The Issue Whether Respondent's employment should be terminated based on the allegations contained in the Notice of Specific Charges.
Findings Of Fact At all times relevant to this proceeding, Petitioner has been a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32. Petitioner has continuously employed Respondent since 1992 as a custodian at Melrose Elementary School, one of the public schools in Miami-Dade County. At all times relevant to this proceeding, Cynthia Gracia was the principal of Melrose Elementary School. Respondent is a non-probationary "educational support employee" within the meaning of Section 1012.40, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system . . . who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 1012.39. . . . "Employee" means any person employed as an educational support employee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. (b) Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . At the times material to this proceeding, Respondent was a member of the AFSCME collective bargaining unit. AFSCME and Petitioner have entered into a CBA, which provides in Article XI for discipline of covered employees. Article XI, Section 4 provides that covered employees who have been employed by Petitioner for more than five years (such as Respondent) may only be discharged for "just cause." Article XI, Section 4 of the CBA pertains to types of separation from employment. Article XI, Section 4(B) pertains to excessive absenteeism and abandonment of position and provides as follows: (B) An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall be grounds for termination. . . . School Board Rule 6Gx13-4E-1.01 provides as follows: Except for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave. Pursuant to Section 1012.67, a school board is authorized to terminate the employment of an employee who is willfully absent from employment without authorized leave, as follows: Any district school board employee who is willfully absent from duty without leave shall forfeit compensation for the time of such absence, and his or her employment shall be subject to termination by the school board. Petitioner's leave policies do not permit a leave of absence for an incarcerated employee, unless the employee can demonstrate that he or she was wrongfully incarcerated. At the times material to this proceeding, Respondent was not wrongfully incarcerated, and he was not eligible for a leave of absence under Petitioner’s leave polices. School Board Rule 6Gx13-4A-1.21 states in pertinent part that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. On September 25, 2002, Respondent was charged with assault and battery (domestic violence) involving his then girlfriend. Those charges were pending at the time of the final hearing. On or about November 14, 2002, Respondent appeared at a court hearing. Because he had missed an earlier court date, Respondent was incarcerated in the Miami-Dade County jail. Shortly after he was arrested, Respondent attempted to contact Ms. Gracia at Melrose Elementary School. Respondent testified he tried to call the school five or six times on the day he was arrested, but the call from jail was long distance and the school would not take a collect call. That same day, Respondent called his new girlfriend (Leanne Perez), told her that he was in jail, and asked her to tell Ms. Gracia that he was in jail. On November 14, 2002, Ms. Perez told Ms. Gracia by telephone that Respondent had been detained. When questioned, Ms. Perez explained that Respondent was in jail, but she did not provide any additional information. Respondent returned to his job site on December 16, 2002. Between November 14 and December 16, Respondent was absent from work without authorized leave. Neither Respondent nor anyone on Respondent's behalf contacted or attempted to contact Ms. Gracia between Ms. Perez's telephone call on November 14 and Respondent's reappearance at the job site on December 16. Prior to his incarceration, Respondent had absences from work without authorized leave. From April 11, 2002, to December 16, 2002, Respondent had 29.5 days of unauthorized absences from the worksite. Respondent's unauthorized absences impeded the provision of the custodial services that are necessary to keep a school clean and safe. During Respondent's unauthorized absences, the other members of the custodial staff had to perform their duties and had to perform extra work to cover for Respondent's absence. On December 5, 2002, Ms. Gracia wrote a memorandum to Respondent styled "Employment Intention." After listing the dates Respondent had been absent between October 10, 2002, and December 5, Ms. Gracia wrote as follows: These absences have caused the effective operation of the worksite to be impeded, and/or efficient services to students to be impeded. I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; or Effect leave procedures (request for leave [form] attached); or Implement resignation from Miami-Dade County Public Schools. (Resignation letter attached.) You are directed to notify the worksite within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Ms. Gracia's memorandum was mailed to the address Respondent had given Petitioner as his residence, and a relative of Respondent, who was not named at the final hearing, signed for the mailing. Respondent testified, credibly, that he did not receive the memorandum until after he got out of jail. Respondent did not respond to the memorandum. Respondent testified, credibly, that he did not intend to abandon his employment. Respondent worked between December 16, 2002, and April 9, 2003, the date Petitioner suspended Respondent's employment without pay and instituted these proceedings to terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth in this Recommended Order, sustains the suspension of Respondent's employment without pay, and terminates that employment. DONE AND ENTERED this 24th day of October, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2003.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Respondent has been employed by the School Board as a cafeteria manager at Lee Middle School. She was hired on August 17, 2009, at the beginning of the school year. In just over one year of employment, Respondent has no disciplinary history and has one adequate performance evaluation. In her managerial position, Respondent supervises several other employees who work in the cafeteria, including Beth Haisley (Ms. Haisley) and Monique Rhodes (Ms. Rhodes). Ms. Taylor's immediate supervisor is Ryan Beaman (Mr. Beaman), and Mr. Beaman's supervisor is food service specialist, Rusty Moore (Mr. Moore). Mr. Moore reports to Sandy Ford, who is the director of the food services department. Near the end of the 2009-2010 school year, Ms. Rhodes was having some troubles with her foster daughter, who is known as "T." T., a 14-year-old student at Lincoln Middle School, was apparently caught having sex with an 18-year-old man. Ms. Rhodes kept T. out of school for several days and brought T. to work with her at the Lee Middle School cafeteria, where T. was permitted by Ms. Taylor to do some work as a volunteer. Because of the troubles Ms. Rhodes was having with T., Ms. Taylor offered to keep T. at her home over the Memorial Day weekend, and Ms. Rhodes agreed. While Ms. Taylor was helping T. put on a pair of earrings, she noticed a scar on T.'s neck. Ms. Taylor asked T. what had happened, and T. responded that her mother beat her. Ms. Taylor said that T. told her that T. had spoken to her counselor about it and that the counselor had taken care of it. Ms. Taylor did not know whether T. was referring to a school counselor or some other kind of counselor; Ms. Taylor did not ask T. anything more about it. On the Monday after the Memorial Day weekend Ms. Taylor sought out Ms. Haisley the first thing that morning to tell Ms. Haisley about T.'s scar and about Ms. Taylor's conversation with T. about how it happened. Ms. Taylor also told Ms. Haisley that at the end of the weekend, T. got upset and was crying when it was time to leave to go back home to Ms. Rhodes. Ms. Haisley asked Ms. Taylor if she was going to call the Child Protective Services (CPS) hotline to report the matter. Ms. Taylor responded that she was not sure that she wanted to call, because she was afraid of Ms. Rhodes. Ms. Haisley followed up a few days later, calling Ms. Taylor and asking her again about calling the CPS hotline to report what she had observed and what T. had said. Ms. Taylor said she still had not decided whether she would call and that she would discuss it with her husband. Ms. Haisley expressed her concern to Ms. Taylor and told her that if Ms. Taylor did not make the call, she (Ms. Haisley) might have to. Ms. Taylor never did place a call to the CPS hotline to report the suspected abuse of T. In none of the conversations between Ms. Haisley and Ms. Taylor did Ms. Taylor ever say that she did not have a reasonable suspicion that T. may have been abused by Ms. Rhodes. Ms. Taylor never told Ms. Haisley that it was unnecessary or inappropriate to call the CPS hotline because the circumstances did not warrant a call. The greater weight of the credible evidence is that Ms. Taylor had a reasonable suspicion that T. may have been abused by Ms. Rhodes, but did not call the CPS hotline for the sole reason that she was afraid to accuse Ms. Rhodes. In approximately the second week of June, after Ms. Haisley tried twice but could not get Ms. Taylor to say she was going to call the CPS hotline, Ms. Haisley called the CPS hotline herself. Like Ms. Taylor, Ms. Haisley was concerned about making the call and sought immediate assurance from the hotline counselor that Ms. Haisley's identity would be kept confidential. Ms. Haisley told no one about the call, not even her husband. Ms. Haisley did not call the CPS hotline sooner because she thought that it was Ms. Taylor's obligation to call, and Ms. Haisley hoped that Ms. Taylor would follow through. Both Ms. Haisley and Ms. Taylor were made aware of the obligation to report suspected child abuse, as this obligation had been a priority and point of emphasis by the School Board. The obligation is codified in a School Board rule in the Policy and Procedure Manual applicable to School Board personnel. In addition, the subject is emphasized in employee training sessions, seminars, and meetings. For example, Ms. Haisley described a meeting in October 2009 attended by both Ms. Haisley and Ms. Taylor, at which the Lee Middle School principal, Scot Boice, spoke of the CPS hotline and the obligation to call and report suspected child abuse of any student. Flyers were handed out at this meeting to repeat the message, providing the hotline number, and emphasizing that calls were confidential. Ms. Taylor confirmed that she was at this meeting and received a flyer. Although Ms. Taylor first stated that there was no discussion about the obligation to report suspected abuse to the CPS hotline, she later admitted that the subject was "mentioned." After Ms. Haisley called the CPS hotline to report the suspected abuse of T., as it had been described to her by Respondent, CPS conducted an investigation of Ms. Rhodes and T. They examined the mark on T.'s neck, and both T. and Ms. Rhodes claimed to not know how it got there. Ms. Rhodes guessed that T. may have gotten the mark when T. had the sexual encounter with the 18-year-old in the spring of 2010, suggesting that the mark appeared to be recent. Ms. Rhodes was incensed by the investigation and immediately jumped to the conclusion that Ms. Taylor must have called the CPS hotline, because T. had just spent the weekend with Ms. Taylor. Ms. Rhodes called Ms. Taylor, and in a profanity-laced tirade, accused Ms. Taylor of calling CPS. Ms. Rhodes wanted to know how Ms. Taylor could do that when they were friends. Respondent denied having made the call to the CPS hotline, but Ms. Rhodes did not believe her. Ms. Taylor testified that she felt threatened by Ms. Rhodes' call. At the final hearing, Ms. Taylor testified that Ms. Rhodes said she would "kick her ass"; during the School Board's investigation, Ms. Taylor only said that Ms. Rhodes threatened to get back at Ms. Taylor for having called the CPS hotline. At the final hearing, Ms. Rhodes acknowledged that she was angry and hurt and that she thoroughly "cussed out" Ms. Taylor, but Ms. Rhodes adamantly denied having made any threats to Ms. Taylor, physical or otherwise. Ms. Taylor admitted that after the phone call, she embarked on a campaign to find out who had placed the call to the CPS hotline and that she was determined to figure out who had made the call. The first call Ms. Taylor made was to Ms. Haisley, who had told Ms. Taylor that she might have to call the hotline if Ms. Taylor would not make the call. Ms. Taylor asked Ms. Haisley if she called the CPS hotline, and Ms. Haisley at first asked, "What if I did?" Ms. Taylor then told Ms. Haisley about Ms. Rhodes' profanity-laden accusations to Ms. Taylor. Ultimately, Ms. Haisley admitted that she had called the CPS hotline to report what Ms. Taylor had told her about T. Ms. Haisley credibly testified that she disclosed this information to Ms. Taylor at least, in part, because Ms. Taylor was her supervisor, and Ms. Haisley felt obliged to answer her supervisor's questions truthfully. Although Ms. Haisley did not expressly demand that Ms. Taylor keep this information confidential, Ms. Haisley believed that Ms. Taylor would not disclose the information to others, least of all to the suspected abuser. Shortly thereafter, Respondent called Ms. Haisley again. This time, Respondent told Ms. Haisley that she needed to call Mr. Moore to tell him that Ms. Haisley, not Ms. Taylor, had called the CPS hotline to report suspected abuse by Ms. Rhodes. Ms. Haisley attempted to comply with what her supervisor asked. Ms. Haisley spoke to Mr. Moore on the phone and started to tell him what Ms. Taylor wanted her to tell him, but Mr. Moore cut off Ms. Haisley when she mentioned the CPS hotline and said he did not want to hear about it, because it was confidential. The evidence was unclear regarding what prompted Ms. Taylor to try to get Ms. Haisley to disclose this information to Mr. Moore. According to Ms. Taylor, she knew that Ms. Rhodes had a meeting scheduled with Mr. Moore, and Ms. Taylor assumed that the meeting was about the CPS hotline call. Ms. Taylor was mistaken. The meeting was to address problems with Ms. Rhodes' job performance. Mr. Moore admonished Ms. Rhodes to be a better worker for Ms. Taylor, and he told Ms. Rhodes to talk to Ms. Taylor over the summer to apologize and clear the air. Mr. Moore and Ms. Rhodes testified consistently that the subject of the CPS hotline call and investigation did not come up at this meeting. Over the summer, Ms. Rhodes tried to call Ms. Taylor, as suggested by Mr. Moore. When Ms. Rhodes could not reach Ms. Taylor on the phone, she had her cousin, Betty, contact Ms. Taylor to coordinate a meeting at a Taco Bell. At the Taco Bell meeting, Ms. Taylor, who by then had succeeded in her campaign to find out who had called the CPS hotline, brought up the subject and disclosed to Ms. Rhodes that Ms. Haisley was the one who called the CPS hotline. At the final hearing, Ms. Taylor testified that it was Ms. Rhodes, not Ms. Taylor, who named Ms. Haisley as the one who called the CPS hotline and that Ms. Taylor only said in response that she would not deny that it was Ms. Haisley who called the CPS hotline. Ms. Taylor's testimony that she was not the one who first identified Ms. Haisley was not credible. Ms. Rhodes credibly testified that Ms. Taylor was the one to name Ms. Haisley as the hotline caller. Ms. Rhodes' cousin, Betty, who was there at the beginning of the meeting, confirmed that Ms. Taylor was the one who first named Ms. Haisley. The greater weight of the credible evidence establishes that Ms. Taylor purposely disclosed Ms. Haisley's identity as the CPS hotline caller to Ms. Rhodes. Ms. Taylor testified that at the Taco Bell meeting, after Ms. Rhodes came to understand that it was Ms. Haisley who had called the CPS hotline, Ms. Rhodes began threatening Ms. Haisley, saying she was "gunning for" Ms. Haisley. In other words, according to Ms. Taylor, Ms. Rhodes redirected to Ms. Haisley the sort of threatening remarks she had made to Ms. Taylor in the profanity-laced phone call earlier in the summer. Yet, Ms. Taylor did not say that Ms. Rhodes had been threatening her at the Taco Bell meeting before Ms. Taylor disclosed that Ms. Haisley was the real CPS caller. Instead, Ms. Taylor described the meeting, before she named Ms. Haisley, as calm and relaxed, with Ms. Taylor and Ms. Rhodes engaging in chit-chat. Perhaps because Ms. Rhodes was ultimately cleared of any wrongdoing in the CPS investigation, she had calmed down about it. According to Ms. Rhodes, the only thing she told Ms. Taylor in reaction to learning it was Ms. Haisley who had made the call to CPS was that Ms. Rhodes would have "zero tolerance" for Ms. Haisley-–that Ms. Rhodes was "done with her." Ms. Taylor claims to have been "shocked" and "dumbfounded" by the threats Ms. Rhodes allegedly directed to Ms. Haisley. As a result, in August, shortly before school started, Ms. Taylor called Ms. Haisley to let her know that Ms. Taylor had disclosed her identity as the CPS hotline caller to Ms. Rhodes and to warn her that Ms. Rhodes said she was "gunning for" for Ms. Haisley. Ms. Haisley felt "thrown under the bus" by her supervisor and was very fearful because of the threats described by Ms. Taylor. After school started in August 2010, work relations in the cafeteria were very strained. Ms. Rhodes would not talk to Ms. Haisley in keeping with her "zero tolerance" approach. Things were also very tense between Ms. Haisley and her supervisor. Respondent repeatedly criticized Ms. Haisley for having called the CPS hotline, saying both Respondent and Ms. Haisley would be fired because of it. Ms. Haisley called Mr. Moore to request a meeting to discuss the situation because of the emotional pressure placed on her. A meeting was held between Ms. Haisley, Mr. Moore, and food services director, Sandy Ford. Ms. Haisley described the circumstances that led to her calling the CPS hotline; the pressure from Ms. Taylor to tell her that Ms. Haisley had called the hotline; Ms. Taylor's disclosure to Ms. Rhodes that Ms. Haisley called the hotline; and Ms. Rhodes' threats, as described by Ms. Taylor. Mr. Moore told Ms. Haisley that by admitting that she had called CPS, that information was no longer confidential. Ms. Haisley responded that she had nothing to lose, because Ms. Rhodes already knew that Ms. Haisley called CPS. Immediately after this meeting, Mr. Moore contacted the School Board's Office of Professional Standards (OPS) to investigate the alleged threats made by Ms. Rhodes1/ and to investigate Ms. Taylor's failure to call the CPS hotline and disclosure to the suspected abuser of the identity of the person who had called the CPS hotline. Respondent was placed on paid administrative leave pending the School Board's investigation into this matter. As a result of the investigation, the action on the investigation by a panel of persons in Respondent's chain of command and the concurrence of the superintendent with the chain-of-command panel's recommendation, the Administrative Complaint was prepared. Following service of the Administrative Complaint on Respondent and her election to contest the allegations in an administrative hearing, the School Board voted to suspend Respondent without pay as of October 26, 2010, pending the outcome of the administrative hearing. The charges in the Administrative Complaint are primarily based on Ms. Taylor's failure to call the CPS hotline to report her reasonable suspicion of child abuse and also on Ms. Taylor's disclosure of Ms. Haisley's identity as the hotline caller to the suspected abuser. Ms. Taylor offered an assortment of explanations for not calling the CPS hotline. The explanations are somewhat inconsistent with each other and some of the explanations were not provided by Ms. Taylor during the investigation. Ms. Taylor claimed that the scar she observed did not give rise to a reasonable suspicion of child abuse; or that she had in the past reported more severe signs of child abuse to CPS, which did not pursue an investigation (suggesting that she should be excused from reporting anything but very severe signs of child abuse because she could assume CPS would do nothing again); or that because T. said that she told a counselor all about it and the counselor had taken care of it, whatever child abuse may have occurred had been handled by someone else; or that because T. said that her mom beat her, and Ms. Taylor knew that T. did not refer to her foster mother as "mom," T. must have meant her biological mother and must have been referring to a long-past incident. Ms. Taylor's explanations are not credible. The scar that Ms. Taylor observed on T.'s neck was at least significant enough to cause Ms. Taylor to ask T. how she got the scar. When T. responded that it was from where her mother beating her, it defies credibility that Ms. Taylor would have simply accepted that statement and assumed, without asking, that T. was talking about a long-past incident involving her biological mother. T.'s response, standing alone, is a clear indication of abuse, leaving only the questions of when and by which "mother"--years ago by the biological mother or within the past few years by the foster mother? These questions were neither asked nor answered. T.'s statement, standing alone, created at least a reasonable suspicion of child abuse by the foster mother with whom T. had been living for the past several years. Ms. Taylor's alternative explanation that she did not think she needed to call the CPS hotline because T. stated that she had told a counselor and the counselor took care of it, is an inadequate rationale for not calling the CPS hotline. First, there was insufficient information to provide the reassurance that Ms. Taylor claimed to have drawn from T.'s statements. What kind of counselor did T. talk to, when did this occur, and what was the resolution? But more importantly, this explanation appears to acknowledge that there was a reportable incident. As such, the fact that someone else may have also reported it or may have done something to "take care of it," does not excuse Ms. Taylor from reporting what she observed and what she was told by T. to the CPS hotline. Ms. Taylor's explanations do not square with Ms. Haisley's testimony regarding Ms. Taylor's actions in the days and weeks following Ms. Taylor's Memorial Day weekend with T. Ms. Haisley credibly testified that first thing on Monday morning, Ms. Taylor brought up the incident, telling Ms. Haisley about T.'s scar and T.'s statement that her mother beat her, and also, about T. getting upset at the end of the weekend when it was time to go home to Ms. Rhodes. Ms. Haisley was left with the impression that Ms. Taylor was concerned about T. and suspected child abuse by her foster mother, an impression that was reasonable under the circumstances. Ms. Taylor attempted to refute Ms. Haisley's testimony about the Monday morning conversation. Ms. Taylor testified that she did not bring up the incident, but rather Ms. Haisley was asking her questions, and she answered the questions by mentioning the scar and T.'s statement that her mother beat her. Ms. Taylor testified that the conversation was just a casual, every-day conversation, but she could not remember what questions were asked that would have caused her to casually refer to a scar and to T.'s explanation for the scar that her mother beat her. But a scar caused by being beaten by one's mother is not the stuff of casual, every-day conversations; it is difficult to imagine a casual, every-day conversation in which a question would elicit such a response. When Ms. Taylor was investigated by the School Board, she described the Monday morning conversation with Ms. Haisley differently: After Memorial Day Weekend, Beth [Haisley] asked me a direct question. . . Beth asked, "Do you know anything about Monique, her children, or abuse?" Beth also said that she heard 'stuff' in the cafeteria worker's lounge during lunchtime. Beth told me the conversations disturbed her and that the conversations were in regard to Monique. . . I told Beth that I saw a mark on [T's] neck. . . . I told Beth that I asked the child what happened. The child told me her mom beat her. The child said that she had told her counselor this and the counselor took care of it. This version, given by Ms. Taylor at an interview on August 25, 2010, refutes the notion that Ms. Taylor did not associate the scar or T.'s statement that her mom beat her, with T.'s foster mother, Monique Rhodes. Ms. Taylor attempted to excuse her disclosure of Ms. Haisley's identity to the suspected abuser by asserting that Ms. Haisley volunteered her identity to Ms. Taylor as the hotline caller and never told Ms. Taylor to keep that information confidential. Ms. Haisley's ultimate admission to her supervisor, who pressed her for the information, was not truly voluntary. Even though Ms. Haisley did not express to Ms. Taylor that the disclosure was for Ms. Taylor only and should be kept confidential, that condition should have gone without saying under the circumstances. Ms. Haisley certainly never gave Ms. Taylor permission to disclose her identity as the CPS caller to anyone else, least of all to the suspected abuser. Ms. Taylor also seems to argue that her disclosure to Ms. Rhodes was justified because of Ms. Rhodes' threats to Ms. Taylor. While Ms. Taylor may have subjectively felt threatened by Ms. Rhodes, any fears she may have felt do not excuse her actions in embarking on a campaign to redirect the threats from herself to Ms. Haisley. Ms. Taylor knowingly and intentionally threw her subordinate under the proverbial bus: she admittedly made it her business to figure out who called the CPS hotline; she wrangled the information out of her subordinate; and then she proceeded to turn that information over to the person she thought would do harm as a result. And yet, she inexplicably claimed to be "shocked" and "dumbfounded" when Ms. Rhodes allegedly threatened Ms. Haisley after Ms. Taylor revealed who had made the call. Inconsistencies, such as this, cast doubt on whether there really were fear and threats, but regardless, even if Ms. Taylor was legitimately concerned about threatening behavior, that would be even more reason to take seriously the reasonable suspicions with regard to T., a young girl under the care of the supposedly threatening subject. Furthermore, fear of threatening behavior should have caused a supervisor to protect her subordinate, rather than take actions to redirect whatever threats actually existed to the subordinate and away from the supervisor. If Ms. Taylor's fears were genuine, the only appropriate action would have been to bring the matter to the attention of any and all supervisory personnel in the school system, and, if deemed necessary, law enforcement personnel. Ms. Taylor claimed that she reported Ms. Rhodes' threats to Mr. Moore, although she was confused about when that was. The Administrative Complaint charges Ms. Taylor with providing misleading statements in the investigation on this subject, but the evidence was inconclusive in this regard. Ms. Taylor seems to argue that she only acted to discover and disclose Ms. Haisley's identity as the CPS hotline caller after Ms. Haisley reported the threats to Mr. Moore and nothing was done. That argument is rejected as inconsistent with the facts and insufficient to justify Ms. Taylor's actions. Ms. Rhodes' profanity-laced call to Ms. Taylor occurred after school was out for the summer. Ms. Taylor immediately embarked on her campaign to identify the hotline caller and wrangled the information out of Ms. Haisley. Ms. Taylor met with Ms. Rhodes at Taco Bell and disclosed Ms. Haisley's identity as the hotline caller, while school was still out for the summer. Ms. Taylor obviously was not waiting around to see if anything would be done through school channels about Ms. Rhodes. Moreover, Mr. Moore was not Ms. Taylor's immediate supervisor. No explanation was provided regarding why Ms. Taylor did not report her claimed fears about Ms. Rhodes' threatening behavior to her supervisor, Mr. Beaman, or to the food services director, Sandy Ford, or to the school principal, Scot Boice.2/ Any and all of these actions would have been proper responses to alleged threats; throwing one's subordinate under the bus was not a proper or justifiable response. The superintendent described the policy objectives at issue in this case. He explained that the School Board takes very seriously its role, standing in loco parentis, to protect and ensure the safety of Manatee County students. These policy objectives are so strongly implicated when it comes to suspected child abuse that the School Board adopted its own rule to emphasize to its employees that they are required to immediately call the CPS hotline to report suspected child abuse, even though Florida statutory law already imposes a similar obligation. The superintendent was emphatic about the critical importance of the School Board insisting that its employees follow through on their obligation to report reasonable suspicions of child abuse. He was equally emphatic about the serious nature of Respondent's actions in not immediately reporting suspected child abuse and then disclosing the identity of her subordinate to the suspected abuser as the one who made the call Respondent should have made. Based on the extremely serious nature of these two charged violations, the superintendent did not hesitate to recommend the termination of Respondent's employment as the appropriate disciplinary response. The absence of other disciplinary problems during Ms. Taylor's brief tenure with the School Board and her single adequate performance evaluation, were not sufficiently weighty factors in her favor to overcome the seriousness of the violations. The superintendent credibly described how Ms. Taylor had done permanent harm to her ability to effectively manage within the school system, by throwing a subordinate under the bus and breaching the confidentiality of a CPS hotline call. If Ms. Taylor's actions were excused or subject to a lesser penalty, there would be a chilling effect on other employees following through on their obligation to report suspected abuse, because employees would have no assurance that their confidentiality would be honored and protected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Joyce Taylor. DONE AND ENTERED this 25th day of February, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2011.
The Issue Whether the license of the Respondent should be revoked, or whether a lesser penalty should be imposed.
Findings Of Fact Respondent, William T. Simpson, who holds Florida Teaching Certificate No. 94266, was suspended without pay from his position as principal of the Adult Division, St. Augustine Technical Center, St. Augustine, Florida on May 28, 1979, by W. Douglas Hartley, District School Superintendent, St. Johns County, Florida, pursuant to charges that Respondent misappropriated funds (Transcript, Page 54). Petitioner, Professional Practices Council, conducted an investigation, and its Executive Committee found probable cause to believe Respondent was guilty of acts providing grounds for revocation of his teaching certificate. The Executive Committee recommended to the Commissioner of Education that he find probable cause existed to believe that Respondent committed acts which provided grounds for revocation of Respondent's teaching certificate. The Commissioner found probable cause and directed that the "Petition for the Revocation of Teacher's Certificate" be filed. Respondent denied the material allegations and requested an administrative hearing. Subsequent to his suspension on May 28, 1979, Respondent resigned his position with the St. Johns County School Board and made restitution to the school board in the amount of $2,073.43. At the time of the administrative hearing Respondent was teaching at Edward Waters College in Jacksonville, Florida, which requires no state teaching certificate (Transcript, Page 79). Prior to commencement of the hearing, the parties filed the following instrument, which is copied in toto for clarity: JOINT STIPULATION AS TO JURISDICTIONAL MATTERS, MATERIAL ALLEGATIONS, AND CONCLUSIONS OF LAW The Petitioner, Professional Practices Council, and Respondent, William T. Simpson, by and through their undersigned attorneys, jointly stipulate to the below-listed matters and consent to the admission of this Stipulation as evidence at the formal hearing of this cause scheduled for February 20, 1980, and pursuant to their stipulation and agreement, would state: JURISDICTIONAL MATTERS That the evidence would show that the Commissioner of Education, Ralph D. Turlington, pursuant to Section 231.18, Florida Statutes, and Section 6A-4.37, Rules of the State Board of Education, by letter dated October 1, 1979, found probable cause existed and directed the filing of this Petition for the Revocation or Suspension of teacher certificate. That pursuant to Section 6A-4.37, Rules of the State Board of Education, Petitioner has authority to file the Petition at issue in this cause. MATERIAL ALLEGATIONS That, on or about April 25, 1979, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $95.00, collected by Dick Reis for a class in natural childbirth when these funds were placed in his care. That during the 1978-1979 school year, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $45.00 turned in to him by Doris Blackshear which were fees for a slimnastics class. That, during the 1977-78 school year, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $105.00 which were fees collected from the chemistry for nurses class and had been placed in his care and custody. That, during the winter of 1978, William T. Simpson failed to deposit into the St. Augustine Technical Center internal accounts fund approximately $75.25 from the sale of books for the chemistry class for nurses and which had been placed in his care and custody. That, during the 1978-79 school year, William T. Simpson failed to turn in or deposit into the St. Augustine Technical Center internal accounts fund registration monies received from 1) Mary Hutchins, 2) Clement Hutchins, 3) Carrie Jones, 4) Alice Terry, 5) Tammy Hill, 6) Sharon Wheeler, 7) Sandra Pomar, 8) Pauline Brown, 9) Shirley Gatchell, 10) Marge Supinger, 11) Shirley Foster, 12) Mary Robinson, 13) Enid Taylor, 14) Marie Peterson, 15) Mary Robinson, 16) Margaret Darty, and 17) Christopher Tipton, totaling approximately $545.00, which had been personally received by him.
Conclusions That the Petitioner and Respondent stipulate that the above-alleged stipulated facts are in violation of Section 6B-1 and Section 6B-5, Rules of the State Board of Education and St. Johns County School Board policies 9.24(6)(a)(7)(8)(9). That Respondent has made restitution to the St. Johns County School Board in the amount of $2,073.43. A "Motion to Strike and Answer of Respondent," filed by the Respondent on December 13, 1979, was withdrawn by Respondent, and allegations number 5 and number 7 of the Petition for Revocation of Teaching Certificate were dismissed. A ruling on the Motion to Dismiss allegation number 8, which alleged Respondent made telephone calls for which he did not pay was reserved and thereafter the Motion was denied. Petitioner called as witness the business manager of the St. Augustine Technical Center, who identified a telephone log entered into evidence as Petitioner's "Composite Exhibit 1" without objection. Many long distance calls were made between 1977 and 1979 by Respondent Simpson to telephone number 387- 1435 in Jacksonville, Florida. Sixty-two (62) calls were unlogged, and forty (40) calls were logged. The telephone number was traced to Jacksonville in Duval County and found to be registered in the name of a woman introduced by Respondent Simpson variously as his friend and companion and his fiance' (Transcript, Pages 18, 33 and 42). These personal long distance telephone calls totaled $74.79, and Respondent has not reimbursed the St. Johns County School Board for these calls. The Petitioner, Professional Practices Council, has recommended that a final order be entered revoking Respondent's teaching certificate for a period of ten (10) years. Respondent has recommended that his privilege to act as an administrator in the State of Florida be suspended for a period of two (2) years. In mitigation of penalty, Respondent Simpson presented six (6) character witnesses. The Superintendent of Schools had known Respondent since about 1961 and had had no complaints of his classroom work as a high school English teacher or thereafter when Respondent was moved to administer the adult program until the problem of misappropriating funds came to the superintendent's attention. The superintendent would not employ the Respondent again in the adult education program or as an administrator, but hopes that Respondent has learned a lesson and after a probationary period would be agreeable to placing him in a classroom as a teacher (Transcript, Page 51). A member of the Board of Education would have no reservations about sending his children into a class taught by Respondent Simpson but would not like to have him as an administrator handling money (Transcript, Page 59). The Director of the Vocational, Technical Adult Program at St. Augustine Technical Center felt that Respondent Simpson had done an excellent job until the last eighteen (18) months of his administration, when his domestic problems caused him to reach a plateau and lose interest in his work (Transcript, Pages 61 and 62). The Director did not consider the taking of funds by Respondent Simpson "an insignificant mistake," but looked at the total picture of the man and would have no reservation about sending his children into a classroom where Respondent was teaching. The Supervisor of Secondary Instruction for the school board holds Respondent Simpson in high esteem as a teacher and, except for handling money, feels Respondent is a good administrator. An associate dean at St. Johns River Community College had found Respondent helpful and a good educator. Respondent Simpson's minister felt he was concerned about the students he instructed and worked well with the parents (Transcript, Page 74). Petitioner, Professional Practices Council, and Respondent Simpson submitted proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law the Hearing Officer recommends that the teaching certificate of Respondent Simpson be revoked for a period of five (5) years from the date hereof, at which time he may apply for a new certificate as provided in Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 18th day of April, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202 Robert M. Harris, Esquire 220 East Forsyth Street Jacksonville, Florida 32202 Commissioner Ralph D. Turlington Department of Education Plaza Level 08 The Capitol Tallahassee, Florida 32301 Hugh B. Ingram, Jr., Administrator Professional Practices Council 319 West Madison Street, Room 3 Tallahassee, Florida 32301
The Issue Whether Miami-Dade County School Board ("MDCSB") had just cause to suspend and recommend the termination of Respondent, Carla McCray's ("McCray" or "Respondent"), employment for the reasons set forth in the agency action letter dated December 20, 2018.
Findings Of Fact MDCSB is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. At all times material to this case, McCray was employed by MDCSB as a school security monitor at MSHS, a public school in Miami-Dade County, Florida, and served in that capacity since 1998. Respondent's employment with MDCSB is governed by Florida law, MDCSB's policies, and the collective bargaining agreement ("CBA") between MDCSB and the United Teachers of Dade Union. As a school security monitor, McCray's duties included assisting students, assisting with student/staff altercations, protecting the school from intruders, and to generally protect the safety of everyone in the school. The proposed discipline is based upon McCray's repeated refusal to submit for a fitness-for-duty evaluation after repeated instructions to do so. Facts Giving Rise to the Fitness-for-Duty Evaluation Request In March 2018, the Office of Professional Standards ("OPS") for Miami-Dade County Public School ("MDCPS") received a call from Marian Lambeth, the Chief of the Professional Practices Commission of the Florida Department of Education. She advised OPS that McCray sent the Commission correspondence entitled "Criminal Misconduct Complaints and Willful Violations," which was 322 pages. The lengthy, repetitious, and disjointed correspondence describes a variety of alleged "cyber internet crimes," including inter cyber-bullying, cyber- harassment, and cyber-stalking. The voluminous "complaint" lists alleged infractions dating back for at least ten years. This bizarre document caused OPS and District Director Carmen Molina to be concerned for McCray's well-being and essentially put McCray on the District's "radar." McCray previously made similarly odd computer-related complaints in December 2016 to Assistant Principal Dwight Arscott. She told him people were taking control of computers she was using and logging her out of District computers. Mr. Arscott contacted the MSHS Information Technology Services ("ITS") department and also school police. McCray's complaint was investigated and found to be without any merit. McCray again made similar complaints to Mr. Arscott in January 2017, and this time he referred her to school police because, in McCray's opinion, ITS had not done a sufficient job of investigating the matter. Again, no problem was discovered regarding McCray's district-issued computers or accounts. At the start of the 2018-2019 school year, McCray expressed to Mr. Arscott that she did not feel safe using school email systems and requested that he contact her through her personal Yahoo email address. She expressed that she did not want to use the District email because she was being cyber-bullied and harassed and did not feel safe using it. As a result she was experiencing "distress." McCray memorialized her concerns in emails she sent to Mr. Arscott and other MSHS administrators beginning in August 2018. In one such email, Respondent stated that she was experiencing "overwhelming of emotional, psychological and spiritual distressed." She also stated, "I wasn't feeling in the best of wellness, for the same aforementioned reasons." She also requested a meeting with Mr. Arscott after her "wellness recovery." Mr. Arscott accommodated Respondent and gave her some time off. At the meeting she requested a personnel investigation, and Mr. Arscott explained to her that that process did not apply to her computer-related complaints. The emails from McCray caused Mr. Arscott to worry about Respondent's well-being. Additionally Mr. Arscott was concerned that a security monitor was making these complaints, because security monitors are responsible for protecting the school and alerting administration to potential security issues. MSHS is charged with educating and supervising over 3,000 students. Security monitors are relied upon to be the administration's "eyes and ears" at the school. MSHS Principal Benny Valdes shared the same concerns regarding McCray's communications because her self-described "emotional distress" could affect the safety of everyone at the school, including the students, staff, and McCray. On September 20, 2018, at 6:59 p.m., McCray sent yet another email to Mr. Arscott complaining of harassment, bullying, stalking, discrimination, safety violations, and security violations. She also claimed to be experiencing medical difficulties, including abrupt panic attacks, breathing problems, chest pain, and having to depart work early to immediately seek medical attention. The verbiage of the email is jumbled, disjointed, and nonsensical. Mr. Arscott was concerned, particularly by the alleged "safety concerns," because they were not detailed in the email. When he attempted to speak with McCray about her allegations, she provided no details. Mr. Arscott knew McCray left school a couple times to see doctors and his concerns were growing. In her September 20, 2018, email, McCray copied numerous other public officials and entities having nothing to do with MDCPS, including the Miami-Dade State Attorney, the FBI, Governor Rick Scott, and Senators Marco Rubio and Bill Nelson. On September 21, 2018, at 9:49 p.m., a similar email was sent to Mr. Arscott once again and a similar list of public officials was copied by McCray. In this email McCray requested copies of the documentation pertaining to her computer complaints. Apparently the ones she had been previously provided by Mr. Arscott were not "visually sufficient" for her. On September 24, 2018, at 5:39 a.m., McCray sent another similar email to Mr. Arscott and, once again, copied a seemingly random list of public officials. Then again on September 26, 2018, at 5:40 a.m., McCray sent another similar email to Mr. Arscott, as well as various public officials. Mr. Arscott estimated that there were 30 or more of these repetitious and bizarre emails sent by McCray between September 20 and 26, 2018. At or about the same time one morning, McCray also texted Mr. Arscott with her concerns 46 times between approximately 5:00 a.m. and 6:00 a.m. Trying to address all of McCray's repetitive requests, sent virtually at all hours of the day and night, took Mr. Arscott away from his other duties at the school. As a result of these communications and their concerns for both Respondent and the school, both Mr. Arscott and Mr. Valdes supported the decision to send Respondent for a fitness-for-duty evaluation. Mr. Valdes also stated that he would not be comfortable with Respondent returning to MSHS. The Fitness-for-Duty Process School Board Policy 4161--Fitness for Duty, applies to noninstructional personnel, which includes security monitors. The fitness policy refers to the applicable CBA. Article XXI(F) of the CBA dictates that at the request of administration, an employee can be sent for a psychological or psychiatric examination or test upon a written statement of the need for such an examination. District Director Carmen Molina testified that the District was first alerted of concerns for McCray's well-being when Marian Lambeth called and provided OPS with a copy of McCray's 322-page complaint in March 2018. These concerns were amplified when McCray began sending emails to MSHS administration describing various forms of distress she was experiencing. Much like Mr. Arscott and Mr. Valdes, Ms. Molina was concerned that a security monitor was making these complaints and allegations. Understanding the role of security monitors at a school, she too supported sending McCray for a fitness-for-duty evaluation. As a result of the administration's well-founded concerns, on September 27, 2018, a Conference for the Record ("CFR") was held with McCray and two union representatives concerning sending McCray for a fitness-for-duty evaluation. When McCray arrived for the CFR, Ms. Molina handed her an envelope that contained a written description of why she was being sent for a fitness evaluation. Ms. Molina explained to her both in writing and verbally that she was being sent for the evaluation because of her repeated complaints about cyber- bullying and her claims of emotional, psychological, and spiritual distress. The reasons for the evaluation were also memorialized in the CFR summary Ms. Molina drafted and presented to McCray. At the CFR, McCray wanted the meeting postponed for lack of union representation, yet this claim had no basis because two union representatives were present. McCray asked Ms. Molina what the basis for the fitness determination was and Ms. Molina advised her that it was because of the frequency and the content of the emails she was repeatedly sending. Ms. Molina even presented her with an email dated September 26, 2018, and asked McCray if she sent it. McCray replied that "it looked familiar." During the CFR, Ms. Molina directed McCray to go to the fitness-for-duty evaluation and provided her with a list of clinical evaluators from which to choose three. McCray refused to sign this referral document, as well as the written basis for the fitness determination. It was explained to her that going to the fitness-for-duty evaluation was a condition of her continued employment and that if she refused, it would be considered insubordination. McCray was given until September 28, 2018, to call Ms. Molina with her selected evaluators, but she never made the call. After this meeting, McCray was placed on "alternate assignment" and remained at home with full pay. When McCray did not call Ms. Molina as directed to schedule the fitness evaluation, another CFR was scheduled for October 4, 2018. Ms. Molina testified that McCray was given more than two day's notice for this second CFR and emailed the notice to her preferred Yahoo email account. McCray did not attend this CFR. However, the written summary of this CFR, which once again contained written directives to schedule the fitness-for-duty appointment, was sent to McCray. McCray failed to select her choices of evaluators for the second time and, as a result, a third CFR was held on October 15, 2018. Despite her refusal to participate in the fitness process, McCray continued to send a barrage of bizarre emails. McCray attended this CFR and was once again directed by Ms. Molina to go for a fitness evaluation. This was the third time McCray received these directives in writing and the second time Ms. Molina gave them verbally. During this CFR, McCray was once again presented with a list of doctors to choose from and she again refused to sign it. McCray was also advised that her continued refusal to go for the fitness evaluation was gross insubordination. McCray repeatedly said, "I heard you" when Ms. Molina spoke to her. In early November 2018, there was a fourth CFR held with McCray that she attended and was once again given a chance to participate in the fitness process. Again, she refused. On November 29, 2018, McCray was given a fifth and final opportunity to participate in the fitness-for-duty process at her meeting prior to board action. It was explained to her by Ms. Molina, Ms. Molina's supervisor, Dr. Jimmie Brown, and then Associate Superintendent Joyce Castro that she would have to go for the fitness evaluation or be terminated. McCray still refused to go. McCray was also presented with an entire copy of her disciplinary file by Ms. Molina. On December 18, 2018, McCray was emailed and sent via certified mail a letter that informed her that her termination was going to be recommended at the December 19, 2018, MDCSB meeting. On December 20, 2018, McCray was emailed and sent via certified mail a letter that informed her that MDCSB had taken action to terminate her employment. McCray's Arguments McCray argues that termination is inappropriate because she did not receive sufficient advanced notice of the first CFR, as required by the CBA, and she was not given a valid reason for the need for the fitness-for-duty evaluation. McCray also argues that MDCSB's failure to provide a Notice of Specific Charges prior to her termination deprived her of due process. Notice of the First CFR Article XXI, Section 1, A(3) of the CBA governing the terms of McCray's employment provides that, "Employees shall be given two days' notice and a statement of the reason for the conference, except in cases deemed to be an emergency." MDCSB alleges that the September 27, 2018, CFR was an emergency justifying the lack of advance notice. McCray contends that there was no emergency because MDCSB became concerned about McCray's mental health after receiving her 322-page complaint letter in March 2018. Although the March 2018 complaint raised concerns regarding McCray's well-being and mental stability, it was her ongoing and ever-increasing barrage of bizarre, and often incomprehensible, emails to numerous individuals in which she expressed concerns about her own safety and stability that escalated the situation to an emergency. Despite the lack of advanced notice, McCray had two union representatives present at this first meeting to assist her with the process. Accordingly, MDCSB was justified in calling the initial emergency CFR without two days' advance notice. Reason for the Evaluation Request Contrary to McCray's assertion that she was asked to submit to a psychological evaluation based solely upon "too many emails," MDCSB repeatedly explained verbally and in writing to McCray that it needed the evaluation based on the volume and content of those emails. In the emails, McCray complained of unspecified harassment, bullying, stalking, discrimination, unspecified safety violations, and security violations that she claimed were causing her abrupt panic attacks, breathing problems, chest pain, and causing her to seek medical assistance. At each CFR and in the CFR summaries, McCray was advised that MDCSB wanted her to participate in a fitness-for- duty examination because of her own complaints of school-related "emotional, psychological, and spiritual" distress. Notice of Specific Charges McCray points out that she was not provided with a Notice of Specific Charges until February 18, 2019, only 11 days prior to the final hearing and approximately two months after MDCSB's termination recommendation. Due process required that McCray be provided notice and an opportunity to be heard prior to suspension or termination and the right to a post-termination evidentiary hearing. Prior to termination, McCray was given five notices of CFRs and at least three CFR summaries explaining the need for her to participate in a fitness-for-duty evaluation, and that failure to do so was a violation of MDCSB policy and insubordination. McCray was also notified on December 18, 2018, by email and in writing, that MDCSB intended to recommend her suspension without pay and dismissal for just cause, "including but not limited to: gross insubordination; and violation of School Board Policies 4161, Fitness for Duty, 4210, Standards of Ethical conduct, and 4210, Code of Ethics." Despite being provided multiple opportunities prior to termination to explain her basis for fearing for her safety and refusal to attend a fitness-for–duty evaluation, McCray refused to do so. After the MDCSB meeting on December 19, 2018, at which McCray was recommended for suspension without pay and dismissal, she was provided notification of the action by letter dated December 20, 2018, which mirrored the basis for discipline contained in the December 18, 2018, letter. This notification also provided her with notice of how to contest the proposed action. MDCSB policies do not specify a time frame within which a Notice of Specific Charges must be issued for non- instructional employees. At no time prior to the issuance of the Notice of Specific Charges did McCray request any further explanation. There is no record of any pre-hearing discovery request by McCray regarding the specific factual or legal basis for the termination. It should be noted that the Notice of Specific Charges identifies violations of MDCSB Policy 4161— "Fitness for Duty" and "Gross Insubordination"--the same reasons for proposed discipline identified prior to the MDCSB action of December 19, 2018. McCray was provided a full evidentiary hearing at the final hearing of this matter. McCray received all pre and post-termination due process to which she was entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order finding Carla McCray guilty of misconduct in office and gross insubordination and upholding her termination from employment. DONE AND ENTERED this 3rd day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 3rd day of June, 2019. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Catherine A. Riggins, Esquire 18520 Northwest 67th Avenue, Suite 105 Miami, Florida 33015 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast 2nd Avenue, Suite 912 Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact During the 1977-78 school year, the Respondent, Erma Frederick, was employed as a classroom teacher in the Dade County Public School System, assigned to Buena Vista Elementary School. On October 10, 1977, a conference was scheduled between the Respondent, United Teachers of Dade, Representative, Ms. Mattie Squire and Ms. Linda E. Stuart, Principal of Buena Vista Elementary School. During the conference, Respondent was advised that based on two years of unsatisfactory evaluations (1973-74 and 1974-75) deficiencies in her teaching performance existed which, if not corrected by December 1, 1977, would affect her status as an employee in the Dade County Public School System and which, if not corrected by December 1, a complaint of incompetency would be filed seeking Respondent's dismissal. The substance of this conference was reduced to writing by letter dated October 10, 1977, and cited the following deficiencies: Failure to maintain pupil control by establishing and maintaining discipline. Failure to file instructional plans. Failure to implement lesson plans and to present materials correctly. Failure to correctly grade student papers and maintain accurate grade books. Failure to properly maintain cumulative records and to maintain attendance and other data entries on report cards. Failure to accurately take attendance. Failure to follow class schedules. Failure to maintain supervision of pupils at all times. Based on the Respondent's failure to otherwise remedy the above cited deficiencies to Petitioner's satisfaction, Petitioner suspended Respondent from her position as an instructional teacher on March 9, 1978. Respondent, although properly noticed, failed to appear at the hearing to refute the cited deficiencies relied on by Petitioner in suspending her as an instructional employee at Buena Vista Elementary School. Based thereon, and in the absence of any evidence having been offered by Respondent to refute or otherwise negate the above-cited deficiencies, they must be, and are, considered meritorious.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Respondent's appeal of her suspension by Petitioner be DENIED. DONE and ENTERED this 30th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent may be terminated for just cause, in accordance with Article VI, Section 1.A. of the contract between the School Board and the American Federation of State, County and Municipal Employees, Council 79, Local 850 (AFSCME).
Findings Of Fact Respondent has a twelfth grade education and is a licensed cosmetologist. She has been employed by Volusia County for over 20 years and for about eight years by Petitioner Volusia County School Board. During her years with the School Board, she has worked at Silver Sands Middle School and at Campbell Middle School. At the time the charges herein arose, Respondent was serving as a Campus Advisor at Campbell Middle School and was subject to, and protected by, the contract between the School Board and her union, AFSCME. Article VI of the AFSCME contract (Exhibit P-9) provides as follows: Section 1 – Disciplinary Action An employee may be disciplined only for just cause. . . . An employee who elects to proceed under Chapter [sic Section] 120.57, Florida Statutes, may further elect to proceed before a hearing officer [sic. Administrative Law Judge] whose decision will be regulated under Chapter 120.68, Florida Statutes. . . . Under normal circumstances the Board will follow the tenets of progressive discipline in the administration of its disciplinary standards. Discipline shall be defined as (1) the suspension of an employee; (2) the termination of an employee during the term of his or her annual contract, after he or she has completed the initial probationary period; or (3) the non-reappointment of an employee who has successfully completed three consecutive years of employment with the District, and been reappointed for a fourth year. * * * As a Campus Advisor, Respondent was responsible for aiding in maintaining a safe school environment for students. Her duties included monitoring security issues and assisting the school administrative staff with control of students. She monitored the cafeteria, helped to conduct traffic flow, and assisted students and administrators with whatever task was necessary. In her capacity as Campus Advisor, Respondent directly interacted with students on a daily basis. In August 2003, while she was employed at Silver Sands Middle School, Respondent had been referred for a fitness-for- duty evaluation because she was exhibiting irrational and disturbed behavior at school. This referral was in the nature of an intervention to protect the children in her care, to enable Respondent to get the mental health help she needed, and to permit her to continue her employment. Dr. Timothy Shaw, a psychologist, diagnosed Respondent as suffering from “Delusional Disorder, Persecutory Type,” and School Board officials asked Respondent to sign a contract agreeing to successfully maintain a prescribed program of care for her diagnosed mental condition. On January 14, 2004,3/ Respondent entered into an employment agreement (written contract) with the School Board by which she agreed to, among other things, “. . . participate in whatever treatment is prescribed if it is deemed necessary by the aforementioned professional” and to “successfully complete and maintain the prescribed program of care . . . “ Respondent acknowledged at hearing that part of the prescribed program of care at that time was for her to daily take Clonazepam (possibly Klonopin), a psychiatric medication, prescribed by a psychiatrist, Dr. Wylie. Respondent was compliant with her counseling, medication, and employment agreement for a long period of time. As of May 3, 2004, she had been recognized as “Staff Person of the Month” at Campbell Middle School. As of May 13, 2005, she had received a Service Pin as the School Board's recognition of her excellent job performance. Also, all of her attendance records were exemplary and her evaluations highly rated during this period of time. She also was active in her church and in her community during this period. At some point, Respondent felt unwell and left work with the permission of the Campbell Middle School principal. She consulted a private neurologist, who prescribed 25 milligrams of the psychiatric medication Seroquel. However, Respondent did not take this medication, because she had read or heard that it had unpleasant or dangerous side effects. Moreover, she began to take the Clonazepam, required under her contract with the School District, only when she, in her unilateral opinion, believed she needed it. On October 11, 2005, Vicky Presley, Campbell Middle School Principal, reported to Petitioner’s Office of Professional Standards that Respondent was again exhibiting irrational behavior on the job. In response to Ms. Presley's report, Professional Standards Investigator Thomas N. Harrison spoke to Respondent on October 12, 2005. At that time, Respondent told Harrison that she believed that surveillance cameras were in her home, and that she knew a red dot followed her around her house. Based on these comments and Ms. Presley's report, Mr. Harrison scheduled a meeting with Respondent to discuss a new fitness for duty evaluation. On October 14, 2005, Mr. Harrison met with Respondent to initiate the new fitness for duty evaluation. During the course of their meeting, Respondent admitted to Mr. Harrison that she had stopped taking her psychiatric medication. She went on to say that she would not take the medication required by her January 14, 2004, contract any longer, because it made her mouth dry and she did not like the way it made her feel. She also affirmatively disclosed to him that she was carrying an unloaded handgun in her purse. Mr. Harrison perceived her comments and behavior as sufficiently irrational, worrisome, or problematic for him to be concerned for her safety and that of her husband. He called in the Daytona Beach Police and Respondent’s husband. The Daytona Beach police officers who responded to Mr. Harrison’s call questioned Respondent but released her to her husband and declined to “Baker Act” her. Mr. Harrison informed Respondent that she was being referred to the Employees Assistance Program (EAP). Initially, Respondent indicated that she would not comply with the referral to EAP. However, she ultimately accepted the referral to The Allen Group, which oversees Petitioner’s EAP services. On October 28, 2005, Respondent signed another employment agreement (contract), in which she again agreed to successfully maintain a prescribed program of care for her mental illness. Pursuant to paragraphs eight and nine of that October 28, 2005, contract, Respondent acknowledged that she understood that the document constituted additional terms for her continued employment, as follows: By signing this agreement The EMPLOYEE is acknowledging that any manifestation of the condition named by the aforementioned professional does not give rise to an obligation of the EMPLOYER to accept such behavior by the EMPLOYEE. By signing this agreement the EMPLOYEE is acknowledging his/her understanding that any violation of Federal Law or Regulation of the State of Florida, the Rules and Regulations of the State Board of Education, or the policies of the EMPLOYER will subject the EMPLOYEE to a recommendation by the superintendent to the school board for the EMPLOYEE’S termination from employment by the EMPLOYER. Further, the EMPLOYEE understands that this agreement does not constitute a guarantee of employment but merely constitutes additional terms for the period of employment. (Emphasis supplied.) Based on the delusional behavior and paranoia Respondent exhibited during her EAP assessment, The Allen Group referred her for a psychiatric evaluation. That psychiatric evaluation was conducted by James T. Moore, M.D., a Florida- licensed psychiatrist, on or about November 3, 2005. Dr. Moore considered Respondent to be clearly psychotic on that occasion. She continued to talk about being under surveillance from the red dot in her home and stated that she was subjected to untrue rumors that she inappropriately watched school children and that she had stolen food. This was the same situation that she had complained-of at Silver Sands Middle School. Dr. Moore diagnosed her condition as “presumably delusional disorder, persecutory type,” and provided her with samples of 100 milligram tablets of Seroquel. His deposition and report in evidence do not reflect that he ever wrote a prescription for Seroquel for Respondent. In fact, his testimony was that he felt Respondent needed more than 100 milligram tablets of Seroquel daily but that he believed he should not provide/prescribe more than 100 milligrams unless he were treating Respondent as his patient in an on-going fashion. Respondent’s testimony acknowledged that with or without a prescription for Seroquel, she would not take that drug, because she had heard of its side-effects and that a “lawyer” was going to remove it from the market. She did, however, continue her psychological therapy with The Allen Group. On November 30, 2005, James Hollins, Director of the Office Of Professional Standards, was informed by Kevin Percy, M.Ed., CEAP, LMHC, and a member of The Allen Group who had met with Respondent on several occasions, that Respondent had been assessed and a treatment plan had been developed for her. However, Mr. Percy, who is a Florida-licensed mental health counselor, went on to report to Mr. Hollins that Respondent's illness was "uncontrolled and she refuses to follow medical orders." Additionally, he reported that Respondent was not pursuing any acceptable alternative course of treatment. In summation, he opined that Respondent was "non-compliant" with the prescribed treatment plan, because she would not take her medicine. No evidence was presented that any medical or psychological professional had ever considered offering, or had offered, Respondent a substitute for Seroquel. On December 2, 2002, Dr. Moore reported to Mr. Hollins that Respondent's condition was an impediment to the fulfillment of her duties as Campus Advisor. Dr. Moore recommended, after consultation with Mr. Percy and others in The Allen Group, that Respondent not be returned to work, because he felt she should not be around children in her condition. By this time, Respondent had told Messrs. Harrison, Percy, and Moore that she would not take Seroquel. Based on Respondent's failure to adhere to the terms of the two contracts, each entitled “Employment Agreement,” and due to the report by properly licensed and qualified medical and psychological personnel that Respondent was not mentally fit to successfully carry out her duties as a Campus Advisor for the School Board, Mr. Hollins recommended to the Superintendent of Schools, Dr. Margaret Smith, that Dr. Smith request that the School Board terminate Respondent's employment. Mr. Hollins’ recommendation and Ms. Smith's decision to follow that recommendation were reached after they had determined that the School Board had no position available for which Respondent was qualified and which did not require her to be around children. On April 11, 2006, Dr. Smith informed Respondent, by letter, of her intent to recommend to the School Board that Respondent be dismissed from employment at the April 25, 2006, School Board meeting, explaining that the reason for her recommendation was that: The Respondent has breached an agreement dated January 14, 2005, [sic] in which she had agreed to successfully maintain a prescribed program of care for a mental illness which had been previously diagnosed as a result of the Respondent having been referred for a fitness for duty examination. Properly licensed and qualified medical and psychological personnel have determined that the Respondent is no longer following the prescribed program of care, and the Respondent has admitted such to investigators employed by the School Board in its Professional Standards Department. The Respondent is unable to perform out [sic] the essential duties and functions of campus advisor for the School Board, as determined by properly licensed and qualified medical and psychological personnel. Based on the foregoing, the School Board voted to terminate Respondent's employment on April 25, 2006. Respondent was informed of her right to “appeal” that decision, and this case followed. At hearing, Respondent testified that her reasons for not taking her prescribed psychiatric medication were that she "didn't feel [it] was needed at the time it was prescribed." She admitted that no licensed medical professional had instructed her to stop taking her medication. Her decision to stop the medication was her own unilateral decision, and as of the hearing date, September 22, 2006, she had taken no psychiatric medications (neither Clonazepam nor Seroquel) for over a year. She refused to take the drug Seroquel under any conditions. Respondent’s testimony is not entirely clear, but either she believes that the medicine she was taking or her problems with the School Board in 2005 added to the stress in her marriage and thus led to a subsequent divorce, or the stress in the marriage caused her problems with the medication and School Board. Petitioner still believes that adults encouraged school children to pose suggestively for her and that a white dot she calls her "little furry dot" follows her around her house, but the dot no longer bothers her. She is currently attending a community college in a degree program and doing very well. She intends to "not be negative."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Volusia County enter a final order ratifying its previous termination of Respondent. DONE AND ENTERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 18th day of December, 2006.
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
Findings Of Fact Background Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section 2 contains 15 categories that are marked based on classroom observations and experience with the teacher. The back of the evaluation form explains the marks as follows: Mark Description Commendable (C) Indicates exceptional performance of the identified behavior(s). Satisfactory (S) Indicates satisfactory performance of the identified behavior(s) Needs Improvement (NI) Indicates a need for the employee to strengthen/improve performance of the identified behavior(s). Must Improve (MI) Indicates a need for the employee to remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected. The back of the evaluation form explains the "NEAT Procedure/Due Process": When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows: Notice--The employee has the right to receive full written notification of the identified deficient behaviors. Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient. Assistance--The employee has the right to receive assistance in remediating the deficient behavior. Time--The employee has the right to a reasonable amount of time to achieve remediation. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part: When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate [Professional Development Plan]. The plan shall include the following: Area to be improved: specify the identified problem. Specific desired improvement: write as a measurable goal or objective. Action to be taken: describe action the involved parties will complete to achieve desired improvement. Assistance plan: List and describe who will provide assistance, showing role of each participant. Time line: specify dates for each activity to be completed and evaluated. Evaluation: describe how and when evaluation of progress or success will occur. Consequences: specify consequences if improvement is not achieved satisfactorily. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety: For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed. Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT) If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute. On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states: Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract]. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students." Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment. Evaluations Prior to 1991-92 School Year Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator. Evaluations During 1991-92 School Year A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste." Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved." Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation." Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc." Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem." Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you." Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI." Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract." By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five (5) days for gross insubordination." Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous." Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child." Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair." Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator." Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October 92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year. The Grievance Process On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'" The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April 7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94." Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students." Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May 13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)." On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year. The 1991-92 School Year During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator. Evaluations During the 1992-93 School Year As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy." By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined." Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration." By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part: . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . . Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed. The 1992-93 School Year Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy." Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542) At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you." In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents. But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract. ENTERED on January 13, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1993. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9-18: adopted or adopted in substance. 19: rejected as irrelevant. 20-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-39: adopted or adopted in substance. 40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited. 41: adopted or adopted in substance. 42: rejected as subordinate. 43-44: adopted or adopted in substance. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-48 (first three sentences): rejected as irrelevant. 48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant. 57-59: adopted or adopted in substance. 60-61: rejected as irrelevant. 62: adopted or adopted in substance. 63: rejected as irrelevant. 64-65: adopted or adopted in substance. 66: rejected as subordinate. 67-69: adopted or adopted in substance. 70: rejected as subordinate. 71-74: adopted or adopted in substance. 75-76: rejected as subordinate. 77-78: adopted or adopted in substance. 79: rejected as hearsay. 80-85: adopted or adopted in substance. 86: rejected as irrelevant. 87-92: adopted or adopted in substance. 93: rejected as subordinate. 94: rejected as irrelevant. 95-100: adopted or adopted in substance. 101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook. 102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing. 103-04: rejected as irrelevant. 105: rejected as subordinate. 106-17 (first sentence): adopted or adopted in substance. 117 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 118: rejected as irrelevant and subordinate. 119: rejected as hearsay. 120-34: adopted or adopted in substance. 135-37: rejected as irrelevant. 138: adopted or adopted in substance. 139: rejected as irrelevant. 140: adopted or adopted in substance. 141: rejected as irrelevant. 142-43: adopted or adopted in substance. 144: rejected as subordinate. 145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance. 8-10: rejected as irrelevant. 11-14: adopted or adopted in substance. 15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 17 (second sentence): adopted or adopted in substance. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance. 21-22: rejected as subordinate. 23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate. 27-28 (first sentence): adopted or adopted in substance. 28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence. This provision governs only when Petitioner must refer matters to the Department of Education. 35: rejected as subordinate. 36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up conferences. 40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant. COPIES FURNISHED: Superintendent Richard Farmer Highlands County School District 426 School St. Sebring, FL 33870-4048 Commissioner Doug Jamerson Department of Education The Capitol Tallahassee, FL 32399-0400 James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870-3698 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302
