident that occurred between him and my aide at the time who was Adele Morris, and basically she told him to leave me alone and he said well, I'm a big girl so I should be able to tell him myself. And he approached me the following day, I believe, after the confrontation and asked me if he made me feel uncomfortable, and I told him yes, he did. I felt very uncomfortable around him and he did apologize and say that he was sorry for making me feel uncomfortable. As a employee of the Board, Ms. Twohy knew the Board’s sexual harassment policy requirement of reporting harassment to the school's administration. She followed the policy by reporting her uncomfortable feelings and concerns to Principal Griffin. When Ms. Twohy informed Mr. Merica that his attention and conduct made her uncomfortable, he immediately discontinued all contact and apologized to her. If, as the Commissioner argued, Mr. Merica sexually harassed Ms. Twohy during the time above-stated, she followed protocol and reported the matter to her principal. There is no evidence of record that the principal of Foster initiated or requested an investigation by the School Board and a determination of whether or not Mr. Merica committed the alleged sexual harassment. If the matter was not properly investigated and determined by the Board to have been sexual harassment when it occurred, it will not be determined to be sexual harassment now by the undersigned based solely upon the unconvincing testimony of Ms. Twohy. The Commissioner failed to establish as fact, by findings 96 through 103 hereinabove, that Mr. Merica sexually harassed Ms. Twohy, a co-worker and sexually harassed Ms. Kolinsky, as alleged in the Amended Administrative Compliant. Kim Kimpton, via her video-taped testimony, was convincing and unequivocal in her response to the question, "[D]o you consider Mr. Merica's action(s) towards you to be sexual harassment? "No, not specifically." The "actions toward you" referred to what was described by the Commissioner as unwanted attention, several instances of on school-property encounters and off school-property encounters, to include buying lunch for her on one or more occasion, giving her presents, and thereafter writing a letter of apology. The Commissioner failed to prove by the evidence of record that during the 1998-1999 school year, Mr. Merica sexually harassed Ms. Kimpton, as alleged in the Amended Administrative Complaint. I find that the Commissioner failed to prove by clear and convincing evidence that Mr. Merica sexually harassed any present or past female member of Foster's administration as alleged in the Amended Administrative Complaint. SLD Student's Version of Classroom Management and Student Control Patricia Rumlin, mother of Jarmaal Rumlin, a 15-year- old SLD student witness who, at the time of the hearing, was in ninth grade, accompanied him at the hearing. When asked, Jarmaal remembered he had been a student in Mr. Merica's class for his fourth and fifth grade school years (1997-1999 school years), but he did not remember the specific school years. During the period Jarmaal was a Foster student, the Board was operating under the self-contained class policy, and Jarmaal was in Mr. Merica's self-contained class throughout the school day. When asked the open-ended question, "[W]hat about the incident when the kids were kicking a ball in the classroom?" Jarmaal gave the following, incomplete, confused, response: We was [sic] playing in the class. Takela kicked the ball to the back of the room and she went to go get it and he trapped us in the back of the room and we bust out and we ran down to the PE field. When asked "[D]id Mr. Merica ever come into any contact or anything with Takela?" Jarmaal, again confused, answered: No. He just holding in the back of the room. [sic] Holding her and she was trying to run and trying to grab her. She was going to fight back, until she got loose and ran. When asked, "[W]hy did you not mention or report this incident to other teachers, the principal [1997-1998/Payne and 1998-1999/Griffin] or the Board’s investigator?" (1999 to 2003) Jarmaal answered: "They didn't talk to me." Jarmaal's above testimony, did not corroborate the testimony of another witness who stated: "Ms. Teresa Joslyn entered a room and found Mr. Merica seated on a couch holding Jarmaal by the arm and yelling in his face and that Ms. Joslyn took him by the hand and stood him up and Principal Griffin came into the room and observed those actions," as argued by the Commissioner in its post-hearing submittal. Jarmaal admitted that "kids in his class misbehaved in class, played kickball and got up and walked around when they were not suppose to." When asked if he liked Mr. Merica, Jarmaal answered "[N]o." When asked if he learned anything in Mr. Merica's class Jarmaal answered, "I didn't learn nothing [sic]." When asked if he wanted Mr. Merica as his teacher again, Jarmaal, answered, "[N]o I don't Mr. Merica as my teacher again." Testimony from other teachers at Foster established that SLD students were, if not daily, most certainly, routinely unruly in their classes and in hallways. Jarmaal's testimony seemed rehearsed, but he was confused about the facts critical to the situation of which he testified. The witness' inability to recall and his manner of testifying raised substantial issues of the witness' credibility primarily because of his seemingly rehearsed responses and confused factual response, often mixing several parts of separate incidents. Through the testimony of Jarmaal, a SLD student, the Commissioner failed to demonstrate and prove by example that: (1) Mr. Merica engaged in inappropriate discipline, (2) he failed to engage in meaningful teaching methods, (3) he lacked professional classroom control and management of his SLD class, and (4) he was incompetent as a teacher, as alleged in the Amended Administrative Complaint. I find the SLD students' reply he did not "like" Mr. Merica an insufficient foundation from which to infer that the SLD student did not "respect" Mr. Merica as a teacher. Tawnya Clark, mother of Demetrie White, another 15- year-old SLD student, accompanied him in the hearing. Demetrie only remembered attending Foster. He did not remember the years he attended Foster (1997-1998/Principal Payne and 1998- 1999/Principal Griffin). He did not remember the grades he was in when he was attending Foster. He did not remember the class (fourth and fifth grades) he was in when Mr. Merica was his teacher. When asked "[I]n what ways Mr. Merica would get upset?" Demetrie, hesitantly, gave the following response: When like students get like up out of they seat and walk around the classroom and talk to other students, he'd get mad then and then after that he'd like -- Jonathan he would be like getting up out of his seat and talk to me, Eldrid and another friend who go to my school and he would like grab Jonathan, try to twist his wrist and then slam him on the ground and then Jonathan would be like, Get up off me. And then that's when like he would like flip. He would try to get up off the ground, Jonathan. That is when he tried to grab Mr. Merica's neck. That's it. Demetrie admitted that the kids would get up and walk around in class when they were not supposed to do so. He admitted that Jonathan tried to grab Mr. Merica's neck. He remembered a female teacher's aide but he did not remember her name or whether she was black or white. As with Jarmaal, Demetrie remembered Mr. Merica yelling at students when they were acting up. He remembered Mr. Merica yelling in the faces of students. Demetrie, like Jarmaal, said he did not like Mr. Merica, "he didn't learn nothing" and he "didn't want Mr. Merica as his teacher again." Utter confusion permeated Demetrie’s understanding of the questions asked of him and his seemingly rehearsed answers to those questions. I find the SLD student's reply that he did not "like" Mr. Merica an insufficient foundation from which to infer the SLD student did not "respect" Mr. Merica as a teacher. Viewed most favorably, the testimonies of these two very large young boys consisted of a confused misunderstanding of questions asked of them and their rehearsed answers. The testimony of these two young boys established that at times, Mr. Merica yelled at them and, on occasion, restrained them for his personal defense and/or to regain classroom control when they were acting out of control, being disobedient, playing kickball in the class room, and yelling at each other and at him. The situational circumstances of the separate incidents to which the witnesses testified occurred four or five years earlier. These two SLD students were confused, and their testimony consisted of a mixture and intermingling of critical factual portions of two separate incidents into one continuous dialogue. From their individual and collective testimony, the appropriateness or inappropriateness of Mr. Merica's conduct, in an attempt to control and manage his SLD class, cannot be determined with a reasonable degree of certainty to produce a firm belief as to the allegations in the Amended Administrative Complaint. The ambiguity created by the testimony of Jarmaal and Demetrie relating to a specific portion of their testimony related to a specific incident is decided in favor of Mr. Merica. The Commissioner proved that Mr. Merica "restrained" Takela, a student in his SLD class, by holding her arm. The Commissioner proved that Mr. Merica "restrained” Jonathan, a student in his class, by holding the wrist and arm of Jonathan. Based upon the testimony of these two young SLD students, assuming accuracy and truth, Mr. Merica’s physical restraining actions were, given the circumstances and situation at the time of physical restraints, appropriate for the defense of his person and for the protection of other students in the class. Disagreement Over IEP Content and Student Control In 1995 Ms. Teresa Joslyn began teaching at Foster Elementary as an EMH teacher. She affirmed other witnesses' testimonies that Mr. Merica was loud and argumentatively disruptive during staff and faculty meetings. Ms. Joslyn, however, gave unconvincing testimony regarding one IEP meeting she attended with Mr. Merica, but she could not provide the month or school year the IEP meeting occurred. According to Ms. Joslyn, during this IEP meeting an unnamed parent wanted unspecified items included in her unnamed child’s IEP, and Mr. Merica, the teacher, was apparently of the opinion that those items desired by this parent were not necessary. The IEP in question was not entered into evidence. When asked whose opinion determined the make up of the IEP, Ms. Joslyn replied, "[t]he case manager, who is generally the teacher [Mr. Merica in this instance]-- the person that serves the child the most.” During this particular IEP meeting, and with no evidence, or personal knowledge of the specific IEP items under discussion, Ms. Joslyn never the less concluded an unspecified position maintained by Mr. Merica was unreasonable and, by implication, unprofessional, and the position taken by the unidentified parent was reasonable. Ms. Joslyn's testimony is not credible, competent or of substantial weight to support a firm belief of the truth of the allegations sought to be established. Ms. Joslyn, without giving the year or month, remembered occasions when she would visit Mr. Merica’s classroom. According to Ms. Joslyn: On the occasion(s) when I would enter Mr. Merica's room, oftentimes I did not find him engaged in active teaching. There were times when I would walk in and he was--there was a game on the computer that he was playing or he'd be reading the newspaper or magazine at his desk. The aides -- the children would --have may or may not have worksheets on their desks and the aides seemed to be the ones that were more engaged with the children. Ms. Joslyn testified again, unconvincingly, about one incident she remembered, but she was unable to provide the month or year, when she heard a "kind of ruckus and loud voices." She remembered hearing an unnamed child's voice and Mr. Merica's voice, but she did not hear the words being spoken by either person. She supposedly entered the room and saw Mr. Merica seated on a couch holding Jarmaal (Rumlin) by the arm and Jarmaal trying to resist and get up. Continuing, she also remembered that Mr. Merica was agitated, upset, and yelling, and the child was also yelling. Ms. Joslyn specifically recalled that while she was "taking Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." According to Ms. Joslyn, both "the Principal" (Griffin) and Jarmaal were actively involved in this arm holding incident. Principal Griffin did not corroborate Ms. Joslyn's vague and non-specific memory of an undated arm holding incident. Jarmaal was not asked about this specific incident nor did he corroborate Ms. Joslyn's testimony. No other witness called by the Commissioner gave corroborating testimony in support of Ms. Joslyn’s testimony. This is critical to the credibility determination in this proceeding since allegations of inappropriate conduct in his professional relations with children are specifically alleged in the Amended Administrative Complaint and form the bases, in part, to support the allegation of professional incompetence. I find that Ms. Joslyn's vague, non-specific testimony, without corroboration of the other alleged participants to establish the context, circumstances, and time, raised substantial issues of her credibility. Her testimony and credibility was further diminished by the lack of corroborating evidence from other witnesses who were allegedly involved. The testimony contained in findings 128 and 129 hereinabove is rejected for its lack of credibility. I find that the Commissioner failed to prove, through the testimony of Ms. Joslyn, that between 1994 and 1999 Mr. Merica was not engaged in active teaching and that on unidentified occasions he was playing computer games or reading a newspaper or magazine while some unidentified staff taught his class and failed to prove that Mr. Merica engaged in inappropriate conduct by "holding Jarmaal by the hand and Merica letting go of Jarmaal's arm at which point the principal came into the room and asked Mr. Merica to come into her office." The Commissioner has failed to prove that Mr. Merica was incompetent, as alleged in the Amended Administrative Complaint. Debbie Maronic, physical education teacher at Foster, gave repetitive testimony affirming the fact that Mr. Merica was loud, often disruptive, and sometimes argumentative with colleagues at staff and faculty meetings. Ms. Maronic also testified of having heard "numerous stories about how Mr. Merica behaved inappropriately to other female staff members at meetings or in the hallway or other places," without recalling any one of those numerous stories. Ms. Maronic admitted that she heard her information, not from Kelly and Kim Rivenburg, the females alleged to have been recipients of inappropriate conduct, but from second-hand people. The hearsay upon hearsay summary testimony of "stories" Ms. Maronic heard regarding inappropriate conduct toward females is not competent to establish a finding of fact. The testimony of Ms. Maronic is rejected in toto by the undersigned. When the testimony of Ms. Kolinsky, Ms. Twohy, and Ms. Kimpton, that they were not sexually harassed by Mr. Merica, is juxtaposed to the hearsay upon hearsay testimony of Ms. Maronic that Mr. Merica "behaved inappropriately to other female staff members," a pattern of gossip, moving from witness to witness presented by the Commissioner, emerges for which there is no defense and very little, if any, truth to be objectively determined. The uncorroborated testimony of this witness lack credibility and is rejected. The Commissioner failed to prove, through the testimony of Ms. Maronic, that between 1994 and 1999 Mr. Merica engaged in unprofessional conduct, inappropriate conduct, and/or sexually harassed female co-workers as alleged in the Administrative Complaint. Ms. Maronic testified, again unconvincingly, concerning a throwing incident in the school cafeteria in 1999, she did not observe and therefore could not provide situational circumstances surrounding this incident. According to Ms. Maronic, as she walked by she could see Mr. Merica out in the hallway very upset and yelling very loudly at very close proximity to the unidentified students. Ms. Maronic testified that she was not "comfortable" witnessing that situation and would not leave the area until an administrator came. Nothing in her testimony identified the administrator who allegedly came so she could leave; she knew nothing, who, what, where, when or why, about the incident, though so "uncomfortable," she believed her presence was required. She neither attempted to record this "uncomfortable" incident for future reference nor did she report the matter directly to the school administration. This testimony was not internally consistent and the character of this witness' testimony, as well as the witness' demeanor, did exaggerate the nature or circumstances of the incident. The testimony of this witness lacks precise explicitness to produce a belief as to the truth of the allegations sought to be established. The Commissioner failed to establish as fact through the testimony of Ms. Maronic that, at some unspecified time in 1999, Mr. Merica's student behavior management was inappropriate or that Mr. Merica demonstrated professional incompetence as alleged in the Amended Administrative Compliant. Professional Assistance Offered by Resource Teachers Virginia King, with over 21 years of teaching experience, held the position of Hillsborough County, Area IV, administrative resource teacher (ART) since 1981. Ms. King's primary duty was to provide support and training for teachers of ESE. Her three-part support and training program consisted of: (1) teacher evaluation followed by (2) teacher assistance and concluded with (3) specific training for the teacher. Ms. King was not qualified as an expert. Based solely upon her experience, Ms. King opined that--"dealing with student behavior issues are [sic] challenging to teachers and most difficult for teachers in emotionally handicapped full time programs,” as was Mr. Merica. She further opined that "both SLD and ESE classes have behavior issues; but, in full-time ESE classes, student behavior control is most difficult for teachers regarding overall classroom control and classroom management, as compared to full-time programs where teachers of PI classes classroom control and management is least difficult." Ms. King testified that in her 21 years of teaching experience, many ESE teachers have difficulty with classroom behavior and management issues, and the training of teachers of those students is ongoing training in the Hillsborough County school system that never ceases. She is of the opinion that yelling in students' faces is unreasonable and physically restraining a student is "never" justified. Ms. King's opinion regarding physical restraint of a student is "never" justified conflicts with the statutory authority of teacher(s) to remove disrespectful, violent, uncontrollable or disruptive students from classes when appropriate, to include physical restraint, as provided in Subsection 1003.32(1)(j), Florida Statutes (2003). The Commissioner did not introduce evidence of physical restraints standards adopted by the Board of Education. The opinion of Ms. King is contrary to the statute and disregarded for all purposes in this proceeding. Proffered Evaluation and Assistance Offered to Respondent During the 1999-2000 school year, Principal Griffin requested that Ms. King visit Foster to evaluate, assist, train, and help Mr. Merica with his SLD class. According to Ms. King (without giving the year and month), she made two visits to Mr. Merica's class. She testified only about her initial visit that took place during the morning class session. When she returned for a second visit, the school administration had removed Mr. Merica from his teaching position. This one visit by Ms. King was the first step of her three-part support and training program, i.e. teacher evaluation. There was no teacher assistance and specific training offered to Mr. Merica by Ms. King. When asked to give her "general impression" of Mr. Merica's professional ability and competence to teach SLD students after just one visit, Ms. King replied: Well, in our interview I was a little surprised because I didn't really -- he has a background in SLD so he had a lot of knowledge of SLD and how to teach children with learning disabilities, addressing their different learning styles and I was actually able to observe that in class. It was a math class and I thought that he did a very nice job of addressing the student's individual needs, and that's a difficult thing to do because they're all so different and they were all at different math levels and I did see that he was able to use different teaching techniques all in one lesson. He did mention to me that -- well, I knew that there were behavior problems and I did see behavior problems and that did happen after the lesson in the transition period. The children were unruly and not really doing, you know -- you could tell that there was a lack of control was obvious. But at this particular time, the children had been really fairly well-behaved and he had mentioned to me that I should come back in the afternoon -- because this was a morning visit -- that I should come back in the afternoon so that I could see their true behavior which he said was truly out of control. Through the testimony of Ms. King, the Commissioner, clearly and convincingly, proved to the undersigned that during the 1999-2000 school year, Mr. Merica's competence as a professional teacher of children with learning disabilities ("the children had been really fairly well-behaved") was the same as and/or equal to competence as a professional teacher in the classroom of other teachers of children with learning disabilities whom the witness had observed. Conversely, the Commissioner failed to prove, clearly and convincingly, through the testimony of this witness that Mr. Merica demonstrated "incompetence" in his classroom teaching skills or that his classroom student behavior management was ineffective. The Commissioner failed to prove that Mr. Merica utilized ineffective lesson plans and ineffective classroom behavioral management plans. The Commissioner failed to prove that Mr. Merica failed to keep students academically engaged in class and that he failed to control his students and/or gain their respect as the manager of the class, as alleged in the Amended Administrative Complaint. The Commissioner failed to establish as fact, through Ms. King's testimony regarding her single classroom visit, that Foster administration, by and through Principal Griffin, offered Mr. Merica meaningful, professional, constructive help and assistance program plan that he intentionally disregarded and that he failed and refused to accept and implement the suggested offering of assistance as alleged in the Amended Administrative Complaint. The record evidence does not specify whether Ms. King's one visit occurred during the school year of 1998- 1999 or the school year of 1999-2000. This omission creates an ambiguity between the year 1999 (alleged in the complaint) and the year 2000 (the year beyond the time alleged in the complaint). The ambiguity is resolved in favor of Mr. Merica. The testimony in findings of fact 139 and 140 is incompetent and irrelevant to establish as fact allegations contained in the Amended Administrative Complaint. The Commissioner presented testimony of Sue Hindman. Ms. Hindman, with over 27 years of teaching experience and at all times material, was an ART and an ESE supervisor for Area II, in Hillsborough County. Model Classroom Observation Prior to and in Preparation for Termination by the Hillsborough County School Board Near the end of the 1999-2000 school year, Principal Griffin called Ms. Hindman and requested her to do a model classroom observation of Mr. Merica's class. A "model classroom observation" consisted of Ms. Hindman's selecting another classroom and SLD teacher (the model) in the same or similar position of the teacher (Mr. Merica) to be observed. The teacher (Mr. Merica) being observed, along with Ms. Hindman, would then visit the "model" SLD class to observe how the classroom itself was arranged and how the lessons were presented to SLD students. Based on the teacher's personal observation, and with the help and assistance of Ms. Hindman, the teacher (Mr. Merica) would then modify and model his/her classroom arrangement, classroom behavior management, SLD students' lesson planning and presentation, and other educational matters involved with teaching SLD students to that observed in the model classroom. After a reasonable period of adjustment, the ART would return to evaluate the "results of implemented changes" made after the model classroom. On October 8, 1999, after observing Mr. Merica's classroom, his teaching, his student control and classroom management, and after observation of the model SLD teacher and classroom, Ms. Hindman made unspecified suggestions for improvement to Mr. Merica. After she made her suggestions for improvement, Ms. Hindman returned to observe whether her unspecified, suggested improvements had been accepted and put into effect by Mr. Merica, and, if so, to document what results were observed. Ms. Hindman documented improvements she noted in Mr. Merica's class on her return visit as follows: The new behavior rules were typed clearly and colorfully. The post-it-notes [tickets] were being used to reward positive [student] behavior. Instructions was hampered by inappropriate student behaviors. On October 18, 1999, Ms. Hindman made a second follow-up visit to observe the progress of her earlier unspecified suggestions. During this second return visit, Ms. Hindman made additional unspecified suggestions for improvement. Ms. Hindman returned to observe whether her second suggested improvement had been put into place and if so, the effect and impact of her second suggestions. Ms. Hindman documented improvements observed in Mr. Merica's classroom management and student control and professional teaching competency on her second return visit as follows: Student behavior was better. Students responded to the LLP redirections. They also responded to the additional tickets given for good behavior. More positive comments were made when students were on task. Student behavior will improve as teacher consistency improves. The more aggressive students are getting, all the attention (and tickets) while the good students tend to be neglected. Curriculum must now become a priority. Your students really settle down while working on assignments and seem eager to accomplish tasks. Capitalize on that momentum! On October 26, 1999, Ms. Hindman made a third return visit to observe Mr. Merica's implementation of her earlier suggestions. During this visit, Ms. Hindman made additional suggestions for improvement and documented improvements she observed in Mr. Merica's classroom teaching and classroom management and student control as follows: Reading groups began today using a sequential program. Math groups began learning higher skills plus using manipulative. Individual work folders were used for seatwork. Through the testimony and corroborating documentation of Ms. Hindman, the Commissioner proved, clearly and convincingly, that as late as October 26, 1999, Mr. Merica accepted and implemented constructive criticism and assistance from those administrators whose positions required giving such constructive criticism and assistance. The Commissioner failed to prove, through the testimony of Ms. Hindman, as it did through the testimony of Ms. King, allegations that Mr. Merica intentionally disregarded and failed and refused to accept and implement the suggested offering of assistance. The undisputed testimony of Ms. Hindman clearly demonstrated that when given constructive professional assistance, a reasonable opportunity to implement the constructive assistance, and an objective evaluation thereafter, Mr. Merica was amenable and put into practice professional assistance and suggestions that proved to be helpful. He responded positively by implementing suggestions made by Ms. Hindman and to those made by Ms. King. During each return visit by Ms. Hindman, Mr. Merica demonstrated continued improvement in his professional ability as a SLD teacher. I find that through the testimony and resulting documentation of three separate occasions of Ms. Hindman rendering professional help and assistance and Mr. Merica's positive response thereto established as fact that the competence of Mr. Merica was not diminished so as to impair his effectiveness as a teacher in the Hillsborough County school system as of October 26, 1999.5 Petitioner's Presence Outside His Classroom, His Teaching, and Classroom Management Mr. Merica presented the undisputed testimony of Mary Evans-Bauman, a DEEDS Attendant who worked with over 15 teachers during her employment at Foster. From January through July of the 1997-1998 school year, Ms. Evans-Bauman was assigned and did work with Mr. Merica in his self-contained PI class. She did not work with Mr. Merica during any period he was teaching a SLD class. According to Ms. Evans-Bauman, Mr. Merica did not leave his classroom more often than any of the other 15 teachers with whom she worked during her employment at Foster. Based upon her daily observations, Ms. Evans-Bauman opined that Mr. Merica's PI students respected him, and she did not observe any problems with his classroom management. She denied observing Mr. Merica playing video games or reading newspapers when he should have been teaching. She testified that she never observed Mr. Merica exhibiting out-of-control behavior or imposing inappropriate discipline on students in his PI class. She acknowledged that PI students, because of their restricted physical mobility, were less likely to become disruptive and unruly because of their physical limitations. Mr. Merica presented the testimony of Carolyn Mobley. Ms. Mobley worked 21 years at Foster as a teacher's aide and as a DEES attendant. During her extended tenure at Foster, she worked with approximately ten different teachers, including Mr. Merica. Ms. Mobley began working with Mr. Merica during the 1998-1999 school year, the first year he taught a PI class with Ms. Payne as principal. She continued working with Mr. Merica when Principal Griffin moved him to an SLD class during the 1999-2000 school year. According to Ms. Mobley, she worked with Mr. Merica continuously, five days per week for seven and one- half hours per day, for two consecutive years. Based upon her continuous presence in Mr. Merica's classrooms, she had abundant opportunities to observe Mr. Merica's interactions with students in both his PI and SLD classes; she answered the question of how she would characterize his relationship with his students as follows: I would say he didn't have no problems that I would consider problems because I have kids and I wouldn't want nobody to mistreat mine, and I'm a fair person. On the mistreating kids in any way question, Ms. Mobley answered: No. He always seemed to be generosity [sic]. He would always treat them with respect and do the things most teachers wouldn't do, I would say. On what kind of things he would do that other teacher wouldn't do, Ms. Mobley answered: Well, you know, sometimes if they didn't have their lunch and they wanted something, then he would treat them to it, you know. On Fridays when they had free time, he would give it to them out of the cafeteria. Answering the question whether she observed Mr. Merica being off task--off his teaching duties during the time that you were the aide in the PI class, i.e. reading a newspaper during the time when he should have been teaching or playing computer games during the time he should have been teaching, Ms. Mobley answered: "No." Answering the question whether Mr. Merica would leave the classroom and leave the aides to take care of the kids, Mr. Mobley answered: No, because if he left the classroom, he would say, "I'm going to the office," run some papers or basically we knew where each other was. We always knew. Answering the questions whether Mr. Merica leaving the class occurred more often than other teachers, acting in an unprofessional way, being belligerent, and being confrontational with students, Ms. Mobley answered each question "No." Answering the question whether there were more behavioral problems in the SLD class than in the PI class, Ms. Mobley answered: SLD kids do have a behavior, [sic] where PI kind is not as verbal word-wise--. Answering the compound question of Mr. Merica's interactions with students in the SLD class, acting in an unprofessional way to any of the kids, being belligerent with the children, being hostile with the children, and being confrontational with any of the children, Ms. Mobley answered: "No" to each question within the compound question. Answering the compound questions of whether Mr. Merica raised his voice toward the students; talked loud when he was close to a student, screamed, or yelled, Ms Mobley answered: I wouldn't say raise his voice, but he talked loud, like scream or yell- No. Well he always talked loud, so to me it was always a loud voice. He don't have a soft voice. He had a loud voice. Through the undisputed testimony of Ms. Mobley, Mr. Merica demonstrated that from the school year beginning in 1998 and ending in 1999 his teaching and student behavior management, as observed by Ms. Mobley, was not ineffective; that he did not frequently leave his own class with his aides; that he did not walk around campus, socialize, and/or monitor other teachers and their students; and, when in class, that he did not play video games on his computer, read newspapers, or review architectural designs, as alleged in the Administrative Complaint. Human Resources Manager's Testimony Based upon her Summary Reports of Letters and Reports Received From Staff The Commissioner presented, as a summary witness, the testimony of Janice Velez.6 Ms. Velez had over 30 years in the school system during which time she has occupied the positions of classroom teacher, teacher trainer, school-based administrator, and director of personnel services. For four years (1999-2003), she occupied the position of General Manager of Human Resources (HR) for the School Board. The Commissioner did not qualify Ms. Velez as an expert. As director of personnel services for the School Board, Ms. Velez receives information, via written reports from Foster administration, from individual teachers, from medical personnel, and from other sources regarding school personnel. Ms. Velez rarely, if ever, has personal knowledge of instructional personnel activities at the many schools in the county, before such activities are reported to her in written form through the chain of administrative protocol. It is noted that her reports in evidence are not sworn to or notarized by the person(s) with personal knowledge nor are they "tested" for accuracy by independent investigation by Ms. Velez. She accepts each report as factually accurate. It was against this background and based upon many such unspecified reports that Ms. Velez summarized and posted a letter to Mr. Merica reflecting her summarized version of those hearsay reports that the Commissioner asked Ms. Velez to "explain" the first sentence of her July 1, 1994, letter to Mr. Merica. The sentence counsel for the Commissioner asked for as an explanation read: "Some information has come to my attention that you and I need to discuss." To the question "explain what did you mean by that sentence," Ms. Velez answered with the following editorial: What he acknowledged, and I don't have the report in front of me, but I remember the student was a difficult child and he had -- what upset me and the reason I asked him about the ACT [Aggression Control Techniques] certified was that in the course of taking care of this child, had dragged her across the carpet or something and then other adults were present that assisted him in the process. That's when I asked him if had had been trained and he said no, he had never been scheduled. There is no evidence that tends to corroborate the hearsay evidence contained in Ms. Velez's July 1, 1994, letter to Mr. Merica. Ms. Velez did not possess personal knowledge of the information reflected in her letter. Consequently, her testimony regarding Mr. Merica's alleged response merely amounts to hearsay upon hearsay upon hearsay. There is no record evidence identifying the context and circumstances of "[w]hat he acknowledged” as testified to by Ms. Velez. The intended inference that Mr. Merica acknowledged-—“that in the course of taking care of this child, he dragged her across the carpet or something," was not corroborated by any "other adult present that assisted him." Mr. Merica's denial "that he dragged her across the carpet or something," even if unbelievable, does not prove the Commissioner's accusation contained in the Amended Administrative Complaint. Ms. Velez’s recollection explanation is an assumption and not fact (that he dragged a child and other students and adults were present). Based upon her assumption, Ms. Velez concluded that Mr. Merica acknowledged her assumption as fact. The assumption and conclusion of “acknowledgement” by Mr. Merica of that assumption is incompetent, not credible and insufficient to establish the incident as fact or to establish that Mr. Merica admitted and acknowledged her assumptions and her conclusions “that in the course of taking care of this child, he dragged her [a child] across the carpet or something and then other adults were present that assisted him in the process." Ms. Velez testified that she met with Mr. Merica on four separate occasions, the first meeting occurred on or about the first week in July 1994, during the period Ms. Payne was principal. At the time of her first meeting with Mr. Merica in July of 1994, Ms. Velez was not general manager of HR for the Board. The evidence of record does not establish Ms. Velez’s position in the school system in July 1994, other than she was a teacher assigned to personnel services. Continuing, Ms. Velez testified that during the first week in July 1994, she was “initially concerned” because Mr. Merica was not ACT certified. The Board's policy required each teacher to be ACT certified before engaging in physical restraint of students. In 1993 to 1994, Ms. Velez was a teacher assigned to personnel services, and the record evidence does not provide any authority for her to “meet with Mr. Merica” as a part of her duties in personnel services. There is no evidence of record that Principal Payne, who was principal and who did not corroborate this story, requested Ms. Velez’s involvement with her teachers, including Mr. Merica. Assuming Ms. Velez had authority to read Mr. Merica’s personnel file, why in 1994 did she only recall his restraint certification status? Principal Payne testified that she, and she alone, identified Mr. Merica's needs for improvement and provided him with useful suggestions that he incorporated and showed improvement. Principal Payne buttressed her testimony by giving Mr. Merica all "satisfactory" annual performance evaluations. Ms. Velez's testimony regarding any facet of Mr. Merica professional competence in the school year of 1994 to the contrary is not accepted by the undersigned as credible evidence. The Commissioner, through the testimonies of 21 witnesses, failed to produce clear and convincing evidence that Mr. Merica exhibited any indicia of professional incompetence in July of 1994. Through the testimony of Ms. Velez the Commissioner again affirmed other witnesses' testimony that Mr. Merica was not ACT certified at certain periods. However, the undisputed evidence demonstrated that Mr. Merica’s last year of ACT certification was the year of 1995 and not, as Ms. Velez mistakenly assumed in her testimony, 1994. The Commissioner failed in its attempt to establish 1994 as the beginning year of Mr. Merica's alleged incompetence through the above testimony by Ms. Velez. In 1999, Ms. Velez was appointed to the HR position. Six years before, in 1993, she was in personnel services. It was during the 1993-1994 period that the Commissioner sought through her testimony to prove Mr. Merica knowingly admitted and acknowledged that in July 1994 "he used excessive force or restrained a [unidentified] child inappropriately as reported by a parent [unidentified] to the police department and the school internal investigators." The bare hearsay "admission against interest" hearsay statements of unproven acts from unidentified hearsay sources is not corroborated and is rejected by the undersigned. Ms. Velez gave her explanation of meeting with Mr. Merica for a second time on August 12, 1999, which she later reduced to a letter dated September 24, 1999. In that letter Ms. Velez recited the purpose of the August 12, 1999, meeting-- "for discussion of an investigative report into coworker's allegation that during the summer he made threatening remarks against the school administration and comments made about Principal Griffin, i.e. "She dyed her hair blond to get her job, "I got rid of one principal; I'll get rid of her too," and "If she wants to go head-to-head, then I'll win." In her 1999 letter, Ms. Velez stated that Mr. Merica admitted making the alleged statements, explaining the statements were "hearsay" and because, as he viewed the situation, "others wanted to bring [him] down to their own misery levels." Her third meeting with Mr. Merica occurred in September of 1999. This meeting, she explained, was convened "for discussion of a letter of reprimand written by Principal Payne." (In February 1998, Principal Payne gave Mr. Merica a letter of reprimand citing him for having acted in an "unprofessional manner" with Pam Wilkins, an ESE coworker.) Later during that school year when she evaluated his overall professional teaching performance, Principal Payne gave Mr. Merica a "satisfactory" rating in every area, without comments, for the 1998-1999 school year. This meeting and the letter of reprimand concerned Mr. Merica's professional conduct on two separate incidents. Those two incidents were a faculty meeting disruption and a school improvement team and parent meeting. No testimony was elicited or given by Ms. Velez regarding the situational circumstances attendant to those two incidents. When asked her opinion of Mr. Merica's "attitude" toward her during this third meeting, Ms. Velez replied: I would say it ranged in the typical realm of employees. When they meet with me sometimes they're angry. He was in denial that the letter was warranted. He said he didn't perceive himself to have lost his temperament. He did not recall -- in one of the two incidents, someone said he banged his hand or fist on the table. I don't recall doing that. There were several letters that the principal also forwarded to me from colleagues and they said that he was out of control. He said, I'm not out of control. I have a loud voice. And basically he was in denial that the incident was as significant as the principal had alleged in her letter or reprimand. The fourth meeting between Ms. Velez and Mr. Merica occurred on October 1, 1999. Also present at the meeting were Carl Crosson, CTA representative, and Dr. David Binnie, assistant superintendent for HR. The purpose of this fourth meeting was to discuss a specific classroom incident that had occurred on or about September 23, 1999, where it was alleged that Mr. Merica retained five students in the classroom due to their misbehavior while the other students went to lunch with the paraprofessional. In her 1999 letter, in the first paragraph, Ms. Velez wrote her version of an incident she did not personally observe: During the timeout period, you asked these students to sit quietly in their desks, while you placed your own lunch in the microwave. When they began to dance about the room and to toss and roll a kickball among themselves, you summoned several times for assistance on the intercom. During this period, you stated you remained at your desk, although once you tried to kick the ball away and once you moved your elbows in an effort to keep a student from retrieving the ball that had rolled behind your chair. Another student subsequently hit you on the head with a folder, and you chased him briefly until he, at your direction put the folder down. You summoned additional times for assistance. Continuing with the second paragraph, Ms. Velez stated: As a result of your poor performance this year, and its negative impact on the quality and continuity of instruction for students assigned to you, your principal recommended that you be either administratively transferred or dismissed as a teacher. Actions on these recommendations was placed in abeyance since you asked for, and Dr. Binnie granted, additional time and assistance from school and district personnel for you to develop and implement a plan to appropriately regain control of and develop respect from your students. He provided you with three days of paid duty time and a month of implementation to accomplish this end. In her last paragraph, Ms. Velez stated: Dr. Binnie will review the effectiveness of your plan, your professional conduct at work, and your future employment status during a meeting scheduled for Monday, November 1, 1999, at 3:45 pm in the Human Resources conference room, 2nd floor of the School Administration Center, 901 East Kennedy Boulevard. Ms. Brenda Griffin, your principal, has also been invited to attend. Ms. Velez testified that the November 1, 1999, meeting never occurred, "due to an error where [sic] his address was not in the system correctly, he was not in attendance at the meeting. So, we rescheduled it for November 3rd." Considering Mr. Merica was an employee with 13 years of service and had met four times with administration within a six-month period (July through October 1999), the loss of his address--"his address was not in the system correctly"--by the Board becomes suspect. Continuing, Ms. Velez testified that: [O]n November 2nd her office received a call from Foster Elementary School regarding an incident in the hallway that teacher could hear Mr. Merica scream at a child and described that he was in their face and we removed Mr. Merica from teaching at that time for a continuing pattern of being unable to control his students and control his temperament, creating a dangerous situation for children. (emphasis added) No witness presented by the Commissioner testified to having observed the incident above described by Ms. Velez. When subjected to cross-examination, Ms. Velez reluctantly admitted that her intentional use of the term “creating a dangerous situation for children" was not an accurate statement. During all times (1999-2000) pertinent to matters herein above, the goal of Principal Griffin, via Ms. Velez and through the Board, was to terminate Mr. Merica's employment with the Board. Thus, the HR manager's intentional selection and use of the statutory phrase, “creating a dangerous situation for children," that she knew at the time to be an inaccurate statement, revealed her intent and thus seriously undermined her credibility. The witness' credibility and testimony were further diminished by the fact that at the time she knowingly made her "inaccurate statement," she was an active participant in, and thus fully aware of, the Board's engagement in the procedural protocol process of terminating Mr. Merica's contractual employment. Ms. Velez's knowing misrepresentation, that Mr. Merica's continuing pattern of being unable to control his students and control his temperament was "creating a dangerous situation for children," was biased and inaccurate. Ms. Velez's unconvincing explanation of her understanding of the factual basis for the School Board's removal of Mr. Merica from teaching at Foster was vague: [B]ased on a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children. When asked to clarify her inaccurate misrepresentation of whether or not Mr. Merica's conduct resulted in an unacceptable environment or created a dangerous situation for children, Ms. Velez stated: "[D]uring the five years Mr. Merica taught the PI student class [from 1992-1993 to 1998-1999], Mr. Merica’s conduct and teaching did not create an environment that was dangerous to the students in those classes." Ms. Velez further testified that "[T]the [Hillsborough County School] Board determined that it was during the 1999-20007 school year a pattern of similar incidents, and this was at the end of that month of time to focus on how to become more effectively -- more effectively deal with children, that Mr. Merica was creating an environment that was dangerous to the students in his classes." Ms. Velez did not identify incidents that occurred August 12, 1999, through December 31, 1999, separate and apart from incidents that occurred between January 1, through May 24, 2000; thus, there is no basis to determine whether alleged incidents occurred in 1999 or 2000. Her testimony included "essential and substantial facts in support of the allegation" having occurred in a timeframe (1999- 2000) not embraced in the 1994-1999 period (ending December 31, 1999) alleged in the Statement of Charges of the Amended Administrative Complaint. "[T]the allegata and probata must correspond and agree." This ambiguity is resolved in favor of Mr. Merica. On that basis the testimony of Ms. Velez in findings 183 through 186, hereinabove is rejected. The Commissioner did not prove, by clear and convincing evidence, that during the period between 1994 and 1999 Mr. Merica "created a pattern of similar incidents thus creating an environment that was dangerous to the students in his classes." Conversely, through the testimony of Ms. Velez, the Commissioner proved, clearly and convincingly, that "during the 1992-1993 through the 1998-1999," including the 1994 through 1999 period alleged in the complaint, Mr. Merica did not engage in a pattern of similar incidents that created a dangerous situation for children." Regarding the school year when allegedly Mr. Merica initially became or his teaching methods demonstrated incompetence, Ms. Velez demonstrated a lack of knowledge and lack of expertise by her following qualified answer: It was my feeling--my personal and professional feeling when I reviewed the file--that he had indicators of incompetence for quite some time, especially in his personal conduct. I am not an expert in curriculum. It's been a long time since I taught in the classroom. [emphasis added] But Mr. Merica's statement to me was he's the best teacher that was at Foster Elementary, and I had an opportunity to look at his lesson plans one afternoon when I went to meet with Ms. Griffin and although I haven't written them in years, there were no lesson plans. They were subjects. Math, math, math. Nothing to distinguish between the levels of his children. When I reviewed the record at Foster, his conduct that created an uncomfortable working environment for employees had been there a long time. The former principal, Ms. Payne, had dealt with it from time to time. It's my professional opinion that she put him in physically impaired so he had less opportunity to be inappropriate with children, and she began then to deal with his personal conduct issues. So to answer your question, I believe -- I don't know that -- I don't know when it began, but I don't think it surfaced his last assignment at Foster, but rather sometime prior to that. [emphasis added] Ms. Velez was unable to identify the school year Mr. Merica became, as she characterized, "incompetent in his personal conduct." Ms. Velez's personal feeling of incompetence is an inadequate standard by which to measure professional competence, to include one’s personal conduct. Ms. Velez did not know when, if at all, Mr. Merica's alleged professional incompetence, to include his alleged personal conduct, began. The evidence of record established that the Board, as of January 13, 2000, had concluded its investigation and made a final determination that Mr. Merica was incompetent. Therefore, the Commissioner failed to prove, by clear and convincing evidence, through the summary testimony of Ms. Velez that Mr. Merica was or to began to become incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 19997 period as alleged in the Amended Administrative Complaint. Violation of a penal statute or rule is not found on loose interpretations of the Human Resource Director with 31 total years of education experience and a Master's Degree in Education Administration, or based on problematic evidence. Evidence more objective and substantial of critical matters in issue should be as substantial as the consequences. Clear and convincing evidence is not present in this record nor established by testimony presented by this witness that Mr. Merica was incompetent, as demonstrated by his professional teaching skills, at any time during the 1994 through 1999 period as alleged in the Amended Administrative Complaint. Ms. Velez testified that teachers hired by contract (as was Mr. Merica), a veteran teacher, or a tenured teacher are required to be evaluated once annually by their principal, and the purpose of the principal's annual evaluation is for performance improvement. The testimony and documents prepared by Ms. Velez regarding a report from an unidentified mother about her unidentified child is unconfirmed, uncorroborated, incompetent, and thus insufficient to establish any purported facts of actual occurrence. Following protocol and to effectuate his contractual termination with the Board, on November 18, 1999, Ms. Velez submitted four of her letters, dated July 1, September 14 and 24, and October 20, 1999, to James A. Edgar, M.D., P.A., as the basis for her referral of Mr. Merica to Dr. Edgar for a psychiatric evaluation that was conducted by Dr. Edgar on November 18 and 23, 1999. Accepting as accurate and true the content of Ms. Velez's four letters and using those letters as the foundation of his examination, Dr. Edgar evaluated Mr. Merica. At the conclusion of his examination, Dr. Edgar opined that Mr. Merica did not have a diagnosable psychiatric disorder, either Axis I or Axis II, Diagnostic and Statistical Manual of Mental Disorders (4th Ed.). According to Dr. Edgar, "None of the problems, as reflected in Ms. Velez's summary taken from non-notarized reports from unnamed third parties, makes him in and of themselves incapable of functioning as a teacher." He then goes on to qualify his opinion with a "[H]owever, taken together they 'could' make him very difficult to work with as part of a team effort.” Dr. Edgar's evaluation resulted in a qualified conclusion that Mr. Merica is aware of his actions but minimizes or denies the effect of those actions on others and thus rationalizes his verbal aggressive behavior as his "constitutional right" to express his opinion. From that position, Dr. Edgar reaches what appears to be the desired conclusion that: "Mr. Merica's current behavior does not appear to be an escalation of previous behavior just more of the same. I can not say whether he might become more aggressive or violent but I do believe his behavior will not improve." The attempt to lay a factual foundation that Mr. Merica's alleged incompetence was present in 1994 through the conclusiory testimony of Dr. Edgar failed for want of competence. The one line in Dr. Edgar's 1999 opinion that Mr. Merica's "behavior does not appear to be an escalation of previous behavior just more of the same," is insufficient in weight and substance to establish as fact and/or establish the basis from which to infer, and I do not infer, that in 1994, Mr. Merica demonstrated an "aggressive behavior," which demonstrated emotional "incompetence," and that behavior continued through 1999 as alleged in the Amended Administrative Complaint. Respondent's Response to Allegations Mr. Merica presented the testimony of Janice Wilson who worked as a DEES attendant at Foster from 1992 through 1998. Ms. Wilson was Mr. Merica's DEES attendant during the 1997-1998 school year and worked all day, five days a week, with Mr. Merica in his classroom when he taught PI students. She was not his DEES attendant when Mr. Merica taught SLD students. For the six-year period, 1992-1998, Ms. Wilson was in Mr. Merica’s classroom daily. She had occasion to observe his teaching as she worked with Mr. Merica. Based on her six-year association, Ms. Wilson testified as follows: When asked how would she characterize his rapport with his students, she answered: "wonderful, wonderful." When asked did she have problems or concerns working with Mr. Merica, she answered: "none, none, whatsoever." When asked had she ever observed Mr. Merica mistreating, in any way, students, she answered: "No." When asked did she ever see him getting in the faces of any of his students, she answered: "None whatsoever." When asked if she had observed Mr. Merica screaming at his students, she answered: "No." When asked if she would have any problems working with Mr. Merica in the future, she answered: "I would work with him any day." Regarding Mr. Merica leaving his classroom, Ms. Wilson testified that: When Mr. Merica would leave the classroom, he has been called from the front office or any other classroom for computer. If the computer goes down, he was the man that they will find to fix the problem with the computer. That's the only time he would leave the classroom, when they request they need it. To the question other than his lunch time and his planning period, did you know of Mr. Merica just to get up from the classroom and go walk around, she answered: "Not at all." When asked did Mr. Merica socialize, she answer: "Not at all." When asked did she ever know of Mr. Merica to be unprofessional, belligerent, hostile or confrontational, she answered: "No." When asked did she ever observe Mr. Merica trying to subvert the administration, she answered: "No." When asked how his students reacted to Mr. Merica, Ms. Wilson replied: Oh, they were glad to see him every day. I mean, a lot of times they would be hungry before lunch, and Mr. Merica would go to Sam's that night before and have snacks in the classroom to make sure they have snacks to eat before they went to lunch. I mean, he was a wonderful teacher. Nobody could never ask of --and I mean, he was outnumbered as male teachers at the school. There was only two, you know, and I think he was a wonderful teacher. Presence Outside His Classroom When asked if she personally received calls for Mr. Merica to assist someone with their computers, Ms. Wilson answered: Yes. It comes over the intercom and he always asked, will you be okay for five or ten minutes? Let me see what's wrong with the computer and that's the only time he would leave the classroom. When asked if she knew "specifically" where Mr. Merica went on computer calls, Ms. Wilson answered: The school has changed a lot with teachers. A lot of the teachers has left. A lot of times he would go to like an autistic class which is down the hallway from us. He would go to the room next door to us to help with the computer. Now, with names I'm not familiar with the teachers because like I said, the school has changed a lot since I've been there and maybe those teachers are not even working there. He used to help Rita Airwood (ph.) a lot with the computer because she wasn't--she didn't know where the power button was. Most of the teachers there didn't know where the power was. A lot of us would, after school, when all the kids were gone, we would have him to teach how to work the computer and be on task when the next day come. So, therefore, a lot of the teachers would come to our classroom to let Neil show them were the computer--what screen you start on and all before the next day because a lot of times we would get worksheets. We didn't have workbooks. A lot of times we would get worksheets off the computer. So when I say names, it's a whole bunch of names I would have to go through. When asked, "[h]ow do you personally know, from viewing him going to that room--witness him go to where he said he was going?" Ms. Wilson answered: Because we have windows. The aisles run from east to west. We have -- and I'm looking out the door to make sure he gets to that classroom. A lot of times when he gets to that classroom, he'll either do this here, a thumbs up, and he's on his way back. According to Ms. Wilson, she always knew where Mr. Merica went when he left his class because he would tell her before leaving; i.e. "They want me in the front office." "I need to be here." He would not just walk out of the class. Though she did not follow him out the classroom, she testified: A lot of times I would be doing bathroom and he would say, "Hey, I'll be right back." He may go and get a cup of tea and he's right back there helping me in the bathroom, because normally I think we had -- at the time I worked with him, we maybe four to five wheelchairs, and a lot of times he would give me help with the boys, you know, and then I would do the young ladies. I would take the girls first and he would stand right outside the bathroom and wait with them if I said I needed him, he'll come inside and help me. Through the undisputed testimony of Ms. Wilson, Mr. Merica established those purposes for his frequent departures from his classroom; to assist other teachers with computer problems in their classrooms. Whether or not one agrees with the stated purposes Mr. Merica gave for being out of his classroom, that fact does not affirm the Commissioner’s allegation of unprofessional conduct by his frequent presence outside his classroom. When asked if he was called upon by the Administration to provide technical computer assistance to the teachers Mr. Merica replied: Very often. I would not fix a computer unless it was on my planning time, unless it was instructed by the administration office, by Ms. Pils or Mr. Drennan--Ms. Payne, I'm sorry--or Ms. Drennan--that they needed me and it was a real emergency and I would also make sure with my class that there was the kind of instruction that wasn't going to hurt me to be pulled out for a few minutes. Regarding ACT training and physical restraint of students, Mr. Merica admitted that he received ACT training and was certified only for the 1995 school year. He was aware of the policy requirement of annual ACT re-certification, but he elected not to be re-certified. Mr. Merica admitted physically restraining students on approximately three to five separate occasions during the period of 1995 to 1999. When questioned as to his understanding of physically restraining students when his ACT certification had expired, Mr. Merica responded: That is not my understanding. I think another ESE teacher touched upon it that if a person is about to harm themselves or others or harm you, where you really feel that they're going to physically harm themselves, another student or yourself, then you can restrain them because what you are trying to do is keep a dangerous situation from becoming more dangerous. Mr. Merica denied having classroom behavior problems during his tenure as a SLD resource teacher (1987-1988 through 1992-1993 school years) as well as during his tenure as a PI resource teacher. Mr. Merica admitted engaging in disruptive conduct when attending faculty and staff meetings. He characterized his disruptive actions as "tapping a pencil on the table or tapping his fingers on the table," but denied "pounding his shoe on the table." He matter-of-factly acknowledged making arguably argumentative comments when he agreed or disagreed with some things presented by the speaker with callous disregard that the speaker was speaking. I find that such callous disregard of rendering reasonable respect to the person speaking and those of his colleagues in attendance under the circumstances demonstrated unprofessional conduct by Mr. Merica. I further find Mr. Merica's ". . . constitutional right" justification for unprofessional conduct unconvincing. Mr. Merica acknowledged he has a loud voice and a strong personality, and he is sometimes loud, but not "always" loud as testified by co-workers. Mr. Merica testified that he got along and related very well to the PI and the SLD students in his classes, and he believed they related very well to him and none of his children came to him personally with a complaint. According to Mr. Merica, during his tenure at Foster, he never received a written document from a parent that said "we have a complaint." Mr. Merica opined that other than academic concerns-- normal academic concerns--when he asked for a conference with parents of his children, a few parents would come on conference nights because most of the parents of his kids knew him because he had been there for a while. Regarding Principal Griffin's decision to move him from his PI resource class to a regular SLD class, Mr. Merica recalled that before summer school of the 1998-1999 school year, Principal Griffin and he discussed the matter. His recollection of their discussion follows: She basically said --she looked at my record and said, "As far as discipline goes -- I know we have some other issues, but as far as discipline goes, you look like somebody who could handle that class because it's very difficult class with mostly boys and we'd like to see a man in there,"--and to be perfectly honest, I told her I just went through a divorce. I needed stability. I would prefer to stay in PI or I would like a transfer, and unfortunately at that time, the transfer period was over or they had a freeze. It was one or the other. I think they might have had budget problems and had a freeze at the time. It was one of the two reasons.--It's just that I needed that stability and I hadn't done -- I had done resource before, and I've done PI, which I felt really comfortable in, but hadn't done a full time SLD unit. Even though I was qualified to do it, I just didn't really feel comfortable going into another area after the domestic problems I was having at home. I went through a divorce, which was not an easy thing, during that summer. (emphasis supplied) Mr. Merica's recall of Principal Griffin's comment, "[w]e'd like to see a man in there," was corroborated by Ms. Lipari testimony that during the 1997-1998 school year she was moved down to teach kindergarten and first grade level PI students to provide "mothering and maternal type activities," and Mr. Merica was moved to third/fourth grade to teach older, larger male students. Mr. Merica gave the following reason for resigning as CTA representative in the spring of school year 1998-1999: I resigned because there was undue pressure from the principal [Principal Griffin] and they actually were putting some pressure on my child that was going to that school. Concerning his role as a resource teacher, Mr. Merica stated: As a resource teacher, I had to implement the IEP that was generated by either me or a teacher before me, describing the amount of pullout time, and pullout means that they were in a "regular education class" and they were pulled out for special services. What special services I generally gave them was either math or reading, but it could be social studies or science. Those were rare occasions. Most of them were math or reading. You pull them out for the amounted time specified by the IEP at the level that the IEP indicates, and when that period of time during the day is over, you send them back or you walk them back. In Hillsborough County they had some problems at that time with kids running off campus, so they recommended that we pick up our students and take them back to class. Administrative Leave and Observation of Model Class According to Mr. Merica, on or about August 12, 1999, he was assigned to the SLD class and his last day in that class was November 2, 1999, a total of 83 days before he was placed on administrative leave for five work days plus the weekend. Mr. Merica's assignment by Foster administration to Lake Magdalene was for him to observe a class at Lake Magdalene similar to his SLD class at Foster. After he sat in the Lake Magdalene class for approximately two hours, he spent the next few days sitting next to the principal's office trying to compile materials that would work for his SLD class. Mr. Merica concluded that the Lake Magdalene (SLD) class was not similar (as a model) to his Foster (SLD) class based on following reasons: I was working in an inner city school, this was a very rich, affluent area with totally different set of behavior problems. The makeup of the class was totally different. There were more girls. They were more [sic] white. It was just a totally different makeup. They were younger. And I sat in the classroom for about two hours and then I spent the next few days sitting next to the principal's office supposedly trying to compile materials that would work for my class. Lock Down Drill and Student Running Out of Classroom Responding to questions raised about the "lockdown drill" situation when students were observed running from the classroom onto the PE field, Mr. Merica testified he was given a walkie-talkie because the school intercom system was down. He did not receive notification of the lockdown drill via the walkie-talkie, and so he was not made aware of the scheduled lockdown drill. The evidence is undisputed that students that were seen by his co-workers running "about" the facility during the lockdown drill were not under the supervision of Mr. Merica at that time. The evidence demonstrated those kids were in their scheduled PE class under the supervision of the PE teacher, who put them in "time-outs" and sent them to Mr. Merica for their "time-outs" periods. Undisputed evidence demonstrated and it is found as fact that during this "time-out" period that the incident of students kicking the ball and playing in the classroom and being generally unruly and disobedient that Mr. Merica had justifiable cause to defend himself when a student put his/her hands around his neck and attempted to choke him. His testimony regarding the conduct of students in his class was corroborated, in part, by the testimony of two students, Jarmaal Rumlin and Demetrie White. Mr. Merica denied yelling at either Principal Payne or Principal Griffin. In defense of his voice volume, he characterized his discussions as "forceful," "assertive," and sometimes with a "loud voice." He described pointing of his finger as [u]nder normal conversation when some people use their hands, they might consider that pointing, were I was just, you know, just using my normal gestures of speaking, as far as I was concerned, and if I was pointing, it was only --again, it was not to be pointing at anybody. It might be, that's point number 1; that's point number 2; that's point number 3. Continuing, Mr. Merica said he never lost his temper at school with either principal, was never "out of control" with any students under his supervision, and never injured a student under his supervision. Mr. Merica's explanations for his finger-pointing and verbal barrages during conversations with authority figures evidenced a defensive attitude that did not lend itself to the appearance of a professional team player. Principal Payne did not testify that Mr. Merica pointed his finger in her face during their many meetings over the years. Principal Griffin's testimony of "pointing his finger in her face by Mr. Merica" was not accompanied by specific circumstances and situational context of the incidents. Accordingly, the appropriateness of such conduct, without evidence of each party's participation in the conversation and the specific circumstances and situational context at the time of occurrence, was not shown by the evidence of record to be, clearly and convincingly, inappropriate. Answering allegations of making derogatory or disrespectful remarks about Principal Payne or Principal Griffin, Mr. Merica replied: That's the eye of the beholder, but as far as I was concerned, I was just trying to make them a better person and there were some things that they were criticizing me about. I criticize people for things that I feel they have weaknesses too. So, you know, it's the eye of the beholder. Responding to Offered Assistance and Suggestions When asked if he had received assistance to help improve his classroom management techniques with regard to his regular SLD class, Mr. Merica replied: Yes. I always took suggestions and implemented every suggestion. Some things did work and some things did not work. You know, sometimes certain personalities -- certain things won't work and certain things will, but I certainly implemented every plan. Now, hey, I can even say this: some plans that I wasn't that good at and probably somebody else could have made it work -- maybe. But I know that some things I did that they implemented -- some things worked and some things didn't and I can even go further without trying to be editorializing that we learn from others. Some of the other teachers have suggestions --not just the ones from administration. There were some teachers that came up with some plans that worked for me. Mr. Merica's above recollection of receptivity and implementation of constructive assistance was confirmed through the undisputed testimony of Ms. Hindman, who on three separate occasions documented specific improvements she observed in Mr. Merica's classroom on each of her return visits. Use of Computer, Games, and Newspaper as Teaching Aids Answering those allegations regarding his use of video and computer games as teaching tools, Mr. Merica's undisputed response was: I said I never played them [video games] during instructional time. Students played them sometimes and it was part of the IEP. There were various video games. There was many of them and one they talked about a lot was the golf. But, you see, these kids have kinesthetic problems and we're trying to teach them how to manipulate the mouse, keyboards and other things. There was a racecar game that they used to use, plus it was good for their eye-hand coordination because they were kinesthetically challenged kids. They were in IEP. It was in the IEP that they were supposed to be kinesthetically challenged to whatever level they were to try to take them another year's worth. They didn't even call it grade level, but another year's worth of progress. They were approved, by the way. As far as I know, every game that I brought was approved by the school board or if it was not, nobody told me it was not. There was a list of computer software that you could use for kinesthetic(s), but the list was not always complete. There was also ones for learning and some of the software I even created myself and I made sure it was approved by the office before I even used it because I created it. I wrote it and I wanted to make sure that it was okay with them. But they were very, very, academic. Mine dealt more with reading and -- it never had any kinesthetic(s) in it at all. So mine was easy to approve. ---I knew the list, but again the list -- it even says it does not include all the new software. It does not include all the new software. There are ones that we know about. And the same thing with video list. They had a video list. They have a video list, but it also said under these circumstances, these are -- generally a "G" movie is approved, but you know -- the list was always being compiled. It was always new it always had a little thing in there like, we may be incomplete, check with your principal. Answering the question, "[w]hat is kinesthetic?" Mr. Merica stated: Kinesthetic is using hand-eye coordination. They are physically impaired kids. Some of them were trying -- they might even some kind of physical deformity or nerve damage or cerebral palsy and they were trying to get them to manipulate their hands. Mr. Merica's selections of newspapers, computer games, and specific TV programs as associative resource educational tools for his students were undeniably appropriate resource materials and activities related to learning goals for his students with various learning and physical disabilities. No witness for the Commissioner, including Principal Griffin, the ART, and the ESE specialists, testified to the contrary. Mr. Merica denied that he had sexually harassed his co-workers, and his denials were confirmed by the testimonies of the alleged victims who were called to testify by the Commissioner. He denied "being off task when in the classroom." He denied playing video games in class during teaching and instruction time. Mr. Merica's denials of essential elements in the Amended Administrative complaint, even if unbelievable, does not prove the accusations. The burden remains with the Commissioner. Answering the allegation of "reading the newspaper in class," Mr. Merica stated: If there was a current event and we were talking about current events or -- the kids even had papers at that time, so we have used the paper in an educational way in the school before. Answering the allegation of allowing his class to watch the television program, The Price is Right, Mr. Merica stated: That's a possibility, because at one time in PI, our kids were not going to the lunchroom. They were served lunch in the room. Well, that was a time where I was not present. It was the aides on attendance. It was their duty. That was my time. I have a duty-free lunch is what they call it. It's part of the contract. I didn't always take that time. They knew if they needed help, I would help. If there was some special function going on or something like that, I would not necessarily go to lunch. But as a general rule I did do lunch, and those kids were in the room and sometimes the TV was on and the news during lunch period. It was lunch period for the children, too. Mr. Merica added that he was not aware of any prohibition against putting the TV on during the children's lunch period. Answering his attorney's question why he placed a "Do you need a Sub?" note (the Board's Exhibit 62) in some but not all his co-workers mailboxes, Mr. Merica stated: That's self-explanatory. It says: "Do you need a sub? If so please call Mr. Merica at 985-0203. Do not call before 6:00 a.m., or, you will have to deal with me personally. Can you spell DEAD?" I put it in a few teachers' mailboxes--friends mainly--I'm not a sub. People know that. The people that I gave this to know that I was not a sub. It's obviously a joke. The joke means that I don't think its appropriate to call anybody before 6:00 a.m. in the morning, you know, to disturb their family.--- As far as I know, they wanted to have a new policy because the secretaries didn't want to have to deal with sub calls anymore. So they said to start calling the subs before 6:00 o'clock in the morning to make sure they get there, and by the way, it doesn't say--can you spell dead? That's a little inside pedagogy, whatever you want to call it. It's a little inside teaching joke. "I hope you can spell." Based on the situations and circumstances at the time he engaged in activities and conduct in findings 206 through 211 and findings 229 through 234, I find Mr. Merica's explanations were plausible, reasonable, and within a teacher's authority and obligation to be creative and innovative by providing one or more methods of training to attain specific individual educational goals, based upon the physical and/or mental limitations of students and in concert with the educational goals as stated in their respective IEPs. Realizing that Foster administration and the Board were in the process of terminating his employment contract at the next Board meeting, Mr. Merica wrote a November 2, 1999, memorandum to Dr. Binnie and Principal Griffin, suggesting that he be transferred (to another school) as an alternative solution. The request of transfer was denied. By letter of January 13, 2000, Dr. Earl Lennard, Superintendent, the Board, suspended Mr. Merica with pay until the Board meeting on January 18, 2000, at which point his contractual employment with the School Board was terminated. The School Board's annual renewal of Mr. Merica's yearly contract of employment during Principal Payne's tenure as principal of Foster provides a reasonable inference, and I so infer, that the 2000 termination of Mr. Merica's annual contractual employment was based primarily upon issues that were identified and raised by Principal Griffin during the mid-1998 through 2000 period when she, and not Ms. Payne, was principal at Foster. There is no evidence of record that Foster brought to the attention of the Board or that the Board considered allegations of or findings of professional misconduct that had occurred during the 1994 through 1998 time period when Ms. Payne was principal at Foster Elementary. Amended Administrative Complaint Material Allegations Paragraph 3(a) The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica, at unspecified times, demonstrated heightened anger while conferencing with Principal Payne. The evidence proved clearly and convincingly that between 1998 and 1999,8 Mr. Merica yelled at Principal Griffin while conferencing with her as alleged in Paragraph 3(a) of the Amended Administrative Complaint. I do not find that Mr. Merica "pointed his finger in his principal's face and being emotionally out of control while conferencing with Principal Griffin." The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica failed or refused to comply with specific requests or specific instructions given by Principal Payne during her tenure as principal at Foster during the period of 1994 through mid 1998 or that Mr. Merica refused to comply with specific requests or specific instructions given by Principal Griffin during her tenure from mid-1998 through 1999, as alleged in paragraph 3(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica made derogatory and/or disrespectful remarks specifically about Principal Payne or specifically about Principal Griffin to and in the presence of his co-workers as alleged in paragraph 3(c) of the Amended Administrative Complaint. Paragraph 4 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica rejected constructive criticism and assistance from those whose positions required giving such constructive criticism and assistance as alleged in paragraph 4(a) of the Amended Administrative Complaint. To the contrary, the reliable evidence proved that between 1994 and 1999, specifically in the mid and latter part of the 1999 calendar year, Mr. Merica accepted and responded positively to constructive criticism and offers of assistance from those whose position required giving such constructive criticism and assistance. The material and relevant evidence proved, clearly and convincingly, that on unspecified dates between 1994 and 1999, Mr. Merica was disruptive at faculty meetings by speaking aloud; speaking to co-workers, sometimes argumentatively; and interrupting speakers when they were speaking during faculty meetings as alleged in paragraph 4(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica was disruptive at faculty meetings by banging on tables and by making subversive and derogatory statements about the administration, in the presence of students and parent and faculty as alleged in paragraph 4(b) of the Amended Administrative Complaint. Paragraph 5 The material and relevant evidence failed to prove, clearly and convincingly, that Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, during February 1999 as alleged in paragraph 5(a) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica sexually harassed a co-worker, Ms. Kolinsky, an intern and teacher at Foster as alleged in paragraph 5(b) of the Amended Administrative Complaint. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica sexually harassed co-worker, K.R., a teacher at Foster Elementary as alleged in paragraph 5(c) of the Amended Administrative Complaint. Paragraph 6 The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica frequently left his class with his aides so that he could walk around campus, socialize, and/or monitor other teachers and their students as alleged in paragraph 6(a) of the Amended Administrative Complaint. The material evidence proved on those occasions, recalled by Mr. Merica and his DEES attendant who was an on-scene observer, that his absences from his classroom were for legitimate purposes within his obligations as a professional teacher in the Hillsborough County school system. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999 Mr. Merica's use of alternative methods such as video games, newspapers, and other tools and equipment to teach his students were "ineffective teaching tools and student management" as alleged in paragraph 6(b) of the Amended Administrative Complaint. To the contrary, the undisputed evidence proved that Mr. Merica's use of other supportive, available, and permissible means and methods such as video games, newspapers, and other tools and equipment for stimulating his PI students' interest were effective teaching tools. The material and relevant evidence failed to prove, clearly and convincingly, the factual basis to support allegations that between 1994 and 1999 Mr. Merica (1) utilized ineffective lesson plans, (2) utilized ineffective behavioral management plans, (3) failed to keep students academically engaged, and (4) failed to control his students and/or gain their respect as the manager of the class as alleged in paragraph 6(c) of the Amended Administrative Complaint. Paragraph 7 The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999 Mr. Merica restrained students without the required ACT certification as alleged in paragraph 7(a) of the Amended Administrative Complaint. The evidence proved that Mr. Merica restrained "unruly" students and restrained "a student" in defense of his personal safety and that of other students in the time-out class incident herein found. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica yelled in the faces of students as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. Through the testimony of two students, Demetrie White and Jarmaal Rumlin, it is clear when Mr. Merica was yelling in their face(s) it was, in part, to be heard over their yelling at him and/or each other when they were kicking the ball and playing during time-out. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica exhibited out-of-control or emotional forms of discipline as alleged, in part, in paragraph 7(b) of the Amended Administrative Complaint. The material and relevant evidence proved that between 1994 and 1999, Mr. Merica restrained one unruly large male ESE student that was not enrolled in his class without a request from the teacher who was responsible for the class, as alleged, in part, in paragraph 7(c) of the Amended Administrative Complaint. Paragraph 7(d) was withdrawn by the Commissioner. The material and relevant evidence failed to prove, clearly and convincingly, that between 1994 and 1999, Mr. Merica's teaching and student behavior management was ineffective, including: frequently leaving his class with aides so that he could walk around campus, socialize, and/or monitor other teachers and their students. when in his class, frequently playing video games on his computer, reading a newspaper, or reviewing architectural designs. utilizing ineffective lesson plans and behavioral management plans, failing to keep students academically engaged, and failing to control his students and/or gain their respect as the manager of the class. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, within the circumstances and context of each encounter of record, Mr. Merica restrained unruly students without the required ACT certification. The evidence demonstrated that in each proven encounter of unruly student restraint, Mr. Merica acted to protect the unruly student, other classmates, and, on two occasions, protect himself and another colleague. The material and relevant evidence proved, clearly and convincingly, that between 1994 and 1999, Mr. Merica restrained an unruly male student who was not enrolled in his class without waiting for the female teacher to ask for such assistance as alleged in paragraph 7(c) of the Amended Administrative Complaint. The evidence demonstrated and it is found that by restraining the unruly male student, Mr. Merica prevented possible potential injury to the unruly student, to the female teacher, to the grandmother volunteer, and to other students of both classes who were present in the hallway at the time of the incident. Paragraph 7(d), alleging inappropriate discipline of several students on or about September 23, 1999, was withdrawn by Petitioner. Paragraph 8 The Commissioner failed to prove, by clear and convincing evidence, allegations in paragraph 8 of the Amended Administrative Complaint that Respondent met with his principal and county employees to discuss and received letters of reprimand for each act alleged in paragraphs 1 through 7 of the Amended Administrative Compliant. Paragraph 9 The Commissioner proved, by clear and convincing evidence, that the Board terminated Respondent's contractual employment as a teacher with Hillsborough County in 2000. The burden of proof required to terminate a contract of employment is not the clear and convincing evidence burden of proof standard required to revoke a license. The Commissioner offered no documented proof, however, proving the Board's decision was based specifically on the allegations found in paragraph 9 of the Amended Administrative Complaint. There is no documented evidence of record that identifies the specific basis upon which the ultimate determination to terminate Mr. Merica's 2000 school year employment contract was made by the Board. The Commissioner did not prove, clearly and convincingly, by material and relevant evidence of record, the allegations that "[E]ffective September 22, 2000, the school board terminated Respondent's employment on charges on [sic] insubordination, persistent violation or willful refusal to obey laws or policies relating to the public schools, and failure to demonstrate competency relating to the instruction, evaluation and management of students in accordance with accepted standards," as alleged in paragraph 9 of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Finding of Fact and Conclusions of Law, it is: RECOMMENDED that the Commissioner of Education enter a final order finding Respondent, Neil Merica, in violation of Subsection 1012.795(1)(i), Florida Statutes (2003), and imposing the following penalties: Suspend Respondent's right of renewal of his teacher certificate and place Respondent on probation for a period of three years, to require successful completion of an anger management course and other such conditions as the Commissioner may specify upon re-application under existing requirements for certification by the State Board at the time the suspension expires. Impose a fine on Respondent in the amount of $1,000.00 for violation of Section 1012.795(1)(i), Florida Statutes (2003), to be paid prior to or at the time of re-application for certification, and other such conditions as the Commissioner may specify. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 31st day of March, 2005.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following pertinent facts are found: Respondent Wieland has been employed with the Broward County school system for approximately twenty-three years. In the school year 1973/74, he held the position of Director of Exceptional Child Education. His immediate superior was the Program Director of Educational Services, Mr. Larry I. Walden, a member of the superintendent's staff. Dr. James R. Fisher served as Director of Psychological Services on Dr. Wieland's Exceptional Child Education staff. During the 1973/74 school year, several rather drastic changes were occurring with regard to the administration of the exceptional child education program. This was the year of decentralization in Broward County, where concepts of authority, decision-making, accountability and responsibility were filtering down to the building or school levels through the various principals. Also, the Florida Educational Financial Program began in that year. This program related to state funding for students based upon a particular weight factor assigned for students in different programs. The cost factors for programs for exceptional students is considerably higher than for basic programs. Beginning with the 1973/74 school year, the actual responsibility for placement of children and implementation of programs resided with the principals of the individual schools. The role of the Exceptional Child Education staff was then reduced to one of consultation, advice and administration. Prior to decentralization, psychological testing was conducted under the direction or supervision of the Exceptional Student Education Department at the Diagnostic Center. With decentralization, testing psychologists became a part of the staff of the area offices and were answerable to their respective area superintendents. With this change, they were repeatedly instructed that their functions were consultative and that they were simply to test students upon receipt of a request from a school's principal. Beginning with the 1973/74 school year, school psychologists, as well as the then Director of Psychological Services, were constantly concerned with the pressures being placed upon them by the school principals and area superintendents to rapidly test and certify students for eligibility in the various exceptional education programs. A count of such eligible students was to be made in October and February of each school year. The results of such counts had a tremendous effect upon the school principal's budget. Many school psychologists felt that students were being placed in programs without sufficient diagnosis or data. This, along with inadequate personnel, was a constant topic of discussion both among school psychologists and at meetings on the staff level. Mr. Walden, respondent's immediate superior, was informed by Dr. Fisher of files containing insufficient data and other procedural irregularities. Mr. Walden also attended some of the staff meetings at which various problems were discussed. No specific problems at Horizon Elementary School were discussed between Fisher and respondent Wieland during the 1973/74 school year. In fact, Dr. Fisher was unaware of any discrepancies or procedural irregularities at Horizon during that year. Conditions did not improve during the 1974/75 school year, according to various school psychologists and the exceptional education staff. They still felt pressure to rapidly identify eligible students for exceptional education programs in order to generate funding and they still felt there was inadequate staffing for psychological services. During this year, Mr. Joel Kieter assumed respondent's position of Director of the Exceptional Education Program and respondent became Coordinator of Special Services, formerly called Psychological Services. Thus, Mr. Kieter was respondent's immediate superior. During this year, Mr. Kieter's office had no direct role in the certification of students for the various exceptional education programs. The 1974 "District Procedures for Providing Special Education for Exceptional Students" specifically provided that: "In the process of decentralization the exceptional student personnel at the district level have been relieved of direct responsibility for administration and instruction. The respon- sibilities of such personnel are now consultative and advisory in nature. The primary responsibility for administration and instruction is at the building level." However, Mr. Kieter's staff did attempt to give guidance to school psychologists and administrative personnel regarding the criteria for placement and the required procedures to be followed. Among the duties of respondent Wieland during the 1974/75 school year was direct responsibility for the Diagnostic Center, which was a repository for some 35,000 to 40,000 student files. School psychologists were instructed to obtain a case number from the Diagnostic Center for all new student files and to send a copy of the completed file to the Center. At one time, they were told that they could retain the folders as long as they thought the case was active. Student files were also to be kept at the student's school and in the area superintendents' offices. Inasmuch as the school psychologists were accountable to the area superintendents, the Center and its staff had no authority and could do little more than request them to promptly forward the files to the Center. At times, staff at the Diagnostic Center would return files for parental consent forms. Numerous staff meetings were held by Director Kieter during the 1974/75 school year. During these meetings, the school psychologists complained of their heavy caseload, the lack of secretarial help and other staff, pressures placed upon them by principals and area superintendents to place children in programs, inappropriate testing and lost or misplaced files. These were general discussions and specific incidents were not related. Dr. James Fisher, who was the team leader for psychologists in the North-Central area, had general discussions with both Dr. Wieland, Director Kieter, and even Mr. Walden concerning the pressure he felt with regard to the rapid testing of children and the inadequacy of data in the files of children who had already been placed. Dr. Fisher expressed to them his fear that emphasis was being placed upon the filling of classes, rather than upon the individual students. During the school year 1975/76, respondent again occupied the position of Coordinator of Special Services and Joel Kieter was again the Director of the Exceptional Education Program. The building principal of the referring school or the school enrolling the student was directly responsible for placement in the appropriate exceptional student program. ("1975 District Procedures for providing special Education for Exceptional Students," p. 199, H(2)(c) and p. 3). The exceptional student education staff was responsible for the determination of eligibility of individual students (p. 3 of the 1975 District Procedures). This determination was to be based upon the report of the testing psychologist. In the first portion of the 1975/76 school year, Director Kieter signed the eligibility determination forms (also referred to as the B-1 form). This responsibility was delegated by Mr. Kieter to respondent Wieland in mid- December, 1975. Prior to this delegation, Mr. Kieter occasionally signatured some B-1 forms without having seen the psychological report. This was done because of a backlog in clerical assistance and processing, and to expedite the procedure. Mr. Kieter was assured by the school psychologists that if the B-1 form had been sent to him for execution, proper testing had been completed, the report was in the process of being written and the data was available. Simultaneous with the time that the authority to sign B-1 forms was delegated to Dr. Wieland, Mr. Kieter issued a memorandum to all school psychologists stating that B-1 forms without the completed psychological report attached thereto would no longer be entertained. In the Fall of 1975, Mr. Fisher communicated with Director Kieter concerning the absence of certain psychological data in the files of some ten to twelve students at Horizon Elementary School. Mr. Kieter instructed Mr. Fisher to make up any deficiencies in those folders. Mr. Kieter also discussed the folders with the principal of Horizon, Mr. Wallsworth. Other than this incidence, Director Kieter was not informed of any specific irregularities or abuses in the exceptional education program at Horizon during the 1975/76 school year. Mr. John Georgacopoulos worked in the Diagnostic Center as a psychometrist from 1969 to 1971, and at Horizon Elementary School as a guidance counselor in the school years 1974/75 and 1975/76. As a guidance counselor, he attended "staffings" or meetings with school psychologists pertaining to the placement of students in the various programs. He was also involved with the testing of students at Horizon. In the school year 1974/75 -- his first year at Horizon -- Mr. Georgacopoulos perceived that there were problems in the running of Horizon's exceptional student program. These problems included the misclassification of students, the placing of students into programs without certification and without proper testing, the nonexistence of programs for which children were certified and mimeographed certifications with the students' name placed thereon at a later time. Mr. Georgacopoulos informed Horizon's principal, Mr. Wallsworth, of these irregularities on numerous occasions during the 1974/75 school year. He also states that he discussed these problems with Mr. Fisher, Director Kieter and respondent Wieland. Both Dr. Wieland and Mr. Kieter denied being informed by Mr. Georgacopoulos of any irregularities at Horizon during the 1974/75 school year. According to Mr. Georgacopoulos, problems at Horizon continued in the 1975/76 school year. These included the misplacement of children, improper or inadequate testing of students, nonexistence of programs, inadequate data in student files and the lifting of signatures onto psychological reports. In March of 1976, Georgacopoulos obtained from Mr. Wallsworth's office a computer printout of students funded for the various exceptional education programs at Horizon. He then checked the files of these students both at the Diagnostic Center and at Horizon and found that many did not have case numbers assigned to them, that many contained inadequate or no data and that, for some students, files did not exist at all either at the school or the Center. In March of 1976, Georgacopoulos went to respondent's office and talked to respondent about the alleged irregularities existing at Horizon. It is difficult to discern from Georgacopoulos' testimony what specifics were related to respondent. It appears that Wieland was informed that children were certified as gifted when no gifted program existed at Horizon, that children were being placed in the wrong programs, that children were being placed without appropriate or adequate testing and that the information in the student files was inadequate. At the time of this discussion, respondent had a difficult time following Georgacopoulos' conversation. He appeared to respondent to ramble and to be upset and confused. Respondent felt that Georgacopoulos simply disagreed with the psychologists' reports as well as the contents of the gifted program. As a result of this conversation, respondent told Georgacopoulos that some information might be in the files at the Diagnostic Center and offered him the opportunity to check these files with the assistance of his staff. Georgacopoulos told respondent that he had discussed these irregularities with Principal Wallsworth. On May 27, 1976, Robert Lieberman, a school psychologist at Horizon, went to respondent's office and told him of irregularities that existed at Horizon. These included the lack of programs for gifted and emotionally disturbed students, the misplacement of certified children, inappropriate "staffing" of children, inappropriate and/or inadequate testing before placement and the pressures placed upon school psychologists to test and place numerous students within a short amount of time. Lieberman was concerned that he would lose his job at Horizon and Respondent told him to try to finish out the school year without sacrificing his professionalism. Dr. Wieland also offered to help him get an interview for a job at the county level. Sometime between May 27th and June 9, 1976, Ms. Queen Sampson, a school psychologist from the area office, talked to respondent and confirmed the statements made by Georgacopoulos and Lieberman. On June 9, 1976, respondent again discussed the irregularities at Horizon with Mr. Georgacopoulos. During this conference, Mr. Georgacopoulos specifically placed the blame upon Principal Wallsworth and he was more emphatic and specific in his allegations concerning the irregularities. He also mentioned the falsification of psychological reports via the "lifting" of signatures, and stated that this had come to his attention in May of 1976. Respondent was aware at this June 9, 1976, meeting that Mr. Georgacopoulos was leaving the Broward County school system. Mr. Georgacopoulos testified that he had discussed specific irregularities at Horizon with Director Joel Kieter during the 1975/76 school year. Mr. Kieter denied that there had been any such discussions and testified that he had never even met Mr. Georgacopoulos prior to June 9, 1976. About an hour after talking to Mr. Georgacopoulos on June 9, 1976, respondent Wieland went to the office of William T. McFatter, Assistant to the Superintendent. He related that Georgacopoulos had made serious allegations against Mr. Wallsworth and asked for McFatter's advice. Mr. McFatter remembers that respondent mentioned the possibility of double funding and the qualification of students for the gifted program at Horizon. McFatter advised respondent to go straight to superintendent Mauer with the allegations. McFatter and respondent then went to the superintendent's office and a brief ten to fifteen minute meeting ensued. This was the last day of the school year for students and the superintendent was quite busy at this time. The possibility of double funding was an explosive issue to the Superintendent and this is the only irregularity he recalls having been mentioned by respondent on June 9, 1976. The superintendent immediately called a Mr. Cox, who deals with pupil accounting, and related to him his concern with double funding of students in the exceptional education program. Mr. McFatter, Mr. Mauer and respondent then went to the office of Mr. Cox and respondent Wieland was assigned the task of determining the existence or nonexistence of double funding. None was found and respondent so reported to Mr. Mauer. Subsequently, respondent and two other persons were assigned the task of auditing the records of the exceptional student program at Horizon. The auditors were unable to verify either the existence or nonexistence of certain records, forms and psychological reports for many students. It was clear that many files were incomplete and there was no evidence that either the gifted or emotionally disturbed programs existed at Horizon. Respondent Wieland explained the delay between the first March 1976, meeting with Mr. Georgacopoulos and his June 9, 1976, report to Mr. McFatter and the Superintendent as follows. Respondent (as well as others) classified Georgacopoulos as a "child advocate," and respondent felt at the March meeting that Georgacopoulos was merely expressing his disagreement with psychological reports and the contents of certain existing programs. During the March meeting, his allegations were general in nature and his discussion of irregularities appeared to ramble and be confusing. Respondent was more concerned with the demeanor of Georgacopoulos than with what he was saying. When Mr. Lieberman related similar and more specific irregularities, which were thereafter confirmed by Queen Sampson, respondent felt that disclosure of Lieberman's and Sampson's statements would be detrimental to their future employment with the school system. Upon confirming that Georgacopoulos was leaving the school system, respondent felt that the charges could be attributed to Georgacopoulos without injury to Lieberman and Sampson. He therefore had another conference with Georgacopoulos on June 9, 1976, and decided to seek advice from the Assistant to the Superintendent, Mr. McFatter. Various other events have transpired since June 9, 1976, concerning Horizon Elementary School exceptional education program irregularities. These include a letter from Mr. Georgacopoulos to the Superintendent, which letter appears to have instigated an investigation by the Security Office or the Internal Affairs Division. Such later events are not deemed relevant to the present charges against respondent.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent be immediately reinstated to his former position and that any back salary be paid to him for the reason that the charges against him were not sustained by the evidence. Respectfully submitted and entered this 3rd day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: School Board of Broward County 1327 S.W. Fourth Street Ft. Lauderdale, Florida John B. Di Chiara DiGiulian, Spellacy, Bernstein, Lyons and Sanders Suite 1500, One Financial Plaza Ft. Lauderdale, Florida 33394 Robert M. Curtis Saunders, Curtis, Ginestra & Gore P.O. Drawer 4078 1750 East Sunrise Boulevard Ft. Lauderdale, Florida 33338
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
