The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-certified teacher authorized to teach mathematics. She holds Florida Educator's Certificate No. 801286, which covers the five-year period ending June 30, 2003. Respondent was a teacher for more than a decade in Michigan before moving to Florida. She began teaching in Florida in or around September of 1998, when she was hired to teach mathematics at Deerfield Beach High School (DBHS). Respondent taught at DBHS only into the early part of the second semester of the 1998-1999 school year, when she was removed from the classroom following her arrest, during the early morning hours on January 17, 2002, for lewd and lascivious conduct. The arrest occurred at Athena's Forum, a club that Respondent and her then fiancée, William Markowitz, had read about in a magazine article about "swing clubs." The article "peaked [their] interest to go in[to one of these clubs] and see what it was all about." Respondent and Mr. Markowitz entered Athena's Forum at approximately 9:30 p.m. on Saturday, January 16, 1999. Neither she nor Mr. Markowitz had been to the club before. They were stopped in the vestibule and asked to fill out and sign a membership application and to pay a membership fee of $75.00, which they did. They were then allowed to go into the interior of the building. There were signs posted in the vestibule and elsewhere in the club cautioning that those who might be offended by "sexual activity or nudity" should not enter the club. Upon entering the interior of the building, Respondent and Mr. Markowitz went to the bar and ordered drinks. They later went to the buffet area where food was being served to get dinner. They brought their dinner to a table "at the stage level," where they sat down and ate. It was "very dark" there. They spent the rest of the evening sitting at their table (next to each other) listening to music and watching "people coming and going throughout the club." On occasion, they got up to dance. There were at least 50 people in the club that evening, some of whom were in various states of undress, being "fondl[ed]" and "touch[ed]" by others. Respondent and Mr. Markowitz, however, both remained clothed throughout their stay at the club. Among the other people in the club that evening was Deputy John Duncan of the Broward County Sheriff's Office (BCSO). Deputy Duncan was there, along with eight to 12 other law enforcement officers, as part of a BCSO undercover operation. Deputy Duncan had been to the club on a prior occasion to conduct "surveillance." He had gone there at the direction of his supervisor, Sergeant Barbara Stewart. Sergeant Stewart had advised Deputy Duncan and the other participants in the undercover operation that a "tip" had been received that "lewd activity was supposedly going on inside the club" and that they "were going in there to look for" such activity and to see if "any narcotics [were] being sold." During that first visit, the club was "dead." The bartender, however, told Deputy Duncan that there were other times, including "certain nights [designated as] couples nights, that things [did] go on" at the club. Among these "things," according to the bartender, was "sexual activity." Deputy Duncan returned to the club at approximately 10:00 p.m. on January 16, 1999. He gained entry to the interior of the building after showing his "membership number" to a woman "at the front desk," giving the woman a "bottle of liquor" he had brought with him, and having his "cover charge" paid (by a fellow undercover officer). Deputy Duncan, along with Sergeant Stewart, who was part of the BCSO undercover operation at the club that evening, proceeded to the "northwest section of the bar," where they sat down. Next to the bar was a "dance floor." There were tables and chairs surrounding the "dance floor." Approximately 30 feet from where he was seated at the bar, in the area of the "dance floor," Deputy Duncan observed a "white female," 3/ standing up, straddling the right leg of a "gentleman" sitting on a chair. The "white female" was wearing a tight-fitting, black spandex dress. Deputy Duncan saw the "gentleman" "lift her dress up" above her vaginal area. It appeared to Deputy Duncan that the "white female" did not "have any underwear on." The "gentleman" then proceeded to fondle the "white female's" vaginal area. This went on for two to five minutes. At no time did the "white female" attempt to pull down her dress or otherwise cover her vaginal area. Neither she, nor the "gentleman," made any effort to hide what they were doing. Although Deputy Duncan considered the "white female's" and the "gentleman's" conduct to be lewd and lascivious, he did not immediately place them under arrest inasmuch as the undercover operation had not concluded. Before the club was "raided" later that evening and arrests were made, Deputy Duncan observed other instances of people in plain view engaging in activities of a sexual nature. He saw, among other things, "women with other women where they were fondling the breast," "women with men doing dirty dancing," and "men and women in corners." In the "back area" of the club, he saw "hot tubs with several naked individuals inside" and rooms where people were "engaging in open intercourse." There were approximately 38 people arrested as a result of the BCSO undercover operation at Athena's Forum that evening. Respondent and Mr. Markowitz were among those arrested. Respondent's and Markowitz's arrests were for lewd and lascivious conduct. The arrests occurred at 1:30 a.m. on January 17, 1999 (after the club had been "raided"). Deputy Duncan was the arresting officer. He believed that Respondent and Mr. Markowitz were the "white female" and "gentleman," respectively (referred to above) whom he had observed earlier that evening in the area of the "dance floor" engaging in conduct that he considered to be lewd and lascivious. Deputy Duncan, however, was mistaken. Respondent was not the "white female" 4/ and Mr. Markowitz was not the "gentleman" 5/ Deputy Duncan had seen. At no time that evening at the club had Mr. Markowitz pulled Respondent's dress up or fondled Respondent's vaginal area. Respondent's and Mr. Markowitz's arrests were two of the "many" arrests Deputy Duncan made at "swing clubs" in the county. Respondent's arrest was reported in the media. It was common knowledge at DBHS that she had been arrested for lewd and lascivious conduct at a "swing club." The Broward County School Board initiated disciplinary proceedings against Respondent. It removed her from the classroom and reassigned her to a "security guard" position pending the outcome of the disciplinary proceedings. Respondent thereafter submitted a letter of resignation, dated January 24, 2000, to the Broward County School Board. In her letter, she stated, among other things, the following: Broward County showed me a warm welcome by taking away my civil rights to privacy and making my entire ordeal a Nationwide joke. No one, except my attorney and my future husband knew of my arrest on January 17, 1999, until the School Board . . . gave information to the local and national media. . . . . The Broward County School Board showed an excellent, motivated and experienced educator that they are more interested in what teachers do after hours than the students' well-being. I was wrongfully arrested on January 17, 1999 in a private club where no children were present. It was not near or on any school grounds and it did not impair my ability to teach. As of this letter, it seems that the criminal charges against me will be dismissed. On February 17, 1999, I was handed a letter that will forever change my life, when I was pulled and submitted to complete ridicule in front of my 4th Period class with only forty minutes to the end of the day. I successfully taught for four weeks and would have continued to successfully teach if the Board had not release[d] my name to the media. After a national debate on the right to privacy my career was destroyed, as well as my life. . . . In August 1999 I was placed on administrative reassignment with pay. I was informed that I would receive a "meaningful" job that would justify my paycheck while we awaited the Administrative Hearing. Once assigned a position, displayed for the world to see, as a security guard for the main School Board Building, I reported my health issues and repeated harassment from the media, school board employees, teachers, and parents. I was informed by Carmen Rodriguez, attorney for the School Board, that the position I was assigned would involve "little or no participation." I asked for a different position but the request was denied. . . . At this point I am unable to return to work due to illness . . . . Therefore, due to the cost to my personal health, lack of financial resources, lack of union support, the fact that I am only an annual contract teacher, being refused a position change, and being denied a Leave of Absence, and the pride to not submit myself to the degrading way you treated my fellow educator, I must with great hesitation resign as an educator in Broward County. I am giving up the battle in the administrative courts to win the war of public opinion. The criminal charges that had been filed against Respondent following her arrest were "dropped by the court" on or about July 18, 2000. Respondent married Mr. Markowitz, but they were later divorced. They still keep in touch with one another, however. Mr. Markowitz tried to help Respondent make the necessary arrangements to attend the final hearing in the instant case, but due to the expense involved and the fact that Respondent had an examination to take, she was unable to be at either of the hearing sites. 6/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint. DONE AND ENTERED this 14th day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2002.
Findings Of Fact On September 9, 1982 Petitioner filed an application with the Teacher Certification Section of the Florida Department of Education to be re-certified as a teacher in the State of Florida. He was previously certified as a teacher in Florida from September 3, 1974 until 1979 in the field of cooperative distributive education. Mr. Hill is a graduate of the University of South Florida with a bachelor's degree in distributive education and he has 20 to 25 hours of credit towards his master's degree in administration Supervision. From 1974 until 1977 he successfully taught school in the Orlando area. In December of 1979 Petitioner had an argument with his father. During the course of that argument Mr. Hill picked up a 12 gauge shotgun and hit his father in the stomach several times. Petitioner was arrested, charged with aggravated assault, and subsequently adjudicated not guilty by a reason of insanity. The court order adjudicating him not guilty found that "At the time of the alleged offense, defendant's psychological condition caused him to function under paranoid delusions and persecutory relations. He not only had such thoughts and beliefs, but they were held so firmly that he was acting upon them." After the entry of that order on March 24, 1980, Petitioner was found to meet the criteria for involuntary commitment to a state mental hospital pursuant to the provisions of the Baker Act. He was treated at G. Pierce Wood Memorial Hospital until June 1980 and then released to the Peace River Center for Personal Development as a resident there. In either October or November 1981 Mr. Hill ceased taking the psychotropic medication which had been prescribed for him. By March 1982 he was again readmitted as an involuntary patient at G. Pierce Wood Memorial Hospital and after treatment there he was released in August 1982 back to the Peace River Center. Dr. M. Saleem Jeewa has been his treating psychiatrist since June of 1980. At the present time Dr. Jeewa prescribes Mellaril, a major tranquilizer, and Pamelor, an anti-depressant medication for Petitioner. Mr. Hill now visits Dr. Jeewa on a monthly basis unless something unusual happens in the interim. Additionally Petitioner attends group therapy three times a week and lives in one of the satellite apartments at Peace River Center. The satellite apartments are an arrangement where three or four patients live together to share expenses and help each other as a peer group. The satellite apartments are not part of a residential facility but are leased out in the community by the Peace River Center. In April 1983 Petitioner began working at American Building Maintenance, a Tampa janitorial service. His other employment history subsequent to his arrest, but prior to this hearing, includes janitorial work for Goodwill Industries. This employment was terminated when, due to an automobile accident, Mr. Hill was injured and physically unable to perform his job. Prior to that employment he worked for a CETA program where he assisted in locating jobs for handicapped persons. With respect to Mr. Hill's present psychological state he has no evidence of any thought disorder. His speech is logical, coherent and relevant. He has a fair amount of insight into his own condition and his judgment is adequate. No psychosis is apparent. He continues however to display a mild form of mixed anxiety and depression. At the present time it would be difficult however, for Mr. Hill to handle a job where he is fairly independent, must be flexible with considerable responsibilities and handle a variety of tasks. In order for Mr. Hill to be a successful teacher in a classroom situation with responsibility for 15 to 20 children, he would initially need some additional assistance and support over and above that normally required by a new teacher. It is unlikely that due to Mr. Hill's present condition he would cause any harm or be dangerous to students or other people around him. While it is within the realm of possibility that Petitioner, if certified, could successfully handle the responsibilities of a distributive education teacher, that possibility is not probable in view of Petitioner's present fragile psychological state.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: That the State Board of Education as the head of the Department of Education, enter a Final Order denying Petitioner's application for certification as a teacher in the field of distributive education. DONE and RECOMMENDED this 4th day of November, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1983.
The Issue Whether Petitioner has cause to terminate Respondent's professional service contract based on his failure to correct his performance deficiencies during his 90-Day Performance Probation. Whether Respondent’s performance was properly evaluated.
Findings Of Fact At all times material hereto, Respondent was a classroom teacher employed by Petitioner pursuant to a professional service contract. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Petitioner has employed Respondent as a classroom teacher since 1993. He taught at Redland Middle School from 1993 to 1996. He taught at South Miami Senior High School from 1996 to 1999. During the times pertinent to this proceeding (the school years 1999/2000 and 2000/2001) Respondent taught eighth grade math at Palmetto. Between 1984 and the school year 1999/2000 all teachers employed by Petitioner were evaluated under the Teacher Assessment and Development System (TADS). The United Teachers of Dade (UTD) is the collective bargaining unit representing all classroom teachers employed by Petitioner, including Respondent. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-day performance probation period for annual and professional service contract teachers who are observed to have unsatisfactory performance. 1/ Petitioner and the UTD collectively bargained a Memorandum of Understanding (MOU) to implement the 90-day performance probation. The new evaluation system is known as PACES, an acronym for the Professional Assessment and Comprehensive Evaluation System. The MOU amended the collective bargaining agreement between the UTD and Petitioner to authorize the replacement of TADS with PACES. During the 1999/2000 school year, the School Board piloted PACES in selected schools. During the 2000/2001 school year, PACES was utilized throughout the school district. Teacher evaluations at Palmetto were performed pursuant to PACES during the 1999/2000 and the 2000/2001 school years. The evaluations at issue in this proceeding were performed pursuant to PACES. PACES has been approved by the Florida Department of Education. PACES observers must be extensively trained to observe and evaluate teaching performance and student learning. School supervisory personnel perform PACES observations and evaluations. The principal and two assistant principals at Palmetto performed the observations and evaluations at issue in this proceeding. Respondent asserted at the final hearing that certain administrators who participated in observing and evaluating Respondent were insufficiently trained. That assertion is rejected as being contrary to the greater weight of the evidence. PACES was a major district initiative, and both teachers and administrators received extensive training in PACES. The greater weight of the credible evidence established that the principal and the assistant principals at Palmetto who observed and evaluated Respondent were appropriately trained in observing and evaluating teachers in accordance with PACES procedures. 2/ Individual schools across the district, including Palmetto, conducted PACES training for teachers. During the 2000/2001 school year each faculty member at Palmetto had a handbook which contained PACES information, including discussion on each domain, the indicators, the PACES website, and training videos on the website. Several faculty meetings were devoted to discussions of PACES. There were mini-workshops within various departments at Palmetto and all-day workshops for teachers were available in the district. The Palmetto assistant principals divided all six domains between themselves and explained and discussed them with the faculty. A projector was used to show the teachers how to get to the PACES website on the computers. There were 300 computers for teacher use at Palmetto by which Petitioner’s website could be accessed. The faculty meetings at Palmetto were mandatory. If a teacher missed any of the meetings, it was the teacher’s responsibility to come to an administrator to find out what was missed. Teachers who missed meetings were given the handouts that had been utilized at the faculty meetings. At the times pertinent to this proceeding, Respondent knew, or should have known, the evaluation criteria of PACES. 3/ Prior to the beginning of the 90-day probation under PACES an appropriately trained administrator must observe the teacher's classroom performance and find that performance to be below articulated standards. This observation is officially referred to as the “initial observation not of record.” Unofficially, this observation is referred to as the “freebie.” The freebie observation triggers the probation process, but it is not used to terminate a teacher’s employment. The same administrator who conducted the freebie observation meets with the teacher, goes over the observation, and notifies the teacher that he or she will be observed in approximately one month. The administrator offers a PGT to the teacher, the use of which by the teacher is voluntary at this point. Next is the “first observation of record,” which is unofficially referred to as the "kickoff observation." If this observation is below performance standards, a Conference-for- the-Record (CFR) is held. Next, a Professional Improvement Plan (PIP) is first given to the teacher, and the 90-day Performance Probation begins the next day. The Performance Probation lasts 90 days, not counting certain specified weekends and school holidays. There must be two official observations within the 90-day period. A PIP is given after any official observation that is below performance standards. If the second official observation is below performance standards, a confirmatory observation takes place after the end of the 90-day period to determine whether the teacher has corrected the deficiencies. The confirmatory observation must be completed within 14 days after the conclusion of the probationary period. The evaluator must thereafter forward to the Superintendent a recommendation whether to terminate the teacher's employment. In PACES, there are six domains. Each domain has components and each component has indicators. It takes only one unacceptable indicator for an observation to be rated below performance standards. If a teacher improves in a particular indicator from one observation to the next, but becomes unacceptable in another indicator, the second observation is rated below performance standards. Mr. Cromer conducted Respondent’s freebie observation on October 24, 2001. The observation did not meet performance standards. Mr. Cromer testified as to his observation of Respondent on October 24, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because he was going over 30 homework problems and simply giving out the answers, not making an effort to know whether the students understood. He did not seek input from the students. The students had no opportunity to participate. There was no interaction between Respondent and the students. There was no introduction to the lesson, thereby failing to establish motivation to learn. Respondent did not tell the students what they should learn from the lesson or why it was important that they understand the material. Respondent failed to provide a logical sequence and pace. He was going much too fast for the students. Respondent only demonstrated one math problem, failing to demonstrate any of the others, although there were six different types of problems for review. Respondent failed to utilize higher order cognition, teaching at only one cognitive level. There was no effort to clarify, using different words or examples. The students were not encouraged to make any association or consider examples from their own experience. The students were not asked questions and were not given an opportunity to answer questions. Respondent did not monitor the engagement or involvement of the students in the learning process. He made no effort to gauge whether the students understood the material. He sought no questions from the students and gave no feedback. Then Respondent sat down for approximately fifteen to twenty minutes. He did not walk around to monitor what the students were doing. Most of the students were not doing their work. Respondent failed to meet performance standards in components of Domain III, Teacher- Learner Relationships; Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom- based Assessment of Learning. Mr. Cromer met with Respondent on November 1, 2001, and went over each item on the observation and explained why Respondent did not meet performance standards. Mr. Cromer made suggestions for improvement. He advised Respondent that he would be coming back to do a follow-up observation and that Respondent was entitled to have a PGT. At first Respondent declined the PGT, but the next day, he accepted it. PGTs are for first year teachers and for any teacher on a PIP. PGTs are made up of seasoned teachers who are trained in PACES and give support and assistance to other teachers. Usually the administration chooses one member of the PGT and the teacher chooses the other. In this case, Respondent was permitted to choose both teachers. He chose Vivian Taylor and Maria Mayo. Both teachers gave appropriate assistance to Respondent. Under PACES, the same administrator who conducted the freebie observation must conduct the kickoff observation. On November 26, 2001, Mr. Cromer conducted Respondent’s kickoff observation. Mr. Cromer testified as to his observation of Respondent on November 26, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because many of the students in his class were excluded from the first twenty minutes while Respondent focused exclusively on two students at the board. One student finished her problem very quickly. The other student was completely confused. Respondent did the problem for him but did not make sure the student understood. The rest of the class was ignored during that time. The students were not given any explanations as to what the two students had done. The remainder of the class talked among themselves, looked around the class, and one student was sleeping. There was no introduction to the lesson and no transition into the second portion of the lesson. The students were not engaged in critical analysis or problem solving. Respondent did not develop any associations between the pie graph he was working on and its relationship to percentages and fractions. Respondent did not provide sufficient “wait time” after questions to encourage the students to think about the answers. Instead, the same few students called out answers. Respondent did not meet performance standards in components of Domain III, Teacher/Learner Relationships; Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. On December 5, 2001, Mr. Merker and Mr. Cromer held a CFR with Respondent and Respondent’s union representative to address Respondent’s substandard performance, his Performance Probation, recommendations to improve the specific areas of his unsatisfactory performance, and Respondent’s future employment status with the School Board. Respondent’s input was sought. Those in attendance at the meeting on December 5, 2001, met again the following day. Respondent’s input was again sought. He was given a copy of the summary of the CFR and a PIP at that time. The PIP required Respondent to read and summarize pertinent sections from the PACES manuals. Respondent’s Performance Probation began on December 7, 2001. The time frame was established with the help of OPS. Respondent was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed timeframe. Respondent's deadline to complete his PIP was January 10, 2002. On January 15, 2002, Mr. Merker conducted an official observation of Respondent in his classroom. Mr. Merker testified as to his observation of Respondent on January 15, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards because the students were not actively engaged in learning. Only six students out of 27 were involved in the lesson. Many of the students did not have the materials and were not able to follow through with the lesson. Respondent did not monitor what the students were doing. Many students were off-task, inattentive, and bored. Respondent did not re-engage the students. Respondent did not re-direct the off-task behavior, which persisted for the entire period. Learning routines were not apparent. Respondent did not give directions for the lesson. Respondent’s explanations were unclear. No adjustments were made. Respondent did not assess the learning progress during the lesson. Respondent solicited only basic knowledge in his questioning. He did not utilize a range of questions to assess student understanding. Respondent did not meet performance standards in components of Domain II, Managing the Learning Environment; Domain IV, Enhancing and Enabling Learning; and Domain VI, Classroom-based Assessments of Learning. Mr. Merker conferred with Respondent on January 24, 2002, made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes. Respondent's deadline to complete his PIP was February 22, 2002. On February 27, 2002, Mr. Meneses conducted the second official formal observation of Respondent in his classroom. Mr. Meneses testified as to his observation of Respondent on February 27, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Meneses’ testimony. Respondent did not meet performance standards because the students were not engaged in learning. After wasting 27 minutes copying numbers from the board, only three to four minutes were left for the main part of the lesson. Respondent wasted a lot of time during the lesson going over non-essential information, and the students were only presented with basic knowledge-level tasks. Inaccurate information was given by Respondent and accepted by the students. Students were not given "wait time" after a question to think about the answers. The learners were not given any introduction to the learning outcomes of the lesson. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking. Mr. Meneses and Mr. Merker conferred with Respondent on March 5, 2002, made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. Respondent’s PIP required him to complete a self- assessment through the PACES website. Respondent's deadline to complete his PIP was March 22, 2002. Respondent’s Performance Probation ended on March 24, 2002. Respondent completed all of the activities required by all of his PIPs. He never indicated that he had any difficulty understanding them. Because Respondent’s second observation within the Performance Probation was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether or not Respondent had corrected his performance deficiencies. On March 26, 2002, Mr. Merker completed Respondent’s confirmatory observation. Mr. Merker testified as to his observation of Respondent on March 26, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom-based Assessments of Learning, because the lesson appeared staged. It was a lesson on fractions that had been presented approximately five weeks earlier. Respondent went full steam ahead regardless of what the students were doing. Respondent had not improved his questioning techniques since Mr. Merker’s prior observation. Mr. Merker notified Respondent on March 26, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and that Mr. Merker was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. 4/ Mr. Merker notified the Superintendent of Schools on March 29, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and recommended that Respondent's employment be terminated. On April 3, 2002, the Superintendent of Schools notified Respondent that the Superintendent was going to recommend that the School Board terminate Respondent's employment contract because Respondent had failed to satisfactorily correct his performance deficiencies during his Performance Probation. Petitioner established that it met all procedural requirements and time frames set forth by statute, by PACES, and by the MOU. Under the collective bargaining agreement and under PACES, a teacher is entitled to a fair, equitable, and impartial evaluation. Respondent’s evaluations were fair, equitable, and impartial. On April 17, 2002, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract subject to his due process rights.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the termination of Respondent's professional service contract, effective April 17, 2002. DONE AND ENTERED this 10th day of September, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2002.
The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following facts are found: The petitioner has been employed with the Pinellas County school system since 1969. She is currently an instructor and department chairperson at Clearwater High School. In the 1984-85 school year, petitioner taught Introduction to Data Processing and COBOL Programming, Levels 2, 3 and 4, to sophomores, juniors and seniors. Along with twelve to fifteen other teachers at Clearwater High School, petitioner applied for the 1984-85 designation as Associate Master Teacher. The Master Teacher Program requires candidates to receive superior scores on both a subject area examination and a performance evaluation. Both components require scores at or above the seventy-fifth (75th) percentile on norms for candidates tested or evaluated. Petitioner received a score in the 86th percentile on her subject area examination. For the performance evaluation, each candidate must have two observations by approved observers who utilize an approved performance observation instrument known as the FPMS (Florida Performance Measurement System. Summative Observation Instrument. To become an approved observer, one must undergo a period of training involving approximately three days. The training programs entail extensive instruction in the research base of the FPMS, how to use the Summative Observation Instrument and in coding procedures. During the training session, the observers are given practice sessions with video taped lessons and then feedback on their coding accuracy. The observers are trained as data collectors and are not taught to score the observation instrument. This scoring function is performed at the University of South Florida's Teacher Evaluation and Assessment Center (TEAC). The three observers in this case had all successfully completed the training session and were approved observers for the State Master Teacher Program. The three persons who observed the petitioner had a part in observing 12 Master Teacher Program candidates for the 1984-85 school year. Of those 12 candidates, 30 percent passed the performance evaluation component. This was slightly higher than the state norm of a 25 percent passage rate. Petitioner's initial two performance observations were conducted on February 20 and 21, 1985, in her Introduction to Data Processing course which she had taught for five years. In preparation for her observations, petitioner created a detailed lesson plan which she believed contained the requirements necessary to receive a passing score on the FPMS. She was not personally trained to code or score the Summative Observation Instrument. Petitioner utilized the same lesson plan for both observations, though a different group of students were being taught on each day. Assistant Principal John Nicely, an approved observer, utilized the FPMS Summative Observation Instrument to conduct the petitioner's performance evaluation on February 20, 1985. This was the first or second evaluation he had conducted after receiving his training as an observer for the Master Teacher Program. Mr. Nicely felt that his training had been adequate and that she was competent to mark the positive and negative indicators required on the Summative Observation Instrument. He felt that he marked the instrument in accordance with what he had observed. His personal opinion of the class which he observed was that petitioner was well prepared, presented a very good lesson, and that student learning was taking place during that class. Bill Williamson, the then Principal of Clearwater High School, and an approved observer, conducted the performance evaluation of petitioner on February 21, 1985. He felt that he had received adequate and comprehensive training and felt confident in his ability to record the behaviors he observed on the Summative Observation Instrument. Mr. Williamson's personal opinion after observing petitioner's class on February 21, 1985, was that she had done a nice job and had given a very fine lesson. The observation instruments completed by Mr. Nicely and Mr. Williamson were sent to TEAC for scoring, and the average of the two scores was formed with the scores of approximately 20,000 candidates for the 1984-85 Master Teacher Program. As the result of the two initial evaluations, petitioner received a score of 18.92 percent on the performance component of the Master Teacher Program. Upon her request, petitioner's scores were hand verified, which did not alter the 18.92 percentile score. The rules governing the Master Teacher Program provide a procedure for candidates who are dissatisfied with their initial performance scores to request reevaluation by a third observer. Petitioner made such a request and was reevaluated by Assistant Principal Dorothy Cheatham on August 29, 1985. Ms. Cheatham was an approved observer of the FPMS, having attended the three-day training session, as well as a review session. Believing that her training was adequate, she felt confident to complete the Summative Observation Instrument. Ms. Cheatham had conducted four Master Teacher Program observations prior to observing petitioner in August. She felt that she had observed an effective lesson in petitioner's class. Following the reevaluation performed by Ms. Cheatham, the three observation scores were averaged and petitioner's revised score improved to the 32.44 percentile. Pursuant to Rule 6A-4.46(5)(b), Florida Administrative Code, a candidate's Principal may recommend to the Department of Education that the candidate receive up to ten additional evaluation points. Mr. Williamson recommended that petitioner receive all ten points. This recommendation was approved, resulting in a final percentile score on the performance evaluation component of 53.17, still below the required 75th percentile. Each of the three approved observers of petitioner's classroom performance were surprised and could not understand or explain how their completion of the observation forms could have resulted in such a low score for petitioner's performance evaluation. Each believed that they had correctly completed the Summative Observation Instrument, yet each felt that the low score did not accurately reflect the level of teaching they had observed. The three observers were trained to utilize the "intervening behavior" or "intervening episode" rule, which means that a teaching behavior that continues is recorded a second time only if there is an intervening behavior or episode. Petitioner's observers utilized this rule in evaluating her performance on February 20 and 21, and August 29, 1985. It does appear from the testimony that at least some of the petitioner's behaviors with regard to her use of audio visual equipment throughout her lesson may have been undercoded. However, there is insufficient evidence to establish how many such instances occurred or how their omission may have affected her overall score or ranking. The cover page of the Summative Observation Instrument contains a section entitled "Instruction Format/Frame Factors." Petitioner's three observers did not recall specific indepth instruction during the training sessions as to the proper manner of completing this portion of the form. They circled different methods of teaching for petitioner's observed lessons. Mr. Nicely indicated a combination of lecture, discussion, recitation and interaction. Mr. Williamson indicated a combination of all methods used in the classroom. Ms. Cheatham indicated a combination of lecture and independent study or work. While the form of instruction a teacher utilizes during a performance evaluation can result in a point differential in the norming of a candidate's score, the total effect is small. The score adjustment was not determined to be great enough to justify norming separate norm groups based upon instructional format. The FPMS was developed to be used for teachers of all levels and in all subjects, with two norm groups, elementary and post-elementary. It is a low inference observation instrument, designed to collect objective data and to be scored against a norm group. As opposed to a high inference or rating instrument, the FPMS does not require the observer to make a judgment or opinion about the teacher's performance At the time the data is collected and recorded, no scores are entered on the instrument. Indeed, observers are not taught to score the instrument; they are trained as data collectors. The evaluator's purpose is to code what the teacher does and not what the evaluator thinks of the teacher. The observer records data concerning the teacher's behavior in the classroom by simply describing the numbers of times they see a listed behavior. The data recorded is then compared with all other teachers who are being scored on the same instrument. With low inference instruments, the only judgment made is after the scoring or recording of data is completed. At that time, the norm table is determined and the teachers are placed in rank order. Low inference evaluations based upon structured observations produce more useful data than high inference or rating evaluations in relating teacher performance with student achievement. Indeed it has been determined that the use of high inference instruments in evaluating teacher performance bears little or no correlation with student behavior and student achievement. The Pinellas County School Board utilizes a high inference rating system to perform the annual evaluations for instructional personnel. The main purpose of this evaluation, while it contains some of the same items as the FPMS, is feedback and improvement of the teachers for employment purposes. Unlike the FPMS, whose purpose is to recognize superior ability, the Pinellas County evaluation system does not compare teachers when ratings are given. In contrast, Master Teacher Program candidates are compared to each other statewide to determine whose teaching performance is superior. For the 1984-85 school year, approximately 47 percent of the teachers at Clearwater High School received the highest rating of "exceeds expectations" in the instructional area. Another 49 percent received the next highest rating designation of "meets expectations." Petitioner's annual performance evaluations during her years of employment with the Pinellas County School Board have been consistently above average. For the 1984-85 school year, petitioner was evaluated by Dorothy Cheatham and received an overall rating of "exceeds expectations" in the area of instructional performance. A three-member team of outside evaluation experts reviewed the FPMS for compliance with the criteria specified in Rule 6A-4.46, Florida Administrative Code. While the team had some recommendations for improvement and suggested certain areas of caution in future use, it enthusiastically endorsed the use of the FPMS for the merit program. The team found the observer training program to be effective and impressive. Testing results have indicated a good distribution of awards among the various disciplines and instruction modes and indicate that the FPMS was appropriately normed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's amended petition seeking the granting of the Associate Master Teacher Endorsement and the $3,000.00 merit incentive award be DENIED. Respectfully submitted and entered this 28th day of July, 1986, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0023 The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 1. The date of application is rejected as unsupported by any evidence. 7. Last sentence rejected as contrary to the greater weight of the evidence. 15. The words "gave the same lesson" rejected as unsupported by competent, substantial evidence. Rejected as unsupported by competent, substantial evidence, and that portion relating to Williamson's understanding of the coding rules is rejected as contrary to the evidence. Partially rejected in that it was not conclusively demonstrated that undercoding occurred. 20 and 21. Rejected as irrelevant and immaterial to the issues in dispute. 23 - 26. Rejected as unsupported by competent, substantial evidence. Respondents Rejected as immaterial to any issue in dispute. 22 and 26. Rejected as constituting a legal conclusion as opposed to a factual finding. 27. This proposed finding is supported by the evidence, but is not particularly relevant to any issue in dispute. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P. A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32301 Barbara Staros Harmon Deputy General Counsel State Board of Education Knott Building Tallahassee, Florida 32301 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Department of Education Knott Building Tallahassee, Florida 32301
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is 45 years of age. He is married and has two children. In 1968, following his graduation from college, Respondent began his career as a classroom teacher with the Dade County School Board. He remained with the Board until 1974, when he went to work for the Xerox Corporation. Respondent was rehired by the Board during the 1987-88 school year and assigned to teach sixth grade at Highland Oaks Elementary School in North Miami Beach. Virginia Boone has been the Principal of Highland Oaks for the past 27 years. At all times material hereto, Barbara Cobb has been her Assistant Principal. Respondent was reassigned to the fifth grade at Highland Oaks at the beginning of the 1988-89 school year. He taught fifth grade for the remainder of his stay at Highland Oaks, which ended during the 1990-91 school year. As a fifth grade teacher at Highland Oaks during the 1988-89, 1989-90 and 1990-91 school years, Respondent was a member of a team consisting of four other fifth grade teachers: Terri Lynne, Arnold Pakula, Virginia Valdes and Betty Kravitz. Each member of the team had a home room class and was responsible for teaching math and language arts to the students in that class. In addition, each team member was assigned a special subject, such as health, science, social studies, maps/globes or spelling/handwriting, to teach to all of the fifth graders. All such instruction took place simultaneously in a large open area shared by the five fifth grade teachers, rather than in separate rooms. In accordance with the Board's Teacher Assessment and Development System (TADS), principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. For the 1987-88 and 1988-89 school years, Respondent received an acceptable rating in all seven assessment categories on the TADS annual evaluations he received. There was a precipitous decline, however, in Respondent's overall performance, which began during the first half of the 1989-90 school year and continued the following school year until his suspension. Respondent's attendance was irregular at best. He was frequently absent. When he was not absent, he often came late and left early. As a result, he did not participate with his team members in a number of early morning and late afternoon parent-teacher conferences that were held during his scheduled workday. Respondent did not adequately plan his lessons as directed. His failure to prepare sufficient written lesson plans was a particular problem because of his frequent absences. Without such plans, substitutes were unable to provide Respondent's students with any substantial continuity in instruction. Respondent also failed to grade and record his student's work and to prepare progress reports and report cards as directed. On a daily basis, Respondent would leave his class unattended without notifying any of his team members. Invariably, the students would become boisterous in Respondent's absence and disrupt the instruction that was taking place in the other fifth grade classes. Very little instruction occurred in Respondent's classroom. He appeared more interested in amusing his students with his antics than in teaching them. He sang, danced, told jokes, balanced boxes on his head, hung bags from his ears, made guttural noises and engaged in other childish behavior unbecoming a teacher. The laughter these antics generated made it difficult for the students in the other fifth grade classes to learn. Respondent regularly ate in the classroom in front of his students when he was supposed to be instructing them, notwithstanding that such conduct was clearly prohibited. To make matters worse, he often did not clean up after eating. At times, Respondent fell asleep in class and had to be awakened by his students. Although it was his responsibility to do so, Respondent frequently failed to pick up his students in a timely manner from their physical education, art and music classes which were held in areas of the school outside the fifth grade pod. Respondent's dereliction of his responsibilities placed an additional burden on the other fifth grade teachers. They tried to offer him advice and counsel, but Respondent was not receptive. Principal Boone and Assistant Principal Cobb, who received complaints about Respondent from his team members and from the parents of his students, also met with Respondent in an effort to make him a more productive member of the fifth grade team. During these meetings, they reminded Respondent of what was required of him as a teacher at Highland Oaks. Respondent, however, defied their directives and continued to act irresponsibly. Among the conferences that Boone had with Respondent was one held on October 26, 1989. Cobb, as well as Respondent's union steward, were also present. During this conference, Boone specifically directed Respondent to record for each of his students a minimum a three grades per week per subject, to prepare appropriate lesson plans for substitute teachers to use during Respondent's absences, to prepare daily lesson plans reflecting the day's activities, to ensure that his students were under supervision at all times and to participate in scheduled parent-teacher conferences. On December 1, 1989, Boone referred Respondent to the Board's Employee Assistance Program (EAP), which is a program designed to help employees who are having personal problems that are interfering with their work performance. On the form she submitted to the Coordinator of the EAP, Boone indicated that the referral was being made because of the following: "excessive absences;" "excessive tardiness;" "absences on Mondays and/or Fridays;" "changes in personal appearance;" "marked changes in mood;" "marked changes in activity level;" "frequent trips to restroom;" "poor judgment:" and "assignment failures" on Respondent's part. On the bottom of the form, Boone added the following comments: Mr. Long has not set the world on fire with his teaching since he came to our school, but he did receive acceptable evaluations. However, this year presents a different story. He has been absent 16 days out of 60 since 9/5/89, papers are not graded, tests are not given, lesson plans are not done and, if they are, very little. His discipline is poor, pals with students telling jokes. He has a long list of excuses for being late to work or not coming at all. I know I have given him every inch of rope I can. I must have someone who cares about the students to teach. On December 6, 1989, Respondent slept throughout a faculty meeting at which the Board's "Drug Free Workplace" rule was discussed. Following this meeting, Boone met with Respondent and reiterated the directives she had issued during their October 26, 1989, meeting. On the following day, Cobb attempted to conduct a formal observation of Respondent's classroom teaching. Cobb noted many deficiencies in Respondent's performance, including his failure to have a written lesson plan. She left after only sixteen minutes in the classroom. Instead of completing a formal post-observation report with prescriptions and handing it to Respondent, Cobb spoke with Respondent after the observation and informed him of those things that he needed to do to improve his performance. On December 12, 1989, Cobb reviewed Respondent's grade book. Her review revealed that Respondent still had not complied with the specific directives concerning grading that Boone had first issued Respondent on October 26, 1989, and had reiterated on December 6, 1989. Cobb therefore ordered Respondent to comply with these directives by January 2, 1990. Cobb reexamined Respondent's grade book on January 2, 1990. She found that the directed improvements had not been made by Respondent. On January 12, 1990, while in the cafeteria with his students, Respondent playfully held a straw to his nose as one would do if he was snorting cocaine. This incident was reported to Boone. It was further brought to Boone's attention that Respondent had been derelict in his responsibility to properly supervise his class that day. Boone reacted by relieving Respondent of his duties for the day. On June 18, 1990, a conference-for-the record was held. In attendance were Respondent, his union representative, Boone, Doretha Mingo, the Coordinating Principal for the Board's Region II and, as such, Boone's supervisor, and James Monroe, who, at the time, was the Director of the Board's Office of Professional Standards. Respondent was advised of the various complaints that had been made against him. Among the matters discussed was the January 12, 1990, incident with the straw, Respondent's repeatedly falling asleep in class and at meetings, his failure to properly supervise his students, his refusal to record student assessment data in accordance with established procedures and grading criteria, his lack of planning and preparation of written lesson plans, his erratic attendance and his unwillingness to attend scheduled conferences as required. Another subject of discussion was an incident that had occurred the month before during which Respondent had conducted a search, in contravention of Board policy, of two students on school property. Respondent had been aware of this Board policy at the time he conducted the search. At the June 18, 1990, conference-for-the-record, Respondent was directed by Mingo to return his grade book to Boone no later than the following day. Respondent did not comply with this directive. Directives were also issued by Monroe at the June 18, 1990, conference-for-the-record. He ordered Respondent to remain on alternate assignment at home, beginning the next day, and while on such assignment to be accessible by telephone during his seven-hour and five-minute workday between 8:15 a.m. and 3:20 p.m. Monroe further informed Respondent that Respondent was required to undergo a medical examination and drug test to determine his fitness to perform his assigned duties. On January 19, 1990, Monroe telephoned Respondent at home. He directed Respondent to report for his medical examination on January 22, 1990. He further instructed Respondent that, following the completion of the medical examination, Respondent was to remain at home during the remainder of the workday. On January 19, 1990, Respondent submitted to a drug test. The results were positive for cocaine. Respondent failed to appear for his medical examination on January 22, 1990. The examination was rescheduled for Saturday, January 27, 1990. On January 23, 1990, and again on January 24, 1990, Monroe made various attempts to reach Respondent at home by telephone during the workday. Respondent, however, was not at home and therefore Monroe was unable to contact him. Monroe finally got in touch with Respondent on January 25, 1990. He advised Respondent that Respondent was expected to report for his rescheduled medical examination on January 27, 1990, and to remain at home by the telephone during the rest of the workday. He further informed Respondent that he considered Respondent to have been insubordinate and that any further acts of noncompliance on Respondent's part would be deemed gross insubordination and result in a recommendation that Respondent's employment with the Board be terminated. On Monday, January 29, 1990, Monroe received a report from the physician who was to have examined Respondent that Respondent had not kept his January 27, 1990, appointment. That day, January 29, 1990, and the next, Monroe tried telephoning Respondent at home during Respondent's scheduled work hours, but was unable to reach him. 1/ Monroe tried again on January 31, 1991. This time he was successful in reaching Respondent. He ordered Respondent to report immediately to a new alternate assignment at the Board's Region II administrative office. While on this assignment, Respondent was to be supervised by Mingo. Respondent reported to the Region II administrative office later that day. He met with Mingo who provided him with the following written instructions: Effective January 31, 1990 you are directed to report to the Region II office for your assignment. Your work schedule is from 8:15 a.m. to 3:20 p.m. You are to sign in upon arrival and sign out when leaving in the Region II office. If you are going to be absent, you are to call 891-8263 and report your absence to Mrs. Escandell. You may take one hour for lunch between the hours of 11:30 a.m. to 1:00 p.m. You must be back from lunch by 1:00 p.m. You are not to make any personal calls. Requests to make emergency calls must be forwarded to Mrs. Escandell or any secretary in the front office during her absence. Any deviation from this schedule must be approved by Mrs. Mingo. During the Conference for the Record with you on January 18, 1990, you were directed to return your grade book to your school on the following day, January 19, 1990. As per your principal, Mrs. Boone, you have failed to provide the school with the official grade book for your class as of this date. You are directed to turn your grade book in to this writer [Mingo] effective February 1, 1990. Additionally, you will be supplied with a box of ungraded papers from your class which are to be corrected and grades recorded while you are assigned to this office. A schedule for completing this task will be discussed with you on February 1, 1990. Further, during this assignment, you are directed not to report to or call Highland Oaks Elementary School. If there is a need to communicate with anyone at the school, discuss the need with me. Respondent turned in his grade book the following day. That same day, Mingo established a deadline of February 6, 1992, for Respondent to complete his grading of the uncorrected papers with which he had been supplied. On February 5, 1990, Monroe conducted another conference-for-the- record with Respondent. As he had done during the previous conference-for-the-record, Monroe discussed with Respondent the provisions of the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida and directed Respondent to comply with these provisions. He emphasized that it was imperative that Respondent maintain the respect and confidence of colleagues, students, parents and other members of the community, that he make every reasonable effort to protect his students from conditions harmful to learning and safety, and that he not expose students to unnecessary embarrassment or disparagement nor violate their legal rights. Respondent was placed on authorized medical leave effective February 5, through June 21, 1990, to enable him to receive treatment for his drug abuse problem. He was advised that his failure to pursue such treatment would be grounds for dismissal. At the time he was placed on authorized medical leave, Respondent had not completed the grading of the uncorrected papers he had been given. Shortly after being placed on authorized medical leave, Respondent was admitted to Mt. Sinai Hospital where he participated as an inpatient in the hospital's 28-day drug abuse treatment program. He remained in the program for the entire 28 day period. After leaving Mt. Sinai, Respondent went to a halfway house, where he stayed until late April, 1990. On April 26, 1990, Respondent enrolled as an inpatient in the drug abuse treatment program at Concept House. He transferred to Concept House's outpatient program three months later. As an outpatient, Respondent was required to meet with his counselor once a week and to attend group therapy sessions twice a week. On August 21, 1990, the Board's Office of Professional Standards received a sworn statement from Respondent's counselor at Concept House that Respondent was "in treatment and [was] employable at this time." That same day, Joyce Annunziata, Monroe's successor, gave Respondent clearance to return to work as a fifth grade classroom teacher at Highland Oaks. Respondent's continuing employment, however, was conditioned upon his remaining in treatment for his drug abuse problem. It became evident, following Respondent's return to Highland Oaks, that he had not mended his ways. From the outset, he was embroiled in controversy. During the teacher planning days before the opening of school, Respondent loudly argued, without reason, with team members over his spelling/handwriting assignment and declined to participate with them in planning for the upcoming school year. After school opened, Boone began receiving the same type of complaints about Respondent that she had received the previous year. There was no improvement on Respondent's part. If anything, his conduct and performance were worse than the 1989-90 school year. Particularly disturbing were the disparaging remarks Respondent directed to individual students during class in front of their classmates. On or about December 5 or 6, 1990, it was brought to Annunziata's attention that Respondent was no longer participating in the outpatient program at Concept House. He had been terminated from the program on December 3, 1990, because of noncompliance with his treatment plan. Respondent had started missing required individual and group counseling sessions in September. At the time of his termination from the program, he had not had any face-to-face contact with his counselor for at least 30 days. On December 6, 1990, Annunziata prepared a memorandum directed to Respondent which read as follows: At the conference in the Office of Professional Standards on August 21, 1990, you were cleared to return to full classroom duties at Highland Oaks Elementary School. This release was contingent upon your compliance with program requirements structured by the District's support agency. It has been brought to my attention that you are not complying with program requirements and are thus jeopardizing your employment. Please be advised that if you do not contact the District's referral agency within forty-eight hours of receipt of this memorandum and prepare to contract with the District to participate in a structured program, this office will pursue disciplinary measures. By copy of this memorandum, Ms. Boone is advised to provide to OPS all documentation relating to your performance during the 1990-91 school year. Future noncompliance with program directives will be considered an exhaustion of assistance and engender district action. Respondent received the memorandum on December 28, 1990. On or about December 17, 1990, Respondent's behavior was such that he had to be relieved of his duties for the day. He sang and danced in the cafeteria during lunchtime and slept in the classroom when he was supposed to be teaching, despite a student's attempt to wake him. When awake, he was unable to stand to conduct his class. Instead, he remained slumped in his seat. While seated, he sucked on a candy cane and his fingers making loud, exaggerated noises. He also swung his arms and kicked his legs in all directions. At the request of one of the other fifth grade teachers who reported that Respondent was "out of it," Cobb went to Respondent's classroom. After confirming that Respondent, who appeared glassy-eyed and unaware of his surroundings, was in no condition to continue teaching, she approached Respondent and told him that she wanted to speak with him in her office. In Cobb's office, Respondent told Cobb that he was tired because he had not gotten any sleep the night before. He then went on to tell Cobb a bizarre story about what had purportedly occurred at his house the prior evening. By all appearances, the story, which he repeated for Boone's benefit, was a product of Respondent's imagination. Respondent was supposed to exchange student progress reports with the other fifth grade teachers on December 17, 1990. He was unprepared to do so, however, on this date. On December 29, 1990, Respondent was arrested for possession of cocaine and drug paraphernalia. 2/ He remained in jail until January 18, 1990, when he was released on his own recognizance. On Sunday, January 6, 1991, the day before classes were to resume after the winter holiday break, Respondent telephoned Cobb at home. He told her that he would be absent because he had to go out of town to attend his father- in-law's funeral and that he did not know when he would be able to return. He did not mention anything about his arrest and incarceration, which was the real reason he would be unable to report to work the following day. By misrepresenting his situation to Cobb, Respondent was laying the groundwork to obtain sick leave benefits to which he was not entitled. While Board employees are entitled to paid sick leave for absences resulting from the illness or death of their father-in-law, they are not entitled to such leave for absences resulting from their own incarceration. On or about January 11, 1991, Annunziata reassigned Respondent from Highland Oaks to the Region II administrative office, where Respondent was to be under Mingo's supervision. January 22, 1991, was Respondent's first day back to work after his arrest. He reported to the Region II office and met with Mingo. Mingo gave him the same instructions, which are recited in paragraph 38 above, that she had given him the prior school year when he had been assigned to her office. On January 24, 1991, Annunziata conducted a conference-for-the record with Respondent to address issues relating to his continued employment with the Board. She informed Respondent during the conference that no final decision would be made until the matter was further reviewed. On Friday, February 8, 1991, Respondent left the Region II office for lunch at 11:30 a.m. He did not return to work that day. It was not until around 2:00 p.m., well after he was supposed to be back from his lunch break, that he first called the office to advise that he was having car trouble. Respondent was also absent the following workday, Monday, February 11, 1991. He telephoned the office to give notice of his absence that day. On February 12, 1991, Respondent neither reported to work, nor telephoned the office to give notice of his absence. Respondent returned to work on February 13, 1991. Upon his return, Mingo spoke with him. She reminded him of the directives she had previously given him regarding leave and attendance matters and made clear to Respondent that he was expected to comply with these directives. Furthermore, she indicated that Respondent would not be paid for the time he was away from the office on February 8, 1991, and February 12, 1991, because she considered his absences on these dates to have been unauthorized. Mingo was concerned not only with Respondent's noncompliance with leave and attendance reporting requirements, but with his sleeping while on duty as well. She therefore directed him, at around 9:10 a.m. on February 13, 1991, to submit to a drug test. She referred him to the urine collection site nearest the office and ordered him to report back to work after he had dropped off his urine sample. Respondent went to the collection site, 3/ but did not return to work that day as directed. Respondent reported to work the next workday. Mingo had another meeting with him. She expressed her displeasure with his having again failed to comply with her directives regarding leave and attendance matters. She once again repeated what those directives were. At around 11:05 a.m. that same day, February 14, 1991, Respondent left the office without authorization at approximately 11:05 a.m. He did not return until around 3:40 p.m. As Respondent was signing out for the day, Mingo confronted him about his unauthorized absence from the office that day. In response to Mingo's inquiry, Respondent told her that, after leaving the office that morning, he had spent the remainder of the day in his car in the parking lot outside the office. Mingo conducted a conference-for-the-record with Respondent on February 20, 1991. She discussed with him his failure to comply with the directives she had given him. During the conference, she reiterated those directives and ordered Respondent to follow them. A month later, on March 20, 1991, the Board took action to suspend Respondent and to initiate dismissal proceedings against him. At the time of his suspension, Respondent was serving under a continuing contract. The directives referenced above that Cobb, Boone, Mingo, Monroe and Annunziata gave Respondent during the 1989-90 and 1990-91 school years and which Respondent refused to obey were reasonable in nature, consistent with Board rules and policies and within these administrators' authority to issue. Respondent's failure to comply with these directives was the product of his unwillingness, rather than a lack of capacity, to do so. Although Respondent may not have received a TADS annual evaluation for the 1989-90 and 1990-91 school years, nor received at any time during these school years a TADS Post-Observation Report reflecting unacceptable performance, he was certainly put on notice by the administration through other means of his deficiencies and what he needed to do to cure these deficiencies. He was given a fair and reasonable opportunity to improve, but simply failed to take advantage of the opportunity. During the 1989-90 and 1990-91 school years, Respondent did not teach effectively and efficiently in accordance with the prescribed curriculum. As a result, his students suffered. They were deprived of the education to which they were entitled. Respondent displayed little or no concern for the educational development and potential of his students. Nor did he appear particularly interested in protecting them against conditions harmful to their safety and general well-being. Respondent's behavior in the classroom during the 1989-90 and 1990-91 school years was inconsistent with the standards of public conscience and good morals. It has brought him notoriety among his colleagues, students and their parents. Such notoriety can only serve to impair his effectiveness as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the School Board of Dade County issue a final order sustaining the charges of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency against Respondent and dismissing him from employment. RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of February, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1992.
The Issue The issue is whether Respondent's employment with the District School Board of Taylor County, Florida, should be terminated.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She was, when first employed, a teacher at Gladys Morse Elementary School and then was employed as a teacher at Taylor Elementary School. Until January 19, 2005, she taught at Taylor Elementary School. Her employment was pursuant to a professional services contract. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or have a physical handicap or handicaps. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities, she is County Coordinator for the Special Olympics. The School Board operates the school system in Taylor County. The School Board is a party to a Master Teacher Contract (Master Teacher Contract), with The Taylor Education Association, which is an affiliate of the Florida Education Association, the American Federation of Teachers, the AFL-CIO, and the National Education Association. This contract governs the relations between teachers, and others, and the School Board. Accordingly, it governs the relations between the School Board and Dr. Whalen. Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crises Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction-Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, the act of lying upon a child could prevent a child from breathing which could result in injury or death. Ms. Kriedler teaches CPI throughout the District. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. A memorandum dated April 7, 2003, and signed by Principal Sylvia Ivey, was presented to Dr. Whalen by Principal Ivey. The memorandum addressed conversations that Dr. Whalen had with two of her colleagues on April 3, 2003. The memorandum recited that these conversations raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video- taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The record reveals that Dr. Whalen's classroom was already being video-taped as early as November 20, 2002. It is certain that the classroom was being video-taped daily from April 2003, until the end of the school year. By January 2005 the practice of video-taping Dr. Whalen's classroom on a daily basis had ended. The incident giving rise to this case was not video-taped. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your Classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. During January 2005, a school resource officer, who is a deputy sheriff, was available should it become necessary to physically restrain a child who was a threat to himself or herself or others. On January 19, 2005, J.R. a female, was a student in Dr. Whalen's classroom. J.R. was ten years old and in the third grade. J.R. had been a student in Dr. Whalen's classroom since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair at the hearing. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student when once he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered the CD player and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Vincent Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed J.R.'s back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten under the circumstances described. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks are consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or wound like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding as to the origin of the marks on J.R.'s back. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is found that the assault on Dr. Whalen was sudden and unexpected. J.R. was suspended from Taylor Elementary School for ten days following this incident. Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. Dr. Whalen received memoranda of counseling on December 2, 2002, and April 7, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Whalen be immediately reinstated to her former position without diminution of pay or benefits, pursuant to the Master Teacher Contract. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2005. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Oscar M. Howard, Jr., Superintendent Taylor County School Board 318 North Clark Street Perry, Florida 32347
