The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Petitioner employed Respondent as a secretary at Lindsey Hopkins Prior to 2010, school administrators at Lindsey Hopkins had received numerous complaints from school employees that Respondent had verbally harassed them. On February 8, 2010, Esteban Sardon was working as Assistant Principal of Lindsey Hopkins. On that date he was in one of the school's administrative offices and Respondent was also present. Mr. Sardon coughed while in the office. Almost immediately, Respondent accused Mr. Sardon of having spit on her. Respondent sent Dr. Rosa Borgen, the principal of Lindsey Hopkins, a letter on February 10, 2010, that alleged that Mr. Sardon had deliberately twice spit and coughed in her face. In her letter, Respondent described "[t]wo big huge cough breath [sic] rate were [sic] about 70 to 80 wind speed with a [sic] some saliva." Respondent also sent Mr. Sardon a memorandum calling his behavior "unprofessional" and alleging that she was going to contact "CRC" (the Civil Rights Compliance Office). Mr. Sardon denied, credibly, that he spat on Respondent. The more credible evidence established that he did cough twice in Respondent's presence, but the coughs were dry coughs and not in the direction of Respondent. Respondent fabricated the allegation that Mr. Sardon had purposefully spat on her. In an attempt to resolve the issues related to Respondent's allegations that Mr. Sardon had spat on her, Mr. Gornto, a district administrator, decided that the school administrators should meet with Mr. Sardon and Respondent. On March 9, 2010, Pamela Johnson, an instructional supervisor, from Mr. Gornto's office, met with Mr. Sardon, Respondent, Dr. Borgen, and another assistant principal of Lindsey Hopkins. At the meeting, Respondent presented a document entitled "What Would Make Me Happy" and asked Mr. Sardon to sign it. The "demands" were as follows: I will never ever to [sic] use you're [sic] inside waste on me [sic]. Meaning neither your breath, nor your saliva. I am not a toilet. I am Human [sic]. A Human Being [sic]. Not to try to embarrass me in front of my co-workers. Not to retaliate against me after this incident. Big apology. Mr. Sardon offered an apology to put the matter at rest, but he refused to sign the document. Shortly after the "spitting" accusation, Respondent had conflicts with Drusilla Sears and Donna Wallace, both of whom worked closely with Mr. Sardon. On March 2, 2010, Ms. Sears, a school account clerk, asked Respondent if she was finished using a copy machine. Respondent told her that she had asked a "stupid question," thereby starting a verbal altercation that included finger- pointing by Respondent and by Ms. Sears. The greater weight of the credible evidence established that Ms. Sears did not threaten physical harm to Respondent. This run-in upset Ms. Sears. On March 3, 2010, Respondent sent another letter to Dr. Borgen claiming that Ms. Sears had tried to beat her up. In the letter Respondent also stated, in all capital letters, the following: "I AM NO FOOL. I KNOW SOMEONE TOLD DRUSILLA TO DO THIS TO ME." There was no credible evidence that anyone had instructed Ms. Sears to do anything to Respondent. To the contrary, the greater weight of the credible evidence established that Respondent provoked the incident with Ms. Sears. On March 5, 2010, Respondent wrote another letter to Dr. Borgen. That letter referenced the incidents with Mr Sardon and Ms. Sears and also asserted that someone had placed child pornography on her school computer. There was no credible evidence that anyone had placed pornography on Respondent's computer.1 On March 16, 2010, Mr. Gornto sent Respondent a memorandum related to an earlier correspondence he had received from Respondent. In the letter Mr. Gornto told Respondent that any future complaints regarding employees should be made to Dr. Borgen, to the CRC, or to the school police department. Despite this directive from Mr. Gornto, Respondent continued to contact Mr. Gornto. These contacts (Petitioner's Exhibits 9, 12, and 17-21) were in the form of emails that contained false (and often nonsensical) allegations of employee wrongdoing against her. Each of these emails constituted separate and distinct acts that contradicted Mr. Gornto's directives to Respondent. A recurring theme in those emails was that Dr. Borgen and other school employees were trying to "destroy" her or make her "miserable." In one email, Respondent alleged that one of Mr. Gornto's subordinates had been impersonating Mr. Gornto. In April 2010, Respondent approached school clerk Donna Wallace and accused her of saying something about Respondent to a school counselor. Ms. Wallace denied, credibly, that there was a factual basis for the allegation. Respondent told Ms. Wallace to "watch her back" and threatened to sue her for slander. The incident made Ms. Wallace feel uncomfortable and embarrassed. On April 13, 2010, Respondent engaged in a verbal altercation with Shundra Hardy, a data input specialist. Ms. Hardy worked in the student registration department. When Mr. Sardon was made aware of this incident, Mr. Sardon told Respondent that she was only to visit the registration area as long she did not disturb other employees. This directive caused Respondent to yell and confront Mr. Sardon in his office, As a result of that confrontation, Mr. Sardon called school security. On May 18, 2010, a conference for the record (CFR) was held with Respondent. Dr. Borgen, Mr. Gornto, and Dr. Anna Rasco (Administrative Director of Petitioner's Office of Professional Standards) represented Petitioner. The recent conflicts involving Respondent prompted a decision that she would have to undergo a fitness for duty evaluation. During the time the evaluation was to be completed, Respondent was placed on alternate assignment at her home. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for the evaluation, and she was directed not to contact the school (other than through the principal's office to report her attendance) while on alternate assignment. By letter dated August 10, 2010, Stephen Kahn, M.D., advised Dr. Rasco that Respondent was not fit for duty due to her mental status.2 By letter to Dr. Rasco dated September 4, 2010, Richard S. Greenbaum, Ph.D., a psychologist, opined that Respondent could return to work if she continued to see a psychotherapist.3 On October 4, 2010, Respondent called Lindsey Hopkins and spoke with two employees. These contacts were in direct violation of the directives that had been issued to her.4 On October 14, 2010, a CFR was held with Respondent. Ms. Nyce Daniel (who had replaced the retired Dr. Borgen as Principal of Lindsey Hopkins), Mr. Gornto, and Dr. Brasco represented Petitioner. This CFR was held to address Respondent's non-compliance with the terms and directives given to her while on alternate assignment. Respondent was directed to refrain from engaging in the behaviors that had prompted the need for a fitness evaluation. Respondent was also advised that she would not be permitted to return to work because of the conflicting opinions between Drs. Kahn and Greenbaum. Respondent selected Joseph W. Poitier, Jr., M.D., to conduct her third evaluation. By letter to Dr. Rasco dated March 14, 2011, Dr. Poitier opined that within a reasonable medical certainty Respondent was able to return to work without restriction.5 On March 30, 2011, a CFR was held with Respondent. Ms. Daniel, Mr. Gornto, and Dr. Brasco represented Petitioner. Based on Dr. Poitier's opinion, Respondent was advised that she could return to work on April 4. Respondent was again given directives that included explicit directives to refrain from the behaviors that had caused the need for her fitness for duty evaluations. Specifically, Respondent was instructed to avoid altercations with school staff. On April 5, 2011, with people present in the office, Respondent, using vulgar language, told Cassandra Johnson (a teacher at Lindsey Hopkins) that her husband, Charles Johnson (the head custodian) had engaged in a sexual affair with Dr. Borgen and that Dr. Borgen had been "doing all the guys in school." Ms. Johnson attempted to distance herself from Respondent, but Respondent pursued Ms. Johnson down the hall and continued her verbal tirade. Ms. Johnson was humiliated and upset by the incident. Respondent's actions disrupted Ms. Johnson's ability to perform her duties that day. Mr. Johnson was very upset by Respondent's accusation and denied, credibly, that he had ever had a sexual relationship with Ms. Borgen. Mr. Johnson was concerned that the accusations could hurt his marriage, and he was concerned because his wife was very upset. On April 7, 2011, Respondent confronted Thomas Nunn (an automotive instructor at Lindsey Hopkins) and implied that he had been in an intimate relationship with Dr. Borgen. Mr. Nunn was not offended by Respondent's comments. However, Ms. Daniel learned of Respondent's comments to Mr. Nunn. On April 8 Ms. Daniel directed Respondent to refrain from such conduct. At the time Ms. Daniel gave those directions to Respondent, Ms. Daniel did not know about the incident involving Mr. and Ms. Johnson. On April 8, 2011, Respondent called Mr. Gornto's office to ask permission to take half-day leave. This call was in violation of the directives Mr. Gornto had given to her as to how she was to communicate with her supervisors. On April 11, 2001, Ms. Daniel learned of the incident involving Mr. and Mrs. Johnson. On or about April 28, 2011, Respondent complained to the CRC that Erinn Gobert (the ESOL chairperson at Lindsey Hopkins) and Sophia Hall (an assistant principal at Lindsey Hopkins) had been harassing her. She stated that they were mumbling things about her, taunting her, and teasing her. She further reported that Ms. Gobert and Ms. Hall made gestures that they wanted to fight with Respondent. Respondent's accusations of harassment triggered an investigation. Respondent's accusations were complete fabrications. Neither Ms. Gobert nor Ms. Hall had any meaningful contact with Respondent. On May 18, 2011, a CFR was held with Respondent to address her gross insubordination and violation of other school board rules. Ms. Daniel, Mr. Gornto, and Dr. Rasco represented Petitioner. As a result of her behaviors, Ms. Daniel had to constantly give Respondent specific tasks to minimize Respondent's interaction with other employees. Despite Ms. Daniel's efforts, Respondent's run-ins with co-workers were throughout the school and reached outside of Respondent's assigned work area. Many of her co-workers were not comfortable working with or near Respondent. The efforts to shield co- workers from Respondent created extra work for Ms. Daniel. Respondent's repeated contacts with Mr. Gornto and her baseless accusations towards co-workers disrupted his work and consumed an inordinate amount of his time. Respondent's behavior negatively impacted employee morale at Lindsey Hopkins and disrupted its operations. Respondent repeatedly refused to obey administrative directives that were reasonable in nature and given with proper authority.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2011.
Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Whether Petitioner has cause to terminate Respondent's continuing contract of employment as a classroom teacher.
Findings Of Fact The School Board of Palm Beach County, Florida (School Board), is charged with the duty to operate, control, and supervise the public schools within Palm Beach County. Section 4(b), Article IX, Florida Constitution. Petitioner has been authorized to act on behalf of the School Board in this proceeding. The respective duties and responsibilities of the School Board and the Superintendent are set forth in Chapter 230, Florida Statutes. Respondent has been employed by the School Board as a classroom English teacher pursuant to a continuing contract since 1965. At all times pertinent to this proceeding Respondent taught high school English at BRCHS. On October 25, 1999, the then-serving Superintendent of Schools reassigned Respondent to an administrative position in the Division of Personnel Services, effective October 26, 1999. Respondent has not taught in the Palm Beach School District since his reassignment. The Classroom Teachers Association (CTA) is a union that represents members of the Palm Beach County School District’s instructional staff. Respondent has been a member of the CTA at all times pertinent to this proceeding. Section 231.29(1), Florida Statutes, requires each school district to establish procedures for assessing the performance of duties and responsibilities of certain employees, including classroom teachers with continuing contracts. The Florida Department of Education (DOE) must approve each school district's personnel assessment system. The School Board has adopted a personnel assessment system, described below, that has been approved by DOE. As required by Florida law, School District administrators evaluate the work performance of teachers at least once a year. The Classroom Teachers Assessment System (CTAS), the assessment system used by the Palm Beach County School District, requires that prior to any evaluation, a qualified administrator observe the teacher’s classroom performance for a minimum of twenty minutes, recording any noted strengths and identifying weaknesses that should be remediated. An observation may be recorded in a narrative form or in a summative form. Following the observation, the administrator completes the evaluation form, which requires that the teacher be rated in 16 skill areas. The rating for each skill area is a score of two for an acceptable area or a one for an area of concern (an area of deficiency). At the beginning of every school year, teachers receive a Teacher Evaluation Handbook (Handbook) that describes the evaluation form, criteria, and rating scale that Petitioner uses to evaluate the job performance of employees with continuing contracts or professional services contracts. The evaluation form lists a total of 16 skill areas under the following headings: "Instructional Process," "Professional Proficiencies," and "Professional Responsibilities" as follows: INSTRUCTIONAL PROCESS Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal PROFESSIONAL PROFICIENCIES Establishes an Appropriate Classroom Climate Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instructional Needs Demonstrates Effective Written Communication Skills Develops and Maintains an Accurate Record Keeping System PROFESSIONAL RESPONSIBILITIES Demonstrates a Commitment to Growth Demonstrates Self Control Demonstrates Effective Working Relationship with Coworkers Demonstrates Effective Working Relationship with Parents Adheres to and Enforces School Policies Performs Duties as Assigned by the School Administration The Handbook provides criteria that explain each one of these categories on the evaluation form. Teachers who receive an unsatisfactory performance evaluation are placed on a 30-day school-site assistance plan. If the teacher’s performance has not sufficiently improved by the end of the 30 days, the teacher is thereafter placed on a 90-day district-level assistance plan. Prior to the end of the 90-day period, the teacher’s performance in the classroom is evaluated again. If that teaching performance is still rated unsatisfactory, the teacher can be recommended for dismissal. This process applies to both Professional Service Contract (PSC) teachers and Continuing Contract (CC) teachers. The CTAS has been incorporated by reference into the collective bargaining agreement (CBA) between the School District and the CTA. 1/ Article II, Section M of the CBA is titled Discipline of Employees (Progressive Discipline) and provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. . . . Dismissal. . . . Diane Harris became the principal of BRCHS in August 1997, taking over for Norman Shearin. Prior to her appointment, Ms. Harris served as an administrator in the Area Office and was assigned to the instructional support team. Pursuant to her duties under the CTAS, Ms. Harris observed one of Respondent’s classes on October 23, 1997. She observed what she considered to be several areas of deficient performance. Ms. Harris subsequently met with Respondent to address these concerns and make suggestions on how he could improve his teaching performance. Respondent was not receptive to her comments. Respondent’s final evaluation for the 1997-98 school year was rated satisfactory overall. Ms. Harris testified, credibly, that she rated all the teachers that year as being satisfactory because she wanted to observe all teachers during her first year as principal so she could formulate a plan for the following year. The concerns noted during her October observation of the Respondent were never made a part of his final evaluation for 1997-98. Ms. Harris rated Respondent's performance as being satisfactory despite the fact that she was aware that Respondent’s review for the prior year (under Dr. Shearin) had been unsatisfactory. Every year, the BRCHS English Department takes students on a field trip to the Caldwell Theater to view a theatrical production. On November 4, 1998, Respondent’s first period English class was scheduled to go on that field trip. That morning, however, several of his students appeared at the school’s front office and complained to Ms. Harris that Respondent would not allow the entire class to go on the field trip because some students had thrown “spit wads” during class. Rather than punish the students who were responsible, Respondent inappropriately punished the whole class. Because half of the English Department was going on the field trip that day and half the next day (November 5, 1998), Ms. Harris arranged for Respondent’s students to go on the field trip on November 5, 1998. She was unable to meet with Respondent on November 4, 1998 because, when she went to look for him to inquire about his actions, he had already left on the bus with other students to go to the theater. When Ms. Harris was finally able to speak to Respondent either that day or the following day, Respondent accused her of preempting his absolute authority over his class. On November 6, 1998, Ms. Harris issued a memorandum to Respondent outlining her concerns about the field trip incident. In that memorandum, Ms. Harris also noted that she was concerned about the frequent number of disciplinary referrals for assistance from the deans Respondent would make on a daily basis. As a result of those concerns, Ms. Harris provided Respondent with a handout from the CTAS listing the performance criteria for Management of Student Conduct, which included implementing a discipline plan. Ms. Harris specifically directed Respondent to prepare such a written discipline plan and provide it to her by November 9, 1998. On November 17, 1998, Respondent provided to Ms. Harris a copy of a one-page typed document outlining eight rules of conduct which he handed out at the beginning of each school year to his students. On the copy provided to Ms. Harris, the Respondent noted that he also followed the student/teacher handbook. Attached to the document was a copy of a page from an outdated student/teacher handbook. On several occasions Ms. Harris informed Respondent that his discipline plan was inadequate. Thereafter, Ms. Harris consulted with Ms. Stafford, an assistant principal of BRCHS, and obtained a number of documents from the School District’s Professional Standards Office to aid Respondent in properly preparing a discipline plan. By memorandum dated December 18, 1998, Ms. Harris directed Respondent to provide her with a discipline plan by January 8, 1999. When a student is removed from a classroom as the result of misbehavior, he or she is sent to a supervised study area called the opportunity room. On November 24, 1998, Ms. Harris met with Respondent regarding the large volume of referrals he was issuing, which resulted in the students being referred to the opportunity room. At mid-year, Respondent had issued approximately 70 to 75 such referrals. By the end of the school year, Respondent had issued 146 such referrals. In addition to the number of referrals, Ms. Harris received complaints from parents that two particular students were being regularly referred to the opportunity room, that these two students received failing grades, that they were not given progress reports, and that their work was misplaced. Ms. Harris also received a complaint from a student that Respondent had sent the student to the opportunity room without giving the student a way to make up class work. Respondent requested another meeting and offered to justify the referrals he had made, but the meeting was never held. 2/ On December 4, 1998, Ms. Harris made an informal observation of Respondent’s first period class. Ms. Harris observed that the classroom setting was chaotic, students ignored Respondent, and there was no flow or continuity of instruction. All teachers are required to turn in weekly lesson plans reflecting objectives, materials, assessment tools, and activities. In January 1999, Respondent turned in lesson plans for the second term of English 10 and 11. His plans for English 11 were merely a duplicate of his plans for English 10. Subsequently, Ms. Harris repeatedly instructed Respondent to turn in appropriate lesson plans for English 11. Despite those clear instructions from Ms. Harris, Respondent did not turn in appropriate lesson plans for English 11. Ms. Harris decided to give Respondent a mid-year evaluation. The evidence presented by Petitioner established that Ms. Harris was justified in determining that a mid-year evaluation was appropriate. 3/ Ms. Harris assigned Dr. Robert Murley, an assistant principal at BRCHS, to perform a summative observation of Respondent on February 2, 1999. On the day Dr. Murley observed Respondent, Respondent was approximately five minutes late to class. At one point during the observation, Dr. Murley observed that more than half the class was not engaged in learning. The students were either talking or sleeping, or staring off into space, or looking out the window. Dr. Murley further observed Respondent talking above the class rather than getting them to pay attention. Dr. Murley observed the class for over an hour in the hope that things would get better, but they did not. During the 75 minutes that Dr. Murley observed Respondent’s class, he noted 42 times where the students were engaged in misconduct, with Respondent failing to address the misconduct in 12 instances. Respondent’s lessons failed to include meaningful learning and motivational techniques. Overall, Dr. Murley felt that there was very little learning going on and that Respondent was having a lot of difficulty keeping the class aware of what he was trying to teach them and trying to keep them engaged. On February 5, 1999, Dr. Murley met and reviewed his observations with Respondent. Respondent listened to some of the suggestions but not all of them. Respondent did not contest any of Dr. Murley’s observations on the summative form at that time. Subsequently, Dr. Murley attended a meeting with Respondent, his union representative, Ms. Harris, and Ms. Stafford. At that subsequent conference, Respondent resisted all suggestions and criticized Dr. Murley’s observations. As a result of Dr. Murley’s observation and Ms. Harris’ other concerns, Ms. Harris gave Respondent an unsatisfactory rating on the mid-year evaluation. On February 22, 1999, Ms. Harris met with Respondent and gave him the evaluation; Respondent signed the evaluation under protest. Respondent accused Ms. Harris and Ms. Stafford of “obsessive misanthropy.” This can only be construed as an attack on their professionalism and an accusation that they were biased against male professionals. On March 3, 1999, another conference was held, at which time Respondent presented his written rebuttal 4/ disputing each of Ms. Harris’ concerns from the February 22nd meeting. Respondent was not receptive to any suggestions, and the meeting itself was adversarial. By memorandum dated March 8, 1999, Ms. Harris notified Respondent that he was being placed on a 30-day school-site assistance plan, and that failure to improve his performance could result in further action. A copy of the written assistance plan was provided to Respondent at that time. Respondent was also provided with copies of letters and reports from students in Respondent’s classes regarding the climate in the classroom and Respondent’s evaluation of students. On March 10, 1999, Ms. Harris met with Respondent, together with Dr. Jeanne Burdsall, Director of Professional Standards, and Diane Curcio-Greaves, a specialist from the Professional Standards Department, regarding the school-site assistance plan. Dr. Burdsall and Ms. Curcio-Greaves developed a checklist for the 30-day plan. As part of the plan, Respondent was to observe another teacher’s class, turn in a discipline plan by March 22, 1999, and work with a Peer Assistance and Review (“PAR”) Consulting Teacher. Respondent and his union representative consented to his referral for PAR assistance. Follow-up meetings to review progress under the plan were scheduled for approximately every ten days. On or about March 15, 1999, Respondent provided a written response to Ms. Harris, contesting the charges against him. On March 17, 1999, Ms. Curcio-Greaves arranged for Respondent to observe a class at Atlantic High School. During that observation, Ms. Curcio-Greaves pointed out to Respondent certain teaching behaviors that she considered effective. Two areas were focused upon: management of student conduct and instructional organization and development. Respondent could have benefited from observing that class, but he resisted the efforts of Ms. Curcio-Greaves to help him improve his performance. On March 16, 1999, as part of the on-site school assistance plan, Virginia McGrath, a member of the Area Office’s Instructional Support Team and a certified CTAS evaluator, observed one of Respondent’s classes for approximately one hour and noted several areas for improvement. Specifically, she observed that Respondent did not review the assignment with the class, and that the students did not seem to understand the material being covered. Further, Respondent would not answer the questions of students who were unclear about the materials and/or the assignment and allowed too much down time. Ms. McGrath did not observe any actual teaching by Respondent during this observation. On March 18, 1999, Ms. Harris conducted a school-wide training session regarding the new CTAS evaluation system, which had been negotiated by the School District and the CTA and approved by DOE. Respondent attended the training. On March 19, 1999, pursuant to the terms of the on- site school assistance program, Ms. Harris again met with Ms. Curcio-Greaves and Respondent to review his progress under the on-site plan. During the meeting, Respondent complained that he should not be involved in the observation process, and he was not receptive to Ms. Curcio-Greaves’ observations. Instead, Respondent was critical of the teachers he observed and opined that Atlantic High School was a bad school overall. Pursuant to Respondent’s request at that meeting, Ms. Harris scheduled a follow-up meeting for March 23, 1999, to further discuss Respondent’s evaluation. On April 9, 1999, a follow-up meeting was held to review Respondent’s progress under the school assistance program. By this time, Respondent had still not provided the required classroom management plan; rather, he had only turned in a copy of the rule book. At the meeting, Respondent was informed of a professional standards workshop on presentation of subject matter and planning, to take place on April 27, 1999. As part of the school assistance plan, Respondent attended that workshop. Also pursuant to the school assistance plan, the PAR panel granted, on April 15, 1999, Respondent’s request for inclusion in the program, and assigned a PAR Consulting Teacher. On April 15, 1999, Dr. Burdsall attended an evaluation meeting with Respondent, Ms. Harris, and Mr. Matulaitis. During the meeting, Respondent stated that the principal was unprofessional, and commented that one particular student and that student’s father were “not too bright.” Respondent also stated (referring to Dr. Burdsall and Ms. Harris) that, “The ladies are unable to handle this, you live in a fluffy world,” and responded to a question by Dr. Burdsall with “no, my love, no.” Respondent was insulting to Ms. Harris and Dr. Burdsall and resisted the remedial assistance being provided to him. On April 16, 1999, pursuant to the CTA CBA, Ms. Harris notified Respondent that she would be observing his class during the week of April 19-23, 1999. Subsequently, Ms. Harris conducted the observation of Respondent’s classroom on April 22, 1999, and prepared a narrative report of her observations. Based upon her observations, Ms. Harris concluded that Respondent still did not have adequate control of his classroom environment and was exhibiting the same deficiencies as she had noted in the February 1999 evaluation. By memorandum dated April 26, 1999, Ms. Harris informed Respondent of her observations and, on April 30, 1999, personally met with him to discuss the matter further. Respondent did not agree with the assessment. Ms. Harris provided to Respondent a follow-up memorandum on May 5, 1999. By memorandum dated April 23, 1999, Mr. Matulaitis requested that the completion date for the school-site assistance plan be extended, as some items had not yet been completed. Upon review of the matter, Ms. Harris noted that most items had been completed without any noticeable improvement by Respondent. Specifically, Ms. Harris had still not received the discipline plan she had requested back in November, nor had Respondent provided to her revised lesson plans. Further, none of the observations of his classes showed any change in strategies in the classroom. In addition, Respondent became more adversarial and abusive at each follow-up meeting and consistently resisted suggestions. Ms. Harris denied Mr. Matulaitis’ request to extend the completion date for the school-site assistance plan. Dr. Mary Gray, a professor at Florida Atlantic University, is an expert in teacher evaluation who works with the school district as a consultant in teacher evaluation cases. Dr. Gray met Respondent on April 27, 1999, when he attended a workshop she conducted on planning for instruction and presentation of subject matter (including classroom management and questioning techniques) as part of his remediation program. Dr. Gray testified that Respondent appeared resistant to participating in the workshop. On May 4, 1999, Ms. Harris notified Respondent that she would provide transportation for him to go to another school and observe another teacher’s classroom as part of his remediation plan. Ms. Harris further informed Respondent that she would provide a substitute teacher for his classes that day. On that same date, Respondent signed the notification under protest and asked for the trip to be rescheduled. On May 5th and 6th, however, Respondent was absent from work. On May 6, 1999, Ms. Harris notified Respondent that his May 5, 1999, meeting to observe an ESOL (English for Speakers of Other Languages) teacher had been rescheduled for May 10, 1999, due to Respondent’s absence on May 5th. This was one of the last open items remaining on Respondent’s school-site assistance plan. By letter dated May 6, 1999, Ms. Harris requested then Superintendent of Schools, Dr. Joan P. Kowal, to place Respondent on a 90-day performance probation, because Respondent had completed the school-site assistance plan without making any improvement in the noted areas of deficiency. On May 11, 1999, Respondent received his year-end CTAS evaluation. The evaluation noted the same deficiencies as had been noted on the February evaluation. The evaluation rated Respondent as unsatisfactory overall, and noted that a 90-day district-level assistance plan would be implemented. By letter dated May 12, 1999, Superintendent Kowal formally advised Respondent that he had been placed on 90-day performance probation and that he would receive a Professional Development Plan (the district plan) to support remediation of the deficiencies. Also on May 13, 1999, Ms. Harris provided to Respondent copies of letters from students and one parent regarding the climate in Respondent’s classroom and Respondent’s failure to appropriately evaluate student needs. Ms. Harris testified that the student concerns were addressed in the form of a petition, and that she had never received such a document for any other teacher at BRCHS. Ms. Harris referred Respondent to specific sections in the school-site assistance plan for suggestions on improvement strategies in the noted areas of concern. On that same day, Ms. Harris also requested that Superintendent Kowal revise the district plan to delete the seventh area of concern (working relationships with parents) as a result of the disposition of a grievance Respondent had filed about his evaluation. Ms. Harris had been told by her supervisor that it would be more beneficial for Respondent to concentrate on the other six areas, which more directly affected Respondent’s instructional activities. Respondent’s May 1999 evaluation was also changed accordingly. On May 14, 1999, the ESOL teacher assigned to meet with Respondent pursuant to the school-site assistance plan reported to Ms. Harris that Respondent had been resistant to the ESOL teacher’s suggestions as to the use of ESOL strategies. At a meeting on May 19, 1999, Respondent was officially placed on a 90-day district plan and notified of his right to a deficiency hearing -- which he requested. At that meeting, a checklist for the district plan was developed. Everyone agreed to the plan and agreed that it complied with the CTA CBA. Neither Respondent nor the CTA objected to the fact that Respondent had been placed on the 30-day and 90-day programs. The deficiency hearing to review the 90-day district plan was conducted with Cheryl Alligood serving as the hearing officer. The hearing was held before Ms. Alligood, the principal, the union representative, and the teacher. The purpose of a deficiency hearing is for the union representative to come with the teacher and the principal to review what concerns there may have been and whether sufficient assistance is being provided to the teacher by the district plan. Respondent, who was represented by counsel at the deficiency hearing, asserted that his performance was not deficient and that Ms. Harris was “out to get him.” Subsequently, Ms. Alligood found sufficient reason to continue Respondent on the district plan. Respondent received notice of that determination on July 6, 1999. Pursuant to Respondent’s agreement, Dr. Burdsall arranged for Respondent to observe a Dwyer Award recipient or nominee. A Dwyer Award is given for excellence in teaching. Respondent did not keep his appointment that had been set up by Dr. Burdsall. The observation was rescheduled, but again, the Respondent did not show up. Respondent also failed to attend a workshop set up by the PAR teachers specifically for the purpose of helping him remediate his particular teaching deficiencies. Dr. Burdsall offered Respondent the opportunity to attend a different workshop. Again, he did not attend. During the 1998- 99 school year, several remedial workshops were recommended to Respondent to assist in his professional development that he did not take advantage of. On May 27, 1999 (about a week before the end of the school year), Dr. Gray observed Respondent’s teaching performance in the classroom, at which time she noted he was deficient in several areas. The most critical deficiency Dr. Gray noted was that Respondent was not performing at the minimal teaching level. Based on her observations, Dr. Gray did not consider Respondent to be a competent teacher. Following the observation, Dr. Gray met with Respondent to review the results of her observation and to offer constructive criticism. Respondent was defensive and clearly resented being involved in the observation/remediation process. Respondent angrily voiced that resentment to Dr. Gray. Respondent subsequently provided Ms. Harris with a written response to Dr. Gray’s observations, disagreeing with each one. Respondent’s district plan extended through the summer. Dr. Burdsall met with Respondent following the summer break and determined that Respondent had not done anything over the summer to try to help his remediation process. At the August 13, 1999, meeting, Dr. Burdsall, Ms. Harris, and Mr. Matulaitis agreed it would be beneficial for Respondent to attend a couple of workshops on management of student conduct and instructional strategies. In addition, it was decided that the PAR teacher would continue for the 1999-2000 school year. Dr. Burdsall testified that the meeting was unlike any other assistance review meetings she has had because of the adversarial, abusive attitudes of Respondent and his union representative. Dr. Burdsall was under the impression that Respondent was never going to remediate. On August 26, 1999, pursuant to the 90-day district plan, Tcherina Duncombe, a specialist in the Professional Standards Office, conducted an hour-long observation of Respondent’s classroom and prepared a narrative report of her observations. Ms. Duncombe determined that Respondent needed improvement in the same areas that had been of concern during the prior school year, including management of student conduct, instructional organization and development, and establishing an appropriate classroom climate. Ms. Duncombe observed that Respondent’s instruction that day was not organized and was ineffectual, and that his directions were unclear. Further, Respondent failed to discipline some students for talking in class and making inappropriate comments, but then would discipline others in an inappropriate manner. Ms. Duncombe subsequently discussed her findings and suggested improvement strategies with Respondent, but he did not appear to be receptive. During the one-hour review session Ms. Duncombe had with Respondent, Respondent spent most of the time making negative comments about the district plan and Ms. Harris. Based upon the information contained in the narrative, Ms. Harris determined that Respondent had not made any improvement in his classroom teaching performance. On September 9, 1999, Respondent provided a written response to Ms. Duncombe’s observations, taking issue with each point made by Ms. Duncombe. On September 18, 1999, Respondent was notified via certified mail that a second observation would take place during the week of September 21, 1999, by Ms. McGrath, as part of the district plan. At the same time, Respondent was informed that a previously scheduled meeting had been reset to September 21, 1999. Ms. McGrath conducted her second observation of Respondent on September 22, 1999. Again, Ms. McGrath did not observe any actual teaching, and Respondent again failed to review materials with the students and clarify any confusing assignments. Ms. McGrath also observed students talking in class (including the utterance of a couple obscenities) and passing notes. In addition, Respondent was inconsistent with requests for bathroom leaves. Further, Respondent had not implemented any of Ms. McGrath’s recommendations from the previous observation (there was no defined lesson and Respondent was not meeting the needs of all his students). After the second observation, Ms. McGrath was concerned about Respondent’s competency as a teacher. Based upon the information contained in Ms. McGrath’s summary of her observation, Ms. Harris determined that Respondent still had not made any improvement in his classroom teaching performance. Dr. Burdsall was present during a September 21, 1999, district plan meeting wherein the evaluations of Ms. Duncombe and Dr. Gray were reviewed. Respondent insulted Dr. Burdsall again. Dr. Burdsall testified that she had never had a teacher become abusive when she was trying to provide assistance. Rather than walk out of the meeting, Dr. Burdsall continued to try and provide assistance to Respondent. Despite Respondent’s attitude, Dr. Burdsall continued to make efforts to assist Respondent and get him to see other teachers. On October 4, 1999, Ms. Harris received a letter from a student concerning Respondent’s teaching methods. Ms. Harris testified that the complaints in the letter were consistent with the same pattern of deficiencies exhibited by Respondent on other occasions. Ms. Harris provided copies of the letter to Respondent and, on October 7, 1999, scheduled a brief meeting with him to discuss the letter. The meeting was held on October 8, 1999. At the meeting, Respondent was also given a copy of an observation summary conducted by Dr. Penny Beers, the curriculum specialist for the School Board's language arts program, discussed infra. Further, Ms. Harris notified Respondent that she would be observing his classroom the week of October 11, 1999. On October 5, 1999, Respondent, through his counsel, filed a Petition for Writ of Prohibition in the Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. In that action, Respondent sought the issuance of a writ of prohibition directing the School Board to cease the 90-day district-level remediation program and restraining the School Board from treating Respondent as a PSC teacher. Respondent argued that, as a CC teacher under Section 231.36, Florida Statutes, he could only be dismissed for immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Respondent further argued that the 90-day district plan could not be applied to CC teachers. By order dated November 1, 1999, following oral argument on the issue, the Circuit Court denied Respondent’s Petition. On October 6, 1999, Dr. Beers conducted an observation of Respondent’s classroom as part of the district plan. Although Dr. Beers made several commendations in her observation summary, she made even more recommendations for improvement. Based upon her one-hour observation, Dr. Beers felt that Respondent had not demonstrated his competence as a teacher because she saw very little instructional time used during that one-hour period. Specifically, Respondent engaged the students in actual instruction for only ten minutes of the one-hour period. She also noted that Respondent was inconsistent in his meting out of discipline and was not very aware of what the students were doing (which was referred to as lacking “with-it- ness”). Dr. Beers wrote up a summary of her observation in narrative form, and included commendations as well as recommendations for improvement. From those recommendations, Ms. Harris determined that Respondent had still not made any progress toward remediating his teaching deficiencies. Ms. Harris observed Respondent’s class on October 12, 1999, and prepared a narrative summary. Respondent’s classroom performance at that time was consistent with previous observations. Ms. Harris did not note any improvement. On October 15, 1999, Ms. Harris prepared an evaluation for Respondent, rating his performance as being unsatisfactory. The unsatisfactory evaluation was based on Respondent’s failure to remediate any of the previously noted six areas of concern and his lack of effort in that regard. Ms. Harris also notified Superintendent Kowal that, although Respondent was provided 90 days of assistance, his performance deficiencies had not been corrected to a sufficient degree to warrant a satisfactory evaluation. Dr. Kowal in turn notified Respondent that she would recommend to the School Board Respondent’s dismissal effective 15 days from the November 4, 1999, School Board meeting. At the end of the 1996-97 school year, Respondent erroneously recorded that all but one student in a class had failed the final examination. The incorrect grades appeared on the final report cards for the 1996-97 school year. On September 17, 1997, a pre-disciplinary hearing was held to determine whether further action should be taken. At that pre- disciplinary hearing, it was established that the failing grades were the result of Respondent's record-keeping errors and that no further action would be taken against him after Respondent changed the erroneous grades. Respondent repeatedly failed to maintain adequate records of grades, made errors in reporting grades, and misplaced students' work. Count II alleged that Respondent refused to submit the end-of-year checklist prior to summer break for the 1998/99 school year. The evidence failed to establish that allegation. Count II also alleged that Respondent falsified a disciplinary referral by indicating on the referral record that he had spoken to the student's parent when, in fact, he had not done so. Respondent admitted that he had not spoken directly with the parent, but he testified, credibly, that he had left a message on the parent's answering machine and did not intend to mislead anyone by the referral record. Count II alleged that Respondent meted out inappropriate, unwarranted, and unequal punishment to students, and that he used grades and denial of make-up work opportunities as methods of punishment. Respondent meted out inappropriate, unwarranted, and unequal punishment to students. Petitioner did not establish that Respondent used grades and denial of make-up work opportunities as methods of punishment. As alleged in Count III, Petitioner established that Respondent was guilty of insubordination by his continuing failure to provide Ms. Harris with lesson plans and with a discipline plan. In explaining to the arbitrator who heard one of his grievances, Respondent testified that he did not do a discipline because he did not do "diddly" tasks. The remaining allegations of insubordination or willful neglect of duty set forth in Count III were not established by Petitioner. Petitioner established that each observation of Respondent's performance at issue in this proceeding was pursuant to and consistent with its established evaluation process. Each person who formally observed Respondent's classroom performance was appropriately trained and objectively reported their observations, which were factually based. Petitioner further established that each performance evaluation at issue in this proceeding was pursuant to and consistent with its established evaluation process. The various findings of unsatisfactory performance were justified by documented observations as required by the evaluation process. The 90-day district plan provided Respondent with appropriate assistance to help him correct his teaching deficiencies. Petitioner clearly established that Respondent repeatedly resisted efforts to help him. Respondent failed to remediate his deficiencies. This failure should be attributed more to a negative attitude than a lack of ability. At the March 29, 2000, School Board meeting, the Superintendent of Schools submitted a written recommendation that Respondent be dismissed from his CC teaching position with the School District at the end of the 1999-2000 school year, effective May 31, 2000. Respondent and his attorney were given an opportunity to be heard regarding the Superintendent’s recommendation. The School Board voted in favor of the Superintendent's recommendation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further RECOMMENDED that the final order terminate Respondent’s continuing contract of employment effective at the end of the 1999-2000 school year. DONE AND ENTERED this 18th day of May, 2001, 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 18th day of May, 2001.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Undisputed Findings of Facts The Respondent is a Food and Nutrition Assistant I with the Hernando County School District (District). Respondent worked at Springstead High School (SHS). She was responsible, among other things, for preparing the meals for the nearby charter school, Gulf Coast Academy, and for transporting those meals to the school once they were prepared. Respondent used a District van to transport meals from SHS to Gulf Coast Academy. On November 22, 2010, Respondent prepared the meals for Gulf Coast Academy and before leaving on her delivery run informed her supervisor, Elizabeth Rios, that the delivery van needed fueling. Ms. Rios advised the Respondent she should fuel the van after her delivery and to ask the “lady” for help if needed. Respondent made her delivery to the charter school and before returning to SHS, stopped at the maintenance complex to fuel the van as discussed with Ms. Rios. Respondent attempted to fuel the van at a gas pump but discovered she could not do so without a “blue key” which was needed to run the pump. Respondent left the pump to get assistance but did not remove the hose before pulling away. As a result, the hose broke away from the pump and was left hanging onto the side of the van. Respondent returned to the pump and reattached the hose to the pump. Respondent then called her supervisor, Ms. Rios. Respondent stated Ms. Rios told her to see Lori Drenth, Director of Food and Nutrition Services, about getting a blue key. Ms. Rios stated that Respondent told her the “lady” who could help with the fueling was on lunch so she would have to wait for her to get back to get help. She furthermore stated that when asked if everything was “OK,” Respondent advised that “someone” had broken the pump. She said nothing to Ms. Rios about her involvement in breaking the hose. Respondent next went to Lori Drenth’s office in the building adjacent to the maintenance building to see about getting help. Ms. Drenth phoned Christine Harvey in Maintenance for assistance. Ms. Harvey was not available, so Ms. Drenth left a phone message. She then called a secretary in Maintenance who advised that Ms. Harvey was likely at lunch with Stephanie Wood, Ms. Harvey's backup. Ms. Drenth then advised Respondent she would simply have to go back to Maintenance and find Ms. Harvey or Ms. Wood. Respondent said nothing to Ms. Drenth about the fact that she broke the pump by pulling the hose off with the van. Respondent returned to the pump, entered the maintenance building, and eventually located Ms. Harvey and Ms. Wood who had by that time returned from lunch. Respondent and Ms. Wood proceeded to attempt to fuel the van. Ms. Wood showed Respondent how to use the “blue” and “white” keys to turn the pump on, and then handed Respondent the hose so that she could fuel the van. When Respondent attempted to place the fuel hose in the van, the hose detached from the pump which caused gasoline to spill on the ground and on Ms. Wood's hands. Ms. Wood immediately shut the pump off and then called Ms. Harvey. Ms. Wood stepped away from the pump to make the call as she was concerned about causing a spark around the spilled fuel. Respondent did not say anything to Ms. Wood or Ms. Harvey about the pump being broken or that she had pulled the hose off with the van. Rather, Respondent told Ms. Wood that the hose was like that when she got there. When confronted the next morning by Ms. Rios about the broken hose at the maintenance fuel pump, Respondent finally admitted that she broke off the hose with the van. The pump cost $142.00 to repair. A review of the matter was conducted by the Food Services Department and the Safe Driver Committee pursuant to the Board approved Safe Driver Plan. Respondent acknowledged receipt and/or review of the Safe Driver Plan on August 23, 2010, as part of the Annual Procedures Review required of all employees. The Safe Driver Committee met on November 30, 2010, and December 14, 2010, and found Respondent in violation of Safe Driver Plan Section #35 - failure to obey any other driving law, regulation, or District procedure. The Committee also noted in its written report that Respondent "was not as truthful (about the incident) as she could have been." On or about December 17, 2010, the matter was referred to the District office for further review. Respondent was offered an opportunity for a pre- determination meeting to discuss the incident. The meeting was scheduled for January 6, 2011. Respondent received a copy of a letter dated January 4, 2011, from Heather Martin, Executive Director of Business, inviting her to the conference. She signed for receipt of same on January 4, 2011. The letter included copies of the documentation collected as part of the District’s investigation. The pre-determination meeting was held on January 6, 2011. Respondent was in attendance. Based upon the evidence obtained during the investigation/review of the matter and Respondent’s statements during the pre-determination meeting, the Superintendent determined that there was probable cause to discipline the Respondent and that he would recommend Respondent's termination to the School Board. The Superintendent advised Respondent of his determination and recommendation through his designee, Heather Martin, via her letter to the Respondent dated January 10, 2011. Additional Findings of Fact There is no question that Respondent made a series of mistakes on November 22, 2010. According to Respondent's testimony at hearing she failed to report the incident at the fuel pump because she was scared and she panicked. There is no evidence in this record to suggest that Respondent intentionally damaged District property or engaged in a premeditated plan of dishonesty. The most serious aspect of Respondent's behavior on November 22, 2010, was the potential danger she exposed other District employees to at the fueling station by not disclosing the broken hose. Again, although this was a serious omission, by all appearances it was the product of Respondent's panic rather than of deliberate thought. Other than Respondent's lapse of judgment on the day of the incident, all indications are that Respondent has been a dependable, loyal, and competent employee. Dating from April 2005, Respondent's job evaluation forms reflect satisfactory performance of her duties, an "accident free" history, and a willingness and desire to help other employees. There are food service positions at SHS that do not require employees to drive vehicles.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order: Reinstating Respondent to her position as a food service employee with the restriction she not be required or permitted to drive School Board vehicles at any time in the future; days; Suspending Respondent without pay for a period of 60 Requiring Respondent to reimburse the School Board the $142.00 cost for the repair of the fuel pump. DONE AND ENTERED this 26th day of August, 2011, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2011. COPIES FURNISHED: J. Paul Carland, II, Esquire School Board of Broward County 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Bryan Blavatt, Superintendent of Schools 919 North Broad Street Brooksville, Florida 34601 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.
The Issue DOAH Case No. 11-5494TTS: The issue is whether Respondent, Joseph Fayed (Fayed), committed the violations alleged, and, if so, what penalty should be imposed. DOAH Case No. 11-5495TTS: The issue is whether Respondent, Walt Petters (Petters), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is a district school board created by Article IX, section 4, of the Florida Constitution. As such, Petitioner’s authority and responsibilities extend to personnel matters, and include the power to hire, suspend, and dismiss Board employees. At all times material to these cases, Petitioner’s organizational structure designated Maintenance as the department responsible for repairs and upkeep to all School District property. Maintenance was charged to budget for and complete repairs and improvements to hundreds of school sites and other Board properties. At all times material to these cases, Petitioner kept a list of vendors who could be called upon by Maintenance to complete work that could not be performed by Board personnel. Maintenance’s system allowed it to assign work previously approved or contemplated by the budget to a vendor and then submit a purchase order to the Board’s purchasing department so that the vendor would be paid at the conclusion of the work. At all times material to the allegations of this matter, Respondent Fayed was employed by the Board on an annual contract and served as supervisor of central services in the Maintenance Department. Fayed oversaw maintenance work performed within his service area. It is undisputed that the annual contract held by Fayed could be non-renewed without cause. Therefore, at the conclusion of the 2011-2012 school year (presuming his contract ended concurrent with the school year), Petitioner was not obligated to retain Fayed. By history, Fayed worked for Petitioner for well over 30 years, completed his DROP time, and separated from the School District. After remaining out of the system for some period of time, Fayed returned to work for the School District and continued to do much of the same type of work he had done prior to retirement. At all times material to the allegations of this matter, Respondent Petters was employed by Petitioner on an annual contract. Petters was the director of Maintenance. His responsibilities required him to supervise all employees within the School District’s Maintenance Department. Fayed served under Petters’ supervision. As director of Maintenance, Petters oversaw all of the geographical service areas for the School District. All outside vendors who performed maintenance work for School District properties were directly tied to Petters’ department. The Controversy Prior to August 15, 2011, Board employees raised concerns of improprieties committed by Petters and Fayed in connection with the performance of their duties in the Board’s Maintenance Department. An internal investigation of the School District’s maintenance department suggested that there were 25 separate instances of improper activity. Based upon the investigation, Petitioner procured an independent audit to be performed by RSM McGladrey, Inc. (McGladrey). McGladrey was tasked to review the 25 claims, review all pertinent records of the Maintenance Department, and present a detailed report to the School District’s Superintendent. That report, dated September 23, 2011, formed the basis for the charges against Petters and Fayed. The McGladrey report was attached to letters from the Superintendent dated October 5, 2011, that advised Petters and Fayed that their employment with the School District would be recommended for termination at the Board’s October 11, 2011, meeting. At that meeting, Petters and Fayed were terminated subject to their administrative rights to contest the action. Respondents timely sought a formal administrative hearing in connection with the charges of misconduct, willful neglect of duty, and/or being incompetent. The Vendors SMG SMG Coatings, Inc. (SMG), is a painting company operated by Tim Tillotson (Mr. Tillotson). Although, technically owned by Mrs. Tillotson, the company’s day-to-day field operations are directed and supervised by Mr. Tillotson. At all times material to the allegations of these cases, SMG routinely bid on contracts for the School District. It also competed for the “primary contractor” designation. Petitioner used two methods of procurement for maintenance work to be performed by outside vendors. One method, “primary contractor,” was for minor projects that did not exceed $5,000.00, in value. Vendors designated as the “primary contractor” were utilized to do these minor jobs without additional bidding. When a job exceeded $5,000.00, all vendors on a list of approved vendors were allowed to bid on the project. These vendors are known as “continuing contract” holders in this record. Vendors on the “continuing contract” approved list were to receive notice of the job and be given an opportunity to successfully bid the work. Although the threshold amount was later raised, and the method of evaluating contractors was later changed from an hourly rate to a unit measure for the type of painting work, the underlying concerns regarding how SMG received the Board’s work remain the same. At all times material to these cases, SMG was a “primary contractor” on the approved “continuing contract” vendor list. The allegations of these cases aver SMG received preferential treatment not afforded other vendors doing business with the School District. Sena-Tech Sena-Tech, LLC (Sena-Tech), is an electrical contractor that first became authorized to do School District work during 2008. Steve Terry (Mr. Terry) is the president of Sena-Tech. The allegations of these cases aver Sena-Tech received preferential treatment not afforded other electrical vendors doing business with the School District. The Relationships Petters and Fayed are long-term employees of the School District, who have forged friendships with each other and with vendors doing business with the Board. Specific to these cases are the friendships between Petters, Mr. Tillotson, and Mr. Terry. It is undisputed that at all times relevant to the allegations of these cases, Petters and Mr. Tillotson ate lunch together many times a month. Petters vacationed with Mr. Tillotson on one or more occasions. Petters and Mr. Tillotson made no effort to hide their close friendship. Similarly, Fayed is friends with Mr. Tillotson. Although they are not as close as Petters and Tillotson, it is undisputed that Fayed also lunched with Mr. Tillotson on a regular basis. Given his work history, Fayed is familiar with painting contractors doing business in the school district. There is no evidence that Fayed made any effort to encourage other painting vendors to compete with SMG for the Board’s business. Fayed has also known Steve Terry for years. Mr. Terry has been to Fayed’s home in the past and considers Fayed a friend. Petters and Mr. Terry are also well known to one another. Mr. Terry has joined Fayed and Petters for lunch. Neither Fayed nor Petters acknowledged that forging friendships with vendors doing business with the School District gave the appearance of impropriety to persons looking at the situation from outside of the Maintenance Department. The Jobs Sena-Tech Prior to 2008, Sena-Tech did not have standing as a “continuing contractor” or vendor approved to do work for the School District. Nevertheless, Sena-Tech received jobs and was paid for work done prior to its inclusion on the list. Purchase Orders (POs) were approved by Petters for payment to Sena-Tech in connection with nine specific jobs. Petters was required to sign-off on jobs and to submit POs so that the vendor would be paid. A purchase order is the written document formalizing the transaction between the Board and the vendor. In this case, all POs were initiated by Maintenance and paid by Petitioner’s Purchasing Department. The weight of the credible evidence confirms that nine jobs given to Sena-Tech prior to 2008 were electrical in nature and should have gone to a contractor on the approved list or, if not technically “electrical” due to the voltage of the work, should have been given to a vendor that successfully bid the jobs. In either instance without competent supporting documentation, Sena-Tech would not have automatically received the work. There is inadequate evidence that the work performed by Sena-Tech resulted in a higher cost to the Board, however, because the process, by which work should have been distributed to vendors, was circumvented in connection with the nine Sena- Tech POs approved by Petters. There is no evidence that Petters personally benefitted from the work given to Sena-Tech. There is insufficient evidence to establish that Fayed was personally involved in the disputed Sena-Tech POs, or that he participated in the selection of that company for the disputed work. There is no evidence that Fayed personally benefitted from the work given to Sena-Tech. SMG The weight of the credible evidence established that SMG circumvented the Board’s bidding process by submitting false information. SMG obtained work based upon unrealistically low hourly rates. To calculate the labor cost for a job required a simple formula: hourly rate multiplied by the number of hours to complete the job. Theoretically, all vendors would take the same amount of time to complete a job. Because the hourly rate would be multiplied by the number of hours the job required, the job labor cost would be correct. In these cases, that did not happen. Instead, SMG inflated the number of hours for the job and thereby assured itself a payment greater than its hourly rate would have afforded had the rate been applied to the actual hours worked for the job. In some instances, SMG billed the job at a higher hourly rate than its contract allowed. According to Fayed and Petters, so long as the bottom line (the ultimate cost to the School District) was reasonable, the process was adequate and had long been in place. Fayed and Petters did not acknowledge that the method used by SMG might have resulted in a higher cost to the Board. Based upon their professional experience in the Maintenance Department, both Respondents claimed that the amounts charged by SMG and paid for by Petitioner were appropriate. In truth, the process was not appropriate because vendors who bid actual (as opposed to illusory) hourly rates did not have the opportunity to obtain jobs. Vendors who bid the hourly rates that would be applied to the real hours of work could not compete with SMG’s unrealistically low rate. SMG was assured of “primary contractor” status without meaningful competition so long as its hourly rate was less than its competitors. At all times material to these cases, SMG was the preferred painting vendor. Fayed and Petters knew the system was flawed. In fact, Petters claimed that he told superiors that the system should be changed. When the threshold amount of jobs was increased from $5,000.00, to $20,000.00, the hourly rate method was still used. More important, neither Petters nor Fayed required SMG to bill only its actual hours for a job. There are a number of ways to track time on a given painting job. Outside vendors could be required to sign in and out at a job location. A site supervisor could verify the daily hours worked at a given location. No reasonable effort to verify the actual hours spent on a job was used when it came to SMG. Petters and Fayed knew or should have known that the hours submitted by SMG were false. Whether the Board could have or should have paid less for the SMG jobs is unknown. Another vendor working fewer hours at a higher rate might have cost the School District the same amount. Because the hours billed by SMG were false, it is impossible to calculate what the jobs should have cost. For the jobs that SMG billed a higher hourly rate than their contract allowed, it would be possible for the Board to calculate an overpayment. At the heart of this matter is the indifference displayed by Fayed and Petters to hold SMG accountable for the actual hours worked. The dispute might have been avoided if SMG had either bid fair hourly rates or billed actual hours worked. SMG did neither. Petters knew what was going on and did not intervene to stop the fiction. Recapping Board payments made to SMG, pursuant to the 2004-2005 paint contract, shows that of the $772,467.13, spent for painting jobs, only $8,200.00, went to a vendor other than SMG. Of the projects that exceeded $5,000.00, $276,614.68 went to SMG without meaningful bids from other vendors on the approved list. All approved paint vendors were entitled to submit proposals for the projects that exceeded $5,000.00. Of the ten projects that met the $5,000.00 threshold, a competing vendor was able to submit a proposal on only three of the jobs. When the threshold was raised to $20,000.00 in 2008, SMG’s competition had fewer opportunities to obtain work from the School District. As the primary vendor (again using a false hourly rate), SMG was able to capture more jobs because the Maintenance Department did not have to offer work to another vendor unless the amount exceeded $20,000.00. Fayed and Petters supported the higher threshold and Fayed lobbied for its approval. Board payments made during the 2008 paint contract requested by the Maintenance Department totaled $1,246,184.37. The entire amount went to SMG. Whether the Board could have obtained the work for a lesser amount is unknown. A review of the 2008 paint jobs established that no bids were obtained for work that exceeded the $20,000.00 threshold. No serious effort was made to secure outside bids or vendors to compete against SMG. Had Petters or Fayed brought the lack of competition to the Board’s attention (or to any supervisor in the school system), it is unknown whether SMG would have obtained the volume of work it was paid for during this time. The Other Claims SMG was allowed to use Board equipment and fuel without cost. It is unknown whether other vendors could have saved these expenses when presenting their bids for School District work. Arguably, Petters and Fayed would have let other successful vendors use Petitioner’s equipment and fuel. As SMG secured the work, the question cannot be resolved. Petitioner’s policy allows personnel to use School District transportation when their work duties require travel to more than one work-site. Fayed’s duties required travel to job sites throughout the central area. Vehicles provided for official business may not be used for personal activities. The weight of the credible evidence established that Fayed used his School District vehicle to attend to personal matters such as doctor visits, stops at his personal residence, and a trip to Patrick Air Force base. See Policy 8651. Petitioner’s ethics policy is designed to create a culture of honesty and integrity. See Policy 4210. Fayed and Petters ignored the reality that their close friendship with a vendor caused the honesty and integrity of the Maintenance Department to be brought into question. Petters defiantly insisted that SMG retain “primary contractor” status when another company prevailed on the 2010 paint contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter Final Orders as follows: As to DOAH Case No. 11-5494TTS, finding there is just cause to terminate the employment of Joseph Fayed effective October 11, 2011. As to DOAH Case No. 11-5495TTS, finding there is just cause to terminate the employment of Walt Petters effective October 11, 2011. DONE AND ENTERED this 6th day of September, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2012. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Mark S. Levine, Esquire Levine and Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Dr. Brian Binggeli, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case concerns whether Respondent is entitled to a new professional service contract as a teacher, or whether the Petitioner may appropriately terminate the Respondent's employment by not entering into a new professional service contract with Respondent.
Findings Of Fact Since the 1988-89 school year, Respondent, Gloria Steel, has been employed as a classroom teacher with the Palm Beach County School District. At all times material to this proceeding, she held a professional services contract. From the beginning of her employment with the Palm Beach County School District, through the 1992-93 school year, Respondent appears to have had a rather uneventful and lackluster professional career. Although all of her evaluations during those years rated her as satisfactory, her supervisors were of the opinion that, in general, she was a weak teacher who needed to improve many aspects of her teaching skills. During the school years from 1988-89 through 1992-93, there does not appear to have been any action by the School District to place Respondent on a teacher assistance plan. When the 1993-94 school year began, a new principal, Ms. Sue Slone, was appointed at Crystal Lakes Elementary School, where Respondent was then teaching. That year, too, appears to have been rather uneventful for the Respondent. She continued to teach second grade, as she had done for several years. For that year Principal Slone gave Respondent a satisfactory annual evaluation. The annual evaluation did not list any areas of concern. During the 1994-95 school year, Respondent was reassigned to teach a third grade class. Respondent experienced some difficulties making the transition from teaching second grade to teaching third grade. At the end of that school year, Respondent received an annual evaluation from Principal Slone that rated her as satisfactory, but, for the first time in Respondent's career with the School District, listed more than one area of concern. As originally issued, Respondent's annual evaluation for 1994-95 listed the following four areas of concern: Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal Demonstrates Knowledge of Subject Matter Also included on Respondent's 1994-95 annual evaluation form were the following comments: Mrs. Steel has had a difficult time transitioning from second to third grade. A professional development plan will be developed for the 1995-96 school year. She has already begun seeking assistance from other staff members. Respondent disagreed with the content of her 1994-95 annual evaluation. Respondent and Ms. Helene Samango, a Classroom Teacher Association ("CTA") representative, met with Principal Slone to dispute the annual evaluation. During that meeting, Principal Slone agreed, without a formal grievance, that there was insufficient documentation to support the area of concern related to "Communication: Verbal and Nonverbal." Accordingly, Principal Stone revised the evaluation by removing that area of concern from the evaluation. The first observation of Respondent during the 1995-96 school year was on October 11, 1995. On that day, Assistant Principal Heiser observed Respondent's teaching for approximately twenty-five minutes. He was very concerned about what he observed. His concerns included such matters as Respondent's failure to teach anything for twenty-five minutes. Respondent also failed to stop misconduct on several occasions and lost instruction momentum on several occasions. During most of the observation, six or seven students in a class of twenty- five were not engaged. In general, the classroom was chaotic. Following the observation on October 11, 1995, Assistant Principal Heiser discussed the observation with Respondent and advised her of his major concerns. He also discussed the matter with Principal Slone. On October 18, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss their concerns about her teaching deficiencies. They offered Respondent the assistance of a Peer Assistance and Review ("PAR") teacher, a teacher with extensive experience who comes into the classroom and words directly with the teacher who is having difficulty in the classroom.1 As a result of that offer, Respondent was in the PAR program for approximately one year. On October 19, 1995, Respondent was also provided with a School Site Assistance Plan. The plan was designed to address the specific teaching deficiencies that Principal Slone and Assistant Principal Heiser were concerned about. Assistant Principal Heiser conducted an informal observation of Respondent's class for twenty-four minutes on December 1, 1995. Again, he observed deficiencies in Respondent's teaching that concerned him. Following the informal observation, he discussed his observations with Respondent and suggested ways she could improve her teaching. On December 4, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss her teaching. Assistant Principal Heiser discussed his most recent observation of Respondent and described the teaching deficiencies he had observed. At the meeting they also discussed Respondent's progress on the School Site Assistance Plan. Respondent had accomplished some, but not all, of the activities on the plan. Both Mr. Heiser and Ms. Slone emphasized to Respondent that she needed to work over the holidays on her professional reading and she needed to complete all of the activities on the assistance plan. Respondent's mid-year evaluation was prepared on December 7, 1995. Principal Slone identified eight (8) areas of concern, with the documentation for those concerns being provided by the observations of Principal Slone, Assistant Principal Heiser, and Mr. Spence.2 Concerns were in the following areas: (1) management of student conduct, (2) instructional organization and development, (3) presentation of subject matter, (4) communication: verbal and nonverbal, (5) knowledge of subject matter, (6) ability to plan effectively, (7) self control, and (8) adherence to and enforcement of school policies. Principal Slone included the following comments on Respondent's mid-year evaluation form: Mrs. Steel was given a school site assistance plan in October. At our conference 12/4/95, it was evident that she had not done the required activities to assist her in correcting the areas of concern. Many of the same problems that were observed last year continue to date. I believe she needs to address these areas immediately. She particularly needs to do the professional reading requested. My major concern is the misinformation that is given to students during direct teaching. The deficiencies noted on the December 7, 1995, mid- year evaluation were a fair and accurate itemization of deficiencies in Respondent's performance during the period covered by the evaluation. During the period covered by the evaluation, Respondent's teaching performance was repeatedly and consistently unsatisfactory. Due to the continuing deficiencies in Respondent's performance, the School Site Assistance Plan was continued for the next semester. Respondent's participation in the PAR program also continued. During the second semester, Respondent was observed by Principal Slone on January 31, 1996, and by Assistant Principal Heiser on March 28, 1996.3 While there were some improvements in some of Respondent's teaching skills, none of the improvement was significant or consistent. There was improvement in the areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies," which involve matters other than classroom teaching skills. On March 29, 1996, Principal Slone prepared Respondent's annual evaluation for the 1995-96 school year. The evaluation rated Respondent's performance as unsatisfactory. The evaluation identified six areas of concern, all of which had previously been identified as areas of concern on the mid-year evaluation. (The areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies" were not listed as areas of concern on the annual evaluation on March 29, 1996.) The annual evaluation included the following comments: It is evident that Mrs. Steel has been working to improve her performance, however, at this time, consistency is lacking. In spite of the assistance provided by a PAR teacher as part of a school site Professional Development Plan, Mrs. Steel continues to have difficulty in the areas of concern. It is my expectation that Mrs. Steel continue to strive for acceptable levels of performance. As a result of Respondent's continued teaching deficiencies during the second semester, on February 6, 1996, Principal Slone had written to the Superintendent to request that Respondent be notified that she would be given a year within which to correct the identified deficiencies. In pertinent part, the letter read as follows: On December 7, 1995, I completed a mid- year evaluation of Gloria Steel's performance as a classroom teacher (copy attached). I noted deficiencies in the following areas: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: verbal and Nonverbal Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Self Control Adheres to and Enforces School Policies I have discussed my concerns with Ms. Steel and provided her with assistance in correcting these deficiencies. However, these deficiencies still exist. Therefore, I am requesting that you provide notice to Ms. Steel as required by Section 231.36, Florida Statutes, that she will be given the subsequent school year within which to correct these deficiencies. Following receipt of the Principal Slone's letter of February 6, 1996, the Superintendent of Schools, by letter dated March 27, 1996, advised Respondent that she would be given the next school year within which to correct the deficiencies identified by her principal. In pertinent part, the Superintendent's letter read as follows: Please be advised that I have been notified by your principal, Sue Slone, that your current performance as a classroom teacher is unsatisfactory. You have previously been advised of deficiencies by your principal. Pursuant to Section 231.36, Florida Statutes, this letter is to notify you that you will be given the next school year to correct the deficiencies noted by your principal. You will be placed on a Professional Development Plan as detailed in the Classroom Teacher Assessment System (CTAS). If the deficiencies are not corrected during the prescribed time period, a change in your employment status may be recommended. If you have any questions concerning the procedures involved in this situation, please contact, Dr. Walter H. Pierce, Assistant Superintendent/Division of Personnel Services. Shortly thereafter, School District personnel began providing district level assistance to Respondent. During the summer months, June through August, Respondent was required to read and complete various professional materials and to attend summer inservice. By letter dated April 17, 1996, Respondent wrote to Dr. Walter H. Pierce and requested a transfer for the 1996-97 school year. The letter did not state any reason for the requested transfer. By letter dated July 9, 1996, Dr. Pierce advised Respondent that her request for transfer had been considered pursuant to Section 231.36(3)(e)1, Florida Statutes, and that the request for transfer was denied. The union representative Ms. Helene Samango made at least two further requests to Dr. Pierce that he grant the requested transfer. Ms. Samango asserted that there was a personality conflict between Principal Slone and Respondent which would make it unlikely or impossible for Respondent to receive a fair evaluation from Principal Slone. On each occasion that Ms. Samango raised the issue of Respondent's request for a transfer to another school, Dr. Pierce denied the request for a transfer. Dr. Pierce was not convinced that there was any personality conflict between Principal Sloan and Respondent that would prevent Respondent from receiving fair evaluations. Dr. Pierce believed that the 231 Professional Development Plan was fair and objective, and that it could be appropriately implemented without transferring Respondent to another school. Also, as a matter of policy, Dr. Pierce preferred not to transfer teachers who were having performance difficulties. Principal Slone's evaluations of Respondent's performance as a teacher were based solely on Principal Slone's professional evaluation of what she saw and what was reported to her by other administrators who observed Respondent's teaching performance. Principal Slone's evaluations of Respondent were not motivated by any inappropriate personal considerations. Most of the observations of Respondent's teaching performance were done by observers who used the FPMS summative observation instrument. That instrument is an accepted and appropriate instrument of observing and evaluating teacher performance in the classroom. Specifically, it was an appropriate instrument for use in the observations of Respondent's performance in the classroom.4 Dr. Barbara Jeanne Burdsall is employed by the School Board as the Manager of Professional Standards. Dr. Burdsall is responsible for developing, monitoring, and providing remediation for the evaluation systems for teachers. Dr. Burdsall's department receives copies of all mid-year and annual evaluations. They are reviewed by Dr. Burdsall to determine whether a teacher needs assistance and, if so, whether a School Site plan or a District plan should be initiated. School Site plans are initiated for teachers with fewer than five concerns. District plans are initiated for teachers with five or more concerns. Dr. Burdsall was responsible for implementation of Respondent's 231 Professional Development Plan. As was her right, Respondent requested a meeting for an informal review of the documentation of unsatisfactory performance. Dr. Burdsall conducted that meeting on June 4, 1996. The purpose of the meeting was to review the deficiencies and the documentation of the deficiencies for adequacy. Helen Samango, the CTA Representative, was present at the meeting. No questions were raised about the sufficiency of the documentation. The Palm Beach School Board has the following plans and procedures to assist teachers who have performance deficiencies: the School Site Plan, which deals with just the school site principal and the teacher, the Peer Assistance and Review Program, which trains master teachers to assist teachers who are having difficulties in the classroom, and the 231.36 Professional Development Plan, which follows the statutory provisions of Section 231.36, Florida Statutes. The Department of Education approved the School Board's 231 Professional Development Plan. Dr. Burdsall is of the professional opinion that the School Board of Palm Beach County Teacher Evaluation System complies with all of the requirements of Sections 231.29, and 231.36, Florida Statutes.5 Dr. Burdsall established a team to implement the Respondent's 231 Professional Development Plan. The team included Dr. Burdsall, a curriculum person, an outside university professor, other district experts, and the school site administrators. The team members could use the FPMS summative observation format or they could prepare narrative reports of their observations. Each observation by a team member was required to last at least twenty minutes. Each observer was also required to follow the requirements of the collective bargaining contract. The team included experts in various aspects of teaching, teacher observation, teacher evaluation, and teacher training. All of the team members provided, or attempted to provide, assistance to the Respondent during the 1996-97 school year. Dr. Burdsall provided Respondent with a summer remediation program and strategies, a list of all of the seminars available in Respondent's areas of concern, and a copy of the portion of the 231 Professional Development Plan, which would be implemented in the fall. Among other things, that portion of the plan identified the observers who would be working with Respondent. The portion of Respondent's 231 Professional Development Plan for August through December of 1996 consisted of workshops, seminars, professional observations with feedback and strategies for improvement, school site administrator assistance, and a mutually agreed-to colleague to work with Respondent in the classroom. After the summer months' activities, Dr. Burdsall held a September 3, 1996, meeting with Respondent, Principal Slone, Assistant Principal Heiser, and CTA Representative Helene Samango. Respondent expressed enthusiasm about the new school year. She had completed her work over the summer, was continuing with her PAR teacher, and wanted to attend some full- day workshops. Respondent was notified as to when the observers would be visiting her classroom. Respondent was advised that if she wanted to observe instruction within the school or elsewhere in the district, Ms. Samango would contact Ms. Burdsall, and the District office would provide the funds. Respondent asked to work with Ms. Carla Lehrma and Ms. Gwen Simpson, both of whom were third-grade teachers at Crystal Lakes Elementary School. Throughout Respondent's 231 Professional Development Plan she had access to as much peer assistance and modeling as she felt she needed. The peer assistance was in addition to the year of assistance by the PAR teacher. Respondent's mid-year evaluation was completed on December 6, 1996, and was based on six (6) observations. On that evaluation, Respondent was rated as unsatisfactory with six identified areas of concern. Respondent was continued on the 231 Professional Development Plan. A meeting was held with Respondent regarding the plan on December 17, 1996. During both semesters of the 1996-97 school year, Respondent was observed by Principal Slone and by other professional observers. The other professional observers who observed Respondent's classroom teaching were Ms. Sandra Gero, Assistant Principal Larry Heiser, Ms. Kathleen Gustafson, Dr. Jeanne Burdsall, Ms. Barbara Clark, and Dr. Mary Gray. All of the observers documented the same areas of concern that Principal Slone observed. There was a lack of subject matter being presented; a lack of instructional organization and development; and a lack of classroom management. The students were not on task and the choice of instruction was not appropriate. Respondent was not demonstrating knowledge of the subject matter or an ability to plan effectively. By way of example, Dr. Mary B. Gray observed Respondent on October 8, 1996, and on February 12, 1997. Dr. Gray is an Assistant Professor in the Department of Educational Leadership at Florida Atlantic University, and has been in that position for eighteen years. In that position, Dr. Gray teaches personnel development and leadership courses. She also teaches supervision of instruction. These are all preparatory courses for school administrators. During her observation on October 8, 1996, Dr. Gray was in the classroom for the full fifty-five minute period. There were twenty-nine students present, and during Dr. Gray's scan of the classroom, about a third of the students were not doing anything they were supposed to be doing. During the period Respondent did not state what the objective was for the lesson. She lost momentum and told the students to put their heads down because she said she was not happy with them. A clock was used that was not related to the lesson. There was no objective stated. The children were confused about what was going on. Some of respondent's efforts at classroom control were ineffective. There was no meaningful content taught during the period. On February 12, 1997, Dr. Gray observed Respondent's teaching for thirty-two minutes. There were twenty-seven students present. Dr. Gray observed a mathematics class. Respondent started eight minutes late. Again the pacing was slow. Dr. Gray observed the same pattern of teacher behavior that she had observed before. Multiple questions were a problem in both observations. Respondent accepted some incorrect answers from students without providing the correct answers. There continued to be a serious problem with the off-task behavior. Respondent's teaching was not improving to any significant degree. Based on her two observations of Respondent, Dr. Gray was of the professional opinion that Respondent was not a competent teacher. Ms. Sandra Gero observed Respondent on September 25, 1996, and on January 13, 1997. Ms. Gero is an Area 2 Instructional Support Team Member. In her position she supports the schools in any way necessary in matters concerning instruction and personnel issues. Ms. Gero is involved in observations of teachers on 231 Professional Development Plans. On September 25, 1996, Ms. Gero observed Respondent's classroom for 55 minutes. Ms. Gero observed a language arts lesson, because this is her area of expertise. The children were doing a handwriting assignment, printing upper and lower case letters. This activity was developmentally inappropriate for third grade. Ms. Gero did not see anything of instructional significance to the activity. As the students moved into a reading activity Ms. Gero observed that negative behavior was being reinforced. Ms. Gero observed Respondent's use of ineffective instructional strategies. At 9:30 a.m. five students were off-task. By 9:45 a.m. there were eight students off-task. Ms. Gero observed serious problems with student management and the lack of a classroom management plan. There was no direct teaching. At the conclusion of the observation, Ms. Gero made some suggestions to Respondent that would, hopefully, help her improve her teaching. Ms. Gero's second observation lasted an hour and a half. Ms. Gero observed disjointed chaos in the classroom. The children's disruptive behavior was controlling the entire classroom. By 8:20 a.m. there had been no meaningful instruction. From about 8:30 a.m. until about 9:00 a.m. Respondent was at her desk looking through papers. During this second observation there was a worse classroom situation than during the first observation. There was no direct teaching during the ninety minutes of her observation. The six deficiency areas were still present. In Ms. Gero's independent professional opinion, Respondent is not a competent teacher. Assistant Principal Heiser observed Respondent's class on October 2, 1996. Instructional organization was becoming a major issue. There was still no presentation of subject matter and the deficiencies previously identified were still observed to be present. Dr. Burdsall observed the Respondent's classroom teaching on December 2, 1996. The observation reflected that there was no teaching of subject matter, and there was a lack of management of student conduct. Dr. Burdsall's observation directly reflected the deficiencies previously documented by Principal Slone. There was no meaningful teaching going on during the observation. Dr. Burdsall observed Respondent's classroom teaching again on February 20, 1997. Again there was no meaningful instruction taking place. It was very chaotic. Dr. Burdsall was able to form an independent opinion as to Respondent's competency. That opinion was that Respondent is incompetent to teach. Ms. Barbara Clark observed Respondent on November 8, 1996, and on February 26, 1997. Ms. Clark is a program planner for the School Board of Palm Beach County, Florida. She has been with the School District for almost twenty (20) years. Her responsibilities include creating or facilitating the writing of curriculum, preparing materials for teachers, and providing inservice to teachers. Both of Ms. Clark's observations of Respondent lasted for approximately an hour and a half. Ms. Clark met with Respondent after the observations and provided feedback to her regarding the observations. Ms. Clark invited Respondent to call her if she could be of any further assistance. Ms. Clark's independent professional opinion, based on her observations and past professional training and experience, was that Respondent is not an effective teacher. Ms. Clark observed some improvement in Respondent's teaching at the second observation, but the improvement was not sufficient to be effective. During the course of the implementation of Respondent's 231 Plan, Dr. Burdsall, the Principal, the Assistant Principal, the Union Representative, and the Respondent met periodically to discuss the observations, the progress of the Respondent's work, any areas that needed clarification, and to see if there was any further assistance that could be offered. Respondent was also provided with a math aide, Herbert Cohen. Dr. Burdsall, the Principal, the Assistant Principal, and the Union Representative, met with Respondent on November 26, 1996. At the meeting they discussed the continuing need to tie activities to objectives and to the theme. Respondent had attended several seminars and workshops. They also reviewed the observations completed by Ms. Clark and Ms. Gustafson, addressed the issues of centers and cooperative learning in Respondent's classroom, discussed the mistakes that were being made by Respondent with respect to spelling, and gave Respondent some strategies to help her focus her teaching. Assistant Principal Heiser did not see any improvement in Respondent's teaching; the same problems continued to exist. Dr. Burdsall met with the Principal, the Union Representative, and the Respondent on February 28, 1997, to again assess the status of Respondent's progress on the plan and to determine what additional assistance was needed. The original concerns were still present. On March 12, 1997, Assistant Principal Heiser and Principal Slone completed an Annual Evaluation for Respondent. In completing the annual evaluation, Principal Slone relied on her own observations and on all of the other observations by the members of the professional development team. Respondent continued to have six areas of deficiency, in spite of extensive remediation and assistance. Respondent continued to have a consistent pattern of problems in the six specific areas identified. Because the deficiencies had continued, Principal Slone communicated to the Superintendent that Ms. Slone was not recommending Respondent for reappointment for the 1997-1998 school year. Based on the Principal's evaluation of Respondent and the recommendations the Principal made to the Superintendent, Respondent was notified by the Superintendent that she would not be re-appointed, and that she had the right to request a hearing before the Division of Administrative Hearings
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Palm Beach County, Florida, enter its final order denying renewal of Gloria Steel's professional service contract. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 30th day of July, 1999.
The Issue The issue is whether Representative Cary Pigman violated section 112.313(6), Florida Statutes, by linking his efforts to obtain legislative funding for the Okeechobee School District ("School District") to retaliate and/or attempt to retaliate against an employee of the School District and; if so, what is the appropriate penalty.
Findings Of Fact Respondent serves as a member of the Florida House of Representatives, District 55, which includes Okeechobee County, Florida. He has served in the position since 2012. Representative Pigman received ethics training when he became a Legislator. On October 16, 2015, Respondent and State Senator Denise Grimsley ("Senator Grimsley") held a Legislative Delegation meeting ("delegation meeting") in Okeechobee County to allow constituents, organizations, and agencies to present legislative requests and share information. Okeechobee County Superintendent Kenneth Kenworthy ("Superintendent Kenworthy") appeared at the Legislative Delegation meeting and requested three items: 1) funding for the lowest 300 schools in reading to add an extra hour a day; 2) accountability and assessment for learning games not calculated; and 3) support for the School District’s application to the Florida Department of Education1/ for approximately 60 million dollars in special facilities funds to build a new Okeechobee high school.2/ Prior to the delegation meeting, Superintendent Kenworthy had asked that his principals attend the meeting if free. Attendance was voluntary. Tracy Downing ("Mrs. Downing"), principal of South Elementary School ("South") in Okeechobee County, attended the meeting at the request of her supervisor, Superintendent Kenworthy, along with other school district representatives. Mrs. Downing invited parents to attend the meeting and one parent attended. Mrs. Downing has 21 years in the education profession and the last 11 years she has been an administrator. She has been the principal at South for two years. Before the delegation meeting started, Representative Pigman went down the rows shaking hands and introducing himself to the attendees. When Respondent got to Mrs. Downing, she introduced herself as Tracy Maxwell, her maiden name instead of Tracy Downing. Mrs. Downing squeezed his hand, continued to hold Representative Pigman’s hand after the handshake for an extended period of time and stared at him making him uncomfortable until he started blinking, and he had to pull away from her grasp. During the meeting, Mrs. Downing directed an obscene gesture at Representative Pigman. She had her middle finger on her face purposely flipping him a bird,3/ which means "f you." Mrs. Downing was angry at Respondent and acted inappropriately because of Respondent’s over yearlong romantic relationship with then Elizabeth Maxwell ("E. Maxwell"), the then-separated wife of Mrs. Downing’s brother, Devin Maxwell ("Maxwell"). At least 10 months of the relationship was public. Maxwell was incarcerated at the time of the delegation meeting and Mrs. Downing believed Respondent was visiting then E. Maxwell at the marital home, "sleeping in [her] brother’s bed," and had moved into her brother’s house. In November 2015, Representative Pigman’s current wife, then E. Maxwell, obtained audio recordings from the jail that had taped conversations of visits between Mrs. Downing and Maxwell. The conversations included discussions regarding the delegation meeting and the education of E. Maxwell and Maxwell’s daughter. After hearing the exchange of the jailhouse recordings, Respondent felt obligated to report Mrs. Downing’s misbehavior to her supervisor, Superintendent Kenworthy, because her conduct reflected negatively on the School District. Respondent felt it was his duty to report the principal’s rudeness and stop such future behaviors. Soon thereafter, E. Maxwell arranged a meeting with Superintendent Kenworthy to report Mrs. Downing’s misbehavior at the delegation meeting and to discuss E. Maxwell’s daughter’s educational progress at South with her aunt, Mrs. Downing, the principal. One scheduled meeting was cancelled when Representative Pigman could not attend. The earliest Superintendent Kenworthy, Representative Pigman and E. Maxwell could meet was December 8, 2015. On December 8, 2015, Representative Pigman and E. Maxwell played portions of the four audio taped jail conversations between Mrs. Downing and Maxwell for Superintendent Kenworthy in his office. The recorded tapes included a conversation regarding the legislative delegation meeting where Mrs. Downing confirmed her inappropriate conduct and bragged to her brother "I gave that man hell" during the legislative hearing. Mrs. Downing detailed the incident to her brother on the recordings. She said that "Pigman was there shaking all the principals hands and when he got to me he said I am Cary Pigman, and I said I am Tracy Maxwell. And, then he blinked rapidly like three four times and I wouldn’t let go of his hand and he pulled his hand out of my hand. Then, when he sat down [for the meeting] I looked at him two hours straight. Every time he would look at me he would blink like he was really uncomfortable. Then, Andy Brewer and I walked out of the courthouse and we stood there and stared him down until he got in his stupid little jeep and drove off with Justin Morgan." On the jailhouse recordings, Mrs. Downing also called Representative Pigman a bastard multiple times. Mrs. Downing further explained to her brother "every time [Respondent] looked at me I-actually, well, I probably shouldn’t say this ” After listening to the audio recordings, Representative Pigman informed Superintendent Kenworthy about Mrs. Downing’s inappropriate conduct during the delegation meeting. Respondent told Superintendent Kenworthy that he could not believe the callous disregard for this district, when he looked at Mrs. Downing in the delegation meeting, she had her middle finger up to her forehead, flipping him off. Respondent expressed his dissatisfaction with Mrs. Downing’s behavior to Superintendent Kenworthy and also questioned whether Mrs. Downing could be the best Okeechobee School District has to offer. Respondent explained to Superintendent Kenworthy the performance of Mrs. Downing in leadership gives me pause. Representative Pigman also said this incident will be in the "back of my mind when thinking about the school district."4/ Neither Respondent nor E. Maxwell mentioned or asked for discipline for Mrs. Downing during the meeting. Respondent believed Maxwell had stopped the previous request for a transfer of E. Maxwell’s daughter to North Elementary School ("North"). Respondent recognized that he was sensitive when it came to incidents related to E. Maxwell's divorce proceedings and decided not to participate in the second part of the meeting. After Respondent was finished expressing his concerns about Mrs. Downing’s conduct, he went in the hallway and left E. Maxwell alone to meet with Superintendent Kenworthy regarding her daughter going to North. After the meeting, Superintendent Kenworthy found out that space was available at North and a zone waiver was granted for E. Maxwell’s daughter. That same day Superintendent Kenworthy contacted E. Maxwell and notified her that space was available at North in fourth grade but not with the teacher she requested. Superintendent Kenworthy was concerned that one of his principals behaved in such a manner as was reported to him by Respondent. On December 9, 2015, Superintendent Kenworthy met with Mrs. Downing and reviewed what had been reported to him from the previous day’s meeting with Respondent and E. Maxwell. Superintendent Kenworthy shared the contents of what he learned from listening to the jailhouse audiotapes of Mrs. Downing talking with her brother. Superintendent Kenworthy also told Mrs. Downing he had concerns about her behavior during the delegation meeting and her following the Respondent after that meeting. Mrs. Downing acknowledged to Superintendent Kenworthy that she was behind Representative Pigman a couple of blocks for a portion of her normal route back to work. Mrs. Downing also admitted her wrongdoings and confessed to Superintendent Kenworthy that she introduced herself as Maxwell, instead of Mrs. Downing, held Representative Pigman’s hand after shaking it until he had to pull it away, and flipped Representative Pigman off when he looked at her in the audience. Mrs. Downing apologized for her behavior and explained to Superintendent Kenworthy that she was extremely upset with the family situation between Respondent, her brother, and her brother’s estranged wife, E. Maxwell. Superintendent Kenworthy informed Mrs. Downing that she was at the delegation meeting representing the district and her public actions displayed were conduct unbecoming a school principal and unprofessional behavior. He also informed her that her public misconduct was what he was addressing, not the interactions with her brother. Superintendent Kenworthy concluded the meeting by informing Mrs. Downing that he would decide what consequences were appropriate for her actions. Mrs. Downing suggested to Superintendent Kenworthy that he should reprimand her. On December 14, 2015, E. Maxwell came in and signed the zone waiver to move her daughter to North. Superintendent Kenworthy continued investigating Mrs. Downing’s conduct from the delegation meeting in order to decide the appropriate discipline. His investigation followed the School District’s procedures when a complaint has been received. Superintendent Kenworthy interviewed Jill Holcomb, who sat next to Mrs. Downing at the delegation meeting, and Andy Brewer, who walked out of the meeting with Mrs. Downing. He also talked to school board members and the school board attorney. On December 17, 2015, Superintendent Kenworthy watched the video of the delegation meeting, but the video only showed the left side of the room and Mrs. Downing sat on the right side during the meeting. That same day, Superintendent Kenworthy met with Mrs. Downing and her husband and explained that he determined that Mrs. Downing violated several district policies with her harassing conduct including: principals of professional conduct; bullying and harassment policy; good moral character requirement; and the code of ethics. During that same meeting, Superintendent Kenworthy requested that Mrs. Downing share anything with him that Representative Pigman had stated that was not true. Mrs. Downing admitted flipping Respondent off but clarified she did not flip him off multiple times. Superintendent Kenworthy explained that the number of times did not make a difference because her behavior was not excused. Mrs. Downing informed Superintendent Kenworthy that she did not realize one obscene gesture in the spur of the moment would lead to something like this. Mrs. Downing and her husband also did not disagree with the district policies Superintendent Kenworthy outlined in the meeting that Mrs. Downing violated by her conduct at the public delegation meeting.5/ Superintendent Kenworthy did not take in consideration who reported Mrs. Downing’s public misconduct when deciding the appropriate discipline. Respondent did not play any role in Superintendent Kenworthy’s decision to discipline Mrs. Downing. Even if it had been a private citizen instead of Respondent who reported Mrs. Downing, Superintendent Kenworthy would have disciplined Mrs. Downing the same. Superintendent Kenworthy offered Mrs. Downing an opportunity to resign from her position or he would move forward with termination. On December 18, 2015, Superintendent Kenworthy spoke to Mrs. Downing again by phone. She indicated "this one moment of indiscretion has caused her a lot" and "she didn’t know why she did it." Mrs. Downing asked the superintendent to consider her 20 years of service to the district and requested a settlement regarding discipline. On December 19, 2015, Mrs. Downing called Superintendent Kenworthy and informed him that she would not be resigning. On or about December 22, 2015, Mrs. Downing filed the instant ethics complaint against Respondent. Superintendent Kenworthy decided that he did not want to publicly air either a principal’s misbehavior or the Maxwells' and Pigmans’ personal issues, and he took into consideration Mrs. Downing’s 20 plus year work history with the district and switched Mrs. Downing’s discipline from termination to a suspension. On December 29, 2015, Superintendent Kenworthy spoke to Mrs. Downing about a settlement and offered her a 10-day suspension without pay for her misconduct at the delegation meeting, which violated the school board rules. Mrs. Downing accepted and served the suspension. She is still employed with the district as a principal. By letter dated January 4, 2016, Superintendent Kenworthy disciplined Mrs. Downing with a 10-day suspension. The suspension without pay letter outlined Mrs. Downing’s actions and School Board violations and stated: [W]hile on duty representing the school district, the manner in which you introduced yourself shook hands to the point an individual became so uncomfortable as to blink extensively later bragged that you gave this person ‘hell’ during the hearing and stared him down, and used your middle finger to flip him off while acting like you were scratching your face constitutes a violation On or about January 22, 2016, Senator Grimsley and Representative Pigman wrote a letter of support to the Office of Educational Facilities at the Florida Department of Education for the new high school. On or about February 9, 2016, Superintendent Kenworthy received a letter from the Pre-Application Review Committee at the Florida Department of Education informing him that the committee convened on December 10, 2015, and reviewed the proposed new high school project. The committee denied the request after determining that the project is not a critical need for Okeechobee County. On September 14, 2016, an Order Finding Probable Cause was issued alleging Respondent violated section 112.313(6).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Ethics enter a final order and Public Report finding that Respondent, Cary Pigman, did not violate section 112.313(6) and dismiss the case. DONE AND ENTERED this 27th day of March, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2017.
