Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach culinary arts. In the 1986 school year, the food management production and services program (referred to culinary arts in this record) was given a formal evaluation as it had experienced a decline in student enrollment. Goals were established to encourage student participation the program and additional development of the program. The evaluation or program review described in paragraph 6 was performed under the guidelines addressed in Appendix K, and resulted in the program being placed on probation for one year with the following condition: that the enrollment goal of an average of 16 full-time or full-time equivalent students per term be established. The probation term ran from April 1, 1986 through, presumably, March 30, 1987. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. On February 27, 1986, Respondent executed a statement wherein she acknowledged that should her program be eliminated that her instructional position would be terminated. Further, on March 27, 1986, the president of the college issued a letter to Respondent advising her of the probation status of the program. The letter further provided that should the program be terminated, that the instructional position held by Respondent would be terminated. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decreased amount. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts to be considered in the planning for the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for the areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the reviews of their programs were completed by the directors, Dean Tesinsky then reported the findings to Dr. Samuels. Such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. Those programs were deemed the unproductive programs reviewed. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Concurrent with the planning done incidental to the budget cuts options, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but which were in great demand by large numbers of students. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Food Service program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Food Service program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 22, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the food service program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 7, 12, 14 through 22 are accepted. The date of exhibit 49 (paragraph 21) is April 16, 1991. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 22, 1991; otherwise rejected as a conclusion of law. It is concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. That portion of paragraph 8 which suggests that Director Dennard's analysis was the first time the Food Services program was identified as weak is rejected as contrary to the weight of the evidence. This program had been placed on probation in 1986. Paragraph 9 is accepted as to the general statement; however, as exhibit 43 was not entirely legible the cost figure cited could be verified. Paragraph 10 is rejected to the extent that it suggests the food service program had been on probation in any year other than 1986. With the following clarifications, paragraph 11 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 13 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue At issue is whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Rudolph Gordon Mirjah, is now and has been at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0589544. Since November 2, 1994, if not before, Respondent has been employed by Post, Buckley, Schuh, and Jernigan, Inc., a broker corporation located at 2001 Northwest 107th Avenue, Miami, Florida, as a right-of-way agent. Incident to his employment, Respondent works primarily as a consultant for the Florida Department of Transportation to acquire real estate for road improvements. Elements of such activities require his licensure as a real estate salesperson. In or about early 1998, the Department provided Respondent with a renewal notice, which reminded him that his salesperson license was due to expire March 31, 1998. The renewal notice carried the following legend: IMPORTANT: BY SUBMITTING THE APPROPRIATE RENEWAL FEES TO THE DEPARTMENT OR THE AGENCY, A LICENSEE ACKNOWLEDGES COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Respondent submitted the appropriate renewal fee, and the Department renewed his license. By letter of May 22, 1998,1 the Department advised Respondent that his license had been selected for audit to determine whether he was in compliance with the continuing education requirements for licensure. Pertinent to this case, the letter provided: Your license number has been selected at random for an audit of the education required to comply with Rule 61J2-3.015(2). By submitting the renewal fee to the Department, you acknowledged compliance of the "Commission-prescribed education" requirements for the license period beginning April 1, 1996, ending March 31, 1998. Please submit this letter along with the proof of the Commission approved course or equivalency education required at the time of you renewal, no later than 10 days from the date of this letter. (Emphasis in original.) In response to the Department's request, Respondent provided a certificate (reflecting 14 hours of continuing education), dated January 21, 1996. The Department responded (by letter of June 15, 1998) that the tendered certificate reflected proof of 14 hours of continuing education for the period beginning April 1, 1994, and ending March 31, 1996, and, therefore, evidenced satisfactory completion of the continuing education requirement for renewal of Respondent's license March 31, 1996, and not the renewal of March 31, 1998. The Department again requested evidence that Respondent had satisfactorily completed 14 hours of continuing education for the period beginning April 1, 1996, and ending March 31, 1998, that would support the renewal of his license for March 31, 1998. By letter of June 19, 1998, Respondent replied to the Department's request, as follows: This letter is in reference to the attached letter from the Department of Business & Professional Regulation dated June 15, 1998, and our recent telephone conversation. I honestly was not aware that I have to take the 14 hour Continuing Education course every renewal period, although you stated it on the renewal notice. I thought this was a reminder to take the course which I had already taken. When I had completed this 14 hour course with Gold Coast School of Real Estate, I asked the instructor if I had to take any additional courses, and he told me that was the last course. It was a misunderstanding on my part. I apologize to the Department for not fulfilling this requirement, but ask for an extension to complete the course. On June 20, 1998, Respondent enrolled with Gold Coast School of Real Estate for 14 hours of continuing education (to fulfill his prior obligation), and on June 26, 1998, successfully passed the examination and was awarded a certificate of completion. Notwithstanding, on August 19, 1998, the Department filed the Administrative Complaint which is the subject matter of this case and charged that Respondent violated Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of misrepresentation or concealment," and Subsection 475.25(1)(e), Florida Statutes, by having failed to satisfy the continuing education requirements prescribed by Rule 61J2-3.009, Florida Administrative Code. According to the complaint, the disciplinary action sought for each count or separate offense . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties as provided for by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. 2 At hearing, Respondent acknowledged his failure to take a continuing education course during the renewal period at issue, and reiterated that the cause for such failure was his misunderstanding of the statement (heretofore noted) made by the instructor at the course he completed in January 1996. Here, Respondent's testimony was candid, and the explanation offered for his failure to complete a continuing education course during the subject renewal period is credited. Consequently, it is resolved that, at the time he submitted his renewal application, Respondent did not intend to mislead or deceive the Department, nor did he act with reckless disregard for the truth. In so concluding, it is observed that following licensure, Respondent duly completed the 45 hours post-licensing educational course requirement prior to the first renewal following licensure, as required by Rule 61J2-3020(1), Florida Administrative Code (Petitioner's Exhibit 6), and 14 hours of continuing education (classroom hours) prior to the second renewal of his license, as required by Rule 61J2-3009(1), Florida Administrative Code (Petitioner's Exhibit 5). It was during the later course that Respondent received the information (that this was the last course he was required to take) which he now understands he misunderstood to apply to any future educational requirements, as opposed to merely that renewal period. Also pertinent to the foregoing conclusion, it is observed that during the period of Respondent's licensure, as well as before, he actively pursued self-improvement in his profession through attendance at numerous educational courses presented by the International Right of Way Association. Such continuing education included a 16-classroom-hour course in Land Titles (completed November 5, 1993); an 80-classroom-hour course in Principles of Real Estate Acquisition (completed December 8, 1995); an 8-classroom-hour course in Ethics and the Right of Way Profession (completed September 27, 1996); a 24-classroom-hour course in Communications in Real Estate Acquisition (completed February 14, 1997); a 16-classroom-hour course in Eminent Domain Law Basics for Right of Way Professionals (completed November 14, 1997); and a 24-classroom-hour course in Interpersonal Relations in Real Estate (completed July 10, 1998). Moreover, between November 1996 and November 20, 1997, Respondent took and passed examinations offered by the International Right of Way Association in Law, Negotiations, Appraisals, and Engineering, and on October 15, 1998, Respondent was approved for registration as a Senior Member of the International Right of Way Association. Given the commitment reflected by Respondent's educational efforts to improve his skills as a right-of-way agent, it is most unlikely that, absent a misunderstanding, Respondent would not have complied with the Department's continuing education requirement. Consequently, given Respondent's candor and history, it must be concluded that the proof fails to support the conclusion that Respondent "obtained [his] license by means of misrepresentation or concealment," as alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Count I of the Administrative Complaint be dismissed. Respondent be found guilty of violating the provisions of Subsection 475.25(1)(e), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive, as a penalty, a reprimand. DONE AND ENTERED this 20th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 20th day of January, 1999.
The Issue The issues in this case are whether Respondent, Peggy Addison ("Addison"), failed to correct certain performance deficiencies identified by Petitioner, Collier County School Board (the "School Board"); and whether such failure constitutes just cause for terminating Addison's professional service contract.
Findings Of Fact The School Board is the governing body of the Collier County Public School system. The School Board is responsible for hiring, monitoring, supervising and firing all employees of the school system, including all teachers. Addison has been a school teacher since her graduation from college in 1969, with the exception of a few years taken off to raise her family. She has been a teacher within the Collier County School System for 25 years. For 15 years, and for all times relevant to this matter, Addison was a teacher at the School. Addison taught various grades at the School, but primarily first and second grades. She taught first grade at the School for two years prior to the 2009-2010 school year. During the summer of 2008, the School was assigned a new principal, Nicole Stocking. The assignment was Stocking's first as the principal of a school. Previously, Stocking had experience as a school teacher and as an assistant principal. At the time of her appointment, the School had not been making progress for a number of years and was admittedly a "problem" school, meeting only about 60 percent of its goals. In education parlance, the school was not meeting its Annual Yearly Progress (AYP) goals. Stocking was directed by the superintendent of schools to take all measures necessary to make improvements at the School. Stocking immediately took aggressive actions to ensure improvement at the School. She let all staff and administrators know that there would be a concerted focus placed on reading programs. She advised all teachers that she expected drastic improvements at the School and expected each teacher to work hard toward that end. Stocking established a leadership team made up of her, Vice-Principal Edwards, Reading Coach Bryant, and Reading Coach/Learning Team Coordinator Campbell. The leadership team would conduct weekly walk-throughs of all classrooms and then meet to discuss any problems they had identified. The intent of the walk-throughs was to identify all problem areas needing attention in order to meet the AYP goals for that school year.1 Stocking was described as "all business" and "not a people person" by her subordinates. It is obvious that Stocking took a fairly hard-line approach to her supervisory responsibilities. At one point, ten classroom teachers filed a group grievance against Stocking due to the harshness of her management style. The grievance was deemed unfounded, but the fact that it was filed is some indication of how teachers perceived their new principal. Some of the teachers who joined in the grievance testified at final hearing, and it is clear there was a broad view of Stocking as a difficult person to work for. That is not to say that Stocking did anything improper, only that her actions could be perceived more harshly by some than by others. The 2008-2009 school year started with some significant changes. For example: A new literacy program (MacMillan) with a text called "Treasures" was implemented district-wide; focus was placed on "Guided Reading"--a process whereby students were divided into small groups where their reading skills and progress could be monitored closely; and teachers were told to expect "walk-throughs" by the principal and other administrators. It was clear that the new administration would be pressing everyone to make vast improvements at the School. Improvement in student reading was expected to be the catalyst for overall school improvements for the 2008-2009 school year. Specifically, the School was going to be focused on the Guided Reading process. Teachers would divide students into groups according to their needs, and then meet with each of the groups independently while other students busied themselves with other tasks. During the groups, the teacher would evaluate one student individually by doing a "running record," that is, a short checklist to see how many words the student read correctly from an assigned text. By doing running records for one student in each group and four groups per day, the teacher could assess every child every week. The running records could then be used to help prepare lesson plans for the upcoming weeks. The evidence at final hearing was somewhat contradictory as to how long it took to do a running record, but the consensus seemed to be that it takes about two to three minutes per student.2 During the 2008-2009 school year, Addison was a first-grade teacher. Addison had taught other grades during her career, but preferred and enjoyed first and second grades the most. She had developed a feel for first-grade curriculum and felt most comfortable in that setting. The first-grade team that year consisted of Arcand, the team leader; Laing; Chamness; Tyler; and Addison. Each of the first-grade classes had a mix of students, including some English language learners ("ELL"), i.e., those for whom English was a second language, and exceptional student education ("ESE") students, those with learning difficulties. Addison's class had some ELL and ESE students, but the overall makeup was not significantly different from the other first-grade classes. Almost immediately upon commencement of the 2008-2009 school year, Stocking began to perceive shortcomings in Addison's teaching skills. Some of the perceptions were based on Stocking's personal observation of Addison's classroom; some were based on reports from her leadership team. Stocking was concerned that Addison's students were not sufficiently engaged in some classroom activities. She felt that Addison was not appropriately implementing the Guided Reading program, and she had some concerns about safety issues for Addison's children. Stocking began to correspond with the first-grade team leader (Arcand) concerning Addison's teaching abilities. Arcand provided Stocking with somewhat negative information gleaned from her own observation of Addison. At the same time, first-grade team members Laing and Creighton expressed positive feelings about Addison's abilities. Stocking developed the following specific concerns about Addison's teaching skills: Classroom management--All of the children were not actively engaged in the classroom work at times; some children seemed not to know what their assignment was about. Group reading--Not all children were reading at their appropriate level, i.e., Addison had rated them at too high or low a level. One child appeared to Stocking to be struggling despite assurance from Addison that the child could read well. Some children were not being properly supervised or monitored during the transition from lunch back to the classroom. Addison had some difficulties with the new MacMillan reading program, but she continued to employ it as directed. Some of her peers attempted to guide Addison and provide instruction, but Addison continued to struggle. To her credit, as expressed by Stocking, Addison sought help from her co-workers to master the program. Despite Addison's best efforts, Stocking did not feel that Addison's students were being properly rated and assessed by way of running records. Addison, on the other hand, felt comfortable with her teaching. There were instances where Addison appeared not to be properly monitoring her students on their way from the lunch room back to the classroom. However, the first graders all transitioned from lunch to class at about the same time, and all first-grade teachers were involved in the transfer process. While it may be true that another teacher saw one of Addison's students misbehaving or going somewhere they were not supposed to go during this time, that fact does not necessarily indicate a failing on Addison's part. She may have been helping or guiding another teacher's student at the same time. There is no evidence, however, that Addison ignored her responsibilities, vis-à-vis, her students. As for students not being fully engaged during instruction, that determination cannot be made upon the evidence presented. While there were apparently children not actively engaged in the lesson being presented while Stocking or someone observed the classroom, Addison admits that first graders are not always on task. She provided several reasons that some of the children might have been unfocused on any given day. The fact that some child may have been disengaged on a particular day is not sufficient to make a finding that such behavior was rampant or a problem. During the second half of the 2008-2009 school year, Addison received numerous written disciplinary-type reports from Stocking, including: an "Observation" memorandum dated January 21, 2009, wherein Assistant Principal Edwards criticized Addison's teaching; a "Conference Summary" memorandum dated January 26, 2009, concerning Addison's interaction with a student who was out of control; a memorandum dated January 28, 2009, moving Addison to "Developing" status in five Educator Accomplished Practices (EAPs); a Warning of Unsatisfactory Performance memorandum dated February 5, 2009, in which Stocking chastised Addison for turning in lesson plans a day later than they were due; a memorandum warning about being placed on Developing status dated March 5, 2009; a letter of reprimand dated March 12, 2009, relating to Addison being absent without proper notification; another letter of reprimand one week later saying Addison failed to turn in lesson plans after an illness; another letter of reprimand dated April 3, 2009, addressing Addison's Guided Reading groups; a memorandum concerning an adverse classroom incident dated April 16, 2009; a letter of reprimand dated May 1, 2009, regarding gifts of water pistols Addison had given to two students at the end of the year; and a letter of discipline, with a one-day suspension, dated May 6, 2009. Addison had never received a letter of discipline prior to the 2008-2009 school year, but in that year she received them almost weekly during the second part of the school year. At the end of the 2008-2009 school year, Addison received an annual evaluation in accordance with School Board policies. The evaluation addressed the 12 areas of performance which form the basis of each teacher's assessment. Addison was placed in the "Developing" category for four of those areas. The Developing category indicates that the teacher has not sufficiently mastered the performance required in that particular area of teaching. By School Board policy, a teacher placed in the Developing category for three or more areas of performance is automatically placed on Strand III status. Addison was placed on Strand III commencing with the start of the 2009-2010 school year.3 Strand III is a probationary category under the School Board's Collier Teacher Assessment System ("CTAS") and is applicable to teachers with a Professional Service Contract. Strand III is covered under Article 5 of the Collective Bargaining Agreement between the School Board and Collier County Education Association. A teacher placed on Strand III has 90 days to demonstrate improvement in the Developing areas of performance in order to return to Strand II. Prior to being placed on Strand III for the 2009-2010 school year, Addison had never been placed on Strand III before. Her past five annual evaluations were as follows: 2007-2008--All twelve areas were at Professional. The evaluation was done by Ms. Grieco, whose position was not disclosed in the evidence. 2006-2007--Eleven areas were at Professional; one was at Developing. The evaluation was done by Ms. Psenicka, an assistant principal. 2005-2006--Ten areas were at Professional; two were at Developing. The evaluation was done by Assistant Principal Manley. 2004-2005--Seven of 12 areas were deemed Professional; five were deemed Accomplished. Principal Ferguson did the evaluation. 2003-2004--Seven of 12 areas were deemed Professional (the highest level of proficiency); five were deemed Accomplished (meaning that the teacher was not deficient in that area). The evaluation was done by Principal Ferguson. The Strand III process is quite involved. It requires the creation of a team of individuals whose purpose is to help guide the teacher toward improvement in the deficient areas. Stocking actually put three teachers on Strand III at the same time that Addison was designated, although she had never placed a teacher on Strand III before and was not experienced in administering the program. Knowing that the process was very time-consuming, Stocking decided to transfer the other two teachers to other schools, rather than try to run three Strand III processes at once. Each of the other teachers was removed from Strand III once they reached their new schools. Neither of those teachers had received as many disciplinary notices from Stocking as Addison had received, but Stocking testified that she saw the most potential for improvement in Addison versus the other two. There is some incongruity in that statement, but, nonetheless, it is a fact. The Strand III team for Addison was made up of a school administrator (Stocking), an administrative support person (Terry), Addison, and a person selected by Addison (Creighton). This team then developed a Professional Assistance Plan (the "Plan") which set forth the areas of performance that needed to be addressed and general goals to be accomplished. Addison's Plan contained four areas of concern corresponding with the four Developing areas in her 2008-2009 annual evaluation. However, six additional areas were added to the Plan, because Stocking said they "needed some attention." No authority for adding additional areas was provided by Stocking other than that the human resources department told her it was allowable. As a result of the added areas of concern, the Plan contained ten EAPs to be addressed by Addison and the team. Within each EAP, there were a number of "Indicators" which more specifically addressed a component within the general EAP. By way of example, the first EAP was "Assessment" with nine Indicators such as: diagnose the entry level and skill of students using diagnostic tests, observations, and student records; assess the instructional level of exceptional students; and, correctly administer required grade level and district assessments in identified assessment windows. The EAPs would be deemed to have been "observed" if Addison made significant progress on the individual Indicators. While 117 Indicators are a lot, many of them overlap and addressing one Indicator may also address several others at the same time. Nonetheless, when written in a Plan, that many EAPs and Indicators could appear quite daunting. At about the same time Addison was notified that she was being placed on Strand III, Stocking decided to move Addison from teaching first grade to a fifth-grade class. Addison had never taught fifth grade, although her certification was for grades one through five. Addison was opposed to the move, because she was more comfortable with first grade, and during the Strand process, she knew that more would be expected of her. She did not feel that a move to fifth grade would be the best scenario for dealing with Strand III. Stocking denied her request to remain in first grade and also denied Addison's request to be transferred to another school. School-to-school transfers are allowed whenever there are openings available at the target school, but it appears no openings were available. Once the new school year commenced, Addison, now in a new teaching environment with fifth grade, had 90 calendar days under the Plan to show improvement in the areas of concern. The Plan is dated August 24, 2009, and contains the following time line: Commence on August 24, 2009 (Date of formal notice to Addison); September 4, 2009 (Day 10)--Assign assistance team; September 14, 2009 (Day 15)--Hold professional assistance plan meeting; September 21, 2009 (Day 22)--Write professional assistance plan; September 22 through November 24, 2009--Plan, implement and collect data; November 24, 2009 (Day 92)--Assessment; December 16, 2009--Written recommendation from lead administrator to superintendent; January 15, 2010--Written recommendation from superintendent to Addison; If termination was recommended; then February 2, 2010--Written request for hearing. The amount of time from when the notice was given to Addison until the assessment was done was 92 calendar days, which is consistent with the times set forth by CTAS. While the schedule complied with CTAS guidelines, Addison obviously did not have 90 days to address the ten EAPs and 117 indicators. Nonetheless, the Strand III process was correctly implemented from a timeframe perspective. In order to effectuate the Plan, the team was to meet at least weekly to review Addison's progress, re-focus her efforts, and establish goals for the coming week. The weekly meetings were generally held at 7:40 a.m., 30 minutes prior to the start of class on Monday mornings. The meetings would sometime run a little long, and Addison would arrive late to her class. In such instances, she was expected to use her teaching skills to catch up with the timed lesson plans. All teachers were expected to teach in accordance with their lesson plans so that at any given time, anyone coming into their classroom would know exactly what lesson was being taught. Strict compliance with the lesson plan schedule was expected from all teachers. There were documented instances of Addison not teaching lessons in strict accordance with the lesson plan schedule. However, there were extenuating circumstances involved. For example, when the weekly team meeting lasted too long, it would adversely affect Addison's teaching schedule. At other times, Addison would teach one course to another teacher's students and vice-versa. As a result, the teachers may not be teaching in accordance with the lesson plan schedule. There was insufficient evidence to find that Addison was in serious violation of the lesson plan schedule requirements. The weekly team meetings were codified in minutes taken by Vice-Principal Monoki. Sometimes two people took minutes of the meetings in an effort to assure correctness. The minutes were ostensibly meant to be a general overview of what the meeting was about, but, in actuality, they were quite detailed concerning some issues. Addison often took exception to the minutes as printed, and would attempt to submit amendments or changes. Those amendments were generally not accepted by the team. At one point Addison requested the right to tape record the meetings, but that request was denied. The form of the minutes was altered in October 2009, into a sort of chart, rather than regular minute format. The purpose of that change was to allow for better comparison between prior weeks, the current week and the upcoming week. The minutes were provided to each team member at the beginning of the subsequent meeting. All of the team members, except for Addison, would sign the minutes to confirm that they were correct and accurate. Addison did not ever agree that the minutes were correct and accurate. Addison's designated representative on the team, Creighton, did sign the minutes each week. During the approximately 45 school days that Addison was assessed under the Plan, she made progress in some areas, but according to the team, her progress was followed by further shortcomings. However, measurement of Addison's progress was extremely subjective. For example, Addison was found to be deficient in the use of "targets" for her class. Targets are written focus points placed on the bulletin board so that students can remember what topics are currently being taught. Addison was chastised for having inappropriate targets. However, when compared to other fifth-grade teachers' targets, Addison's were virtually identical. For example, on September 4, 2009, Addison took pictures of the targets posted in her classroom and two other classrooms. The targets are compared below: Addison Classroom 2 Classroom 3 Reading: Tall tales, plot development (setting influences plot), reading words with long vowels and many syllables Tall tales, plot development, setting, subject & predicate, long vowel sounds, dialect Compound words, setting-> where-> when, words with long vowels, chronological order, building fluency Science: Make observations, explain how science tools are used, describe the steps of the scientific method . . . Tools scientist use, scientific method, mass=amount of matter in an object, Inquiry=observe, measure, gather and record data . . . Tell what causes weather . . . make observations, take measurements, explain how science tools are used, steps of the scientific method. . . Language Arts: Six traits: Idea, Compound subjects, simple and compound voice, organization, compound predicates, subjects and word choice, commas in a series predicates, six sentence fluency traits of writing: idea, voice, organization, word choice, sentence fluency, conventions, Commas used in a series Math: place value Place value through Sums and differences through millions, billions, compare of whole numbers and compare and order and order numbers, decimals, strategies decimals, place place value for solving word value patterns, sums patterns, rounding, problems, place and differences of estimating, adding value patterns, whole number, adding and subtracting and subtracting whole numbers and problem solving decimals decimals There appears to be only minimal differences between the three teachers' targets set forth above. There was no competent testimony at final hearing as to why Addison's wording of her targets was somehow inferior to that of the other teachers. As another example of subjective measuring, Addison was cited for allowing some children to be disengaged while she was teaching other children. At least one outside observer noted that some children were not on task and others were seen leaving the classroom. But Addison explained that children had the right (and need) to leave the class to go the reading center or restroom; other children were supposed to be busy individually at an assigned center, etc. That is, in a fifth-grade classroom, all children were not always doing the same thing at the same time. During the time period that Addison was undergoing the Strand III process, she received a number of disciplinary notices. On September 1, 2009, Stocking sent Addison a memorandum entitled "Conference Summary," which was a criticism of Addison's teaching during a class on August 31, 2009 (one week into the new school year). This memorandum was followed by a number of other letters and memoranda. The first such letter was on September 9, 2009, just 16 days into the Strand III process. The "Warning of Unsatisfactory Performance" memorandum issued by Stocking on that date said Addison had failed to post targets and had been teaching outside the stated lesson plans. Thus, rather than assisting Addison, under the Plan, with this perceived shortcoming, a disciplinary action was taken. Six days later, on September 15, 2009, a letter of reprimand was issued by Stocking. Again, Addison was accused of not posting appropriate targets on her board for use by her students. Then on October 30, 2009, another letter of reprimand was issued, this time for not conducting daily running records for her students. Addison was doing the running records, but the records sometimes failed to include a statement by Addison as to the child's reading status. This was a shortcoming that could have been addressed as part of the Plan and discussed in team meetings. Instead, it was handled as a disciplinary matter. The letter also addressed a concern that one student was missing a number of grades in the grade book. Addison suggests there are reasons for that discrepancy, i.e., the student only recently transferred in to her class. These disciplinary letters were followed on December 3, 2009, with a memorandum from Stocking addressed to Addison (although it refers to Addison in the third person) indicating that Addison had not met "district expectations." No one explained at final hearing as to the necessity of on-going disciplinary reports while Strand III was progressing. Addison was meeting weekly with Stocking and other team members to address all issues, including those addressed in the separate disciplinary charges. One of the discipline letters initially recommended a three-day suspension for Addison. A suspension would be totally inappropriate for someone under Strand III. The recommendation was changed once this fact was brought to Stocking's attention by the union representative. Interspersed with these disciplinary actions were a fairly constant exchange of emails between Addison and Stocking, Monoki, Terry and others. The emails contained concerns about Addison's teaching and responses from Addison. It is clear from the correspondence between Addison and others that there was complete disagreement between them as to Addison's teaching skills. The team meetings to address the Plan attempted to cover some of the 117 EAPs each week. Commencing with the October 5, 2009, meeting, a chart was utilized to compare the team's focus from the previous meeting to the focus for the coming week. The chart also included feedback from persons who had personally observed Addison the prior week and a statement of the specific support to be provided in weeks to come. During the first several weeks, the "focus from prior week" section of the chart was fairly brief, while the "feedback from formal observations" section was quite long. During the last few team meetings, this trend reversed. It appears that more feedback and support was being provided in the earliest stages of the Strand III process than in the later stages. According to the findings set forth in the team meeting minutes, Addison made progress in some areas and struggled in others. For the most part, the minutes reflected a "Not Achieved" status for many of the EAPs which were addressed. Addison made some attempts to amend the minutes of team meetings, but inasmuch as the minutes were not meant to be verbatim transcripts, her requests were generally denied. It is telling that Addison's selection to the team, Creighton, signed off on each of the minutes despite Addison's refusal to do so. However, Creighton maintains that Addison was doing a fine job teaching, notwithstanding comments in the minutes. Under the Plan, Addison was supposed to receive guidance, training, and support by administrative and other designated professionals. There is evidence in the record that Addison's class was visited on a number of occasions by other teachers and trainers. However, the preponderance of the evidence is that the classroom visits more often resulted in negative reactions to Addison's teaching than assistance and guidance. The amount of actual assistance received by Addison during the Strand III process is not consistent with the ideals set forth in the Plan. Nor were there any observations made by administrative personnel from the School or from the district office, although the Plan called for such observations. Under the Plan, Addison was supposed to be provided additional planning periods to work on the issues set forth in the Plan. The additional planning periods were never provided, but Petitioner could not explain why. Based upon the size and breadth of the Plan, it would seem that some extra planning time would have been absolutely essential. It is clear Addison and Stocking did not particularly like each other.4 Their differences could have been based on differences in teaching methods, age, years of experience, or any other factor. Whatever the reason, it is clear from the record that the two individuals viewed the same facts with very different interpretations. It is no wonder the Strand III process was deemed unsuccessful. On December 15, 2009, Stocking sent a recommendation to the superintendent of Collier County Schools that Addison be terminated for failing to make significant improvement in the four original areas of concern. By letter dated January 15, 2010, the superintendent notified Addison that a recommendation would be going to the School Board that Addison's teaching contract be terminated. The decision to terminate Addison's teaching contract was made based on the assessment performed during the Strand III process. Lost in the focus on Addison's abilities or lack thereof was the issue of her students' performance. At the conclusion of the 2008-2009 school year, 17 of Addison's 19 students were credited with having achieved a year's worth of growth. The other two students were deemed unable to achieve a year's worth of growth for reasons outside of Addison's teaching abilities. There were more students in the team leader, Arcand's, class deemed deficient at the end of that year than in Addison's class. Addison did not complete the 2009-2010 school year, so that particular measurement cannot be used to assess her abilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Collier County School Board, finding that although there was ample evidence to support placing Respondent, Peggy Addison, on Strand III, the process was flawed and cannot be used to justify termination of Addison's employment contract. DONE AND ENTERED this 17th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 September, 2010.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
Findings Of Fact At all times material hereto Respondent, Edgar Lopez, was a fifteen year old student who was assigned to Henry Filer Middle School during the school year of 1987-88 and to Jose Marti Middle School during the school year 1988-89. When a teacher in the Dade County School System wishes to report or refer a discipline problem in the classroom, the teacher completes and submits to the assistant principal a Student Case Management form, commonly referred to as a SCAM. During the 1987-88 school year, at least nine SCAMs were filed concerning Respondent and addressed disruptive behavior problems of tardiness, disobedience, and failure to cooperate. Respondent, Respondent's parent or both were consulted concerning the nine reports; however the behavior did not improve. Then, in school year 1988-89, Respondent continued to have excessive absences, and the visiting teacher consulted Respondent's mother about Respondent's attendance. On January 31, 1989, Respondent was found with two harmful knives at school and during school hours. Possession of knives is a Group 5 offense of the student code of conduct of the Dade County School Board which is punishable by expulsion. Respondent exhibited disruptive behavior and was consulted about his problems but failed to improve. Further, Respondent committed an offense which warrants expulsion. Accordingly, Respondent's assignment to the opportunity school is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final Order affirming the assignment of Respondent to school system's opportunity school program. DONE and ENTERED this 5th day of July, 1989 in Tallahassee, Florida. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1989. COPIES FURNISHED: George dePozsgay, Esquire 2950 S.W. 27th Avenue Suite 210 Miami, Florida 33133 Ramonita Gonzalez Lopez, 10,000 Northwest 80th Court Apartment 2127 Hialeah Gardens, Florida 33016 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
