Findings Of Fact The parties stipulated that for Fiscal Year 1987-1988, the vocational- technical-adult education division of the Pinellas County Schools suffered a $7,000,000.00 budget deficit. The parties further agreed that if Dr. Cecil Boris, Executive Assistant Superintendent for Curriculum and Instruction were present, she would testify that she determined that as a result of the budget deficit, it would be necessary to eliminate $1,000,000.00 from the budget for the 1988-1989 fiscal year. She instructed her staff to implement that reduction based on two considerations. The first involved the cost effectiveness of individual programs and the second related to the need for the school system to service the community. The parties further agreed that in their respective departments, Mr. Poole and Mr. Muckle were the least senior instructors. Mr. Poole and Mr. Muckle both were continuing contract teachers at PVTI. Mr. Poole taught welding and Mr. Muckle taught heating, ventilation, and air conditioning. The terms of their employment are governed by the Agreement between The School Board of Pinellas County and the Pinellas Classroom Teachers Association, (Union), for 1985-1988. Other than the slots occupied by both Respondents as described above, and with the exception that as to Mr. Poole, a possible slot for him existed at SPVTI, there were and are no other open slots within the school system for which either Respondent is certified to teach. The parties agreed that the use of the term "open" means unoccupied by a continuing contract teacher or a teacher serving under a professional service contract. The parties further agreed that negotiations were conducted by the School Board with each Respondent in an effort to place him in other positions subsequent to his termination but the negotiations were unsuccessful. Pertinent Florida statutes relative to the issue here indicate that unless a teacher's contract is terminated for cause, it must be terminated at the end of the school year. Though the contracts of Mr. Poole and Mr. Muckle were not so terminated at the end of a school year, the parties agreed that failure was not and would not be raised as a defense to their termination. In November or December of each year, the various county school boards, including Petitioner, receive from the State the number of full time equivalents, (FTEs) they will be authorized for the following school year. A FTE equates to 900 hours of instruction per pupil and is authorized in various categories, including secondary education, post-secondary education, adult education, etc. If the Board feels the authorization allotted to it is inadequate or erroneous, it can appeal that allotment. Ordinarily, however, once the number of FTEs is received, the Board then examines the various programs it proposes to offer and establishes the number of units which it can employ for the coming school year. A unit equates to one full-time teacher. In addition, on the basis of the FTE authorization, the Board can figure what part time hour programs it can offer by the number of hours available to it. The post-secondary vocational-technical-adult education area is divided into several basic curriculum areas including, but not limited to, business education, distributive education, agricultural education, building trades, and health occupation education. The areas are not all funded equally but are weighted on the basis of projected student population relating to FTEs. The weights change year by year and the effect of weighting creates, in some cases, an opportunity to have a lower teacher/pupil ratio, (TPR). Some areas, by law, require lower TPRs. As a result, the weight for these programs is higher. Conversely, if the requirement is not as high, then the weighting given to the FTE is lower. When the Pinellas County School Board received its authorization for FTEs, a staff model implementing these authorizations was prepared by Dr. Herbert Ross, Assistant Superintendent for Vocational-Technical-Adult Education, under Dr. Boris' direction. This staff model, which defines where the FTEs are to be assigned, is prepared by the staff which, in doing so, evaluates the prior years programs, the TPR, the placement of students, and the future of the various authorized programs based on input from the various school advisory committees. This staffing model, when promulgated, is not fixed. If additional economies can be generated as a result of factors which occur later on in the school year, these economies will be implemented. By the same token, if a vacancy occurs subsequent to the preparation of the staffing model which does not warrant replacement based on projections of student population, the Board will not hire a replacement. The staff model pertinent to this case, prepared by the Division of Curriculum and Instruction, as it related to vocational teachers, reflects that SPVTI's staffing level for vocational teachers was to be reduced from 109 to 102 (7 teachers), and PVTI's teacher staffing was to be reduced from 120 to 111, (9 teachers). Elimination of these 16 teacher positions would result in a savings of $518,400.00. The entire reduction generated by staff reductions throughout the Division of Curriculum and Instruction totaled $1,085,612.00. The reductions identified in the staffing summary were based on the 1988 student load reports and the registrar's reports of enrollment in the various schools. Student load reports were not the sole factor considered. TPR's were also considered as were the number of sections in a program, (a program with one section only, involving one instructor, would not likely be cut as to do so would result in the loss of the entire expertise in that area), the various course placement records, the need for the course within the community, and other factors of a similar nature. When the evaluations were made, individual instructors were considered. The determination as to which programs required cuts generally resulted in identification of those programs with the lowest TPR being singled out for reduction. In this regard, Counsel for Respondent strongly contested Mr. Wagner's analysis of which programs were cut and why. Documentation prepared by her from records furnished by the Board in response to discovery would tend to indicate that many programs with a much lower TPR than either that of Mr. Muckle or Mr. Poole's classes were spared reduction while Poole's and Muckle's programs were cut. Mr. Wagner logically and reasonably justified each one of the judgement calls he made in determining whether a particular program should or should not be cut and no evidence was presented by Respondents to indicate that his judgement was incorrect or unsupported. Neither Mr. Wagner nor Dr. Ross played any part in the identification of the individuals who were to be terminated. Once the programs to be reduced were identified, they were forwarded to the school district personnel officer where identification of individual instructors was made on the basis of number of students, number of teachers, and projections for the future. Both the welding program, in which Mr. Poole teaches, and the heating, ventilating and air conditioning program, in which Mr. Muckle teaches, are in the same weighted category of courses, (trade and industrial). Based on the weight factors for trade and industrial courses, a unit, (teacher), needs a 12 to 14 TPR of full time students or part time equivalents. In making his identification of programs to be reduced, Mr. Wagner relied on several documents produced within his facility. The first is the registrar produced enrollment documents reflecting each course's student enrollment by nine week period, (quintmester or quint), for the prior two years. These quint rolls are prepared at the opening of each quint by the registrar from registration forms submitted by students for each class in session. As students come and go during the quint, adjustments are made as required. These forms, however, give the student enrollment only at the beginning of the term, and in order to get an accurate figure of class enrollment at any given time, Mr. Wagner periodically requests his instructors to prepare student load reports which list, by class period, the number of students each instructor has enrolled in his class and present on the day the report is submitted. Since some students are full time and some only part time, in determining the TPR, 3 part time students equal 1 full time student. This is a reasonable method of analysis. After making his study, Mr. Wagner identified the heating, ventilation, and air conditioning courses and the welding courses for reduction because these two technologies had been suffering a decline over several years. In fact, Mr. Muckle was warned that his job might be in jeopardy the prior year. In addition, whereas the institute had been previously getting central office support for various programs during a period of decline, this support was no longer forthcoming. When Wagner recommended cuts to the district personnel office, his recommendation was to cut a unit in the department. The choice of instructor was based upon seniority. The TPR in the heating, ventilating and air conditioning program had shown a pattern of continuous decline and enrollment at the time of identification was even lower than in previous years. Major appliances, a part of that program, had suffered a reduction through retirement of an instructor during the past year and this year, with the number of students enrolled being even smaller, it was necessary to cut an additional instructor. This same situation applied to the welding technology where though there was higher fluctuations than in heating, ventilating and air conditioning, the pattern of decline was consistent. Because of the impact that reduction has on the instructors within the system, the administration attempts, wherever possible, to do away first with vacancies. When those are gone, the remaining necessary cuts are attempted through attrition. In the instant case, Mr. Wagner cut two open units and got three more by not replacing retirements. Once these five units were cut, he was forced to look to annual contract teachers. A teacher who resigned was not replaced. Finally, when cuts were still required, it became necessary to look to continuing contract teachers to make up the difference between the six spaces mentioned above and the sixteen needed. Night course programs cannot be considered in the same category with day programs as they are "supplemental" programs. Teachers within these programs are usually part time teachers hired at an hourly rate. Mr. Wagner did not consider placing those teachers identified for cutting into the night program as teachers. Generally an instructor under continuing contract which calls for 25 hours of instruction per week cannot get enough teaching hours in a night program, (four nights per week, at four hours per night), to make absorption of the remaining nine hours cost efficient. Mr. Poole was not the only instructor identified for cut in the welding program. At the beginning of the identification process, four teachers were in the program, but Mr. Poole, the most junior, was identified and his position cut. That left three instructors. By May, 1988, Mr. Wagner had to recommend another reduction in that program, reducing the number to two and the prognosis was for even further decline. Even with the reductions imposed and identified for future imposition, it would appear that the welding program was not cost effective, notwithstanding Mr. Poole's testimony, uncontroverted, that it was well received in the community and the placement record for students coming out of the program was good. The May/June 1988 enrollment figures showed 25 students in the programs. This is just enough for two instructor positions. Consequently, when Mr. Wagner identified the third unit, rather than cut it, he transferred it to SPVTI along with the incumbent instructor effective July 1, 1988, the start of the 1988/1989 fiscal year. Mr. Poole was junior to that instructor. Quint reports for the HVAC program showed for the January - March 1988 period 49 students in the program with 7 teachers, generating a TPR of 7. In the previous year, there were 69 students at the beginning of the school year and during the same months of that year, the count was 75 students. Mr. Wagner projected that the student population would go down even further in the future. As for the welding program, during the January - March 1988 period, the program served 28 students with 4 teachers. At the beginning of the school year, the student population was 29 and during the same period for the previous year, it was 33. Heating, ventilation, and air conditioning and welding were not the only programs identified for reduction during this round of budget cuts. Several others, including electromechanical studies and practical nursing were also reduced as were the architecture/civil program. All of these had TPRs of 10 or less. No program with a TPR of over 10 was affected by the cuts. Once Mr. Muckle and Mr. Poole were identified by the district personnel office for cut, Mr. Wagner looked to see if, consistent with their certification, they could be moved into another department. Mr. Poole is certified in welding and Mr. Muckle is certified in heating and air conditioning. Both are certified in related technology. However, both instructors are continuing contract teachers and changing to a related technology is not normally done for continuing contract instructors. Several departments at PVTI which have a lower TPR than welding and HVAC were not affected. In one case, Mr. Wagner reduced a teacher to a 10 month contract from a 12 month contract status and also generated 39 more part time students in an effort to raise the TPR and keep the course. One-teacher departments, even with a lower TPR, were kept open in order not to lose the expertise. In other cases, the nature of the student population involved might have justified keeping a course open even with a low TPR, (handicap). The determination as to where to impose cuts was, in most cases, a question of judgement wherein Mr. Wagner, as Director of the school, had to consider other factors in addition to the TPR in deciding where to recommend the cuts. Mr. Poole had previously taught at night and was willing to again teach at night on a part time basis. However, he had chosen to withdraw from teaching night classes in the past and notwithstanding he stated he had offered to teach them again, he did not communicate this to Wagner. As to whether Poole could be reassigned to the welding program at SPVTI, there are currently two instructors, (including a transfer in from PVTI), on board and at the close of July, 1988, there were only 9 or 10 students for both teachers. This does not justify a third teaching position for Mr. Poole to fill. Respondents, offered several statistical surveys of teacher/pupil ratios which indicate there are numerous programs within the school system which appear to have lower TPRs than either the welding or HVAC programs. However, numerous factors other than TPR were considered in determining and identifying various programs for reduction. There has been no evidence whatever to indicate that Mr. Wagner's judgement was inaccurate, incorrect, or flawed. There was no evidence that his decisions were either arbitrary or capricious or based on an improper attempt to impose an adverse action on either Respondent or to improperly give benefit to others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the termination of employment of Respondents Jeffrey Muckle and Thomas Poole be upheld and their employment contracts with the School Board of Pinellas County be cancelled. RECOMMENDED this 29th day of September, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2005, 88-2008 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 4. Accepted and incorporated herein. 5 - 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8 - 9. Accepted and incorporated herein. 10 - 11. Accepted and incorporated herein. 12 - 13. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 16 - 23. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. For the Respondents: 1 - 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Sentence one is rejected as contra to the weight of the evidence. The remainder is accepted. 7 - 8. Accepted and incorporated herein. 9 - 10. Accepted. 11 - 12. Accepted. Rejected. Information is available. The issue is one of credibility and weight. Rejected and irrelevant. Rejected. Petitioner admits some records are not complete. The issue, however, is not one of statistics but of concept and the evidence is clear that Mr. Wagner's decision was based on reliable evidence which fairly presented the overall picture. Rejected and irrelevant. Conclusion in last sentence is rejected. 18 - 19. Accepted but irrelevant. Accepted but not controlling. Accepted and incorporated herein. Explained. Accepted. Accepted and incorporated herein. Accepted but not controlling. Accepted. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688 Charleen C. Ramus, Esquire Kelly and McKee, P.A. 1724 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates, as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2017). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2017). Respondent holds Florida Educator's Certificate 880641, covering the areas of Middle Grades Integrated Curriculum, Physical Education, Social Science, and Exceptional Student Education (ESE), which is valid through June 30, 2022. At all times pertinent hereto, Respondent was employed as an ESE teacher at GHS in the Alachua County School District. Respondent began his teaching career at GHS in 2002 teaching ESE classes. The incident that forms the basis for this proceeding occurred on May 12, 2016, during the 2015-2016 school year. Teachers employed by the Alachua County School Board are subject to the Collective Bargaining Agreement between the Alachua County School Board and the Alachua County Education Association, the local teachers’ union. Article IX, Section 21(a), of the Collective Bargaining Agreement, which was in effect during the 2015-2016 school year, provides that: Subject to the approval of the principal or his designee, a teacher may leave the campus of his particular school if appropriate arrangements are made to insure that students are not left unsupervised. Approval is required for each circumstance or situation. The principal or his designee will not unreasonably deny such a request. A teacher will use this privilege only in unusual circumstances. At the beginning of each school year, before students report, a faculty pre-planning meeting is held at GHS to go over information provided by the school district. Supervision of students is among the topics of discussion, and teachers are advised that they are not to leave students unsupervised in their classrooms. The reason for the instruction is obvious -- GHS, being responsible for the safety of its students, should take all reasonable measures to ensure their safety on campus. In addition to the instruction provided at the pre- planning meeting, GHS sent periodic emails to teachers throughout the year reiterating that students were not to be left unsupervised in classrooms. On April 5, 2016, an email was sent directed to the general problem of unsupervised students “walking around A, B, and C hallways” during the lunch periods. The email noted that some teachers allowed students to come to their classrooms during the lunch period for mentoring, which was recognized as a laudable activity. One teacher responded the next day expressing appreciation for the reminder, noting that “[t]here are students all over upstairs in A & B wings. They also hang out in the stairwells, especially on the West end.” On April 7, 2016, Mr. Shelnutt sent an email to all teachers reiterating that it was “fantastic” that teachers allowed students in their classrooms during the lunch period, but that students were not to be “roaming around.” The email emphasized that “if you chose to allow students in your classroom during your lunch, you are assuming responsibility for supervising them.”2/ During the lunch shifts, school employees were routinely stationed in areas where general education students were allowed to eat lunch in order to provide adult supervision while their teachers took their 30-minute lunch break. As will be described herein, ESE students were subject to a different lunchtime regimen. During the 2015–16 school year, Respondent was assigned to teach a self-contained class of 4 to 7 students with intellectual disabilities. The “self-contained” setting means that students generally remained in the Gaines building on the GHS campus with other students with disabilities. Respondent’s students were intellectually disabled, but functioned at a higher level than their ESE peers in other classrooms, who had more severe disabilities. Respondent’s students identified more with general education students, and were much more likely to interact with general education students than with those in the other ESE classrooms.3/ The Gaines building was a “community of classrooms,” in that a teacher could request and receive assistance from teachers or paraprofessionals in the other two classrooms in the building. The ESE classrooms surround a small courtyard at the Gaines building. The courtyard has a table and seating, and students would most often sit there to eat their lunch. One of the three ESE teachers usually oversaw the courtyard, and the courtyard could be seen from the ESE classroom windows. There is also a basketball court and track behind the Gaines building, which were occasionally used by ESE students before and after school, and during lunch period. The school day at GHS has six periods. Respondent taught ESE students for five of the six daily periods. During the period when Respondent’s ESE students were at their P.E. class, Respondent was assigned to teach a general education history class. Mr. Shelnutt indicated that “[e]very teacher [at GHS] should have a 30-minute duty free lunch in addition to a planning period.” Mr. DeLucas testified that Respondent was in “a very unique situation. The other self-contained rooms had multiple paraprofessionals. He did not have multiple paraprofessionals.”4/ Consequently, Respondent was the only teacher in his classroom and was assigned students every period of the school day with no planning period. Because of the circumstances, if it became necessary for Respondent to leave the classroom, he would ask one of the teachers or paraprofessionals from the other ESE classrooms to watch his class. Unlike the situation that was the subject of the April 5, 2017 and April 7, 2017, emails referenced above, which appears to describe a general education student lunch period, ESE “self-contained” students were allowed to get their lunches and then return to their classrooms, to avoid the crowds and the lines. It was apparently not uncommon for special needs students to go to the cafeteria during the 20-minute break between the end of A-Lunch at around 11:55 a.m. and the beginning of B-Lunch at 12:15 p.m. when there is not a standard lunch shift. Respondent’s only break in the school day was during his students’ lunch period, from 12:15 p.m. to 12:45 p.m. Since ESE students typically had lunch in the Gaines building courtyard or their classrooms, even Respondent’s “duty free lunch” was not free of duties. On May 12, 2016, Respondent released his students -- which on that day were only B.S., B.H., and N.C. -- around 12:05 p.m. to get lunch from the cafeteria. Respondent’s students had been watching a movie, and wanted to finish the movie during the lunch period. Respondent agreed to let the students return to his classroom to finish watching the movie. Before the students returned to the classroom, Respondent received a telephone call from the baseball booster club president regarding an upcoming banquet. When the students returned to the classroom, Respondent continued the telephone call outside. When Respondent ended the telephone call, he realized that the lunch period was “counting down.” Respondent left the Gaines Building, with the students unattended in his classroom, and drove to a sandwich shop several blocks away. There was no explanation as to why Respondent did not ask one of the other ESE teachers or paraprofessionals to watch his classroom. During Respondent’s absence from the classroom, another of Respondent’s students, J.H., entered the classroom and saw male ESE student, B.S., emerging from a storage closet in Respondent’s classroom, and thereafter discovered female ESE student, B.H., in the closet crying. J.H. went to the office and told Ms. Conyers what he had seen. Ms. Conyers radioed for a dean or an administrator to report to Respondent’s classroom. Ms. Gantt and Mr. Bauer arrived at the classroom at about the same time. Ms. Gantt questioned B.H. as to what had happened, and Mr. Bauer went to the nearby basketball court where B.S. had been reported to have gone. B.H. and B.S. were taken to the Dean’s office for questioning. At some point after Ms. Gantt and Mr. Bauer arrived at Respondent’s classroom, and approximately 15 minutes after his departure from campus, Respondent returned from the sandwich shop. There was considerable evidence devoted to the events that occurred in Respondent’s classroom closet during his absence. All of the evidence was hearsay. However, what was established (and agreed upon) is this: On May 12, 2016, while Respondent was absent from his classroom, during which time students were left unsupervised in the classroom, an event occurred that was of sufficient severity that the police were called in, that the police conducted an investigation, and that the police ultimately completed a sworn complaint charging B.S. with lewd and lascivious molestation of B.H. Alachua County Public Schools charged Respondent with violating school board policies regarding student supervision, specifically a policy that required teachers to obtain the permission of the school principal before leaving school campus, and recommended his termination from employment. Respondent contested the recommendation of termination. On February 16, 2017, the Alachua County School Board, the Alachua County Education Association, and Respondent executed a settlement agreement, providing that: (1) the superintendent would rescind the recommendation for Respondent’s termination; (2) Respondent would take an unpaid leave of absence beginning March 1, 2017, until June 6, 2017; Respondent would agree to complete Safe Schools online training regarding classroom supervision and school safety; and upon completion of the Safe Schools training, Respondent would be returned to paid status as an employee of Alachua County Schools. Respondent fulfilled the terms of the settlement agreement and, with regard to the Safe Schools training, exceeded the required courses. For the 2017–2018 school year, Respondent has been assigned as a P.E. teacher at the Sidney Lanier Center, a K-12 public school in Alachua County. Sidney Lanier is a specialized school for ESE students. The principal of Sidney Lanier was aware of the events of May 12, 2016, when Respondent was assigned. It should be acknowledged that Respondent taught ESE classes at GHS for 14 years without incident. He had no prior discipline and received uniformly good evaluations. He was well regarded as a teacher and a coach, and was generally acknowledged to have had a positive impact on students’ lives. Respondent expressed genuine remorse about leaving students unattended in his classroom, and credibly testified that he would never again do so. The incident did not involve Respondent denigrating or disparaging students, or improperly or abusively making physical contact with students. Nonetheless, Respondent violated a clear and direct requirement that he not leave students unattended. Although he believed his students would not engage in the activity described, such action on the part of a high school student was certainly not unforeseeable. There was conflicting evidence as to whether B.H.’s mental health was actually affected by the incident. A preponderance of the evidence indicates that it had some negative effect. However, rule 6A-10.081(2)(a)1. “does not require evidence that Respondent actually harmed [a student]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. v. William Randall Aydelott, Case No. 12-0621PL, RO at 76 (Fla. DOAH Aug. 29, 2012; Fla. EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect his students from conditions harmful to their mental or physical health, or safety, pursuant to rule 6A- 10.081(2)(a)1.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(2)(a)1. It is further recommended that Respondent’s educator’s certificate be suspended for a period of 30 days, that he be issued a letter of reprimand, and that he be placed on probation for a period of two years following his suspension, which penalty is within the range of penalties established in rule 6B-11.007(2). DONE AND ENTERED this 21st day of November, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2017.
Findings Of Fact At all times material hereto, Respondent held active Teaching Certificate 485203 with certification in Political Science and History. She is a hard worker, who, when orphaned, put herself through school, achieving a Master's Degree in Social Justice from Lewis University. Respondent was employed by Petitioner School Board as a social studies teacher at Miami Central Senior High School for the 1981-82, 1982-83, and 1983- 84 school years. During Respondent's first year with the Dade County school system, 1981-82, she was formally observed by her principal, Mr. Hal Guinyard, and other administrators. Respondent had problems with discipline of tardy students, absenteeism, classroom management and noise level control in the classroom and with devising and carrying through variations of instruction. On Respondent's annual evaluation for 1981-82, Respondent was recommended for employment but was found lacking in the area of classroom management. The specific observations leading up to this evaluation were that: Several students entered and left the room at will, other students remained in the halls during class time, some students in the classroom disturbed others in Respondent's class and even nearby classes with irrelevant and extraneous discussions and excess noise. There was excess noise from the late arrivals and those in the halls, too. The Respondent rolled on copy work from the chalkboard or text book with minimal student conversational feedback. Mr. Guinyard suggested to Respondent that she minimize busy work, create an orderly classroom environment, and explore alternative instructional techniques. On October 26, 1982, Respondent was formally observed in the classroom by Assistant Principal William Matlack, using the Teacher Assessment and Development System (TADS) of objective analysis. Mr. Matlack rated Respondent as unsatisfactory in the area of techniques of instruction. Excessive time was used by Respondent in preparing her students to take a test. Mr. Matlack prescribed help for Respondent in the area of techniques of instruction by assigning Respondent to observe three effective teachers and list four teacher activities, three student activities, and to analyze the time spent in organizing the class and in instructional activities. He also suggested that she read the TADS chapter on acceptable classroom procedures and teaching techniques and attached 33 pages of reading material to her evaluation, giving suggestions for classroom management, effective planning, techniques of instruction, and techniques of student-teacher relationships. He further advised Respondent of an in-service course in techniques of instruction. While Mr. Matlack did not rate Respondent as unacceptable in classroom management, he found that she still did not control her class for all the reasons previously noted by Mr. Guinyard. Rather than rate her as unacceptable in this area, he directed a memorandum dated October 29, 1982, to Respondent's attention indicating problem areas that could lead to further discipline problems if uncorrected. One of the problems was that Respondent was selling doughnuts for the athletic department between classes, and Mr. Matlack made her aware of the fact that students would be tempted to eat in other teachers' classes and that this was against the school rules. Respondent also was admonished concerning the security danger existing in her leaving money and keys lying about. On February 28, 1983, Respondent was again formally observed in the classroom by Mr. Matlack using the TADS and was found to be deficient in the areas of knowledge of subject matter, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was rated unsatisfactory in knowledge of the subject matter because the topics were not covered thoroughly and there was too much digression. There were 11 topics discussed and few were related to each other. Some of the areas were irrelevant, e.g., the importance of obtaining a good lawyer if one is going to win a lawsuit, how to obtain a house in Chicago, and the five black Presidents in the United States. Only 6 minutes were spent on how a bill becomes a law. Only 25 minutes were spent on the prescribed curriculum topics of cabinet duties, income tax, social security, Veterans' Administration, Federal Housing Authority, Health and Rehabilitative Services, and the Equal Rights Amendment, and the irrelevant topics already mentioned. Techniques of instruction was rated unacceptable because Respondent presented the material in a lecture form. The assignment on the board was very similar in technique (copy work for listing and defining terms, outlining a chapter) to what was used during the October 1982 observation; content was, however, different. The students were not ready for the assignment. There appeared to be no scope and sequence to the lesson. The lesson was very disjointed. The students were not involved when questions were asked, and their response was minimal. No effort was made to identify those students not participating or off task nor to involve all of them in the lesson. One or two students carried the class. Respondent did not appear to be effectively using the suggestions made by Mr. Matlack during his prior observation. Mr. Matlack explained to Respondent the need to create inspiration, create interesting presentations, move around the classroom utilizing various techniques and media, direct questions for the purpose of involving students, and for motivational use of questions geared toward individual abilities of respective students. He recommended Respondent re-read the TADS booklet that he had prescribed before. Respondent was rated "improved" in keeping grades for a variety of types of assignments in her grade book, but she still was not making informal assessments of her students' learning. Respondent was rated unacceptable in teacher-student relationships because she was not involving the students in instruction. The students appeared to do as they pleased. The classroom still did not present a neat and orderly atmosphere. The students seemed surprised at Respondent's attempt to enforce rules and regulations. This indicated to Mr. Matlack that the control was for his benefit, being implemented only for the instant period of observation. At the conclusion of the 1982-83 school year, Mr. Guinyard recommended Respondent for continued employment, but rated her overall unacceptable. He found her unacceptable for the year in knowledge of subject matter and techniques of instruction. She would continue on prescription (prescribed remediation efforts). Mr. Guinyard testified that he gave Respondent an extra year on prescription and brought in more help so that she might yet improve. During the 1982-83 school year, Mr. Guinyard recommended that Respondent observe other teachers and that she contact Mr. Hanson for help, which she did. Mr. Hanson is the Social Studies Supervisor for Dade County Schools. Mrs. Felicia Accornero (hereinafter Mrs. Mendez), is Assistant Principal for Curriculum (APC). She is not a trained social studies teacher but is certified to teach biology, chemistry, and gifted children. She is certified to work as an administrator, supervisor, or guidance counselor. Additionally, Mrs. Mendez discussed social studies concepts with other social studies teachers in an effort to be of more assistance to Respondent. On October 18, 1983, Respondent was officially observed in the classroom by Mrs. Mendez. Using the TADS analysis system, Mrs. Mendez rated Respondent deficient in the areas of knowledge of subject matter, classroom management, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in knowledge of subject matter because there were substantial errors in her presentation: incorrect spellings, incorrectly defined terminology, and unnecessary use of lay terms rather than formal terms. Mrs. Mendez' perception was that neither the students nor she, personally, understood the lesson as represented by Respondent. Mrs. Mendez recommended that Respondent work with her. Mrs. Mendez also prescribed particular pages from the TADS prescription manual, which included a detailed subject matter inventory. This was a checklist so that Respondent could understand the different areas where she could become knowledgeable so that her subject matter would be more accurate and more relevant to the students. Mrs. Mendez discussed subject matter with Respondent and discussed one lesson a week with Respondent prior to its presentation. At this time, Mrs. Mendez also rated Respondent unacceptable in classroom management because there were too many delays in the class due to the same deficiencies observed previously by Messrs. Guinyard and Matlack, specifically repetitive tardies, disruption by tardies noisy off-task irrelevant extraneous discussions among students during teaching, 50% of the time spent in opening and closing class and other non-instructional activities, lack of discipline, disorganized classroom and disorganized lesson presentation by Respondent. The lesson plan which was in Respondent's 1982-83 lesson plan book for October 18, 1983, was not the one which Mrs. Mendez observed in the classroom. She was give a separate lesson plan. Mrs. Mendez prescribed a TADS chapter on structuring classroom time so that the teacher moves from one activity to another without delay. Mrs. Mendez suggested that Respondent work with both her and the department chairman, Mrs. Consuelo Pino, to improve Respondent's classroom management. Mrs. Mendez rated Respondent unacceptable in techniques of instruction because Respondent was not following a sequence, was not clarifying directions and explanations when necessary, did not give students background information that was necessary for them to understand the topic, and did not perceive when her students did not understand the lesson. Mrs. Mendez prescribed reading a section from the TADS chapter on sequencing lessons and also prescribed help from herself and Mrs. Pino. Mrs. Mendez worked with Respondent to help her place her lesson plans in an understandable sequence. At least weekly for the next ten weeks, Mrs. Mendez helped Respondent. Mrs. Mendez provided Respondent with a book on questioning techniques, helped Respondent organize her room, showed her how to position her desk so that she would have a better view of the students, explained how a seating chart would help her keep accurate attendance quickly, explained how to utilize student folders so that materials would be easily accessible and so that the classroom and instructional techniques and procedures would accordingly be better organized. The prescription deadline was extended to accommodate Respondent. On November 8, 1983, a conference for the record was held with Mr. Mathew V. Lawrence, Mrs. Mendez, and a field representative of United Teachers of Dade. Mr. Lawrence had been Assistant Principal the first two years Respondent taught at Miami Central Senior High and became Principal there for the 1983-84 school year. The purpose of the conference was to discuss the October 18, 1983 observation and the continuing deficiencies. The prescriptions were discussed. The ramifications of continued deficiency were discussed. Respondent's responsibility for basic skills such as reading and spelling was discussed. Respondent was reminded that she was responsible not only for her subject matter, (history, social studies, political science) but for students' basic skills (reading, writing, spelling, grammar). 24.. On November 12, 1983, Mrs. Mendez again formally observed Respondent in the classroom using the TADS analysis technique. Respondent was aware that she would be observed that day. Respondent showed some improvement over the prior observation in that she presented some accurate information for most of the period; however, Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in preparation and planning because her objective was too simple and she did not list activities and assessment techniques, as required. Thereafter, Mrs. Mendez worked with Respondent on writing lesson plans and helped her write lesson plans. Mrs. Mendez found Respondent unsatisfactory in knowledge of the subject matter because Respondent made inaccurate statements, used incorrect grammar, and gave opinions rather than presenting both sides of an issue to students. Mrs. Pino made the same observation. During some parts of the lesson, it appeared that Respondent did not know what she was talking about. While the students appeared to understand most of the lesson, at times they did not. Mrs. Mendez also concluded that Respondent was not adhering to a structured plan but for this formal observation for the last formal observation Respondent had prepared lesson plans for observation days separate and apart from her normal procedure/plan for non-observation days. To improve Respondent's knowledge of subject matter, Mrs. Mendez recommended that Respondent review and study the textbook chapters prior to teaching the lesson because it did not appear that Respondent was doing this. Mrs. Mendez also gave Respondent the opportunity to prepare lessons and to explain them to Mrs. Mendez ahead of the time Respondent would present the material to the class so that Mrs. Mendez could monitor whether or not the information would be clearly presented to the class. Mrs. Mendez rated Respondent unacceptable in techniques of instruction upon much the same grounds as she used to substantiate the unacceptable rating for the categories of preparation and planning and knowledge of the subject matter, all essentially relating back to inadequacy of Respondent's lesson plans, or that the lesson plans were created solely for observation or to satisfy a prescription and were not for actual use. Petitioner's Exhibit 12 does not reflect a specific written prescription in this category, but Mrs. Mendez' oral testimony indicated further emphasis and helpful work on lesson plans was initiated. Respondent was next formally observed by Mr. Matlack on January 19, 1984. Respondent showed improvement this time but Mr. Matlack noted that Respondent needed to record her students' grades in her grade book more promptly as she received them. He also rated her unacceptable in classroom management primarily because of continued disruptions from tardy arrivals. Mr. Matlack directed Respondent to establish rules and regulations for students about coming into the class on time, bringing the needed materials, staying until the period ends, and prohibiting visitors into the classroom. He gave her specific suggestions on how to make these improvements and provided her with a memorandum outlining the deficiencies and prescribed help. Respondent's lesson plan for January 19, 1984, in Respondent's 1983-84 lesson plan book was only partially covered in the period observed that day by Mr. Matlack. On February 8, 1984, Mr. Lawrence rated Respondent unacceptable in classroom management on her midyear annual evaluation for 1983-84. On February 10, 1984, Mr. Lawrence held a second conference for the record with Respondent to discuss her performance assessments to date and his recommendation that she not receive a fourth year of annual contract. He also advised her that if she cleared her deficiencies, he would rescind his recommendation and would recommend a continuing contract. Respondent agreed to a fourth year annual contract. On March 13, 1984, Mr. Lawrence made his first official classroom observation of Respondent according to the TADS and found her to be very deficient. He felt that no teaching and learning were taking place. He observed her to be deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Mrs. Lawrence found Respondent unsatisfactory in knowledge of subject matter because the definitions she gave for vocabulary words were not accurate and not appropriate. The students did not seem to understand the class work. Respondent was not gearing the lesson for all of her students. The lesson plan in Respondent's 1983-84 plan book for March 13, 1984, was not the plan Mr. Lawrence observed being implemented that date. Mr. lawrence prescribed for Respondent to prepare lesson plans for five days that detailed the sequencing of concepts and how each concept would be explained and implemented. Respondent was to include a minimum of five ideas and concepts and give the cognitive levels covered in each area. Mrs. Mendez and Mrs. Pino were recommended as resources. Respondent was rated unacceptable in classroom management because students were coming to the room late and being admitted without any evidence they had been detained elsewhere and without reprimand or punishment by Respondent. There was no evidence the students had any knowledge of the correct procedure. Step by step instructions for correcting her classroom management in this area were given to Respondent by Mr. Lawrence. Mr. Tom Shaw later helped her in this area. Mr. Lawrence rated Respondent unacceptable in techniques of instruction because the only two methods she used during the class period were writing definitions for 10 minutes and answering questions from the end of the chapter in the textbook for 45 minutes. The questions at the end of the chapter were unrelated to the vocabulary work. Respondent gave no introduction to the material. There was no evidence of the students understanding the materials, and no opening or closure to the lesson. In order to aid Respondent to improve her techniques of instruction, Mr. Lawrence recommended that Respondent develop a list of at least 10 teaching techniques or suitable teaching methods. He directed her to utilize a minimum of two methods permitting students to actively participate. He directed her to prepare lesson plans for a week that demonstrated these methods and how the students would be involved. He suggested that Mrs. Mendez and Mrs. Pino be used as resources. Respondent was rated unacceptable in assessment techniques based on four student folders selected at random, each of which contained only five test cares and one or two additional sheets of work. The work in the student folders was not representative of what should have been there so late in the school year and therefore students' work was not accurately documented and could not be properly assessed for grading the child. The help that Mr. Lawrence prescribed for Respondent was to prepare two written assessment items per week for three weeks. Each test was to contain a variety of at least three types of questions. He wanted other corrected items such as homework and class work to be contemporaneously placed in student folders. He assigned Mrs. Mendez and Mrs. Pino to help Respondent. Pursuant to Mr. Lawrence's March 13, 1984 prescription, Mrs. Mendez explained to Respondent in a memorandum what was required in the student folders. Subsequently, when Mrs. Mendez reviewed the student folders, she found a student paper consisting of one incomplete sentence fragment graded "A". The student's grammar was not graded (p 14). This one example was clearly contrary to the criteria established by Mrs. Mendez and contrary to the criteria established by Mrs. Mendez and contrary to the instructions for the assignment outlined by Respondent but it still had been graded "excellent." At hearing, Respondent denied that she gave the paper an "A" and asserted that she would require from this particular student two examples the next day. On April 24, 1984, Respondent was formally observed simultaneously by two administrators (Mrs. Mendez and Paul Hanson) and was found by both administrators to be unsatisfactory in the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent had lesson plans and objectives based on the county curriculum, but was rated unacceptable in preparation and planning because her plans were not effectively implemented. She did not fill the allocated class time although only about 10% of the planned material was covered. One of the nine listed topics was "Communism." Section 233.064, Florida Statutes, spells out the content and mandates 30 hours for curriculum in "Americanism vs. Communism." On eleven different occasions, Mr. Hanson noted students were totally off task, disruptive and loud, and discussing topics that were not relevant to the lesson on Communism. The students were talking in little groups and in Mr. Hanson's opinion nothing academic was learned by the students during the period and consequently the students might thereby fall short of the statutorily required 30 hours. As a means to help Respondent, Mrs. Mendez suggested that Respondent prepare lesson plans for one week and check with the Assistant Principal who would observe the class to see if the plans were implemented. She recommended that Respondent seek help from both herself and Mrs. Pino. Respondent was rated unsatisfactory in knowledge of subject matter because the information that she provided concerning Communism was not accurate. There were a number of errors made by Respondent during the course of the lesson. Mr. Hanson prescribed help for Respondent by working with Dan Jones, Social Studies Specialist, during the week of May 11, 1984. Respondent was rated unacceptable in classroom management because of the numerous disruptions, extraneous conversations, and constant movement. Student tardiness was noted yet again. Respondent appeared frustrated but was not able to effectively control the situation and did not take any steps to correct or penalize the tardy students. As a means of helping Respondent, Mrs. Mendez suggested that Respondent work with Mr. Shaw who is the assistant principal that generally monitors attendance and discipline problems. Respondent was rated unacceptable in techniques of instruction because she did not deliver the instructional program acceptably in many areas. Also, upon the same grounds, Mr. Hanson prescribed help from Mr. Jones on this element. By memorandum dated May 7, 1984, Mr. Lawrence changed his recommendation for extended annual contract to dismissal because Respondent had failed to remediate her deficiencies and she was now more deficient than when he had observed her in March. Pursuant to Mr. Hanson's prescription of April 24, 1984, Mr. Jones worked with Respondent on May 17, 1984. He brought her material to use and discussed a number of areas: lesson planning and format, techniques, the Dade County balanced curriculum objectives, the possibility of his visiting one of her classes to provide feedback to her about her techniques of instruction, a possible policy of limiting hall passes, a technique for engaging students in group activities, and the need for having at least two activities per class. He brought three books for her to use, Ideals and Ideologies, The Russians, and Practical Methods for the Social Studies. He assisted with her lesson planning for the week of May 21-25, 1984. On May 24, 1984, Mr. Lawrence completed the annual evaluation of Respondent, rating her as deficient in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. This constituted three more unacceptable areas than on her midyear evaluation. Mr. Jones returned to help Respondent on June 4, 1984. Based upon his visitation, he wrote several suggestions for Respondent. Subsequently, when Mr. Jones observed the class, Respondent was attempting to implement some of the recommendations he had made but the presentation was not well structured or organized. Approximately fifty percent of the class period was lost in digressions and expounding of Respondent's personal opinions. Mr. Jones testified that it is appropriate for teachers to get students to express their opinions; however, those opinions should be based on knowledge of the course concepts and should come from the students, rather than from the teacher so as to encourage students to think independently, to make rational decisions, and to not merely absorb their teacher's opinion. In time of confusion, Respondent unduly delayed clarification of instructions. Mr. Jones opined that if he had been a student, he would have had to have asked questions also and in his opinion, the students were being deprived of a minimum acceptable level of instruction. On June 7, 1984, Respondent was again formally observed by two administrators (Mr. Hanson and Mr. Shaw) using the TADS analysis system. Respondent was rated unacceptable in knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Respondent's performance had declined since Mr. Hanson's prior observation. She now was rated as having one acceptable category out of six. Mr. Hanson noted that the "students would have been better off to review without teacher's assistance." Respondent gave incorrect information and was very vague. She made several content errors and confused government forms with economic systems, using the terms synonymously. Mr. Hanson, under the impression that Respondent was still being recommended for a fourth year annual contract, recommended that she take course work over the summer in classroom management and subject matter. Respondent was rated unacceptable in classroom management because again there were at least nine interruptions of the same kinds as previously observed. However, where previously the Respondent had ignored inappropriate behavior, this time she indulged in a disruptive outburst reprimanding one student very loudly. There was a student in the room who had been withdrawn from school two weeks prior and recently readmitted. In returning this student to the office for a status check, Mr. Shaw missed several minutes of Respondent's class and his observation is somewhat impaired by this absence. It is to Respondent's credit that even during this period of suspension, this particular student sneaked into school to attend her class. At no time were more than half of the students observed to be on task. Mr. Shaw recommended that the Respondent work with Mr. Hanson to improve her classroom management. Respondent was rated unacceptable in techniques of instruction because there were only passive activities being pursued and there was little feedback from the students. Respondent's technique was ineffective in encouraging class discussion. There was inadequate use of media. Because the lesson was not in proper sequence, it created academic confusion. Again, Mr. Shaw recommended that Respondent seek help from Mr. Hanson. Respondent was rated unsatisfactory in teacher-student relationships because of the general lack of respect on the part of the students and because of Respondent's erratic reaction to the student's behavior. The observers prescribed the same help. Respondent was rated unacceptable in assessment techniques because there was no means of assessing whether or not the students were understanding the review process that was taking place. The observers prescribed the same help. In 1983 Respondent was referred to a nine-credit social studies course taught by Mr. Hanson at Nova University as part of the administration's attempts to help her master the subject matter of her course. She cooperated by taking the course but failed it. Complaints of misgraded, missing, and plagiarized papers arose among students in Respondent's classes. Administrators concluded that Respondent lacked an appropriate procedure for receiving, organizing, and monitoring papers for grading purposes. Students and parents complained that no effective teaching was going on and that the disorganization in the classroom even prevented individualized learning. On another occasion, Respondent was informally observed by administrators giving wrong information to students as to the number of municipalities in Dade County. Administrators also observed that her grammar, verb tenses and word choice were not a good example to her students. The undersigned observed this pattern at hearing. At the hearing, Respondent testified to an incorrect number of Florida counties. During her testimony, Respondent used the non-word, "malicy" instead of "malice." She used the word "connotatins" several times in contexts which more properly would have required either the word "confrontations" or "altercations." In no respect was "connotations" an appropriate word selection and Respondent defined the word "connotations" as meaning "disagreements." Respondent contended that her emphasis on rote copying from the board and reading aloud was an appropriate response to large classes the majority of whose members did not possess basic skills. Respondent explained that what her observers perceived as her poor grammar was actually "street talk" she intentionally used to reach culturally deprived students. While these may have been legitimate motivations, they do not excuse Respondent's never having progressed in the use of proper grammar and varied teaching techniques for communication with students when other teachers in the same school were able to do so. Respondent's explanation also does not ring true in light of Respondent's numerous grammatical and content errors during her own testimony. Mrs. Pino, the department head, offered additional help to Respondent during Respondent's three years at Miami Central Senior High School. She discussed classroom management, ways to diversify teaching, and other problems which came up on a daily basis. She discussed parent contacts in order to help with classroom management. She gave Respondent additional copies of some papers that Respondent has lost. She reviewed lesson plans with Respondent many times and on occasion would review a lesson plan with her prior to an administrator's observation. Pursuant to Mrs. Mendez' request, Mrs. Pino observed a whole period in order to help Respondent learn how to make smooth transitions from one classroom activity to another. Respondent testified that she encouraged students to borrow books from her even if it meant looking the other way when she knew they were removing them. Loaning or giving books away might be altruistic upon Respondent's part, and indeed, helpful to students' learning the subject matter or developing a love of history, reading, etc., but Respondent's practice of encouraging the fantasy of theft for learning's sake is hardly in the best interests of the child or the teaching profession. Respondent, a Negro, contended that it was her attempts to instill in her students pride in their Black heritage which resulted in her negative ratings. She based this primarily upon body language of Mr. Matlack she said she observed when she showed him the pamphlet "The Five Negro Presidents" (R-1). She claimed there existed a rehearsed "plot" by all the Petitioner's witnesses on the basis of either her minority heritage views or on the basis of her election as a steward in the union, United Teachers of Dade. This explanation is not credible. While "Black History" may certainly be a valid part or enrichment of a high school social studies curriculum, it cannot legitimately usurp all of the class time properly allotted to prescribed curriculum. Moreover, inaccurate history, even inaccurate Black History, serves no valid purpose. The undersigned finds that it was not this theme on a single occasion which observers were concerned with in rating Respondent, but the inaccuracy and confusion of her presentation of that theme which resulted in her negative rating on the one occasion to which she refers. Also this pamphlet was not used at every observation and cannot be attributed as the incentive for so many negative ratings by so many different observers. It is also noted that Mrs. Mendez and Mrs. Pino are of Hispanic background. Although Respondent has responded to criticism positively, was eager to improve, and cooperated readily in all of her observers' suggestions, she still never achieved the standards of competency required and expected by the Dade County School Board. This is so despite extensive efforts of her colleagues to help Respondent reach acceptable performance standards. Respondent has failed to teach efficiently and faithfully due to her failure to communicate and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience.
Recommendation Upon the foregoing findings of face and conclusions of law, it is RECOMMENDED that the Dade County School Board enter a Final Order in Case No. 84-3171 finding Respondent guilty of incompetency, affirming her suspension, dismissing her from her employment with the Dade County School Board, and denying her any claim for back pay. Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order in Case No. 84-3171A finding Respondent guilty of incompetency and incapacity and revoking her Florida Teacher's Certificate for ten years, subject to reinstatement as provided by law. DONE AND ENTERED this 27th day of March 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1985. COPIES FURNISHED: Craig R. Wilson, Esquire The Law Building, Suite 204 315 Third Street West Palm Beach, Florida 33401 Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Miami, Florida 33132 William Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issues to be determined are whether Samuel Parrondo (Respondent or Mr. Parrondo) violated section 1012.795(1)(j), Florida Statutes (2015), and implementing administrative rules,2/ as alleged in the Amended Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent whose office is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Mr. Parrondo holds Florida Educator Certificate 1083050, covering the areas of English for Speakers of Other Languages (ESOL) and ESE, which is valid through June 30, 2020. At all times relevant to the Amended Administrative Complaint, Mr. Parrondo was employed as an ESE teacher at Olsen in the Broward County School District. Ms. Knighton was the ESE specialist at Olsen. During her first year there, she walked in on Mr. Parrondo restraining a female student. Ms. Knighton found Mr. Parrondo lying on top of the student with his hand on her head, pushing her face into the floor mat, and his whole body weight on top of her. The student was screaming. Ms. Knighton told Mr. Parrondo to get off of the student. Mr. Parrondo informed her that the student did not go to "timeout" as she had been told to do. Ms. Knighton contacted her district program specialist to determine if Mr. Parrondo had received Professional Crisis Management (PCM) training, which teaches how to appropriately restrain students whose Individual Education Plans permit restraint. She learned that he had not. The mats were removed from Mr. Parrondo's classroom, and he was directed not to restrain students, because he had not been trained. Student J.M. was an 11-year-old ESE student who was described as able to understand instructions, but nonverbal, and with a low comprehension level. He was able to communicate with some sign language and a few words. He was sometimes aggressive in his interactions with the teachers; he would "come at them" and try to butt them with his head or grab them with his fingers. Student J.M. was described as tall and thin, and "really strong." Ms. Barbara Bond, a speech language pathologist, testified that sometime before the 2016 Spring Break, Student J.M. tapped her with his head. Mr. Parrondo responded by throwing Student J.M. to the ground and putting himself over Student J.M. "like when you're making a snow angel" with his arms outstretched and completely covering Student J.M.'s body. Ms. Bond testified that she supposed Mr. Parrondo was trying to protect her, but that he overreacted. She testified that Student J.M.'s action had not been a "head bang" and that she believed he could have just been trying to communicate with her. On March 11, 2016, Mr. Parrondo was attempting to get Student J.M. to come with him to conduct some periodic testing. Ms. Zuniga, Student J.M.'s aide, had taken Student J.M. to breakfast that morning, as she usually did, and had been with him all morning. She advised Mr. Parrondo that she thought that Student J.M. may have to go to the bathroom, although he had gone earlier, because of the way he was pacing back and forth. Student J.M. did not want to go to the testing. Mr. Parrondo said "Let's go" to him several times and said, "I'm not playing with you." However, Student J.M. would not cooperate and began to get aggressive toward Mr. Parrondo, moving his arms in "boxing" or "pawing" motions, perhaps trying to grab Mr. Parrondo, or ward him off. Student J.M. then put his head on Mr. Parrondo's chest. Ms. Sweeting, who was also present in the classroom during the incident, said that when she saw this, she thought perhaps Student J.M. was going to try to head butt Mr. Parrondo, because Student J.M. had done this before, but that Mr. Parrondo did not let him. Ms. Sweeting credibly testified as to what happened next. Mr. Parrondo became very upset with Student J.M. Mr. Parrondo was holding onto Student J.M.'s arms and told him to sit down, but Student J.M. would not do it. Mr. Parrondo then grabbed Student J.M. by the side of his neck and "slung" or pushed him down to the ground. Mr. Parrondo then sat on top of Student J.M. to subdue him until Student J.M. calmed down, which he did in a few minutes. When Student J.M. got up, Ms. Zuniga noticed a red mark on his neck that had not been there earlier. It is a reasonable inference that Student J.M. was scratched during the altercation. Between 10:30 a.m. and 11:00 a.m., Mr. Parrondo took a picture of the mark on Student J.M.'s neck and texted it to Student J.M.'s mother, saying, "Mom, [Student J.M.] has what appears to be a scratch on his neck from a nail. It is not bothering him or anything. I just wanted to inform you." A few minutes later Mr. Parrondo called Student J.M.'s mother on the telephone to confirm that she received the e-mail. In response to her question, he assured her that Student J.M. was doing fine. When she said that her son did not have a scratch when he went to school, Mr. Parrondo replied that he had noticed that Student J.M.'s nails were long. He said nothing to her about the altercation. The text and call to Student J.M.'s mother were made in the course of Mr. Parrondo's professional dealings. Mr. Parrondo stated that the altercation came about because he had observed Ms. Zuniga and Student J.M. in "some sort of disagreement" and that Ms. Zuniga was acting as if she felt threatened by Student J.M., so he went to assist her. He testified that she was near her desk with her hands up and was pulling back from Student J.M. because he was swinging his arms erratically. Mr. Parrondo said that he intervened to avoid any possible injury to Ms. Zuniga or to other students. Mr. Parrondo testified that he moved behind Student J.M. and was holding his wrists trying to control him. He testified that Student J.M. squirmed to the floor and that Mr. Parrondo squatted down with him to continue holding him and was speaking into his ear. Mr. Parrondo testified that Student J.M. calmed down quickly and was soon ready to go to the restroom and then on to testing. Mr. Parrondo stated that he did not grab Student J.M. by the neck, did not take him to the ground, and did not lay on top of him. However, Ms. Zuniga testified that the incident began when Mr. Parrondo attempted to take Student J.M. for testing, and said nothing about Student J.M. acting aggressively toward her or any student in any way. Mr. Parrondo's account that he was attempting to prevent injury to Ms. Zuniga or other students is not credible. His testimony that he did not grab Student J.M. by the neck, take him to the ground, or sit on him is also rejected in favor of the testimony of Ms. Sweeting. Mr. Parrondo also stated that his purpose in texting the note and photograph and telephoning Student J.M.'s mother was to document the injury and gather information. He noted that child abuse is always a possibility that he must consider, although he doubted it in this case because he knew the family. This testimony was also not credible. Under all of the circumstances, it is clear that Respondent's communications were instead intended to forestall inquiries into the altercation and deflect any blame for the incident away from Mr. Parrondo. They were calculated to mislead or misdirect Student J.M.'s mother with respect to the cause of the injury. Mr. Parrondo had not received PCM training at the time of the March 11, 2016, altercation, although he had requested it several times. Mr. Parrondo had been given a radio, knew that he was not to restrain students, and was aware that school procedure required that he call for assistance. As Ms. Knighton testified, Olsen had a PCM-trained security specialist employed at the time of the March 11, 2016, altercation who could have been dispatched to assist Mr. Parrondo. No evidence was introduced at hearing as to any prior discipline relating to Mr. Parrondo's Florida Educator Certificate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Samuel Parrondo, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(a) and suspending his educator certificate for one year, followed by a two-year period of probation under conditions imposed by the Commission to ensure that he is properly trained and monitored and does not constitute a danger to students. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 28th day of March, 2019.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Respondent holds Florida teaching certificate numbered 533966, covering the area of dental assistant on the vocational instructional level, which is valid through June 30, 1999. She holds a doctorate degree in community college teaching. Respondent began teaching at Miami-Dade Community College in 1979 and began teaching in the Dade County School System in 1983. In January of 1984 she began teaching at North Miami Senior High School and still teaches classes in health occupations at that school. At the start of the 1991-92 school year, Respondent was on maternity leave. She returned to work on April 1, 1992. Prior to Respondent's return to work, a substitute teacher was employed to cover Respondent's classes. The substitute teacher had never taught before. She telephoned Respondent several times a week for guidance and instructions. She did not have a code of conduct for students in the classes. The tests she administered to the classes were open book tests. Wendy Maisonet was a student in Respondent's second period medical skills class. During the 1991-92 school year and for the several years prior thereto Wendy had been warned, reprimanded, counseled, and suspended on a number of occasions both for cutting classes and for exhibiting defiance of school authorities. Wendy liked the substitute teacher because the students were allowed to do what they wanted in that teacher's class. When Respondent returned to work, she established a code of conduct for students in her classroom and enforced that code. Wendy did not like Respondent's methods of teaching, which included requiring the students to stay in their seats during class and not talk to each other. On April 7, 1992, Respondent gave Wendy a notice of unsatisfactory progress. On May 13, 1992, Respondent gave Wendy a second notice of unsatisfactory progress. Wendy believed that she never gave Respondent any problems in that class because, as she testified, she mostly slept during Respondent's class or just sat there and did nothing. On May 20, 1992, Wendy came to Respondent's class late. The class had already started when she came in. Wendy brought with her a petition which she had decided to circulate among the students in Respondent's second period class seeking to have Respondent fired because Wendy did not like Respondent's teaching methods or "her attitude." Wendy began circulating the petition during the class, which caused her to be in and out of her seat. She also talked back and forth with the other students, even those across the room from her, as the petition was being circulated. Respondent directed Wendy to be quiet. Respondent directed Wendy to stay in her seat. Wendy ignored those instructions. Thereafter, Wendy got up from her seat and walked across the room to retrieve her petition from Jose Perez. She talked to Jose and then began to return to her seat. As she was walking toward her seat with her petition in her hand, Respondent walked up to Wendy and took the paper from Wendy's hand. Respondent put the paper in her pocket, turned, and began walking away from Wendy. Wendy went after her, fully intending to take the paper back from Respondent. With both hands, she grabbed Respondent and held Respondent so firmly that Respondent could not move her upper body. Wendy then began shaking Respondent violently. Respondent was squirming and trying to break away from Wendy but could not. Respondent pleaded with Wendy to let her go, to get away from her, and to stop hurting her. Wendy continued shaking Respondent and would not release her hold. Respondent began crying, and she became afraid. Her heart started racing, and she felt dizzy. Respondent moved her head as though she were going to bite Wendy on the arm, and Wendy released her grip. Respondent did not bite Wendy. However, that trick made Wendy mad. She balled up her fists to punch Respondent, but one of the male students got between Wendy and Respondent. He stopped Wendy from striking Respondent and told Wendy to leave the classroom. Wendy then called Respondent "a fucking bitch", packed up her books, and left the classroom to go to the principal's office to complain about Respondent. Respondent summoned administrative personnel and the police. The police officer who arrived immediately after Wendy attacked Respondent interviewed both Respondent and Wendy. He examined Wendy's arms after Wendy accused Respondent of biting her, but Wendy's arms had no marks on them. At the final hearing, although Wendy testified that Respondent bit her, she admitted that it did not hurt and it did not leave a mark. On the other hand, Respondent showed administrative staff at the school the red marks on her upper arms caused by Wendy grabbing Respondent and holding her against her will. Those marks were still visible on Respondent's arms hours after the attack. Wendy was suspended for five days for her battery on Respondent. Wendy never returned to Respondent's class; instead, she had her mother come to the school and remove Wendy from that class. Respondent is 5 feet 4 inches tall. Wendy is 5 feet 8 1/2 inches tall. Wendy is quite overweight. Although Wendy testified she was not as overweight during the 1991-92 school year and only weighed 190 pounds at the time that she physically assaulted Respondent, the police report made on that date lists Wendy's weight as 237 pounds. Approximately a week to ten days after the attack, Respondent asked Mildred Hernandez, one of her second period students, to step outside the classroom so Respondent could speak to her for a moment. Respondent asked her if she had seen what happened on May 20, 1992. Mildred told Respondent what she had seen and also told Respondent that she had not been asked for a statement as part of the school's investigation. Respondent asked her if she would go to the assistant principal's office and tell the assistant principal what she had seen. Mildred told Respondent that she did not want to get involved and that the class was taking a test that period. Respondent gave her a pass to go to the principal's office and told her not to worry about the test because Respondent would give her an "A" on the test as long as she was at the assistant principal's office giving a statement. Respondent never asked Mildred to change her testimony. Respondent specifically asked her to tell the assistant principal truthfully what she had seen. By going to the assistant principal's office to give the statement, Mildred missed the rest of Respondent's class period and missed the beginning of her next class that day. Respondent knew that Mildred was an excellent student and did not think it was fair to make her miss the exam and then take a make-up exam when giving a statement was the reason for missing the exam. The substance of Mildred's statement and subsequent testimony was not related to receiving an "A" on that examination. After she gave her statement to the assistant principal, Respondent never discussed her statement with her, never asked her what had happened when she went to the assistant principal's office, and never again discussed the events of May 20, 1992, with her. Before Respondent returned to work from her maternity leave, Mildred had been receiving "A"s and "B"s in that class. For the nine-week grading period between Respondent's return to work and the end of the school year, Mildred received a "B" in Respondent's class.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 24th day of June, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-5697 Petitioner's proposed findings of fact numbered 1-3, 7 and 11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-6, 8-10, 13 and 14 have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 12 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 1-17, 19-21, 23, and 25-27 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 18, 22, and 24 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed finding of fact numbered 28 has been rejected as not constituting findings of fact but rather as constituting argument of counsel. COPIES FURNISHED: Robert J. Boyd, Esquire Bond & Boyd, P.A. Post Office Box 26 Tallahassee, Florida 32302 William Du Fresne, Esquire Du Fresne & Bradley 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 Karen B. Wilde, Executive Director Education Practices Commission The Florida Education Center, Room 301 325 West Gaines Street Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is a seventh grade student at Howard D. McMillan Junior High School. He received failing grades in all his first semester courses and regularly fails to accomplish his homework assignments. He has an absentee rate (unexcused) approaching 50 percent and is frequently late to those classes he does attend. Petitioner has attempted various counseling and disciplinary techniques without success. Although there have been some communication problems between school officials and Respondent's parents, they were aware of his poor grades and frequent absences.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Ybrahim Gonzalez, Jr., to its opportunity school. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Mr. Ybrahim Gonzalez, Sr. 6624 Southwest 148 Place Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issue is whether the allegations contained in the Second Amended Administrative Complaint filed by Petitioner are true, and if so, what discipline should be imposed.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She first worked as a teacher at Gladys Morse Elementary School. When Morse closed she was transferred to Taylor Elementary School, a new school. She continued teaching at Taylor Elementary School until January 19, 2005. Her employment was pursuant to a professional services contract. Dr. Whalen holds Florida Educator's Certificate No. 530568. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or who have a physical handicap. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities she is also County Coordinator for the Special Olympics. The Commissioner of Education is the chief educational officer of the state and is responsible for giving full assistance to the State Board of Education in enforcing compliance with the mission and goals of the K-20 education system. The State Board of Education's mission includes the provision of certification requirements for all school-based personnel. The Education Practices Commission is appointed by the State Board of Education and has the authority to discipline teachers. Nonviolent Crisis Intervention Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crisis Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction- Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention when possible. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, an adult who lies upon a child could prevent a child from breathing. CPI holds are not to be used for punishment. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. The alleged chain incident Ms. Amanda Colleen Fuquay taught with Dr. Whalen when both of them were teachers at Gladys Morse Elementary School. Ms. Fuquay, like Dr. Whalen, taught exceptional children. Ms. Fuquay's first teaching job after receipt of her bachelor's degree was at Morse Elementary School. At the time Ms. Fuquay began teaching, Dr. Whalen was also a teacher at Morse. The record does not reveal when Ms. Fuqua initially began teaching at Morse, but it was after 1997 and before August 2002, when Morse Elementary merged into the new Taylor Elementary School. During Ms. Fuqua's first year of teaching she entered Dr. Whalen's class. She testified that upon entry she observed a male student chained to a chair at his desk. The chain may have been about the size of a dog choker. She said that the chain ran through the student's belt loop and around the chair. Ms. Fuqua said that she inquired of Dr. Whalen as to the reason for the chain and she replied, in perhaps a joking way, that the student wouldn't sit down. The evidence does not reveal when this occurred or even in what year it occurred. The evidence does not reveal the name of the alleged victim. The evidence does not reveal the victim's response to being chained to the chair. The evidence does not reveal whether Dr. Whalen chained the child or if someone else chained the child or if it just appeared that the child was chained. Robin Whiddon was Dr. Whalen's aide for school years 1998-99, 1999-2000, and 2000-2001, and she testified at the hearing. She did not mention this incident. Ms. Fuqua could not discern if this was a serious matter or whether it was some sort of a joke. She said, "I didn't have a clue." Ms. Fuqua failed to report this incident because she was new to teaching and she had not, "learned the ropes." Dr. Whalen denied under oath that she had ever chained a student to a chair, and specifically denied that she had done it in 1999, which is within the time frame that Ms. Fuqua could have observed this. Moreover, she specifically denied having chains in her classroom. The Commissioner has the burden of proving the facts in this case, as will be discussed in detail below, by clear and convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some sort that appeared to be positioned in such a manner as to restrain the unidentified student. However, the lack of any corroborating evidence, the paucity of details, and the denial of wrong-doing by Dr. Whalen prevents a finding, by clear and convincing evidence, of maltreatment. The alleged incident involving S.A. On August 13, 1998, at Morse, Ms. Kriedler was called by Dr. Whalen to her class. When Ms. Kriedler entered the class she observed Dr. Whalen holding S.A.'s arms to his desk with her right hand and holding the hair of his head by her left hand. She stated to Ms. Kriedler that, "If he moves a quarter of an inch, I'm going to rip the hair out of his head." Dr. Whalen also related that S.A. had kicked her. Dr. Whalen also said to S.A., in the presence of Ms. Kriedler, "Go ahead and kick me because I can't feel it." This referred to her handicap. By this time S.A. was motionless. After a discussion with Ms. Kriedler, Dr. Whalen released S.A. and Ms. Kriedler took him to her classroom. Subsequently, Ms. Kriedler requested that he be transferred to her class and that request was granted. Ms. Kriedler reported this incident to Shona Murphy, the Taylor County School District Exceptional Student Education Administrator. Ms. Murphy stated that Ms. Kriedler reported to her that that S.A. was flailing about and kicking when Dr. Whalen threatened to pull his hair. Robin Whiddon was Dr. Whalen's aide on August 13, 1998. She recalls S.A. and described him as a troubled young man who was full of anger. He would sometimes come to school appearing disheveled. He had blond hair that was usually short. Ms. Whiddon has observed him lash out at others with his hands. Ms. Whiddon was not present in the classroom when the incident described by Ms. Kriedler occurred. However, upon her return to the classroom, Dr. Whalen informed her that she had grabbed S.A. by the hair until she could control him. Ms. Murphy discussed the incident with Principal Izell Montgomery and Superintendent Oscar Howard in late August 1998. As a result of the discussions, these officials decided to video-tape Dr. Whalen's classroom, and to take no other action. Dr. Whalen denied under oath that she grabbed S.A.'s hair. Despite Dr. Whalen's assertion to the contrary and upon consideration of all of the evidence, it has been proven by clear and convincing evidence that Dr. Whalen grabbed and held S.A.'s hair and threatened to pull it out. Grabbing a student's hair is not an approved CPI hold. However, at the time this occurred Dr. Whalen was not required to use CPI methods. Grabbing a student's hair is generally unacceptable conduct unless, for instance, it is done in self- defense, or in order to protect the student or others. It has been not been proven by clear and convincing evidence that grabbing S.A.'s hair was impermissible. Dr. Whalen told Ms. Kriedler that S.A. had been kicking her. This statement raises the possibility that the action was initiated as a self-defense measure. When one considers that Dr. Whalen has limited mobility, and that her aide was not present, she was permitted to take reasonable actions to defend herself. Grabbing a student's hair may have been reasonable under the circumstances and, in the event, the record does not provide enough evidence to permit a determination. The video-tape of November 20, 2002 A video-tape, that included audio, and which was made part of the record of the case, portrays events on the morning of November 20, 2002. The video-tape was brought to the attention of the school administration by a parent who had received the video-tape from Dr. Whalen. The picture quality of the video is satisfactory but the audio is derived from a microphone near Dr. Whalen's desk. Therefore, it is clear that the microphone did not record all of the words spoken in the classroom at the time and date pertinent. Accordingly, facts found as a result of viewing the video-tape are limited to those which are clearly depicted by it. The School Board had discussed the wearing of apparel with representations of the Confederate battle flag on them in a meeting immediately prior to November 20, 2002. Early in the morning of November 20, 2002, there was a discussion with regard to the School Board deliberations among some of Dr. Whalen's students. The discussion came close to degenerating into physical conflict. This was reported to Dr. Whalen's aide, Ruth Ann Austin. It was further reported that some students called some of their fellow students "rebels," and others called other students "Yankees" and "gangsters." Assistant Principal Verges visited the classroom at the beginning of the school day, at Dr. Whalen's request, and he explained the matters discussed at the School Board meeting. Upon the departure of Assistant Principal Verges, Dr. Whalen unleashed a torrent of criticism upon her students addressing the subject of name-calling. Dr. Whalen spoke to the students in a loud and threatening tone of voice. While delivering this tirade, Dr. Whalen traveled to and fro in her motorized wheelchair. The video-tape revealed that this wheelchair was capable of rapid movement and that it was highly maneuverable. The lecture was delivered in a wholly confrontational and offensive manner. The lecture continued for more than 30 minutes. This behavior was the opposite of the de-escalating behavior that is suggested by CPI. However, Dr. Whalen had never been directed to employ CPI. S.O. was a student in Dr. Whalen's class and was present on November 20, 2002. He was a student of the Caucasian race who had, prior to this date, displayed aggressive and violent behavior toward Assistant Principal Verges and toward Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff described him, charitably, as "non-compliant." S.O. was quick to curse and had in the past, directed racial slurs to Ms. Austin, who is an African-American. Because of his propensity to kick those to whom his anger was directed, his parents had been requested to ensure that he wear soft shoes while attending school. On November 20, 2002, S.O. was wearing cowboy boots and a Dixie Outfitters shirt with the Confederate battle flag emblazoned upon the front. Subsequent to Dr. Whalen's tirade, S.O. slid out of his chair onto the carpeted floor of the classroom. Dr. Whalen instructed him to get back in his chair, and when he did not, she tried to force him into the chair. She threatened S.O. by saying, "Do you want to do the floor thing?" When S.O., slid out of his chair again, Dr. Whalen forcibly removed S.O.'s jacket. Thereafter, Ms. Austin approached S.O. Ms. Austin is a large woman. Ms. Austin removed S.O.'s watch and yanked S.O.'s boots from his feet and threw them behind his chair. Dr. Whalen drove her wheelchair into the back of S.O.'s chair with substantial violence. Thereafter, Ms. Austin removed S.O. from the classroom. Removing S.O.'s jacket, watch, and boots was acceptable under the circumstances because they could have been used as weapons. The act of driving the wheelchair into the back of S.O.'s chair, however, was unnecessary and unhelpful. A memorandum of counseling was presented to Dr. Whalen by Principal Ivey on December 2, 2002, which addressed her behavior as portrayed by the video-tape. The S.O. and C.C. incidents Reports from time to time were made to Assistant Principal Verges, and others, that Dr. Whalen engaged in an activity commonly referred to as "kissing the carpet." This referred to physically taking children down to the floor and sitting on them. During April 2003, Dr. Whalen reported to Assistant Principal Verges and Ms. Kriedler that she had recently put two students on the carpet. During the four years Mr. Verges was Dr. Whalen's Assistant Principal, Dr. Whalen reported a total of only about four instances of having to physically restrain students. Dr. Whalen has never told Mr. Verges that she has regularly restrained children on the floor. Dr. Whalen's agent for using physical restraint is her aide, Ms. Austin, because Dr. Whalen's handicap does not permit her to easily engage in physical restraint. Ms. Austin physically restrained children five or six or seven times during the four years she was Dr. Whalen's aide. On four occasions a child actually went to the floor while being restrained by Ms. Austin. One of the two students who were reported to have been physically restrained during the April 2003, time frame was S.M. During this time frame S.M. became a new student in Dr. Whalen's class. S.M. was unhappy about being placed in a "slow" class. It was Ms. Austin's practice to meet Dr. Whalen's students when they exited the school bus in the morning. Accordingly, she met S.M., the new student. S.M. was "mouthy" when she exited the bus and would not get in line with the other children. S.M. and the rest of the children were taken to the lunch room in order to procure breakfast. While there, S.M. obtained a tray containing peaches and other food and threw the contents to the floor. Ms. Austin instructed S.M. to clean up the mess she made. S.M. responded by pushing Ms. Austin twice, and thereafter Ms. Austin put S.M. in a basket hold. S.M. struggled and they both fell on the floor. Ms. Austin called for assistance and someone named "Herb" arrived. Herb put a basket hold on S.M. while Ms. Austin tried to remove S.M.'s boots because S.M. was kicking her. S.M. was almost as tall as Ms. Austin and was very strong. At the end of the day, Ms. Austin was trying to "beat the rush" and to get her students on the school bus early. She was standing in the door to the classroom attempting to get her students to form a line. She and Dr. Whalen had planned for S.M., and another student, with whom she had engaged in an ongoing disagreement, to remain seated while the rest of their classmates got on the bus. While the line was being formed, S.M. and her fellow student had been directed to sit still. Instead, S.M. rose, said that she was not going to wait, and tried to push by Ms. Austin. Ms. Austin responded by asking her to sit down. S.M. said she would not sit down and pushed Ms. Austin yet again. Ms. Austin tried to restrain her and told the other students to get to the bus as best as they could because she was struggling with S.M. and was having substantial difficulty in restraining her. Ms. Austin asked for help. She and S.M. fell to the floor. S.M. was on the carpet. Dr. Whalen slid from her wheelchair and attempted to restrain the top part of S.M.'s body. Ms. Austin held the bottom part of her body and attempted to remove her boots with which S.M. was kicking. S.M. was cursing, screaming, and otherwise demonstrating her anger. Dr. Whalen talked to her until she calmed down. They then released S.M. The actions taken by Ms. Austin and Dr. Whalen were appropriate responses to S.M.'s behavior. The S.M. affair precipitated the C.C. incident. C.C. was a large male student who had no history of violence. C.C. teased S.M. about having been "taken down" by Ms. Austin. C.C., teasingly, told Ms. Austin, that he did not think Ms. Austin could take him down. Ms. Austin said she could put him in a basket hold which she did. C.C. challenged Ms. Austin to put him on the floor and she did. This was considered a joke by C.C. and Ms. Austin. This incident was nothing more than horseplay. As the result of the comments made by Dr. Whalen, addressing the S.M. and C.C. incidents, to Ms. Kriedler and to Assistant Principal Verges, a memorandum issued dated April 7, 2003. It was signed by Principal Sylvia Ivey. The memorandum recited that Dr. Whalen's comments raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video-taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The J.R. incident On January 19, 2005, J.R. was a student in Dr. Whalen's classroom. On that date, J.R. was a ten-year-old female and in the third grade. J.R. had been a student in Dr. Whalen's classroom only since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student on an occasion when he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered it and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen, who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her on the back. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical, parallel, and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has many years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed Julia's back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten on the playground under the circumstances described in this report. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks could be consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or would like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding of the origin of the marks on J.R.'s back. Because proof by clear and convincing evidence is required in this case, it is not found that Dr. Whalen bit J.R. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is clear that for many months Dr. Whalen's classroom was video-taped and until the November 20, 2003, incident, none of her actions caused attention to be drawn to her teaching methods. It is found that the assault on Dr. Whalen was sudden and unexpected. Any actions taken by Dr. Whalen were taken in permissible self-defense. J.R. was suspended from Taylor Elementary School for ten days following this incident. Miscellaneous Findings Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. From approximately 1997, when the S.A. hair pulling allegedly occurred, until December 2, 2002, not a single document was created indicating dissatisfaction with Dr. Whalen's teaching methods. Dr. Whalen's normal voice volume is louder than average. She would often elevate her already loud voice, intimidate students and pound on her desk. The aforementioned activities are not part of CPI. On the other hand, these methods worked for Dr. Whalen for 20 years. She was not required to use CPI until subsequent to the memorandum of April 7, 2003. There is no evidence that she failed to use CPI once she was required to employ it. As revealed by the testimony of Dr. Whalen, Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and others, some of these children would strike, kick, bite, throw objects, curse, and hurl racial epithets at their teachers. Teaching some of these children was difficult.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of Counts 3 and 4, that she be issued a reprimand, that she be placed on probation as that term is defined in Florida Administrative Code Rule 6B-11.008, for a period of one year. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of June, 2005. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
