The Issue The issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. Respondent is a teacher. At the time of the allegations in the Administrative Complaint, Respondent held Florida Educator's Certificate 1266409, covering the area Exceptional Student Education (ESE). Respondent's Background Respondent earned a bachelor's degree in special education from New York University and a master's degree in early childhood special education. From 1998 to 2015 she taught ESE in self-contained classrooms (classrooms dedicated to ESE students) in New York. Respondent moved to Florida and began working for Orange County Public Schools, where she was employed in February 2015 as an ESE teacher at Ocoee Elementary School (Ocoee Elementary). For reasons unrelated to this case, Respondent was moved to the position of behavioral specialist (a non-classroom position), but returned to ESE classroom teaching in the fall of 2017. Crisis Prevention Intervention (CPI) is a "best practice" crisis de- escalation protocol used district-wide in Orange County Public Schools. Respondent is CPI trained and certified. In June 2017, Respondent injured her shoulder and ankle at work while she was attempting to pick a student up from the floor. She returned to work after a few weeks of physical therapy. She continues to have pain in her shoulder and ankle. Respondent also suffers from asthma and recurrent nerve pain. By all accounts, Respondent was a dedicated and effective ESE teacher at Ocoee Elementary. She used her own funds to purchase supplies for her ESE students, including exercise balls for autistic students to prevent them from rocking in standard-issue chairs. Her evaluations from Ocoee Elementary were all "effective" or "highly effective." All of the witnesses who had occasion to observe Respondent in the classroom gave her high marks. There is no evidence that Respondent ever acted in anger or frustration with a student. She is accused of having done so in the incident at issue here. Respondent's Classroom For the fall of 2017, Respondent taught ESE students in a self- contained classroom at Ocoee Elementary. The grade level of her students spanned three grades, from second to fourth grade. The class size was approximately 12 students. The students were autistic and/or intellectually disabled. Paraprofessionals were assigned to assist Respondent in the classroom, including Cory Baker, Chanda Nguyen, and Michelle Hartley. The classroom had a designated "safe space," a small open area approximately three to four feet wide located between a large portable closet on wheels, a file cabinet on one side, and a wall on the other side. The safe space floor was covered with a soft mat and pillows. Posters on the safe space wall showed students how to breathe, relax, and decompress. A bathroom was located inside the classroom. The door opened out to the classroom. The door could be locked from the inside. Respondent and the paraprofessionals assigned to the classroom had access to an Allen key to unlock the bathroom door, but a disc had to be "popped" off of the lock to use it. Ocoee Elementary had a "crisis team" that could be called to assist when a student was in crisis, including removing the student if necessary. The crisis team included Juan Colon, who was the school's behavior specialist, and Isaac Bowen, a behavior trainer. The crisis team typically responded to a call for assistance within one to two minutes. The Incident with Student E.T. E.T. was assigned to Respondent's ESE classroom for the fall of 2017. He was 12 years old at that time. The other students ranged from seven to nine years of age. At approximately 5'6", E.T. was not only the largest student in the class, but he was also larger, and about four inches taller, than Respondent. E.T. was considered to be intellectually disabled. He was learning on a first or second grade level and his IQ was below 70. Some of the other students in the classroom were autistic, but E.T. was not. A Behavior Intervention Plan (BIP) is a written plan that identifies problematic behaviors of a particular ESE student and strategies staff should use to address them. E.T. had a BIP that listed three problematic behaviors: (1) noncompliance (that is, refusing to perform tasks, by saying words like "no," "this is stupid," making faces or squeaking noises, or simply walking away); (2) physical aggression (including aggressive posturing towards his peers and throwing small objects like pencils, erasers, and papers); and (3) elopement (defined as walking away from staff). On the morning of October 12, 2017, E.T. began engaging in disruptive behavior that ultimately required his removal from the classroom. The disruptive behavior began when E.T. crawled under the desk of one or more other students and grabbed crayons and pencils that were not his. Respondent attempted to de-escalate and redirect E.T. with oral instructions, but her attempts failed. Ultimately, Respondent called the crisis team for help with E.T. Mr. Bowen arrived at Respondent's classroom within a short time with two other behavior trainers. The rest of the class was taken to the playground. Respondent and Mr. Bowen sat with E.T. at a table to work on compliance tasks, and E.T.'s behavior and mood improved. Respondent and Mr. Bowen walked with E.T. to the playground to retrieve the rest of the class. Respondent, E.T., and the rest of the class went back to the classroom. Mr. Bowen and the other behavior trainers left to respond to another call. On the way back to Respondent's classroom, E.T. refused to walk in line with the other students. One of the paraprofessionals walked with E.T. and redirected him back to the line. Back in the classroom, E.T.'s disruptive behavior resumed. He grabbed pencils and crayons that were not his and crawled under the desks of other students. He also blew mucus out of his nose, spit saliva onto his hands, and wiped his mucus and saliva all over his body. Respondent attempted to redirect E.T., initially by ignoring his behavior. When that failed, she attempted to redirect him with instructions and incentives. This strategy also failed. Finally, Respondent asked two of the paraprofessionals, Ms. Nguyen and Ms. Hartley, to take the other students to the sensory room, an activity room located outside of Respondent's classroom. The class was removed in the hope that E.T.'s behavior would improve once he was denied an audience of his peers. Respondent asked Ms. Baker to remain in the classroom with her to assist with E.T. When E.T.'s behavior did not improve, Respondent and Ms. Baker called the crisis team again, but this time they were unable to reach Mr. Colon or Mr. Bowen because they were either responding to other calls for help or in a radio "dead zone." Respondent thought E.T. might respond better if he was allowed to talk with his mother, so she called E.T.'s mother and allowed him to talk to her on the class telephone. At that time, E.T. was under a table in the classroom pretending to be a turtle. E.T. feigned illness (fake coughing) and told his mother he wanted to go home. He also asked for potato chips to eat. The call terminated and E.T. refused to come out from under the table. After repeated unsuccessful attempts to coax E.T. out from under the table without laying hands on him, Respondent carefully pulled E.T. from under the table, making sure he did not hit his head. E.T. was not injured in any way in the process. Respondent then took E.T. to the classroom safe space. Once in the safe space, E.T. started to crawl under the portable wheeled closet. Respondent was concerned E.T. would injure himself in the process— legitimately so—and lifted him up and held him against the wall. E.T. made himself go limp to become "dead weight" and slumped down to the floor mat. Respondent lifted him back to his feet again and E.T. slumped back down to the floor. This process was repeated several times until E.T. reached on top of the closet and grabbed a basket of toys, causing the basket contents to fall to the safe space floor. The basket included toy train cars made of die cast metal. E.T. grabbed one of the train cars off the floor and threw it over the head of Ms. Baker, who was standing in the middle of the classroom. He threw another train car at Respondent, striking her in the head. Respondent stepped on one of the train cars and fell hard against the wall, pinning E.T. between her and the wall. E.T. said, "My chest hurts, my heart hurts," and "I think I am going to die." Respondent's shoulder hurt and she was short of breath. Having reached her physical limits, Respondent decided to remove E.T. from the safe space because she was concerned he would be able to reach other items on top of the closet, including a heavy paper slicer with a sharp cutting arm. Respondent's plan was to transport E.T. out of the classroom to the "calm-down" room, an empty classroom used to allow students in crisis to decompress. The calm-down room is located about 20 to 30 yards from Respondent's classroom. Respondent guided E.T. out of the safe space and toward the classroom door, with his arm under her armpit. This would be an approved CPI transport hold but for the fact that CPI transport requires two adults to transport a student in crisis in this manner, with each of the student's arms under the armpits of an adult on each side of the student. Ms. Baker—who was also CPI-trained—did not offer to serve as the second adult or provide any other assistance to Respondent while she was struggling to transport E.T. out of the safe space. E.T.—apparently unfazed by falling with Respondent against the safe space wall moments earlier—started to laugh and grabbed crayons off the desk of another student as he was being guided toward the classroom door. E.T. pulled away from Respondent and started walking quickly ahead of her. Respondent tried to maintain a hold on E.T., but was unable to do so without help from anyone (such as Ms. Baker, who continued as a spectator to Respondent's struggles). E.T. announced he was going to the bathroom and headed for the bathroom door. Respondent rushed to stop him, but tripped and landed hard against the bathroom door with E.T. Respondent was concerned—legitimately so—that E.T. could lock himself in the bathroom and create a mess or injure himself before the key to the bathroom could be accessed. Respondent applied all of her weight to the bathroom door, while E.T. held onto the doorknob, to prevent him from accessing the bathroom. Respondent held E.T. against the bathroom door, using her forearm against his chest. Respondent then struggled to lead E.T. away from the bathroom door and toward the classroom exit door, sliding with him against the wall. Natalie Hatch, a staffing specialist at Ocoee Elementary, and Mr. Colon entered the classroom door when Respondent was struggling to keep E.T. out of the bathroom. Mr. Colon immediately assisted Respondent to escort E.T. to the calm-down room using the dual-hold CPI transport position. On the way to the calm-down room, E.T. was crying and upset and he continued to wipe mucus and saliva on his body. In the calm-down room, E.T. tore paper and threw it on the floor. After about 15 minutes, he calmed down and Mr. Colon talked to him about the importance of following instructions. Ms. Colon asked E.T. to pick the paper off the floor and E.T. complied. Mr. Bowen also arrived and walked with E.T. and Mr. Colon back to Respondent's classroom. There were no further incidents involving E.T. that day. E.T. was not injured, physically or otherwise. The Findings of Fact regarding the incident with E.T. are based almost entirely on Respondent's testimony, which the undersigned found to be highly credible. The findings are also consistent with the credible testimony of Mr. Colon, who found nothing wrong with Respondent's attempt to keep E.T. from going into the bathroom by holding him against the bathroom door, nor did he find anything wrong with anything else he witnessed after entering Respondent's classroom. Ms. Baker stood in the middle of the classroom while Respondent struggled with E.T. Ms. Baker could not see all of the safe room interactions between Respondent and E.T., because her field of view was blocked by the closet and cabinet that formed the boundary of the safe space. Ms. Baker made repeated calls to the crisis team, but otherwise failed to offer any assistance to Respondent. Ms. Baker did not voice any objection to the manner in which Respondent physically interacted with E.T. The following day, Ms. Baker complained to administration that Respondent physically mistreated E.T. This led to an investigation of the incident and ultimately to Respondent's termination. Rejection of Corey Baker's Testimony Petitioner relies chiefly on the testimony of Ms. Baker to prove its case. For the reasons that follow, Ms. Baker's testimony was not credible and has not been accorded any weight. Ms. Baker's account of the incident differed from Respondent's in that she contends Respondent "manhandled" E.T. out of frustration, including: "snatching" him out from under the table when he was pretending to be a turtle; and repeatedly slamming E.T. hard against the wall of the safe room; and later the bathroom door. Essentially, Ms. Baker accuses Respondent of physically mistreating E.T. out of frustration with his conduct that day. Ms. Baker's testimony is rejected where it conflicts with the testimony of Respondent and Mr. Colon for several reasons. First, Ms. Baker 's field of view of the safe space was obstructed. No credit has been given to her testimony about what occurred when E.T. and Respondent were in the safe space together, because she could not see all of what happened there. That she would offer testimony describing events she could not have seen casts doubt on her overall veracity. Ms. Baker's credibility also suffers from her admitted failure to intercede in any way to aid a student she now claims to have been physically mistreated for a prolonged period of time. If, as Ms. Baker contends, Respondent "manhandled" E.T. while the three were alone in the classroom, then Ms. Baker should have attempted to separate the two or at least warn Respondent that she was being too rough; she did neither. Here is Ms. Baker's explanation for why she stood idle when Respondent and E.T. struggled: Q. So why didn't you jump into that space and help her lift him up? Why didn't you do something? A. Because, like I said, I do not feel comfortable with it being a blind corner [referring to the safe space] and already seeing stuff done that shouldn't have been done. If somebody came in, it would have literally looked like we were both just trying to take this kid out. In other words, Ms. Baker claims she did nothing to protect E.T. because she might also get into trouble. This explanation is rejected. It is inconceivable that Ms. Baker would sit back and do nothing if she believed Respondent was mistreating E.T. The rational explanation for why Ms. Baker did nothing to intercede to stop Respondent is that Respondent's actions were appropriate under the circumstances. Finally, Ms. Baker's credibility suffers from her embellishment of the incident, including the trauma she claims to have suffered after-the-fact. Ms. Baker testified that the incident was so traumatic that she had nightmares for a week or two afterwards. She went so far as to blame the stress of witnessing the incident for ending her relationship with her boyfriend. There was no evidence that E.T. was injured in the slightest. Indeed, as Ms. Baker admitted, E.T. laughed and continued to grab crayons that were not his after he left the safe space with Respondent. Ms. Baker grossly distorted the resulting trauma she claims to have suffered. For all of these reasons—and the undersigned's observation of the demeanor of the witnesses who testified live at the final hearing— Ms. Baker's account of the incident with E.T. is found to be grossly exaggerated and unreliable, and is given no weight.2 The OCPS Investigation Petitioner also offered the testimony of Acacia Vierbicky, an investigator for Orange County Public Schools (OCPS). Ms. Vierbicky was charged with investigating the incident involving E.T. after Ms. Baker complained to administration. Ms. Vierbicky testified that during the investigation, Respondent admitted to her that she "snatched" E.T.'s arm from underneath the table when he was pretending to be a turtle, and pinned him against the wall—face first—in the safe space. The Administrative Complaint does not allege facts regarding the manner in which Respondent removed E.T. from under the table as a predicate for any charges. Regardless, Respondent denied that she "snatched" E.T. from under the table and explained why she removed him from underneath the table. Respondent's testimony was credible and is accepted over Ms. Vierbicky's recollection of what she was told during her investigation. 2 Additional evidence was offered to impeach Ms. Baker's credibility. First, to suggest bias, Respondent and Ms. Baker were close friends at one time, but that relationship soured the summer before this incident occurred. Second, another teacher testified that Ms. Baker came forward with false allegations against her in an attempt to get her fired. Finally, another witness testified that Ms. Baker is prone to exaggerate events involving students in general. While all of this testimony may be true, it is unnecessary to rely upon it to reach the conclusion that Ms. Baker's testimony is unreliable. The characterization of whether Respondent "pinned" or "held" E.T. against the wall of the safe space with the weight of her body is not an important distinction here. What is important is that Respondent did so to prevent E.T. from crawling under the wheeled closet or grabbing dangerous items from the top of the closet. Holding E.T. against the wall under these circumstances—whether an approved CPI hold or not—was entirely reasonable to prevent E.T. from hurting himself or others. Ms. Vierbicky's testimony as to her recollection of Respondent's admissions is rejected where it differs from Respondent's live testimony.3 Crisis Prevention Intervention CPI is not the law; it has not been adopted by statute or rule. Petitioner offered the testimony of Kimberly Ann Smith, an expert in CPI and behavior analysis. Ms. Smith testified credibly that pinning or holding a student against a wall or holding a student with his arm behind his back is not an approved CPI hold. But, as Ms. Smith repeatedly acknowledged, CPI is a "best practice" protocol. As such, restraining a student with a non-CPI approved hold can be reasonable under certain circumstances even if it is not the "best practice." Ms. Smith testified that it is acceptable to physically restrain a student when the student may hurt himself or others. Ms. Smith also agreed that E.T. could have injured himself crawling under the wheeled closet and that throwing the metal trains presented a legitimate safety concern. The CPI training materials offer examples of approved holds that one teacher can apply to restrain a student, but these holds are not appropriate for a student 3 Ms. Vierbicky's investigative summary of the incident involving E.T. was admitted as an exhibit in this proceeding, as were the witness statements she collected during her investigation. Although admitted, these exhibits have not been relied upon here because they are largely hearsay. See § 120.57(1)(c), Fla. Stat. It is also noteworthy that there are obvious material omissions from Ms. Vierbicky's investigative summary, including the failure to mention that E.T. grabbed and threw metal trains while in the safe space and the failure to mention the fact that E.T. was not injured. Thus, even if not hearsay, or predicated on hearsay, the investigative summary represents an incomplete assessment of the incident with E.T., and is unreliable for this reason alone. who is taller than the teacher. In fact, these holds should only be used on a student who is at least a head shorter than the teacher. E.T. is significantly taller than Respondent. Petitioner offered no evidence of a CPI-approved hold that would have been appropriate for Respondent to use under the circumstances she confronted with E.T. Petitioner also offered testimony from Ms. Hatch to show that Respondent did not use a CPI-approved restraint when E.T. was attempting to enter the bathroom. Ms. Hatch testified that when she entered the classroom, she saw Respondent holding E.T. with his face against the wall with his hand behind his back. This differs from Mr. Colon's testimony, which was that Respondent was holding E.T. with his back against the bathroom door with her forearm on his chest. Although Mr. Colon's and Ms. Hatch's recollection of the positioning of Respondent and E.T. differ, the distinction is not material. Respondent had a legitimate concern to keep E.T. from entering the bathroom under the circumstances, and her attempts to do so—although not a CPI-approved hold—were reasonable under the circumstances. For all of these reasons, Respondent's admitted failure to use CPI- approved holds to restrain E.T. is not evidence that she failed to make reasonable effort to protect E.T. from any potentially harmful conditions, or that she exposed him to a risk of mental or physical harm. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent, in fact, made reasonable effort to protect E.T. from conditions harmful to learning and/or to his mental or physical health and/or to his safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of March, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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, 2020. COPIES FURNISHED: Tobe M. Lev, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Law Office of Ron Weaver Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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 Was Respondent guilty of misconduct which would warrant her suspension without pay for the period of September 30, 1994 through December 29, 1994? Is Respondent entitled to pay for the period of August 12-24, 1994?
Findings Of Fact Respondent began employment with Petitioner on August 7, 1992. The period of her employment was for a nine-month term ending on May 6, 1993. That employment was renewed for the nine-month school year 1993-94. In both years, Respondent worked as a faculty member for the Department of Architecture in its architectural program located in the Vicenza Institute of Architecture, Vicenza, Italy. In her teaching assignment, Respondent taught a course in Italian language and culture. In addition, Respondent performed administrative duties associated with the overseas program. The administrative duties which Respondent performed involved the booking of hotel rooms, buying supplies, buying equipment, arranging for the maintenance of the building in which the program was housed, and hiring cleaning persons. Some of the administrative duties were performed outside the nine-month contract term in exchange for flexibility in Respondent's schedule in the nine-month contract term. That is to say, that Respondent would have time off in the period of August through May in return for performing administrative duties in the later dates in May through early August when she was not engaged in her teaching assignments. The teaching position which Respondent held for two years in the Vicenza Institute of Architecture was one which was a non-tenure-accruing assignment. Among the benefits associated with Respondent's position for the two years in Italy, were full health benefits and retirement benefits at the rate of pay which she received and in accordance with the State of Florida/SUS Retirement System. As coordinated through the Florida State Retirement System, Respondent was also entitled to a cost-of-living differential based upon the overseas assignment. The original contract, as extended for the second year, contemplated notice being given on or before June 30th to approximate a one-year prior notification if her position were terminated and the Respondent required to return to the United States. The teaching which Respondent did in Italy was primarily for the benefit of architectural students from the University of Florida who were undergoing instruction in the Vicenza Institute of Architecture. In addition, other faculty from the University of Florida were allowed to audit the course taught by the Respondent. In anticipation that changes would be made in the Vicenza program, Franca Stocco was offered a somewhat similar assignment to that performed by Respondent. This offer was made on April 28, 1994 for the period of May 13, 1994 through the 1994-95 school year. Unlike the Respondent's contract, the Stocco contract was for 12 months, but it was a non-tenure earning position. In particular, Stocco was expected to teach an Italian language and culture course and to have overall administrative responsibilities for the Vicenza Institute program. That overall responsibility had been performed by Francesco Cappellari as Administrative Director in the two years Respondent taught in the program. Francesco Cappellari is Respondent's husband. Ms. Stocco accepted the offer to administer the program and to teach the Italian language and culture course when she signed the letter of offer and addendum on September 15, 1994. However, on May 12, 1994, Franca Stocco began the duties contemplated by the April 28, 1994 contract offer, except the teaching assignment. Following the April 28, 1994 offer of employment directed to Ms. Stocco, Respondent was informed that her position as professor was being terminated and that she was being reassigned from Italy to the University of Florida main campus in Gainesville, Florida. Correspondence detailing the termination and reassignment is dated May 17, 1994. It was received by the Respondent on May 19, 1994. In pertinent part, the notice of termination and reassignment stated: As you are fully aware, we all deeply regret the financial and communications strain on you and your family in the administration of the VI: A program for the past two years. Specifically, however, we were extremely disappointed with respect to your resistance to making arrangements for the Texas Tech program in Milan. This underlines our general conclusion that we are not receiving your full cooperation in supporting these critical programs. Therefore, this letter constitutes an official change of assignment of your responsibilities and notification of your assignment back to the main campus at the University of Florida for the 1994-95 academic year. Your teaching assignment will include two courses of language and Italian culture per semester as elective preparation courses for students prior to their departure for the program in Vicenza. Your current administrative duties will be replaced by the second course and student advising responsibilities associated with these two courses each semester. The reassignment requires that you remove your personal effects from the Vicenza facilities immediately upon your return as the new director will be required to occupy these office facilities. This must be accomplished by May 25th and as you will no longer have official duties at the Center, no office will be provided. In accordance with the terms and conditions of your contract and in accordance with the University Rule, the University has chosen to exercise its option to non-renew your appointment with appropriate notice. This letter serves as the one-year notice of termination of your contract as well as a change of assignment for reasons stated above. The cost of living adjustments will not be provided upon your return to the main campus. Your base salary will be increased according to the legislative guidelines and available funding. Please let us know if you have any questions regarding this one-year notice of termination and change of assignment for the 1994-95 academic year which begins August 12, 1994 and ends May 11, 1995. Should you chose to appeal this decision or if you believe your rights pursuant to University rules have been violated, you may elect to proceed through the appeal or grievance procedures available to faculty members as described in 6C1-7.041 of the Florida Administrative Code. . . The correspondence detailing the reassignment and termination attached a copy of Rule 6C1-7.041, Florida Administrative Code. R. Wayne Drummond, AIA, Dean and Professor of the College of Architecture, University of Florida, signed the notice of reassignment and termination. The Dean is the Chief Financial, Academic and Administrative Officer of the College of Architecture. Robert McCarter, Chairman of the Department of Architecture, University of Florida, also signed the notice reassigning and terminating the Respondent. His duties include the hiring of faculty, assessing faculty performance, and assigning teaching assignments, to include faculty associated with the Vicenza Institute of Architecture. Mr. McCarter had supervisory responsibility over Respondent in her employment with the University. On May 20, 1994, a meeting was held in Gainesville, Florida, at the University, to discuss, among other topics, Respondent's reassignment from Italy to Gainesville, Florida. In attendance were the Respondent, Francesco Cappellari, Mr. McCarter, Dean Drummond, and vice provost Gene Hemp. At the meeting, the Cappellari's protested their respective reassignments, Francesco Cappellari having been notified that he, as well as his wife, would be reassigned to Gainesville, Florida. In particular, the Cappellari's expressed concern that the reassignment would interfere with the educational needs of their eldest daughter, who was enrolled in the Italian school system and would need to stay in Italy into September, 1994 to maintain her academic standing. In the May 20, 1994 meeting, the Respondent did not indicate a willingness to accept the reassignment to Gainesville, Florida. In the meeting, Respondent expressed the opinion that she was entitled to a year's notice before reassignment and stated an objection to not being given that notice. Nonetheless, Respondent did not undertake formal steps to grieve or contest her reassignment or termination. At the conclusion of the meeting on May 20, 1994, Respondent left the impression with the administration that she was not willing to accept the reassignment. At that time, Dean Drummond made it clear that the reassignment would stand; however, he left a standing offer that the University would work with the Cappellari's to address their concerns about a transition back to the campus in Gainesville, Florida. As a further expression concerning flexibility related to the reassignment to Gainesville, Florida, Dean Drummond wrote to the Respondent on July 7, 1994 to this effect: This letter is to reconfirm your assignment for the fall semester 1994. As outlined in the letter of reassignment, we will schedule the two courses of Italian Language and Culture. At this point, there is still some flexibility in establishing the time and days of the course offerings. As you are aware, most courses are taught on a regular three-day per week pattern, however, some classes such as my seminar have been taught one evening per week, and there are other patterns designed to accommodate special conditions in faculty schedules and availability. Please let Professor McCarter know of your preferred schedule and he will try to accommodate your request. I have also had a preliminary discussion with Dr. Geraldine Nichols who is the new chairperson in Romance Languages. She is interested in the possibility of "joint-listing" your classes. The possibility also exists that the courses may even be listed through her department. Obviously, the details of such an arrangement need to be resolved very soon. I have enclosed a copy of the course descriptions from their department for your review. Please let me know of your interest in this area of potential collaboration as soon as possible so that the appropriate details can be resolved prior to the beginning of the fall semester. Richard H. Schneider is the Associate Dean of the College of Architecture. In that position, he has responsibility for personnel matters. He also is involved with budgeting, research, review of research activities, outreach and related activities for the College of Architecture. Mr. Schneider spoke to the Respondent concerning the July 7, 1994 correspondence. This communication was by telephone in July, 1994. The conversation between Mr. Schneider and the Respondent concerning the July 7, 1994 correspondence was brief. In the conversation, Respondent indicated that she understood the contents of the letter. In one telephone conversation between the Respondent and Mr. Schneider, Respondent stated that she was still waiting for Dean Drummond to work out an arrangement that would accommodate her daughter. This is taken to mean the need for the daughter to remain in Italy to pursue her education into the month of September, 1994. Mr. Schneider wrote Respondent on July 28, 1994 reminding the Respondent that no reply had been made to the July 7, 1994 correspondence concerning Respondent's assignment for the fall semester. The July 28, 1994 correspondence also referred to the need to hear from the Respondent to accommodate the details of trying to work out coordination of the Respondent's teaching assignment with the Department of Romance Languages at the University. The July 28, 1994 correspondence made reference to the collective bargaining agreement and attached the language from Article 16 having to do with job abandonment. This is seen as a reminder that Respondent might be considered to have abandoned her job at some juncture. On August 5, 1994, Mr. McCarter, as Chairman of the Department of Architecture, completed an annual evaluation of Respondent's job performance for the school year 1993-94. While that evaluation spoke of the termination of Respondent's responsibilities in the Vicenza Institute of Architecture, the evaluation was positive concerning the Respondent's teaching performance. Mr. Schneider had at least one other occasion to speak to Respondent by telephone concerning her reassignment. Again, the discussion was brief. On this occasion, Mr. Schneider indicated the concern about Respondent's position on reassignment and emphasized that there might be a problem with job abandonment on her part. Further written communication was made from Mr. Schneider to Respondent on August 8, 1994, which stated: As I told you several times on the phone last week, it is very important that we hear from you soon relative to your plans for the Fall Semester. At this point we are expecting you back on campus to assume teaching responsibilities during the semester. Wayne's letter to you of July 7, makes it very clear that we are trying to accommodate your daughter's examination schedule by providing the maximum flexibility possible as to the date of your return. However, we still need to plan the academic year so that it is imperative that you let us know when you will be back to teach. Of course, you may also request a leave without pay for the semester. Whatever the case, it is very possible that the University will make a case for job abandonment -- as indicated in the Collective Bargaining Agreement section I sent you -- should we not reach some sort of understanding. Therefore I urge you to be in touch with us soon. Thanks. In the correspondence of August 8, 1994, the University mentions for the first time that Respondent might request a leave without pay for a semester as an alternative to taking up her teaching duties in Gainesville, Florida, in the fall term. On August 10, 1994, Respondent notified Dean Drummond concerning her position on reassignment. That correspondence stated: Your reason for 'reassigning' me to teach in the United States and for summarily terminating me one year hence was that: '. . . we were extremely disappointed with respect to your resistance to making arrangements for the Texas Tech program in Milan. This underlines our general conclusion that we are not receiving your full cooperation in supporting these critical programs.' I take strong exception to the above statement. The premise for the reassignment and subsequent termination is an absolute fabrication solely and purposely fashioned to discredit me, to relegate me to the same fate as my spouse, and to penalize me based on my marital status with the director. As you are full [sic] aware, I sacrificed a coveted position with the School Board of Alachua County to join ranks with you in full trust, and now, on false charges, you dismiss me, damage my reputation with the University, and place this reassignment/termina- tion letter in my personnel file. You assigned me to work and live in a foreign country; yet, as chief administrator of an 'international' program, you have shown little, if any, cultural sensitivity and concern for this type of relocation as well as for the numerous problems you have created for me and my children by this unwarranted and reprehensible deed. Not only can I not leave Vicenza for their sake, but it is not fair that I should be told to do so in this untimely and unethical manner. I was promised by you a minimum of five years; at the very least a one year notice of termination before return to the U.S. This letter, therefore, constitutes my official reply that I can not accept the reassignment as you have outlined in your communique' received July 21. I do intend to seek counsel on my rights inasmuch as you have hampered all attempts to do so thus far. This correspondence made it clear that Respondent did not accept the reassignment to Gainesville, Florida, for the academic year 1994-95. Following Respondent's decision to decline the reassignment to Gainesville, Florida, Dean Drummond modified the position of the College of Architecture concerning Respondent's assignment for the academic year 1994-95. This modification was through a notice on August 16, 1994 with an addendum. In the respective correspondence, it was stated: Thank you for your Fax of August 10, 1994. We are attempting all reasonable courses of action to accommodate you and your family in the context of the present situation. In that spirit, I offer you the following additional options: Stay in Vicenza this semester and teach the Italian language/culture course to the 35 or so students we expect in the VI:A Program. This would also entail the normal advising functions associated with this course. You would have no other administrative/managerial duties. In return, you will receive your full salary in addition to the cost-of-living supplement. You may be assigned these or similar duties in Vicenza for the Spring, 1995 term or assigned to similar duties in Gainesville to complete the terms of your contract period. Please advise us as to your preference. Request a leave of absence without pay for the Fall, 1994 semester. If that is the case, you must provide us with a written request immediately. If you elect the first option, please be aware that our hope is to 'front-load' the course as much as possible, so that the bulk of the work is accomp- lished within the first eight-weeks period, starting August 22. Whatever you decide, I ask you to let us know immediately since the contract period has already begun and time is of the essence. * * * This is an addendum to my earlier letter also dated August 16th to clarify the options available to you for the fall semester. I want to reiterate that you are presently assigned to teach in Gainesville this semester. We are willing, however as the Associate Dean has advised you, to accommodate your family's needs by considering a leave without pay for part of this semester, after which you would be back on campus for your current assignment or you could choose one of the other options mentioned in my letter. Nevertheless, we need to know your decision immediately so we can take appropriate action. The contract period began on August 12th. If I do not hear from you relative to the options that have been presented on or before August 23rd, I will have no choice but to invoke Article 16, Section 8, of the Collective Bargaining Agreement, 'Job Abandonment.' Mr. Schneider telephoned Respondent about the offers set forth in writing on August 16, 1994. Respondent was not willing to discuss the details of those offers or to have Mr. Schneider read them to her. Mr. Schneider reminded the Respondent in the conversation that the University deemed the deadline for responding to the subsequent offer of assignment to be August 23, 1994. Mr. Schneider told Respondent that the details of the August 16th offer would be faxed to Respondent, and the August 16, 1994 letters were, indeed, faxed to Respondent. In accordance with Dean Drummond's instructions, Respondent replied to him, through a fax received in the normal business hours at the University of Florida in Gainesville, Florida, on August 23, 1994. In pertinent part, the August 23, 1994 response by the Respondent stated: I will be staying in Vicenza for the Fall 1994 and Spring 1995 semesters and am therefore selecting the option to teach the Italian language/culture course here for that period. I am delighted that you go along with my idea of "front loading" the courses as I have always found that to be the most effective option for the students. I also understand that I will not have any other administrative/managerial duties during this time. Once the response was received in Gainesville, Florida, Mr. Schneider tried to confirm the details by contacting the Respondent by telephone. He was unable to make that contact. Mr. McCarter and Franca Stocco were provided a copy of the Respondent's acceptance of the alternative assignment. That copy was received by McCarter and Stocco on August 24, 1994. On August 24, 1994, Mr. McCarter spoke with Respondent concerning her assignment at the Vicenza Architecture Institute for the academic year 1994-95. At the time this conversation took place, classes had already commenced in the Vicenza program effective August 22, 1994. In the conversation, Mr. McCarter told Respondent that the schedule had been created for teaching the Italian language course, Monday through Thursday, from 11:00 a.m. to 12:00 p.m. Mr. McCarter made the Respondent aware that the schedule was one that was acceptable to the faculty in the Vicenza program. Respondent commented that in the past, she had had more success in teaching two days a week for a longer period. Mr. McCarter asked Respondent what kind of schedule she had in mind, and the Respondent replied that she preferred something on Monday/Wednesday or Tuesday/Thursday. There was a discussion about the textbook utilized in the course. Mr. McCarter indicated that the first language class had been held on the previous evening at 5:30 p.m., August 23, and that Ms. Stocco had taught that class and in the brief meeting for that class period introduced a textbook. Ms. Stocco had made mention to Mr. McCarter that the textbook was relatively inexpensive and was available in some local bookstores, and that students had purchased five or six copies, but not all students had made a purchase. Ms. Stocco had told the students to purchase that text if they could. Respondent replied that she had not used the text that Ms. Stocco had in mind and did not prefer it. The Respondent had another text in mind that was published in the United States. Respondent thought that it would take two weeks to get the text that she preferred. Mr. McCarter thought that more time would be needed. Mr. McCarter had a concern about paying to have the text sent from the United States via courier and the cost that would be involved in such shipment. Mr. McCarter asked the Respondent to give him some information about the book she preferred so that he could check the price and availability of that text if the decision was made to proceed with the text that Respondent preferred. In the August 24, 1994 conversation between Mr. McCarter and Respondent, the question of having faculty members audit the language course was addressed. Respondent indicated her discomfort with having the faculty audit the class. At that time, Mr. McCarter did not accept the notion that the faculty should not audit the language class. At the end of the August 24, 1994 conversation between Mr. McCarter and Respondent, he told Respondent that he would have to get back with her concerning the matters upon which they disagreed. There was no schedule established for the further discussion of those disagreements. Respondent was told that she needed to meet with her class at 11:00 a.m. on Monday, August 29, 1994. Mr. McCarter instructed Respondent that she would not commence her teaching until August 29, 1994, in that tours had been scheduled for the students to be conducted on August 25 and 26, 1994 away from the Institute. Customarily, as a faculty chair, Mr. McCarter would listen to the concerns of faculty members and he was following that practice in the conversation held with Respondent on August 24, 1994. Following the conversation between Mr. McCarter and Respondent, Mr. McCarter sent a fax to Gainesville, Florida, to Dean Drummond, informing Mr. Drummond about the conversation. In the fax, Mr. McCarter listed the proposals which he had in mind and contrasted those with Respondent's proposals. Mr. McCarter noted his concern about what he considered to be a lack of cooperation by Respondent and the basic difficulties of running the off-campus program without confronting these specific difficulties in the third day of class. Through this communication Mr. McCarter sought the advice of Dean Drummond about Respondent's assignment in the Vicenza program. Later, Mr. McCarter spoke to Dean Drummond by telephone and told him that he felt that he needed to write a formal assignment letter for Respondent which addressed the differences of opinion between Mr. McCarter and Respondent about the assignment. Dean Drummond supported Mr. McCarter's decision concerning the nature of the teaching assignment. Mr. McCarter composed an assignment letter which was dated August 25, 1994. He did not personally attempt to communicate the terms of that letter to Respondent. Rather, Mr. McCarter left instructions with Ms. Stocco to serve the Respondent with the August 25, 1994 assignment letter. That delivery by Ms. Stocco was to be made on the morning of August 26, 1994, if possible. The form of delivery was to be a personal delivery. Mr. McCarter told Ms. Stocco that the letter was from him to the Respondent pertaining to Respondent's teaching assignment. The correspondence was sealed, because Mr. McCarter considered it to be a confidential letter. Ms. Stocco was not told the details of the assignment. The assignment letter noted that the University did not intend to pay the Respondent for the period of August 12-24, 1994 in that Respondent had not worked in that period. The assignment letter noted that Mr. McCarter wanted to review Respondent's assignment through a meeting at 10:00 a.m. on August 29, 1994. The assignment letter noted that the course would be taught from 11:00 a.m. to 12:00 Noon, Monday through Thursday. The assignment letter noted that the text which would be used was the one that Ms. Stocco had utilized in the initial class session. The assignment letter noted that the faculty would be auditing the language course taught by Respondent. Ms. Stocco called the Respondent on the morning of August 26, 1994 to make arrangements to deliver the assignment letter. When Ms. Stocco called Respondent on August 26, 1994, she told Respondent that she had a letter that she needed to get to the Respondent and that it was quite urgent that Ms. Stocco do so. Further it was stated that Ms. Stocco would work with Respondent to get the letter to the Respondent and would meet with Respondent at Respondent's convenience to make the delivery. Ms. Stocco told Respondent that the letter was from the Institute. Ms. Stocco told Respondent that she would like to bring the letter to the Respondent. Respondent indicated that she was about to leave with her children and that they were waiting for Respondent. Respondent told Ms. Stocco that she would be at the Institute on Monday, August 29, 1994 and that Ms. Stocco should "hang on" to the letter. On the afternoon of August 26, 1994, Ms. Stocco made Mr. McCarter aware that Ms. Stocco was unable to delivery the August 24, 1994 assignment letter to Respondent. Having been unsuccessful in delivering the assignment letter, Mr. McCarter and Dean Drummond discussed the future course of Respondent's teaching assignment. This discussion took place on August 26, 1994. Both individuals were concerned about the delays in the instruction for the language course, notwithstanding that the offer which had been made to the Respondent contemplated a delay in her teaching duties until August 29, 1994. Mr. McCarter and Dean Drummond were particularly concerned about what they considered to be Respondent's unwillingness to physically accept the assignment letter. They considered Respondent to be unresponsive and irresponsible and expressed the belief that they needed to prohibit Respondent from disrupting the program beyond that point. As a consequence, Mr. McCarter prepared a letter of termination on August 26, 1994. This correspondence was received by the Respondent on August 30, 1994. On August 29, 1994, Respondent reported for work at the Vicenza Institute of Architecture. On September 7, 1994, Respondent replied to the notice of intended termination. In view of that reply, Petitioner proposed to suspend the Respondent from September 30, 1994 through December 29, 1994. The basis for that proposed suspension is set forth in correspondence dated September 30, 1994. The proposed suspension was based upon alleged neglect of duties and responsibilities. In particular, the disciplinary letter stated: You failed to assume your assigned duties and responsibilities at the beginning of the fall semester, August 12, 1994. Your assignment had been given to you via a letter dated May 17, 1994. On that date you refused to accept the assignment letter, but you did accept it on May 20, 1994. On May 20, 1994, in a meeting with Vice Provost Gene Hemp, Dean Drummond, and me, it was made clear to you that the assignment outlined in the May 17 letter would stand as your assignment for the fall semester. Nonetheless, nearly three months later, on August 10, 1994, you informed the Dean of your refusal to accept the assignment as outlined in the May 17 letter. Rather than pursue disciplinary action at that time, the University offered you three alternatives via facsimile transmissions on August 16, 1994. You were also advised of the provisions of the Collective Bargaining Agreement regarding job abandonment. You responded to the assignment options on August 23, 1994, saying you would accept the alternative assignment in the V.I.A. program. Subsequently, you refused to accept a letter from me on August 26, which addressed important sub- stantive details of your V.I.A. assignment that would have normally begun on August 12. Given that we had not resolved details about your duties and responsibilities previously and that the Italian language class had already been underway one week by that date, you knew, or should have known, that communicating with me prior to your assuming the responsibilities for the class was very important. You failed to do so, even showing up at least 10 minutes late for the class which had been scheduled to start at 11:00 a.m. Monday, August 29. The University made every reasonable effort to accommodate you and your family's needs. However, in my judgment you actions have adversely affected the functioning of the Department of Architecture's Vicenza Program and constitute misconduct warranting a suspension. The suspension without pay will begin September 30, 1994, and conclude at the end of the Fall term, December 29, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which sets aside the suspension for the period of September 30, 1994 through December 29, 1994, reinstating the Respondent's pay and benefits for that period and which further denies Respondent any pay adjustments and benefits for August 12-24, 1994. DONE AND ENTERED this 27th day of April, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 27th day of April, 1995. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed fact finding by the parties. Petitioner: 1-16. Subordinate to facts found. 17. Not necessary to the resolution of the dispute. 18-25. Subordinate to facts found. 26. Contrary to facts found in its suggestion that Ms. Stocco told Respondent that she was acting on behalf of Mr. McCarter. 27-28. Subordinate to facts found. 29. Not necessary to resolution of the dispute. 30-31. Subordinate to facts found. Respondent: 1-7. Subordinate to facts found. 8. Rejected in its suggestion that Respondent was performing duties as a professor prior to August 29, 1994 or required administrative duties prior to August 29, 1994. 9-14. Subordinate to facts found. The first and third sentences are subordinate to facts found. The second sentence is rejected. Subordinate to facts found. Not necessary to resolution of the disputes. Subordinate to facts found. COPIES FURNISHED: Barbara C. Wingo, Esquire Office of the General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Carla D. Franklin, Esquire Franklin, Donnelly & Gross 204 West University Avenue Suite 10 Gainesville, FL 32601 Pam Bernard, Esquire General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 John V. Lombardi, President University of Florida 226 Tigert Hall Gainesville, FL 32611
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 Whether the Respondent's teaching certificate should be revoked or disciplined on grounds that she is incompetent to teach or to perform her duties as an employee of the public school system and is unable to effectively meet her responsibili- ties as a classroom instructor, and that she intentionally ex- posed her students to unnecessary embarrassment or disparagement.
Findings Of Fact At all times material hereto the Respondent held Teaching Certificate Number 182937, issued by the Department of Education for the State of Florida. This certificate covers the areas of English and administrative supervision. The Respondent was first employed by the Dade County School Board in 1966. She taught elementary levels first through fourth grades at Shadowlawn and Allapattah Elementary Schools. In 1971, the Respondent transferred to Shenandoah Junior High School, where she taught seventh through ninth grade English until she transferred to Highland Oaks Junior High in 1982. (RE 1) Prior to the Respondent's transfer to Highland Oaks Junior High School she received observations and evaluations which rated her performance in the 3.6 to 4.5 range. The Respondent testified that she received excellent to superior ratings on her evaluation sheets. The school system however considers this to be the ratings of an acceptable or satisfactory teacher. Over 4.6 would be considered excellent or superior. (T538, 623) For the 1982-83 school year through the 1984-85 school year (with the exception of a maternity leave of absence), the Respondent has been employed with the Dade County School Board and assigned to Highland Oaks Junior High School as an English language arts teacher. (T536) The Respondent started the 1982-83 school year late due to a back injury. (T223) Within a week the school began receiving complaints from parents dissatisfied with the Respondent. Parents complained that their children who were Level III students (average - above average ability) were being taught at Level II (below average ability). One of the Respondent's Level III classes through no fault of the Respondent's had been mislabeled as a Level II class. This was corrected immediately. The parents from her other Level III classes which were not mislabeled also complained. The Respondent testified that the dissatisfaction and complaints of the parents all stemmed from the mislabeling of her one class. (T221-223, 548) On October 8, 1982, Assistant Principal Nelson had an informal conference with the Respondent following phone calls and complaints from parents. (T182-183) Mrs. Nelson recommended that the Respondent not eat in the classroom and not use the T.V. for watching soap operas. (SE24F) Mrs. Nelson discussed the need for more rigorous assignments for the Level III students. She asked another teacher, Mrs. Susan Ruskin, who was also the department chairman for language arts, to explain the difference between Level II and Level III students to the Respondent. Mrs. Nelson informed the Respondent that she needed to keep her lesson plans up-to-date. She also needed to specify different lesson objectives for the Level II students as opposed to the Level III students. Mrs. Nelson cautioned the Respondent to watch her language and word choice when speaking to her students. She encouraged the Respondent to call the students' parents when a problem arose. (SE24F) On October 12, 1982, Mrs. Ruskin met with the Respondent to assist her in differentiating between Level II and Level III students. She also discussed discipline, homework, and other curriculum problems with the Respondent. Mrs. Ruskin told the Respondent that she was available if the Respondent needed assistance. The Respondent never asked Mrs. Ruskin for help. (T362, 366-367, SE24) On October 13, 1982, the Respondent's seventh grade Level III English class was formally observed by Assistant Principal Nelson. Mrs. Nelson rated the Respondent unacceptable in the areas of preparation and planning and techniques of in- struction. Mrs. Nelson rated the Respondent unacceptable in preparation and planning because the Respondent did not list more rigorous lesson objectives for the Level III students. The Respondent's lesson objectives were too general and her homework assignments vague. (SE24-B) The Respondent was rated unacceptable in techniques of instruction because she did not adapt the materials to the interest and ability of each student. The Respondent's questioning of her students was not done in depth and lacked important follow-up questions. Her lesson lacked closure: there was no overview or conclusion at the end of the class period. The Respondent's homework assignments did not have any value and the Respondent failed to recognize students for having done or not done their homework. (T188-190) Although Mrs. Nelson rated the Respondent acceptable in the area of classroom management, she was concerned that the Respondent wasted twenty (20) minutes getting the class settled down and on task. Mrs. Nelson recommended that the Respondent establish and enforce classroom rules. (T195) On November 9, 1982, Dr. Mildred B. Augenstein, the principal of Highland Oaks Junior High School did a formal observation of the Respondent. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEI) The Respondent was rated unacceptable in knowledge of subject matter because she neither presented her lesson knowledgeably nor used the appropriate teaching methodology. When asked for the definition of science fiction the Respondent answered incorrectly that it was fiction about science. In giving a spelling test, the Respondent merely read the words off instead of following the accepted and simple procedure of pronouncing the word, using the word in context, and then repeating the word. (T20-23) Dr. Augenstein rated the Respondent unacceptable in classroom management because the class was not in control. Students spoke up at-will without raising their hands for acknowledgment. The class was late in beginning because the children would not settle down. The Respondent appeared unable to keep her students focused on the learning process. Children who were trying to learn were distracted by the unruly children. (T28-30) The Respondent was rated unacceptable in the category of techniques of instruction because the Respondent's instructions to the students were unclear. When the students asked questions for clarification, the Respondent could not adequately answer. Dr. Augenstein felt that the Respondent was deficient in the sequence of her lessons. There was no background, no purpose and no follow through. Instead of facilitating a learning experience the Respondent was merely assigning activities. (T3O-40) Dr. Augenstein used the Teacher Assessment Development System (TADS), the approved assessment instrument (jointly developed by the school system administration and the teachers union and approved by the school board and the state) to assess the Respondent. The TADS is meant to act as a support system to help teachers overcome their deficiencies. A part of the system is the TADS prescription manual. This is a large manual which contains various self- assessment activities and learning materials keyed to various problem areas. (T20-26) On November 24, 1982, Dr. Augenstein presented a prescription to the Respondent to address the deficiencies noted at the observations on October 13, 1982 and November 9, 1982. To remediate weaknesses observed by Mrs. Nelson in preparation and planning, Dr. Augenstein made specific recommendations. These included turning in lesson plans every Friday to Mrs. Nelson. They were to be done separately for the Level II and Level III classes. They were to include the days' objectives, activities, assessment procedures, homework assignments, and the materials and media to be utilized. Dr. Augenstein recommended Mrs. Ruski (she language arts department head) and Mrs. Earle (the librarian) as good source people. (SE1-B) To remediate weaknesses observed in the Respondent's knowledge of subject matter, Dr. Augenstein assigned specific pages and exercises in the TADS prescription manual to be completed by December 8, 1982. The Respondent was also instructed to contact the Teacher Education Center (TEC) and enroll in course offerings of language arts by December 15, 1982. Dr. Augenstein suggested that the Respondent visit other language arts classes prior to December 15, 1982. To remediate the Respondent's weakness in classroom management, Dr. Augenstein recommended that the Respondent establish class rules and enforce them. The Respondent was directed to investigate a course on assertive discipline or teacher effectiveness training and to enroll in a TEC course in classroom management by March of 1983. The Respondent was also directed to review the faculty handbook which contained the rules and regulations of the school. She was directed to work with Assistant Principal Fontana to set up her classroom rules. (SEI, T32-36) To remediate the Respondent's deficiencies in techniques of instruction Dr. Augenstein prescribed resources such as the TADS manual exercises on questioning students, verbal interaction, effective teaching strategies, and instruction sequence. These were to be completed by January 15, 1983. Dr. Augenstein felt the Respondent needed to learn how to ask questions which lead the students into more critical thinking. The Respondent was to demonstrate at least one new teaching approach by January 15, 1983. (SEI) On November 29, 1982, a group of nineteen (19) parents met with Dr. Augenstein to lodge complaints against the Respondent. The parents requested that their children be assigned to another teacher for language arts instruction. The parents complained that the Respondent was not adequately prepared to teach, that she did not address separately and adequately the needs of Level II and Level III students, that she used "atrocious" grammar and poor pronunciation, and that she taught at a level below her students' abilities. The parents were angry that at the end of November their children were still in Chapter I of their textbook. They complained that work assignments were without purpose and often meaningless. Furthermore, the parents complained that the Respondent used inappropriate language in the classroom. The Respondent had called a child "a stupid ignorant person, yelled "shut-up" and had referred to the mother of one of her students as a "whore." The Respondent asked one student (in response to a request for a bathroom pass) whether she was "going to smoke or take quaaludes." The parents were upset that their children were subject to the Respondent's verbal abuse. They also complained that the Respondent had retaliated against students whose parents had made complaints by threatening and ridiculing the students by lowering student conduct grades. (SE2, T50-55) The parents reported a change in their children's atti- tude toward learning and school. Their children hated school and did not want to attend. The parents reported that the Respondent would indiscriminately punish an entire class for the misbehavior of various individuals. The Respondent had handed out detentions to two whole classes and then did not show up herself to supervise the students when they reported for the detention. (SE2-A) The parents reported that the Respondent had watched the soap opera "The Young and the Restless" on the educational T.V. in her classroom. They complained that at an open house for parents the Respondent was late and then allowed her own child to disrupt the program. The Respondent did not abide by school procedures requiring notice to parents of their child's unsatisfactory progress before giving a students an "F" in conduct. One parent related that the Respondent initially would not provide homework assignments for a sick child and then finally, after repeated requests, provided an inadequate and incomplete assignment. (SE2-B) The Respondent's response to the parents' comments and concerns was that the parents and students had "fabricated stories" and told "terrible lies" about her. She testified that the disciplinary problems in her class were because the students conspired against her to prevent her from teaching. She said that the students continually disrupted class and prevented her from teaching. The Respondent stated that she was shocked by the profanity that the students used among themselves. The Respondent denied that she had ever "blasphemed" a child. (SE2-E, T550-553) On November 23, 1982, one parent wrote a letter to Dr. Augenstein complaining of the Respondent's unjust treatment of her daughter, one of the Respondent's students. The parent complained that the Respondent punished all the students for the misbehavior of a few, She also complained of the Respondent's word choice, quoting the Respondent as saying in class,, "I'm not taking any crap from you kids." Her daughter had been so upset by the Respondent's treatment that she became physically ill with stomach cramps. When she requested a bathroom pass the Respondent "gave her a very hard time in front of the whole class." After the student insisted that it was an emergency, the Respondent looked at her watch and told her that she had sixty (60) second to go to the bathroom and was being timed. The parent was very upset at the emotional distress her daughter was suffering at the hands of the Respondent. (T2-1) Two other parents wrote the School on November 23, 1982, complaining that the Respondent's treatment of their particular children, and the students as a whole, was abusive. One parent emphasized that he did not want his child "humiliated or mistreated" by the Respondent. Both parents requested that their children be moved out of the Respondent's classroom. (SE2-J, 2-K) After the November 23, 1982, meeting with parents, Dr. Augenstein continued to receive complaints from other parents. On December 7, 1982, several parents met with Mr. Marvin Weiner, Superintendent of the North Area of Dade County Schools, Mr. Roger Frese, Director, and Principal Augenstein, and presented a petition signed by parents of the Respondent's students. They also presented more letters of complaint against the Respondent. (SE3) On December 13, 1982, Dr. Augenstein wrote the Respon- dent a letter to notify her that she had failed to comply with the prescription of November 24, 1982. The Respondent had failed to turn in lesson Plans as directed and the one plan she did turn in did not differentiate between Level II and Level III students. (SE4) On December 16, 1982, another parent wrote to Dr. Augenstein complaining of her son's treatment in the Respondent's classroom. Her son had been involved in an altercation with another student which developed into a fist fight. The Respondent ignored the incident and refused to separate the two boys stating, "let them both hang themselves back there." The parent sent a note to the Respondent requesting a seat change for her child. The Respondent read the note and did not respond to the parent. The Respondent, after some sarcastic words with the boy, refused to change his seat. The parent then received a poor progress report on her son, which the parent felt was either unjustified or due to her son's seat in the back of a noisy and unruly classroom. The parent felt that her son was not physically safe and secure in the Respondent's classroom. (SES-C) On January 6, 1983, another parent wrote complaining of a distressing phone call with the Respondent. The Respondent had told her that her son never came to class on time, never did his homework, and never passed any tests. The parent did not believe the Respondent since the parent closely monitored her child's homework. The parent went on to relate that she had given her son a note for all of his teachers indicating that he would be absent on a Friday and requesting assignments. The Respondent was the only teacher who did not provide any assignments. The letter written to Dr. Augenstein asked why if her son was doing absolutely nothing had she not received any sort of home progress report. (SE6) Teachers are required by the School Board to send notice to the parents any time their child is doing below average work or exhibiting below average behavior efforts. (T59) On January 6, 1983, the Respondent was again formally observed by Dr. Augenstien. The Respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, assessment techniques and teacher-student relationships. (SE7A, T60-67) Dr. Augenstein felt the Respondent's lesson plans were not being used as an important resource for the structure of her class. The plans were done but not followed. The Respondent also displayed an inadequate grasp of her subject matter language arts. She used the grammatically incorrect sentence, "what hour you went to bed last night." Furthermore, the Respondent provided unclear and inadequate instruction when giving a test on homonyms. Her lesson plans lacked cohesiveness and sequential meaning. There was little if any connection between lessons, leaving the students unable to grasp the overall meaning of what was being studied. (T6O-65) Although the January 6, 1983 observation was done near the end of the first semester, there was no evidence of a structured composition program. The county language arts directives require teachers to assign compositions, collect-the assignment, constructively critique it and then reassign it. This is done to benefit students in developing their writing skills. (T66-68) The atmosphere of the Respondent's classroom was uncomfortable and hostile. The teacher and student interchanges were very cold. (T67) No prescription was given following the January 6, 1983 observation due to the fact that the Respondent had not completed the November 24, 1982 prescription. The Respondent was instructed to continue with the old prescription. (T68) On January 11, 1983, Dr. Augenstein gave the Respondent a listing of courses offered by the Teacher Education Center (TEC) to remediate unacceptable areas noted on November 24, 1982 and January 6, 1983. (SE8) On January 19, 1983, another parent wrote Dr. Augenstein complaining that the Respondent had assigned a book report which was inappropriate for seventh graders. Dr. Augenstein agreed that the book report was too elementary for junior high school, particularly the Level III children. (T70) On February 8, 1983, Dr. Augenstein formally observed the Respondent. Since the January 6, 1983 observation, the Respondent had been reassigned lower performance students. This was done with the hopes that she would be able to handle her students more successfully. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEIO, T71) The Respondent mispronounced "architecture" and "denouncement" words that were critical to her lesson. The students were quiet and well behaved as long as Dr. Augenstein was in the room. When the Principal was in the adjoining room, the class became extremely loud. The teacher next door indicated that the Respondent's class was always very loud. The Respondent's lesson lacked closure; rather, it ended when the bell rang. Finally, the Respondent did not adequately answer her students' questions. (T70-73) Although the Respondent had been switched to all Level II students, she exhibited the same problems she had with her other classes. (T74) On February 17, 1983, Assistant Principal Nelson conducted a formal observation of the Respondent's seventh grade, Level II class. She rated the Respondent unacceptable in the areas of classroom management, techniques of instruction and teacher-student relationships. The Respondent's students were very noisy and the Respondent had great difficulty getting them settled. There was an undercurrent of noise throughout the whole class period. There was no focal point to the Respondent's lesson. The lesson should have been reinforced with supportive material such as writing on the chalkboard or an overhead projector to assist the students who were visual rather than auditory learners. Some of the Respondent's students were totally uninvolved with the lesson. A few students monopolized the discussion. The Respondent did not attempt to involve disinterested students. She gave no encouragement to the non- participants. The Respondent had assigned homework and only five students had done it and they received no reinforcement for their effort. The Respondent collected their work but did not grade it or place it in the students' folders. (SE39, T195-198) Assistant Principal Nelson did not assign a new prescription to the Respondent even though the time line on the November 24, 1982 prescription had run out. Instead, she reviewed the areas of the prescription that were incomplete and encouraged the Respondent to complete them, Mrs. Nelson felt that the November 24, 1982 prescription was a good one. (T200) On February 23, 1983, a conference with the Respondent, Dr. Augenstein, Assistant Principal Nelson, and Mrs. Yvonne Perez, a union representative, was held to discuss the status of remediation of observed performance deficiencies and to discuss reemployment of the Respondent. Principal Augenstein stated that she would recommend consideration of a return to annual contract status for the 1983-84 school year. (SE11) On March 2, 1983, the Respondent's seventh grade Level II class was again formally observed by Dr. Augenstein and Mr. Roger Frese, an outside administrator. The Respondent was rated unacceptable in the areas of knowledge of subject matter and techniques of instruction. The Respondent gave her students inadequate instruction. She asked them to read a short story and then write a paragraph describing a character in the story. There was no discussion or instruction on method of character development that could be used to develop the paragraph. Most of the children were unable to complete the assignment. When the children read their paragraphs, many of which were merely a synopsis of the story rather than the assignment, the Respon- dent did not differentiate between acceptable and unacceptable responses. (SE12, SE33A, T78) At the end of the class, the Respondent made a homework assignment but the bell rang before she could adequately discuss or explain the assignment. Again, she did not provide closure on the lesson for the day. (SE33) Throughout the class period the Respondent missed opportunities to clarify the assignment. She did not adequately respond to student's questions and did not ask questions herself. Observers were left in doubt as to whether she, herself, understood the topic and assignment. (T416) As a result of the March 2, 1983 observation, Dr. Augenstein instructed the Respondent to continue with the prescription of November 24, 1982. In addition, the Principal instructed the Respondent to enroll in classes during the summer of 1983 covering the subject matter of (a) critical study and analysis of literature, (b) advanced English grammar, and (c) English rhetoric. (T79, SE13) On May 24, 1983, the Respondent's seventh grade English class was formally observed by Assistant Principal Herman Mills. The Respondent was rated unacceptable in the area of knowledge of subject matter. The subject of the Respondent's lesson was analogy. The sequencing of information disbursed in the lesson was illogical and unclear. (SE26) The Respondent handed out an assignment with a series of words: greater, larger, more bigger, same. The children were to pick out the dissimilar word from the group. The Respondent failed to realize there is no such expression as "more bigger." She should have indicated that a comma between more and bigger was missing. In another series of words: accidental, design, intentional, on purpose, and planned the Respondent incorrectly chose "designed" as the dissimilar word. In other parts of the lesson, the Respondent told the class that Canada was a French speaking country and Korea was a city. (SE26, T258-259) Throughout the 1982-83 school year, administrators at Highland Oaks made it a point to drop into the Respondent's classroom so that their presence would help the Respondent get her class under control. (T267) The Respondent's 1982-83 annual evaluation indicated that Respondent had not remediated the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. It recommended that the Respondent lose her tenure status and be returned to annual contract. The recommendation was not implemented. (SE14, T81) In September 1983, Dr. Augenstein assigned Assistant Principal Mills the task of evaluating the Respondent's progress with the November 24, 1982 prescription. At his first meeting with the Respondent, Dr. Mills discovered that the Respondent had not completed any "required action" on the prescription. At their second meeting, Joan Kaspert of TEC verified that the Respondent had still not completed the "required action" on the prescription. She verified, however, that the Respondent had completed the course "Techniques of Instruction." On September 27, 1983, Dr. Mills instructed the Respondent to obtain "sign- off" on her prescription by September 30, 1983. On October 5, 1983, he determined that the only item signed-off on the pre- scription was the meeting with Assistant Principal Fontana on the subject of classroom management and the already noted course at the TEC. (SE27) On October 19, 1983, Dr. Augenstein again observed the Respondent's seventh grade, Level II English class. She rated the Respondent unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. (SE15) The Respondent was rated unacceptable in preparation and planning because her lesson was planned too sparsely. It did not fill the time allotted. Her homework assignment could not be done by the students because it required a spelling text, which was not a book sent home with the students. The Respondent scheduled a grammar exercise which the class could not do because a large number of the students did not bring the appropriate book to class. (5115) The Respondent was rated unacceptable in the area of subject matter because she could not adequately explain or demonstrate the subject matter of her lesson, the difference between homonyms, and homographs, and homophones. (5115) The Respondent was rated unacceptable in the area of techniques of instruction in that she did not use the chalkboard to reinforce the differences between the spellings, pronunciations, and uses of the words studied. Students were called upon for examples which only furthered the confusion. The Respondent was unable to clarify or rectify the situation. (5115) The Respondent was rated unacceptable in assessment techniques. Her grade book showed grades for only five spelling tests since the beginning of the year. There were no graded compositions or homework assignments in the students' folders. The Respondent did not call for the day's homework assignment. When the Principal asked the class for their homework only six students could produce any and those produced did not seem to be the planned assignment. (SE15) In order to remediate the Respondent's deficiencies observed on October 19, 1983, Dr. Augenstein instructed the Respondent to continue with the November 24, 1982 prescription. She instructed the Respondent to pay special attention to teaching the required content and skills for grade seven literature study, library skills, and composition lessons. She also told the Respondent to enroll in the TEC component "Preparation and Planning." Dr. Augenstein assigned Assistant Principal Mills to monitor the adequacy of the Respondent's weekly plans and the overall accomplishment of course objectives revealed in the plans. She then assigned Ms. Zelda Glazer, Supervisor of Language Arts, to prescribe activities to remediate the Respondent's inadequate knowledge of her subject matter. (SE15) On November 16, 1983, the Respondent's reading lab was observed by Assistant Principal Mills. The Respondent was rated unacceptable in the area of techniques of instruction because her methodology was inappropriate for the reading lab. The purpose of the reading lab is to allow the students an opportunity to work at their own particular reading level. The Respondent was teaching the same lesson to the whole group, entirely missing the point of the reading lab. (SE28) Dr. Mills suggested that the Respondent immediately divide the class into three levels according to diagnostic testing that had been done. He instructed her to provide the requisite materials so that the students could work at their own pace. He also instructed the Respondent to utilize progress sheets so that the progress of the various students could be charted. Dr. Mills assigned a portion of the prescriptive manual to the Respondent and requested that she do all the activities suggested by the manual. Dr. Mills recommended various resource people to the Respondent. He assigned Mrs. Hoffman, a teacher on special assignment, to assist the Respondent in setting up her reading lab. Dr. Mills also arranged for carrels to be placed in the Respondent's reading lab. (SE28) On November 30, 1983, a parental complaint was made against the Respondent for the use of profanity in her classroom. After the matter was investigated it turned out that in chastising a student for profanity, the Respondent had repeated the word several times herself. The Respondent was instructed that repeating the profanity was ill-advised and served no purpose. She was instructed, in the future, to handle such situations using the standard referral procedures. (SE35) A conference for the record was held on December 13, 1983, to discuss the Respondent's progress with her prescription. After reviewing the Respondent's deficiencies and prescription the Respondent was informed that failure to remediate and improve performance to an acceptable rating could have an adverse impact on her employment status. (SE16) On February 14, 1984, the Respondent's ninth grade reading class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of preparation and planning knowledge of subject matter, techniques of instruction and assessment techniques. There was no evidence that the Respondent had applied the readings from the TADS manual that had been prescribed. Dr. Augenstein pointed out to the Respondent' that she had not enrolled in the TEC component on preparation and planning as required by her prescription. The Respondent was rated unacceptable in knowledge of subject matter because she did not understand the difference between assessment activity and programmed instruction. Her students were working on the ninth' grade preparation for taking the state assessment test given in the tenth grade. The Respondent did not orient the students to their assignments. She failed to answer the students' questions and did not review the students' work. The students never knew whether they had answered correctly or not. (T92) The Respondent was rated unacceptable in techniques of instruction because her students spent an entire period doing an activity which was never introduced, explained, monitored or concluded. The Respondent had no follow-up activities planned for the students who finished the assignment early. (T92-94) The Respondent was rated unacceptable in assessment techniques because her grade book showed no grades for the four weeks preceding the observation. The minimum amount of grades expected would be two per week. There was no evidence of graded homework in the students' folders. If the Respondent had become ill it would have been impossible for a substitute teacher to grade her students. (T94-95) In remediation, the Respondent was referred to a memorandum written April 22, 1983, in which Dr. Augenstein had suggested the need for intensive study of subject matter. She was also instructed to refer to the TADS prescription manual as prescribed on November 24, 1982. The principal also referred the Respondent to the prescription given on October 19, 1983. (SE13, 17) On March 6, 1984, the Respondent's language arts class was formally observed by Ms. Zelda Glazer and Dr. Augenstein. The Respondent was rated unacceptable in the areas of knowledge of subject matter and assessment techniques. (SE18) The Respondent was rated unacceptable in knowledge of subject matter because the Respondent was teaching a lesson dealing with parts of speech and she accepted incorrect answers from her students. She identified words as adjectives that were in fact adverbs, verbs and a noun. Furthermore, the Respondent's lesson was improperly sequenced. No background information was provided to the children who consequently did not understand what the Respondent was asking of them. In remediation the Respondent was directed to review with the department chairperson or school administrator the sequencing of a lesson. She was told to prepare a properly sequenced lesson, one which contained the necessary components: review, a drill, and a follow-up application of the skills learned. (T305-310) The Respondent was rated unacceptable in the area of assessment techniques because her students' folders did not contain any compositions. At this time of the year the students should have done between fifteen to twenty (15 to 20) compositions. There was no evidence of any assignments which allowed the students to apply newly learned skills. In remediation the Respondent was instructed to develop a test on a present unit or topic being taught using writing production as one element of assessment. (SE18, T311-313) On March 6, 1984, another conference for the record was held to discuss the Respondent's remediation of performance deficiencies relative to future employment with Dade County Public Schools. After reviewing the Respondent's performance during the 1982-83 and 1983-84 school years, Dr. Augenstein recommended that action be taken toward dismissal for cause. (SE19) In March 1984, the Respondent went on maternity leave. (T97) The 1983-84 year-end evaluation indicated that the Respondent's performance in knowledge of subject matter, techniques of instruction, and assessment techniques was unacceptable. The Respondent was recommended for dismissal. (SE2O, T98-99) The Respondent returned from her maternity leave to Highland Oaks in April 1985. The Respondent received special attention to help acclimate her after almost a year's leave. The Respondent was allowed a full week without the responsibility of a classroom so that she could observe the status of the classes she was assuming and meet with the teacher to discuss the students' progress. Although Dr. Augenstein had never done this before with any other teacher, she wanted to make sure that the Respondent would be adequately prepared. Dr. Mills was also assigned to help the Respondent make the transition. (T99-100, 266-269) On May 2, 1985, the Respondent's eighth grade Level II English class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of subject matter and techniques of instruction. (SE21) The Respondent was rated unacceptable in the area of subject matter because she did not appear to grasp the difference between general and specific research sources. She was subsequently unable to clearly explain techniques of research and writing. The students were frustrated and unable to receive clarification from the Respondent. (SE21, T103) The Respondent was rated unacceptable in the area of techniques of instruction because the Respondent was not addressing the needs of her students. Her students were advanced academic learners with a need for inductive and critical thinking approaches. (SE21, T104) In remediation, Dr. Augenstein recommended that the Respondent observe other Level IV English classes and that she do a research project herself. Respondent was also directed to design lessons using strategies for inductive and critical thinking. Dr. Augenstein assigned Mr. Charles Houghton, the North Area project manager for secondary language arts to assist and critique her demonstration lessons. (5521, T013-105) Because the Respondent had recently returned from maternity leave, her assessment techniques were not evaluated. (5521) On May 15, 1985, Mr. Houghton came to Highland Oaks to assist the Respondent. He observed her class working on a large research project. He discovered that the Respondent did not have a clear understanding of the use of bibliography cards, note cards, and research skills. Mr. Houghton told the Respondent that he would gather materials together to help her and return on Friday, May 17, 1985. Mr. Houghton returned on May 17, but the Respondent was absent that day. He left the materials with a note explaining the materials and inviting the Respondent to call him if she needed further assistance. The Respondent never called him. (T242-248) On May 28, 1985, the Respondent's English class was formally observed by assistant Principal Mills. The Respondent was rated unacceptable in the areas of preparation and planning, classroom management, and techniques of instruction. (SE29) The Respondent was rated unacceptable in preparation and planning because although she had prepared lesson plans she did not follow them. There was no lesson presentation and no reference to the lesson objective a review of composition skills. (SE29) The Respondent was rated unacceptable in classroom management because the class never settled down so that a lesson could be presented. (SE29) The Respondent was rated unacceptable in techniques of instruction because, among other things, there was no systematic method demonstrated for monitoring the students' performance on the learning objectives. The Respondent still did not use media to assist her presentation. There was no lesson presented. (SE29) For remediation, Dr. Mills met with the Respondent and urged her to follow Dr. Augenstein's prescription. He gave her more prescriptive activities which were similar to those already assigned. (SE29, T266-268) On June 6, 1085, the Respondent was observed by Assistant Principal Nelson and Ms. Glazer. The Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. (5E25) Mrs. Nelson observed little improvement on the part of the Respondent. She did not seem to be benefiting from the prescription and TADS system. (T210) The Respondent was rated unacceptable in preparation and planning because she did not follow her lesson plan. The poem which had been assigned reading for that day was inappropriate for the lesson objective: metaphors and similes. The Respondent was rated unacceptable in the area of knowledge of subject matter because not only was she using a poem that did not contain metaphors and similes, but she could not even give an example of a metaphor, when asked by a student. The Respondent referred to the cockney dialect of the poem as a southern dialect. Consequently she interpreted the word again" as dialect for aging and completely misinterpreted a whole line of the poem. (5E25) The Respondent was rated unacceptable in classroom management in that it took her ten minutes to call the roll, after which there was still socializing among the students. Several students came in late and no questions were asked of them. (SE25) The Respondent was rated unacceptable in techniques of instruction because she accepted correct and incorrect responses without comments or suggestions. No background was given on Rudyard Kipling (the poet being studied) or on the form of the poem, the ballad. The Respondent ignored all the appropriate topics raised by the poem and, instead, interjected the terms "metaphor" and "simile "haphazardly. (5E25) The Respondent was rated unacceptable in teacher- student relationships because she ignored the students' responsibilities. She neither praised nor questioned them. Furthermore, she ignored the non-participating students. (SE25) In remediation, the Respondent was referred to the prescription of May 2, 1985 and May 28, 1985. She was also directed to carefully review her lessons so that she would he prepared for students' questions and be ready with appropriate examples. The Respondent was also directed to specific exercises in the TADS manual dealing with feedback, interaction with stu- dents, and recognizing correct and incorrect responses. (SE25, T328-330) The Respondent's 1984-85 annual evaluation rated her unacceptable in the areas of preparation and planning, knowl- edge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Dr. Augenstein noted that the Respondent's unacceptable performance--documented in previous years--continued since her return from leave. She again recommended that the Respondent be dismissed for cause. (SE22) On May 30, 1985, a conference for the record was held to discuss the Respondent's end-of-the-year evaluation. The principal again recommended that dismissal for cause be initiat- ed. (SE23B) The Respondent's final exams distributed in June 1985, indicated that she still had no understanding of what constituted an objective type of exam. (T27, SE30-32) Dr. Augenstein informally observed the Respondent's classroom many times over the years, as she did with all the teachers. Her informal observations substantiated the general deficiencies noted ire formal observations. Problems were continually observed in lesson planning, subject matter, methods and materials. (T106-107) Dr. Augenstein testified that she did not think that the Respondent put out even a minimal effort to overcome her deficiencies. (T108) All the administrators and educators who observed the Respondent's classroom agreed that the Respondent did not adequately grasp her area of specialization, the English language arts. All agreed that she lacked the minimum skills in both content and methodology of English language arts. (T16, 255, 304, 424, 461) Over the three year period, the Respondent was given various prescriptions to encourage and help her in remediation. The Respondent followed and completed only a tenth of the prescriptions given to her. (T170) Dr. Patrick Gray, Assistant Superintendent for the Dade County School Board's Office of Professional Standards, testified that--based on his educational background; his personal evaluation of the Respondent's file, his review of the evidence offered at the Respondent's school board hearing in the Division of Administrative Hearings' Case No. 85-3223; his review of the exhibits introduced on behalf of the Petitioner; his knowledge of the required teaching behaviors for teachers, including the state of the art and research; and the Florida teaching competencies which are expected of every Florida teacher--the Respondent's performance consistently failed to meet the standards of performance of the State of Florida. Dr. Gray recommended that the State permanently revoke the Respondent's teaching license. On September 4, 1985, the Respondent was suspended from her employment with the Dade County School Board. The School Board instituted proceedings to dismiss the Respondent from employment. On June 4, 1986, the School Board of Dade County entered its Final Order upholding the dismissal of the Respondent. (PE77)
Recommendation Based on the foregoing, it is RECOMMENDED that the Respondent's Teaching Certificate Number 182937 be REVOKED. DONE and ORDERED this 30th day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1144 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-100. Adopted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-8. Approved. 9. Approved, as modified to reflect that Respondent did not attend any of the TDS training sessions conducted by Dr. Gray. 10-13. Approved. 14. Approved, as modified to reflect that she was given the correct textbooks soon after parents complained about her performance. 15-21. Approved. 22. Approved as modified to reflect that a secretary made a transposing error on the form so that those areas where Respondent performed satisfactorily were marked unsatisfactory, and vice versa. 23-34. Approved. 35. Approved, but modified to reflect that, nevertheless, Respondent continued to perform below minimal standards and her remediation efforts were not effective. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Laverne Elizabeth Reaves 1430 N.W. 90th Street Miami, Florida 33147
The Issue The issues in this matter are as follows: (a) whether Petitioner followed all procedural requirements before deciding to terminate Respondent's employment as a teacher; and whether Petitioner properly determined that Respondent's employment as a teacher should be terminated.
Findings Of Fact In 1985, Respondent received her Florida Teacher Certification, qualifying her to teach elementary education, Grades 1-6. She continues to hold that certification. Respondent worked as a substitute teacher in Petitioner's elementary, middle, and high schools for 13 years before she was hired as a full-time teacher in 1998. Thereafter, Respondent taught the following classes at the following schools: (a) from 1999–2003, “literacy” and language arts to sixth and seventh graders at Paxon Middle School; from 2003-2004, third graders at John E. Ford Elementary; from 2004-2006, first graders at Lake Lucina Elementary (Lake Lucina); (d) from 2006-2007, first graders at Arlington Heights Elementary (Arlington Heights); and (e) from 2007-2008, fourth graders at Sabal Palm Elementary (Sabal Palm). Throughout her tenure as a full-time teacher, school principals evaluated Respondent's performance on an annual basis. During school years 2006-2007 and 2007-2008, Petitioner used the Teacher Assessment System (“TAS”) as the primary method to evaluate Respondent's teaching ability. The TAS measures teaching performance based on nine different “Competencies.” These Competencies, listed in the 2006-2007 and 2007-2008 versions of the TAS include the following: (a) Promotes student growth and performance; (b) Evaluates instructional needs of students; (c) Plans and delivers effective instruction; (d) Shows knowledge of subject matter; (e) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (f) Shows sensitivity to student needs by maintaining a positive school environment; (g) Communicates with parents; (h) Pursues professional growth; and (i) Demonstrates professional behaviors. Under the TAS, a school administrator (usually the principal) evaluates teachers based on three scheduled classroom observations. During the observations, the principal uses the Teacher Assessment Instrument (“TAI”) to collect data and identify “indicators” associated with each Competency. In evaluating a teacher’s overall performance, principals may also consider informal, unannounced observations. The Classroom Observation Instrument (“COI”) is an earlier version of the TAI. The COI contains the same Competencies as the TAI, though they appear in different order. The “Evaluation of Professional Growth of Teacher” is a summative evaluation form used during the final annual evaluation conference. The form reflects the teacher’s final rating as to each Competency and the principal’s overall performance rating for the school year. The TAS procedures provide as follows in pertinent part: TAS Procedures-Principal/Supervisor PLEASE NOTE: One purpose of the TAS is to assist the employee to improve performance. Performance problems are best addressed early. If an informal observation or classroom visit indicates possible performance problems then the principal should immediately arrange to initiate a formal classroom observation using the TAI. Conduct an initial orientation for all instructional employees to be evaluated by the TAS. This should occur during pre- planning and include at minimum, 1) an overview of the forms and procedures, 2) a description of the competencies and their indicators, and 3) your schedule for observation activities. Pre-arrange with the employee at least one instructional session to be formally observed. Conduct a pre-observation conference with the employee. Discuss with the employee information regarding the lesson plan, targeted students and methodology. A pre-observation conference must occur. Conduct the observation using the TAI. All competency indicators that are observed during this observation will be checked on the TAI. Complete the TAI for all competencies/indicators not completed during the classroom observation. After the instrument has been completed, review and rate the data, and prepare the report to share with the employee. Within five (5) working days, schedule and conduct a post-observation conference with the employee to provide feedback. During the post-observation conference, review the TAI with the employee. Identify any problematic areas. At this time, schedule a conference to develop a success plan for employees who potentially may receive an overall unsatisfactory evaluation. This action must take place within two (2) weeks of the post conference but prior to February 1. During this time, a letter of Potential Unsatisfactory Evaluation must be given to the employee. Close the conference by signing all appropriate documents and securing the employee's signature of receipt. Follow the time line provided in the manual to ensure compliance with the reappointment process and to ensure due process for the employee. If a teacher demonstrates deficient performance under any Competency, a "Success Plan" is written in collaboration with the teacher. The Success Plan identifies areas of weakness by Competency, sets out objectives, and provides timelines to meet the objectives. A Success Plan Team includes the teacher, school administrators, colleagues that have expertise in the relevant subject matter, “resource” teachers or “coaches,” and, at times, a teachers’ union representative. According to the TAS, personnel decisions will be appropriate if the timeline and the following steps are followed: Notify the employee in clear and simple written communication(s) regarding your specific performance expectation as identified by the competency indicators on the TAI. Explain to the employee in oral and written detail the deficiency(ies) from the previously stated expectation(s). (Be specific by noting the time factors, place, circumstances, principal observations). Arrange with and/or for the employee to receive appropriate training or other assistance as needed in order to improve the deficiency(ies) noted on the TAS Success Plan. Record in writing any offers of help. Time any communication(s) to the employee so there is sufficient opportunity for the employee to correct deficiencies. The Success Plan Team (including the identified employee) must meet frequently to review the status of the implementation of the plan and the employee’s progress. While teaching first graders at Lake Lucina, Respondent elected to transfer to Arlington Heights in school year 2006-2007. Robert L. Snyder was, and still is, the principal of Arlington Heights. Upon meeting Respondent, Mr. Snyder considered Respondent as a pleasant and likeable person. However, because Respondent received an unsatisfactory evaluation the prior year, Mr. Snyder arranged for the development of a Success Plan for Respondent. With Respondent's input, the Success Plan Team drafted a Success Plan to be implemented at Arlington Heights. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. It was finalized and signed by Ms. Hunt in October 2006. The Success Plan Team included experienced teaching coaches. The coaches modeled instruction in Respondent's class on several occasions. Mr. Snyder conducted three formal observations and observed Respondent’s teaching performance informally on several occasions. During his visits to the classroom, Mr. Snyder would see students doing worksheets amounting to “busy work” which had no apparent connection to instruction or evaluation. Mr. Snyder kept personal notes documenting Respondent's tardiness to school on several occasions. He also noted her tardiness to workshops and in-service programs, including an in-service program focused on a reading assessment system for first graders known as Developmental Reading Assessment (DRA). On or about January 30, 2008, Mr. Snyder intended to deliver a letter to Respondent, advising her that she was at risk to receive an unsatisfactory evaluation for the year. When he went to Respondent's classroom, Mr. Snyder discovered that Petitioner was absent and had left no plans for the substitute teacher. The school policy required teachers to have three days of substitute plans in case of an unexpected absence. While Mr. Snyder assisted in the development of plans for the substitute teacher, he observed incomplete and blank DRA data collection forms. The forms did not indicate the students' levels of reading ability or the strategies put in place to enhance areas of weakness. Mr. Snyder also observed the teaching assistant doing work which should have been done by Respondent, such as grading papers. When Respondent submitted her lesson plans to Mr. Snyder, he observed that Respondent was not actually teaching the lesson plans to her class. Mr. Snyder also noted a lack of grades in Respondent's grade book. Mr. Snyder brought these concerns to Respondent's attention verbally and in writing. Throughout the school year, Respondent had a full-time paraprofessional/teacher’s assistant (“TA”) in her classroom. Mr. Snyder observed tensions between Respondent and her TA, as well as a second TA. The working relationship between Respondent and her TA deteriorated through the year. On one occasion, Respondent left her class of first graders completely unattended by an adult for twenty minutes. Mr. Snyder knew Respondent was in the office working on the computer when he saw Respondent's unsupervised students. On another occasion, Mr. Snyder saw Respondent who appeared to be videotaping students in a common hallway. The school did not have parental permission to videotape some of the students in another teacher's class. Mr. Snyder retrieved the videotape and discarded it. Respondent did not attend certain conferences with Mr. Snyder (including at least one formal pre-observation conference). Additionally, it was difficult to conduct meetings with the Success Plan Team because Respondent always insisted that an outside union representative instead of the building representative attend the meetings with her. Scheduled meetings with Respondent were delayed or cancelled on a number of occasions because an outside union representative was not available. Mr. Snyder formally observed Respondent and completed TIAs on December 15, 2006, February 6, 2007 and March 14, 2007. Mr. Snyder had a conference with Respondent before and after each formal observation to discuss the TIAs. Respondent signed each TIA. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 15, 2007. Reflecting the findings on the TIAs, the annual evaluation showed unsatisfactory performance in the following Competencies: Promoting Student Growth and Performance; Planning and Delivering Effective Instruction; and Demonstrates Professional Behaviors. The evaluation also showed a “Needs Improvement” rating in the following Competencies: Evaluates Instructional Needs of Students; Utilizes Appropriate Classroom Management; and Parent Communications. Respondent received and signed the annual evaluation. In school year 2007-2008, Respondent elected to transfer to Sabal Palm. At the new school, Respondent taught reading, writing and science to a fourth-grade class. Respondent's co-teacher, Kim Stancil, taught math and social studies. There were approximately 26 students in the class. The principal at Sabal Palm was, and still is, Mary Mickel. Because Respondent received an unsatisfactory evaluation the prior year, Ms. Mickel initiated a Success Plan for Respondent. Respondent signed a final copy of the plan on December 11, 2007. The Success Plan outlined areas of weakness, objectives toward improvement in those areas, and timelines. The Success Plan Team consisted of Ms. Mickel, other teachers, a “standards coach," and a “reading coach.” Ms. Stancil retired on October 29, 2007. A new co- teacher, Christie Callison, began teaching in January 2008. Ms. Mickel became concerned when Respondent failed to attend grade-level meetings. After receiving encouragement from Ms. Mickel, Respondent began attending the meetings but did not actively participate. Ms. Mickel had several parents call to complain about how Respondent treated their children or how their children were doing in Respondent's class. Ms. Mickel participated in at least one parent/teacher conference to resolve a parent's concerns. Ms. Mickel visited Respondent's classroom from time to time throughout the school year. Ms. Mickel conducted four formal evaluations of Respondent's performance. The formal observations took place on the following dates: September 13, 2007; November 19, 2007; January 28, 2008; and March 5, 2008. Ms. Mickel provided Respondent with advanced notice of the formal observations. Ms. Mickel had a conference with Ms. Hunt before and after the observations. During the formal observations, Ms. Mickel used the COI instrument to document indicators of performance under the nine Competencies. Respondent does not challenge Ms. Mickel's use of the COIs versus the TIAs. Ms. Mickel observed Respondent using materials and teaching subjects that were not age-appropriate for fourth graders. For instance, Respondent based a lesson on a book typically used with 1st graders. Ms. Mickel discussed this with Respondent and commented on the subject in the COIs. As time passed, Ms. Mickel observed Respondent's continued failure to properly assess student performance and failure to tailor instruction to student needs. Respondent had opportunities to participate in grade- level training on a weekly basis. She was allowed to observe other teachers in her school without having to take personal time. Respondent's coaches came into her class, prepared a lesson plan with her, and modeled the instruction. According to Ms. Callison, Respondent refused to collaborate with planning and instruction. Respondent did not want, give or receive assistance from her co-teacher. Respondent typically did not provide direct instruction to the students. Instead, Respondent gave the students “busy work” via worksheets that had nothing to do with the required curriculum. Respondent openly classified students by ability, using terms such as “middle group” and “low group.” Respondent would then have students grade each others’ papers and report the grades out loud to Respondent in class. Respondent’s Evaluation of Professional Growth of Teacher was issued on March 14, 2008. Reflecting the findings on the COIs, the annual evaluation showed unsatisfactory performance under the following Competencies: Evaluates Instructional Needs of Students and Plans and Delivers Effective Instruction. Respondent obtained a “Needs Improvement” rating in the following Competencies: Promotes Student Growth and Performance; Communicates with Parents; and Demonstrates Professional Behaviors. Respondent received and signed the annual evaluation. Respondent testified that teaching fourth grade is particularly challenging compared to teaching other grade levels. According to Respondent, fourth-grade is difficult to teach because students must take the Florida Comprehensive Assessment Test (FCAT) in math, reading and writing. Although Respondent was without a co-teacher for a portion of the 2007-2008 school term, she is certified to teach all fourth-grade subjects. More importantly, Respondent has had experience teaching reading and writing to sixth and seventh- grade students, some of whom were working at the fourth-grade level. Respondent worked with and was evaluated by seven different principals throughout the last eight years of her employment. During those eight years, Respondent's summative evaluations showed her performance as follows: (a) eight consecutive years with unsatisfactory performance in the Parent Communication Competency; (b) five consecutive years with unsatisfactory performance in the Student Growth and Performance Competency; (c) five consecutive years with unsatisfactory performance in the Planning and Delivery of Instruction Competency; (d) four consecutive years with unsatisfactory performance in the Evaluation of Student Needs Competency.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board enter an order dismissing all charges brought against respondent by the Superintendent of Schools of St. Lucie County. DONE and ENTERED this 12th day of April, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 12th day of April, 1984. COPIES FURNISHED: Ben L. Bryan, Jr., Esquire Post Office Box 3230 Ft. Pierce, Florida 33448 Steven A. Been, Esquire FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Norman Behling, Superintendent School Board of St. Lucie County 2909 Delaware Avenue Ft. Pierce, Florida 33450
The Issue The issues to be determined are whether Respondent, Dennis Michael Hester (Respondent or Mr. Hester), violated section 1012.795(1)(g) and (j), Florida Statutes (2011), and Florida Administrative Code Rule 6A-10.081(3)(a), (4)(b), (4)(c), (5)(a), (5)(d), and/or (5)(f), as alleged in the Administrative Complaint, with respect to his role as a Professional Development Facilitator (PDF) and English for Speakers of Other Languages (ESOL) trainer, and, if so, what penalty should be imposed.
Findings Of Fact Dennis Hester was employed by the School District as a teacher from 1994 until his termination in 2015. He was covered by the Collective Bargaining Agreement between the Duval Teachers United and the School Board for the period from 2008-2011. At the time of the events giving rise to both this case and the School Board case, Mr. Hester was assigned to Fletcher High School in Duval County as an instructional coach and a PDF. Although no direct evidence was presented on this point, Respondent admits in his Proposed Recommended Order that he holds a Florida Educator’s Certificate. Respondent’s substantial interests are affected by this proceeding. ESOL Certification Requirements The allegations against Respondent include allegations of unprofessional behavior toward colleagues and an allegation that Respondent repeatedly gave District employees credit for ESOL courses that they did not attend and/or for which they performed no work. While both claims, if proven, would warrant discipline, the more serious claim in both cases is the allegation that Respondent gave credit for ESOL courses which employees did not attend and performed no work. In August 1990, Judge James Lawrence King of the United States District Court for the Southern District of Florida entered a consent decree to oversee the implementation of a settlement agreement between the Florida State Board of Education and a coalition of plaintiff organizations that included the League of United Latin American Citizens, ASPIRA of Florida, the Farmworkers’ Association of Central Florida, the Florida State Conference of NAACP Branches, the Haitian Refugee Center, the Spanish American League Against Discrimination, the American Hispanic Educators’ Association of Dade, and the Haitian Educators’ Association. The text of the consent decree and settlement agreement is found at www.fldoe.org/aala/lulac.asp. Section IV of the settlement agreement requires teachers of “English language learners” or “ELL Students”3/ to obtain an ESOL endorsement and complete between 60 and 300 hours4/ of in-service training in each of the five subject matter areas: methods of teaching English to speakers of other languages, ESOL curriculum and materials development, c) cross-cultural communication and understanding, d) applied linguistics, and e) testing and evaluation of ESOL. See Fla. Admin. Code R. 6A-4.0244 (specialization requirements for the ESOL endorsement) and 6A-6.907 (in-service requirements). Not every teacher is required to obtain the ESOL certification. The requirement is triggered once an ELL student is assigned to a teacher’s class. Karen Patterson, the School Board’s ESOL specialist at the time period relevant to this proceeding, testified that she knew of one teacher who taught for nearly 40 years before being flagged as out-of-field for having an ELL student in her class and no ESOL course credits on her record. The School Board policy is to terminate the employment of teachers who are flagged for ESOL and who do not timely obtain the required ESOL in-service training. Approximately 750 to 800 teachers are flagged as out-of-field for ESOL each school year and must come into compliance with ESOL requirements by June 30 of the school year in which they were flagged. A teacher must obtain between 60 and 300 in-service credits, depending on the subject matter the teacher teaches. Reading and language arts teachers are required to complete 300 credits, while math and science teachers need only 60 credits. The Department of Education allows teachers to “bank” their ESOL credits and apply them toward the requirements for recertifying their Florida Educator’s Certificate. Section 1003.56(3)(a), Florida Statutes, requires each district school board to submit to the Department of Education for review and approval a plan for providing ESOL instruction to ELL students. Section 1003.56(3)(f) also requires the district school board to provide qualified teachers for ESOL instruction. The School Board’s approved District Plan identifies the standards for obtaining the ESOL endorsement, stating that the “expectation is that any teacher who obtains the ESOL Endorsement will acquire the appropriate strategies to teach English language learners.” The District Plan refers to the ESOL endorsement as an “add-on program,” because the endorsement can be added to any Florida Educator’s Certificate requiring a bachelor’s degree or higher. The District Plan provides in pertinent part: The standards to be addressed in each course will be stated and updated in the district’s master in-service plan for the Add-on- Certification Program for ESOL. Each component has been developed in accordance with the requirements for the Master Plan for In-Service Education components. Participants must complete and demonstrate competency of 80% of the course objectives in order to receive credit for the component. Participants must participate in the following clinical activities in the ESOL Add-on-Program for the ESOL endorsement: Submit a portfolio of ELL student work with analysis of student growth Develop appropriate formal and alternative methods of assessment for ELLs Develop lesson plans using effective teaching methodologies in planning and delivering instruction to meet the needs of ELLs Complete a culture sketch and mini- ethnography on an ELL to identify language proficiency and cultural influences on learning Use knowledge of culture and learning styles to plan and evaluate instructional outcomes Evaluate, modify, and employ appropriate instructional materials for ELLS at all proficiency levels Evaluate instructional programs in ESOL based on current standards Reflect on and analyze current trends in ESOL Select and develop appropriate ESOL content according to ELL students’ level of proficiency Identify and implement strategies for using school, community and home resources Analyze ELL Case Studies View and discuss pd360.com segments for each course[5/] The District Plan also sets forth the following “Completion Requirements”: The participant will satisfactorily complete all the appropriate courses needed for the endorsement. The successful completion of each required course will document that the participant has attained the competencies and skills addressed in and specific to the course. In order to complete a course successfully, a participant must: Complete a Pre/Post test or other valid measure to show at least 80% competency of the course objectives Complete all individual and group activities at a professional level of quality that demonstrates knowledge of the Florida Teacher Standards for ESOL Endorsement Complete all written assignments at a level that demonstrates competency of Domains 1-5 of the Florida Teacher Standards for ESOL endorsement[6/] Program Completion The participant must master 80% of the course objectives in order to complete the in-service component satisfactorily. In order to add the ESOL endorsement the participant must complete all five state- approved ESOL in-services courses or the equivalent. The participant must complete all individual projects and assignments at the level of quality as stated in the objectives. The instructor will follow the criteria established for satisfactory completion. Upon completion of the required course work, the Professional Development Director will certify the program completion. Competency Demonstration The participant must demonstrate successful completions of all competencies as outlined in the district master in-service components for each ESOL class included in the add-on endorsement program for the Florida Teacher Standards for ESOL Endorsement. The “Management” section of the District Plan states: Attendance Requirement for in-service points Attendance is mandatory. All of the classes have a specific number of hours and participants must attend the required number of hours. Absences must be made up with the instructor or the ESOL Specialist. Excessive absences will result in the participant not satisfactorily completing the class. The Director and ESOL Specialist for Professional Development will determine what will happen with a participant in the event of an extreme emergency or serious illness causing excessive absentees [sic]. During the period relevant to this case, Brenda Wims was the director of professional development for the School District. She was responsible for all in-service programs in the School District, including the ESOL program. Karen Patterson, the ESOL specialist, worked directly beneath Ms. Wims in the hierarchy. There were 20 to 35 ESOL facilitators, such as Mr. Hester, who delivered the in-service training for ESOL development.7/ Ms. Patterson testified that there was always a crunch at the end of the school year to obtain ESOL credits and that the bulk of the training pushed up against the June 30 deadline. Teachers came to her office as late as June 27 desperately seeking ESOL credits. Some teachers had not realized that they were out-of-field for ESOL until near the deadline, and they would approach Ms. Patterson in a panic. Ms. Patterson also testified that the professional development staff did whatever they legitimately could to ensure that teachers flagged for ESOL obtained the credits that they needed to keep their jobs. Given the number of teachers caught by the ESOL requirement each year, Ms. Patterson had an enormous task to schedule sufficient ESOL courses for them. As the end of the school year approached and the desperate push for ESOL classes began, the professional development staff would schedule additional courses and would shorten courses. The standard ESOL training program consisted of five separate courses, each covering one of the “domains” identified in paragraph four. Each course was worth 60 points. Those teachers needing 300 points were required to take all five classes. In recognition that there is some subject matter overlap among the ESOL courses, the District decided to implement a “hybrid” ESOL course as part of its effort to quickly move more teachers through the training. The facilitator of this course would offer all five class titles, and the teachers taking the course would choose the title they needed. During the first half of each class session, the facilitator would teach the entire class the materials common to all ESOL courses. During the second half, the facilitator would offer differentiated instruction for each course title. Ms. Patterson testified that the typical ESOL class took ten to 12 weeks, but that the hybrid class was shortened to six weeks. Ms. Patterson also testified that other “emergency” courses were shortened to six weeks. When asked what “emergency” meant, she responded, “[t]hat means that we needed to offer more courses, so we added more that were not hybrid as well.” Section 1012.56(8) provides for a “cohesive competency- based professional preparation alternative certification program” through which persons with bachelor’s degrees in majors other than education may become certified teachers. This program is popularly referenced as “alternative education,” or “alt. cert.” Ms. Patterson testified that the alternative certification coordinator approached Ms. Wims about adding an ESOL component so that new teachers entering the profession through the alternative certification program would satisfy the ESOL requirement without adding to the backlog of teachers needing separate ESOL certification. The District added an ESOL component to the alternative certification program. Another way to obtain ESOL credit was through independent study. Foreign travel by a teacher could be counted as independent study if certain criteria were met, including a certification that the teacher had been out of the country for five or more days and the completion of an independent study form.8/ Teachers who were unable to attend ESOL classes due to professional or familial conflicts also could seek permission to complete independent studies by performing the course work on their own time. When Ms. Patterson was a PDF teaching ESOL, she conducted between 20 and 40 independent studies per year. After becoming the District’s ESOL specialist, she oversaw roughly 20 independent studies per year conducted by the ESOL trainers. Ms. Patterson also testified that when she conducted an independent study for a teacher, she would record the teacher’s participation in the independent study by marking the teacher present in an ESOL course being taught at the time, either by her or by another trainer. This method was used in order to be able to track the credits, not to indicate that the teacher was actually in that particular class. She testified credibly that this method was in place when she started training and that she continued to use it when she became the ESOL specialist. However, on those class rosters identified at hearing by Ms. Patterson as being records of independent studies that she conducted, the students were not actually added to an already existing attendance roster for the class. Instead, they were added by use of an additional form that identified the trainer for the course at the top, as well as what component was being taught, and that was signed by Ms. Patterson at the bottom. Teachers also could obtain ESOL credit for ESOL courses they took in college. Credit was not automatic, however. To receive credit this way, the teacher had to submit a written request and a copy of his or her transcript. A similar credit was available to teachers who received in-service ESOL credit during employment with another Florida school district. Finally, teachers also could obtain ESOL certification by passing an examination. At hearing, Mr. Hester contended that there was an alternative method for receiving ESOL credits at the discretion of the PDF, by the teacher in question demonstrating his or her ESOL knowledge and skills. The School Board denied that there was such an option, and the District Plan makes no allowance for such an alternative method. Mr. Hester’s Qualifications and Experience After four years as a classroom teacher in Duval County, Mr. Hester became a PDF in 1998, working with the District’s Professional Development Cadre (Cadre), which mentored novice and “needs assistance” teachers, and implemented the School District’s master plan for in-service education. Until 2002, Mr. Hester continued to teach in the classroom in addition to his PDF duties. During his time in the Cadre, Mr. Hester estimated that he trained between 3,000 and 4,000 new teachers through the District’s Mentoring and Induction for Novice Teachers (MINT) program. He trained teachers who majored in education, as well as alternative certification teachers. Mr. Hester was chosen to redesign the alternative certification to include the ESOL requirement. After Mr. Hester completed the redesign in 2010, teachers finishing the alternative certification program would receive 120 master plan points for ESOL in the areas of testing and evaluation and cross-cultural communication. In addition to training teachers in the alternative certification program, Mr. Hester became a trainer of trainers in the program. In 1998, Mr. Hester became state certified in the Florida Performance Measurement System, which qualified him to train administrators on how to observe and evaluate teachers. In 1999, he also became state certified in Clinical Educator Training, which further refined his training in the observation and evaluation of classroom teachers and helped him to develop strategies to improve the teachers’ performance. Mr. Hester was also a trainer in Clinical Educator Training, another observational tool used informally to coach teachers. In 2003, Mr. Hester was chosen to receive two weeks of intensive training in the America’s Choice program, a method for implementing standards-based education. Mr. Hester described the standards-based program as founded on the principle that all students can learn the same information and reach a uniform standard of achievement, but that some students take longer and need more assistance to reach the goal. The “critical attribute” of standards-based education is differentiated instruction, whereby faster learners may move at their own pace while the lower achieving students receive remedial support from the teacher. Mr. Hester’s specialized training led to his appointment as a District standards coach from 2003-2007. As a standards coach, Mr. Hester held workshops, coordinated breakout sessions on early release days, and created pamphlets setting forth pre-planning activities, among other duties. Former Fletcher High School principal Dane Gilbert described the standards coach position as an especially tough one in terms of “ruffling feathers” among the teaching staff. From 1998 through 2009, Mr. Hester served as an adjunct professor in the College of Education and Human Services at the University of North Florida. He taught several courses that included ESOL instruction. Mr. Hester testified that this college-level teaching experience was one reason the District brought him into the ESOL program as a trainer. In addition to his redesign of the alternative certification program, Mr. Hester also was the author of the hybrid ESOL course. For a time he was the only PDF teaching the hybrid course because he was one of the few trainers in the District qualified to train teachers in all five ESOL subject areas. Mr. Hester testified that his development and teaching of the ESOL course gave him a reputation as the “trainer of last resort” for the School District. This reputation was enhanced by his willingness to work through holidays to assist desperate teachers in completing their ESOL requirements. He was paid for ESOL classes through the Shultz Center for Teaching and Leadership, which is part of the School District. Contracts appear to be on a per-class component basis, and performance was approved through Ms. Wims. For those contracts provided, Mr. Hester generally received up to $2,100 per class. From 2007 until his termination, Mr. Hester served as Fletcher High School’s PDF and instructional coach. As such, he helped generate the school improvement plan, part of which involved coordination of Professional Learning Communities (PLCs). PLCs are a facilitated collaborative effort among teachers to improve instruction, including the preparation of lesson plans and development of teaching strategies. The 28 or so PLCs at Fletcher High School were organized according to academic subjects or administrative duties, such as “guidance” or “leadership.” As Fletcher High School’s PDF, Mr. Hester also was involved in the adoption of the requirement that teachers develop “lesson design notebooks.” These notebooks were more complex than simple lesson plans in order to enable the teacher to document everything happening in the classroom in terms of standards-based education and the “Florida Educator Accomplished Practices” found in Florida Administrative Code Rule 6A-5.065. The lesson design notebooks were used for evaluative purposes by the school administration. Mr. Hester attended the various PLC meetings and assisted them with teaching issues. Each PLC at Fletcher had a PLC binder placed in the front office. The documents generated at PLC meetings would be routed to Mr. Hester for his review and for retention in the binders. As the PDF, Mr. Hester also was assigned to work with low-performing “needs assistance” teachers to improve their performance. In addition, Mr. Hester was the Advanced International Certificate of Education (AICE) program coordinator. AICE is a diploma program created by Cambridge University. As program coordinator, Mr. Hester worked closely with top students and their teachers. Mr. Hester also was Fletcher High School’s main data analyst with respect to student and teacher performance. ESOL Endorsements The Administrative Complaint charges in part that “[d]uring the 2011/2012 school year, Respondent repeatedly provided English for Speakers of Other Languages (ESOL) endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The testimony related to this allegation involves the ESOL credits awarded to teachers Christine Anderson, Julie Durden, Sherry Murrell, Heather Kopp, Catherine Johnson, Josh Corey, Andrew Davis, Suzanne Harman, and Susan Podzamsky, and former principal Dane Gilbert. With respect to some of the teachers, Mr. Hester claimed that he allowed them to do independent studies because of conflicts that prevented them from attending scheduled ESOL classes. Mr. Hester believed that he had the authority to provide independent studies to teachers who could not attend classes, and marked those students as present in classes he taught, similar to Ms. Patterson’s testimony as to how she kept track of independent studies. Respondent contended that these teachers earned their credits through the use of independent studies within the scope of discretion he believed that he had until January 23, 2013. On that date, he received an e-mail entitled “ESOL Independent Study other than ESOL Foreign Travel.” The e-mail had no text, but included an attachment that stated the following: ESOL Independent Study other than ESOL Foreign Travel This is decided on a case by case basis and must be approved by Brenda A. Wims Director [sic] of Certificated/Non-certificated personnel for Professional Development and Kella Grant, Supervisor of Certification. All assignments must be submitted to the trainer who will then submit the completed work to Karen L. Patterson, ESOL Specialist for Professional Development. The request must meet the following criteria: Classes are not open for Registration and termination is within a short period of time Death/illness of family member Illness that requires treatment or hospitalization of participant Cross content conflicts (reading/ESOL) Participant assigned Summer School during the Summer course offerings and realizes after the fact that they have not satisfied their out of field status and a replacement is not available and this situation is verified by a Human Resource Administrator/ Principal You must be able to complete the assigned task and meet with the ESOL Specialist for Professional Development, Diversity Specialist or Brenda A. Wims. Brenda A. Wims, Director Karen L. Patterson, ESOL Specialist It appears that Mr. Hester is the only recipient of the e-mail, and he understood it as a directive to change how independent studies are handled. Ms. Patterson testified that the e-mail was generated to clarify the policy because some of the trainers may have had a different understanding. She testified that she probably handed the document out at a meeting, as opposed to e-mailing to everyone, but that it was provided to other trainers in addition to Mr. Hester. Mr. Hester testified that he would go to Ms. Patterson for approval of independent study projects, and that Ms. Patterson told him, as well as other trainers, that they were aware of the criteria for independent study established by Ms. Wims: that a teacher must have extraordinary family obligations or school duties that prevented him or her from taking the classes offered by the District. Mr. Hester also testified that Ms. Patterson said she trusted him to make the call on the independent student study project (required for the curriculum), and that teachers must meet the expectations of the course. By contrast, Ms. Patterson testified that Ms. Wims had to approve independent studies and that Ms. Patterson did not have the authority to do so alone. She would relay requests to Ms. Wims and act as a conduit for the trainers, but would not actually approve or deny requests for independent study. She also testified that the criteria listed in the January 23, 2013, e-mail was consistent with the existing policy for independent studies. Her testimony is credited. A comparison of the e-mail to the District Plan reveals that the documents are relatively consistent. The District Plan allows the Director and ESOL Specialist to determine what will happen with a participant “in the event of an extreme emergency or serious illness causing excessive absentees [sic].” The e-mail clarifies what is meant by “extreme emergency or serious illness,” and also clarifies that Ms. Wims must actually approve the independent study. While the District Plan could have been read as allowing Ms. Patterson to act unilaterally, clearly neither Ms. Wims nor Ms. Patterson interpreted “and” in that fashion. Further, nothing in either the District Plan or the e-mail came close to allowing Respondent the freedom to expand the parameters for allowing independent study or to change the scope of the classes for which credit would be given. However, the allegation in the Administrative Complaint does not charge Respondent with providing independent studies that were not authorized. It charges him with awarding credit where work was not performed. Nevertheless, there were clearly incidents where, according to Ms. Patterson, Mr. Hester received approval for and conducted independent studies for teachers with whom he worked. By the same token, there were teachers for whom he granted ESOL credits and required no work at all. Christine Andrews is a teacher at Fletcher High School. During the time related to this case, she taught AP statistics and calculus. Mr. Hester described her as a phenomenal teacher. On March 16, 2012, Ms. Andrews and several other teachers received an e-mail from Respondent requesting they see him regarding their out-of-field status. Ms. Andrews was confused by this e-mail, because she believed that her undergraduate program at the University of North Florida (UNF) included an ESOL component that satisfied the 60-hour requirement for a high school math teacher. She had not, however, taken her college transcripts to the District ESOL office to obtain approval for the ESOL credit. On March 16, 2012, Ms. Andrews sent Respondent an e-mail stating that she had spoken to Natosha Earst-Bailey in the District’s certification department, who had told her that the computer reflected that she had her 60 hours of ESOL credit, and that she should not have been flagged as out-of-field. While Ms. Earst-Bailey suggested to Ms. Andrews that she provide her transcript to Mr. Hester and to Ms. Patterson at the District Professional Development Office, so that the records would be consistent, she did not do so. In May of 2012, Mr. Hester sent both Ms. Patterson and Ms. Earst-Bailey e-mails requesting a review of Ms. Andrews’ credits at UNF for possible ESOL credits. In the e-mail to Ms. Earst-Bailey, Respondent stated, “[a]lso, I attached her points and she has 60 for cross-cultural and has the paperwork for 60 hours earned at UNF.” There is no issue with respect to the credits earned through coursework at UNF. However, the credits for cross- cultural communications are based upon her purported attendance in a cross-cultural ESOL class taught by Mr. Hester commencing on July 11, 2011. Respondent signed the attendance sheet, which reflects that Ms. Andrews was present for all 12 class sessions, as well as the completion report for her ESOL course; however, Ms. Andrews testified that she never attended this class, never performed any work for it, and never completed an independent study in order to obtain ESOL credits. She was unaware that she had been awarded these points for the July 2011 class until she was contacted by School District personnel in connection with the School District investigation concerning Mr. Hester. Respondent initially claimed that he completed an independent study with Ms. Andrews, but admitted that he did not require her to do any work in order to receive the credits. Instead, he stated: MR. HESTER: . . . So with her being as good of a teacher as she is, knowing her PLC work, knowing what’s in her lesson design notebook, observing her and sitting down and talking with her, I was able to determine that she met the competencies of the course she was given. Q: Well, did you also know what was in the course content she took out at UNF? A: Yeah, because I taught it. And the fact that she was at the – the fact that she took that course at UNF, I also took that into consideration in making that determination. Q: Okay. Well, what did you specifically do to make sure that Christine Andrews possessed all the skills and knowledge and abilities to be able to communicate and properly teach any ESOL student she had? A. Again, I looked at her lesson design notebook, which had all of the information and everything in it, also with her PLC work. I’ve been in several of the PLC meetings. I don’t remember if I observed her or not, but – and also in talking with some of the ESOL students and being able to make the determination that, you know, they would be able to say, oh, that she’s communicating with me, these are the strategies we’re using, so on and so forth. In short, Ms. Andrews performed no classwork or dedicated work of any kind to obtain the cross-cultural communication ESOL points that Respondent submitted on her behalf. His belief that he had the authority to award ESOL credits based on a teacher’s competence and the quality of her “phenomenal” teaching directly conflicts with the express requirements in the District Plan for ESOL certification, which requires that a teacher complete all individual projects and assignments; attend all class sessions; and complete all written assignments. Respondent’s stated belief that he had the authority to award points for something that does not meet these requirements is simply not reasonable. Julie Durden is a teacher at Fletcher High School. She began teaching there in 2004, teaching American Sign Language. Although the timing is unclear in the record, at some point within the last few school years, she began teaching English, and was flagged as out-of-field for ESOL. Ms. Durden, like Ms. Andrews, received an e-mail from Mr. Hester concerning her out-of-field status. When she went to see Mr. Hester about it, he told her not to worry; he would take care of it and she would not have to attend class. Ms. Durden’s name is listed on the same class roster as Ms. Andrews, beginning in July 2011 and ending in September 2011. She did not sign up, attend, complete course work, or perform an independent study for this course. Ms. Durden was not aware that she had received credit for this class until approached during the School Board investigation. Ms. Durden was instrumental in bringing a program called “Challenge Day” to Fletcher High School and, ultimately, to the entire District. Challenge Day is a program geared to creating a safe environment for children where they feel loved, safe, and celebrated, and is designed to break down barriers and eliminate cliques and bullying. Preparation for Challenge Day is a work- intensive undertaking. Mr. Hester determined that the work Ms. Durden performed in preparing for Challenge Day, along with her assistance with preplanning training, equated to the expectations of the ESOL cross-cultural course. Mr. Hester had no authority to make this determination, which is totally inconsistent with the requirements delineated in the District Plan. Ms. Durden acknowledged that she performed a lot of work for the Challenge Day program, and that there might be some content overlap. However, she could not see how these activities could substitute for attending an ESOL class, because the Challenge Day activities are not related to teaching strategies for ELL students. Mr. Hester claimed that he discussed the possibility of granting cross-cultural ESOL points for Challenge Day preparations with Ms. Patterson by telephone. However, he could produce no documentation regarding such a conversation, and Ms. Patterson could not recall any such conversation ever taking place. Moreover, she denied having any conversation with Mr. Hester that could be interpreted as giving Mr. Hester permission to award ESOL credit via his “alternative delivery” method. Ms. Patterson’s testimony is consistent with the parameters of the District Plan she assisted with implementing, and is credited. To the extent that Mr. Hester truly believed that he had the authority to award ESOL credit in this fashion, his belief was unreasonable. Sherry Murrell is a geometry and intensive math teacher at Fletcher High School. She completed all of her ESOL requirements in June of 2005, and was not out-of-field. While she had expressed an interest in being able to “bank” ESOL credits for recertification, she did not sign up for any classes because she had children at home that she had to care for at the time the classes were taught. Mr. Hester asked her to attend one of his classes, but she declined to so because she could not be at two places at one time, and thought nothing more about the issue. Mr. Hester later brought up the subject of the class with her, and she reminded him that she never signed up for the class. Mr. Hester told her not to worry, that he could make it an independent study because “you’ve gone above and beyond . . . you’ve met all the criteria.” She asked him what work she needed to complete, and he told her not to worry about it. Ms. Murrell did not sign up for, attend, or perform any work for any ESOL classes taught by Mr. Hester. However, her name appears on the attendance roster for the cross-cultural ESOL class taught from July through September 2011, and she is listed as being in attendance for all 12 classes. Her name also appears on the attendance roster for the curriculum and materials for the ESOL class beginning January 10, 2012, and is listed as attending 11 out of 12 classes. Approximately a week and a half prior to the School Board investigator coming to the school, Ms. Murrell received an envelope containing completed “course activities checklists” for the curriculum and materials class taught in the Spring of 2012, and for a hybrid class taught during that same period. Both lists were signed by Mr. Hester and dated April 3, 2012. The checklists are the documents an instructor uses to verify completion of the required activities in an ESOL course. Mr. Hester asked Ms. Murrell if she had received the envelope, and she indicated she had, but Ms. Murrell did not really examine the documents until she met with the investigator. She provided the documents to the investigator. Respondent testified that he gave Ms. Murrell credit because she is a phenomenal teacher. As with Ms. Andrews, Respondent did not have the authority to award ESOL credits based on the quality of Ms. Murrell’s teaching when she performed no work for the ESOL courses. Heather Kopp taught at Fletcher High School for two years after her graduation from UNF, transferred to Mandarin High School, and then after two years returned to Fletcher High School. Ms. Kopp testified that she took ESOL courses as an undergraduate at UNF and was told that she needed no further ESOL courses. She has her ESOL endorsement. There was evidence presented indicating that Ms. Kopp’s name was on class rosters for ESOL classes taking place in January 2009 and January 2010 taught by Mr. Hester. Mr. Hester claimed that he oversaw an independent study for her because she had to care for her children at night and was unable to take ESOL classes. While the charges against Mr. Hester brought by the School District could be interpreted as including conduct related to Ms. Kopp, the Administrative Complaint in this proceeding limits the allegations regarding ESOL classes to the 2011/2012 year. Therefore, no findings will be made with respect to Ms. Kopp’s participation, or lack thereof, in ESOL classes. Catherine Johnson is an English teacher at Fletcher High School, and started teaching there in 1998. She took a two-year leave of absence and returned in December 2008. In December 2010, she received an out-of-field notice for ESOL. She talked to Mr. Hester about the notice, who asked Ms. Patterson what classes Ms. Johnson would need to complete her ESOL endorsement. Ms. Patterson indicated that Ms. Johnson needed part 2 of the cross-cultural communications course, and Mr. Hester passed along the information to Ms. Johnson. Ms. Johnson asked Respondent what she needed to do to complete the ESOL endorsement. He told her to consider it an independent study. Ms. Johnson stated that Respondent gave her two discs to load onto her computer, which she was unable to do. When she returned the discs to Respondent, he took them and said that he knew her reputation as a classroom teacher, that she was a quality instructor, and that she had fulfilled the requirements of part 2 of the cross-cultural ESOL course. She accepted that Respondent had the authority to make this determination and did not question it. Respondent, on the other hand, claims he never gave Ms. Johnson any discs because the curriculum was available on the District website. He claims that he gave her the course syllabus for cross-cultural ESOL and told her she could use that as documentation if she needed it. Whether Respondent gave Ms. Johnson discs or merely gave her a syllabus is irrelevant. Respondent admits that he did not give her any work to do in order to fulfill the requirements of the course. He claims that he was not “giving” Ms. Johnson anything: that she earned the ESOL credit because of the extra work she did with PLC groups, her status as an AICE, her lesson design notebook, and his observations with her in the classroom and in PLCs. Respondent signed completion reports for a cross- cultural ESOL course taught by Mr. Hester from January to April 2011. Ms. Johnson did nothing to earn credit for this class.9/ Josh Corey is a teacher at Fletcher High School. At the time of the hearing, he had been teaching at Fletcher High School for 12 years. He teaches physical education and serves as the school’s head football coach, assistant athletic director, and student activities director. Mr. Corey looked at his records in 2013, and saw that he had credit for 300 ESOL hours. He believed that he had only completed the work for 180 of those hours. He had attended one class and completed two other domains through independent studies under Mr. Hester’s direction. There is no allegation of impropriety regarding the points awarded for these independent studies. Mr. Corey’s name was on attendance sheets for two courses conducted from January to April 2011, offered on different days. Mr. Corey did not attend these classes. Mr. Corey’s wife’s name also appeared on these attendance sheets. Mr. Corey could not have attended these classes because he was coaching softball during this time, and his coaching duties would have conflicted with the class schedule. He could not recall any discussions with Mr. Hester about the classes. Mr. Hester, on the other hand, testified that Mr. Corey wanted ESOL credits for banking purposes, and that his wife needed the ESOL credits, having returned to teaching after having a child. She could not attend because her husband was coaching when the classes were offered, and they had two small children. Mr. Hester testified that he allowed them to do independent studies together, and the work was turned in with both of their names on it. In his view, collaboration between teachers for an independent study was acceptable because it mimics the sharing of activities and experience that goes on in class. The undersigned notes that Mr. Corey only testified in the School Board case, and no additional testimony from him was elicited in the hearing conducted March 29. Therefore, Judge Stevenson was in a better position to assess the credibility of both Mr. Corey and Mr. Hester. Judge Stevenson favored Mr. Hester’s version of the events, and believed that it is more likely that Mr. Corey’s wife completed and turned in the coursework in “collaboration” with Mr. Corey than that Mr. Hester invented the scenario of having received the work for which he credited both teachers. Given Judge Stevenson’s superior position to assess both witnesses’ credibility, and the higher burden of proof applicable to this proceeding, the undersigned defers to his assessment. Andrew Davis is a physical education teacher and football coach at Fletcher High School. He went through the alternative certification program and finished it during his third year of teaching. Mr. Hester was his instructor for the program. Mr. Davis’s ESOL credits were obtained through independent study under Mr. Hester’s direction. Only one of the independent studies was conducted during the 2011/2012 school year, and therefore within the period of time encompassed by the allegations in the Administrative Complaint. Mr. Davis is listed on a class roster for the curriculum and materials ESOL course given from January 10, 2012, through April 13, 2012. Mr. Davis testified that he did not attend these classes, but performed an independent study with Mr. Hester. He could not recall what tasks he was required to perform other than reading articles that Mr. Hester directed him to read. He stated, “I did whatever Mr. Hester asked me to do regarding these courses.” The evidence is not clear and convincing that, as alleged in the Administrative Complaint, Mr. Hester gave Mr. Davis an endorsement without requiring him to complete the course requirements. Suzanne Harman is a teacher at Fletcher High School. She has been teaching since 1974, and has taught English at Fletcher High School since 1996. She did not teach from 1986 to 1996 because of her husband’s naval career. Ms. Harman was notified on March 25, 2011, that she was out-of-field for ESOL credits and needed to complete her ESOL credits by December 31, 2011. Ms. Harman was unfamiliar with the ESOL requirements because of her absence from the teaching field when the program was first implemented. Although the timing of her actions is unclear, she consulted with Mr. Hester to find out what she needed to do. Ms. Harman testified that Mr. Hester took out a checklist of course artifacts for the cross-cultural ESOL class, and went down the list, identifying things that he had seen her do in her classroom. Mr. Hester denied telling Ms. Harman that she could get credit for the things she had done in her classroom. He said that he agreed to work with her through an independent study, because she was dealing with significant issues in her personal life. He claimed that he did go over the items on the list with her, but only when she came in with her completed portfolio at the end of the 2011 independent study. Ms. Harman’s name appears on the class roll for an ESOL class beginning in July and ending in September 2011. The more plausible explanation with respect to this class is the one given by Mr. Hester. Ms. Harman also was on the out-of-field list issued on March 16, 2012, that Ms. Andrews and Ms. Durden received. Upon receiving this notice, Ms. Harman approached Mr. Hester and asked if it was time for her to take another class from him. Mr. Hester told her that he was teaching a hybrid ESOL class on Tuesday nights. Ms. Harman attended the curriculum and materials portion of this class for seven of the sessions conducted from April 24 to June 5, 2012. However, her ability to complete the assignments for the class was severely impaired by demands on her time due to her mother’s serious illness. As a result, she was unable to turn in her work folder on the final day of class. Mr. Hester told her to get the work to him when she could, but no deadline for doing so is apparent from her testimony. Mr. Hester gave Ms. Harman credit for the class and notified her of the credit via an e-mail dated June 26, 2012. Once she received the e-mail, Ms. Harman made no further effort to finish the materials for the course, and, from her testimony, apparently made no contact with Mr. Hester to ask whether she needed to do so. On January 22, 2013, an anonymous letter accusing Mr. Hester of giving ESOL credits without requiring work for the courses became public. The following day, Mr. Hester sent Ms. Harman an e-mail asking about her unfinished portfolio for the ESOL class. Ms. Harman provided some, but not all, of the work she was supposed to complete, and said it was all she could find. Mr. Hester did not ask her for anything else. In May 2013, Mr. Hester notified Ms. Patterson that Ms. Harman had not completed the agreed-upon work assigned to her in the ESOL class for which she was enrolled from April to June 2012. The e-mail stated: It was agreed upon that she would be given more time to complete the required work and have it ready by September 2012 due to her extreme family situation. I gave her another extension to the holidays to complete the work (I know I am not allowed to give that amount of time). However, I did not get the information needed. I asked for her work and finally received an incomplete packet (see attached) April 1, 2013. I still waited to see if she would come to me and complete the necessary work— she did not. I am asking that she not be awarded the 60 points for ESOL: Curriculum and Materials. Please have these points removed from her Master Plan Points. Mr. Hester explained that the e-mail Ms. Harman received in June 2012 was a mass e-mail sent to all participants of the class. He claims that he had spoken to Ms. Harman multiple times following the class about her need to provide the materials to complete her class obligations. He met with her again at the beginning of the school year about the outstanding course work. Mr. Hester’s version of the events is more credible than Ms. Harman’s. His rationale for giving credit to teachers, such as Ms. Andrews and Ms. Johnson, was that they were what he considered to be “phenomenal” teachers. By contrast, he characterized Ms. Harman as a “needs assistance” teacher. While she strenuously resisted that label, Ms. Harman acknowledged that she had multiple observations in her classroom; that she had experienced some issues with administration about items that should have been posted in her classroom; and that she was a very messy person. Mr. Hester clearly should have waited until he received all of the documentation that Ms. Harman had completed the requirements of the class before awarding her credit. Regardless of his motives for doing so, he did make an attempt to correct the record in light of her continued failure to provide the work he requested of her. Susan Podzamsky was a special education teacher at Fletcher High School. She received credit for four ESOL courses taught by Respondent. Mr. Hester admitted that Ms. Podzamsky never attended an ESOL class or completed any ESOL course work for an ESOL class taught by him. She is listed on class rosters and Respondent signed completion reports for her for cross- cultural communications and understanding, beginning July 14, 2011; ESOL curriculum and materials development, beginning January 10, 2012; ESOL hybrid, beginning February 2, 2012; and methods of teaching ESOL, beginning May 1, 2012. Mr. Hester considered her to be a good teacher, and admitted giving her ESOL credit not for course work, but for her participation in non- ESOL-related PLCs, preparation of Individualized Education Plans, and reading competencies. Dane Gilbert was the principal at Fletcher High School until his retirement at the end of the 2011/2012 school year. Mr. Gilbert also served, during his career, on the Education Practices Commission for eight years, and as Chair of the Commission his final year of service. Mr. Gilbert is listed on an attendance sheet for an ESOL hybrid class component, testing and evaluation, beginning May 2, 2012, and signed by Respondent. The attendance sheet lists him as having attended six of seven class sessions. Mr. Gilbert did not attend this class and did not work for it. He saw it on his record when he was checking his hours after he retired. Mr. Gilbert acknowledged a discussion with Mr. Hester about an independent study, but did not follow up on it because he was planning to retire and was not planning on renewing his certification. Mr. Hester, on the other hand, claimed that Mr. Gilbert was interested in banking the hours and that the credit was based upon Mr. Gilbert’s involvement in Challenge Day, as well as the principal evaluation binder he prepared, which required a case study. Mr. Gilbert’s version of the events is more credible than Mr. Hester’s. Under either version, however, the facts establish that Mr. Gilbert did not take the ESOL class for which he was given credit, and did not perform an independent study in lieu of attending class. Unprofessional Behavior The Administrative Complaint also alleges that Respondent behaved in an unprofessional manner with respect to Christine Reed, Andrew Davis, and Nicole Conrad. Mr. Hester came to Fletcher High School as a standards coach during Mr. Gilbert’s second year as principal. Mr. Hester’s position evolved into his becoming the PDF and the AICE coordinator for the high school. Mr. Gilbert believed that Mr. Hester was very good at his job and very good for the high school. Mr. Hester was in a teaching position not an administrative position, but appeared to have a position of authority over the faculty. Mr. Hester’s position included quasi-administrative duties, including work with need-assistance teachers, modeling appropriate teaching methods, assistance with preparation of and access to teachers’ lesson design notebooks, and professional development for teachers. His office was two doors down from the principal’s office, with whom he often worked closely. Right or wrong, Respondent was perceived as being Mr. Gilbert’s “right- hand man.” He was present at and involved in meetings related to building the class schedules. Although he often gave input at those meetings, the ultimate schedule was created by the assistant principal for curriculum and approved by the principal. Mr. Hester had no power or authority other than providing suggestions. While Mr. Hester did not have the authority of an administrator, the evidence clearly indicates that some teachers believed that he had that authority, and Respondent apparently did little to dispel this belief. A significant segment of teachers were irritated by or dissatisfied with Mr. Hester’s actions at Fletcher High School, and at least a part of the teachers’ discomfort was due to Mr. Hester’s sometimes high- handed behavior. Several teachers testified about personal conflicts with Mr. Hester. However, the concerns of only three of those teachers are alleged in the Administrative Complaint and only those three will be addressed in this Recommended Order. At least one teacher testified that it was well known around school that if a teacher got on the “wrong side” of Mr. Hester, he could make the teacher’s life miserable. Mr. Hester believed that at least part of the animosity directed toward him was because of his homosexuality. No credible evidence was presented that would support this assertion. For several years, Mr. Hester organized what was known as FCAT Boot Camp. The event occurred on a Saturday, and he would recruit teachers to help him run it. Christine Reed was chairman of the reading department at Fletcher High School, and has taught in Duval County for 24 years. At some time during either the 2011/2012 or the 2012/2013 school year, Mr. Hester approached Ms. Reed about helping with the FCAT Boot Camp. Ms. Reed had assisted with the program for the two previous years, and did not want to do it again. When she refused, Mr. Hester told her he “really needed help with this,” and “you know that I can get you moved.” Ms. Reed believed that he was threatening to get her teaching assignment within the school changed. She believed that he had this authority because of meetings she had attended as a department head where schedules were discussed. While Mr. Hester had no actual authority to change a teacher’s schedule, he did have input into the process. However, she also testified that “I felt like he could, but I wasn’t concerned because it wasn’t happening at the time. And I had heard him say that to other people or about other people, so I just kind of ignored that.” Given that Ms. Reed was a department head, any belief that Mr. Hester could get her teaching assignment changed is not very reasonable. However, there was a general belief that because of Mr. Hester’s close work with the principal of the school, he could influence Mr. Gilbert’s decision-making. Whether he could make good on his threat is not the point. Any behavior indicating that he would use his position, or any perceptions regarding the reach of his authority to attempt to force people to do what he wanted, is not appropriate. Respondent attempted to impeach Ms. Reed’s credibility by soliciting testimony that she enlisted people to complain about him, and that she benefited from his termination by getting a position as testing coordinator that Mr. Gilbert was considering giving to Mr. Hester. She acknowledged that she did receive the testing coordinator position, and that she once thought of Mr. Hester as her colleague and friend. She testified, however, “in all honesty Dennis, I have great respect for some of the things that you can do educationally, but I steered away from being a close friend of yours when I saw some of the negativity and just the attitude at school and how some people were fearful, and I didn’t want to be associated with that.” Ms. Reed’s testimony was consistent and credible, and is accepted. Testimony was presented regarding the interaction between Mr. Hester and Nicole Conrad. Ms. Conrad was a teacher at Fletcher High School, beginning in 2007. Although testimony was presented regarding three incidents that made Ms. Conrad uncomfortable, none of those alleged incidents occurred during the 2011/2012 or 2012/2013 school years. Ms. Conrad stated that they occurred very early in her tenure at Fletcher High School, in either 2007 or 2008. Given that this alleged conduct is well outside the period of time alleged in the Administrative Complaint, it cannot be considered. In January 2013, an anonymous letter regarding Mr. Hester was sent to the School Board Superintendent Nikolai Vitti, School Board Chairman Fred “Fel” Lee, Human Relations Director Sonia Young, and Fletcher High School Principal Donald Nelson. Mr. Nelson succeeded Mr. Gilbert as principal of Fletcher High School in July of 2012. The letter complained about his unprofessional, bullying behavior toward teachers at Fletcher High School; the failure of administration to address complaints about his behavior; and his award of ESOL credits where no work was done. Mr. Nelson met with Mr. Hester to address the concerns expressed in the letter, and believed at the time that it was the result of a personal conflict between Mr. Hester and the anonymous writer, along the lines of a cat fight. He did nothing else locally, but contacted Sonia Young from human resources (HR), who confirmed her office had received the letter and someone would be in touch with the school. Shortly thereafter, Mr. Nelson was contacted by Mary Mickel, an employee of the professional standards office of the HR department. Mr. Nelson advised Ms. Mickel that he believed the matter was a vendetta by the anonymous author. Eventually the matter was investigated at the School District level, and led to the School Board charges against Mr. Hester and his eventual termination. Mr. Hester was required to meet with an investigator at the District office as part of the investigation. He was anxious to learn who wrote the anonymous letter, and understandably agitated about the allegations against him. In May of 2013, Mr. Hester spoke to Andrew Davis in the parking lot of the high school. Mr. Hester was quite heated about the situation in which he found himself, and told Mr. Davis he believed the anonymous letter was written by Mses. Snell, Reed, and Chalker,10/ that he was going to go after these women, and that he would not feel bad about anyone who got caught in the collateral damage. Mr. Hester stated, “[y]ou never want to piss off a gay man,” and warned Mr. Davis to distance himself from the three woman Mr. Hester was blaming for the anonymous letter.11/ Mr. Davis was a reading teacher whose department head was Ms. Reed. He reported the conversation to her, as well as reporting the conversation to Mr. Nelson, and wrote a statement about the incident on May 23, 2013. Respondent admits making this statement to Mr. Andrews, and regrets it. There was no testimony by Mr. Davis that he felt harassed or threatened personally. However, the statement on its face was one that clearly indicates the intention to harm colleagues professionally, with no regard as to who might be harmed in the process. As noted in the Preliminary Statement, the School Board suspended Respondent’s employment without pay and brought an action against Respondent to terminate his employment. After an evidentiary hearing, Judge Lawrence Stevenson found that Respondent had committed some, but not all of the charges alleged in the Notice of Termination. Judge Stevenson recommended that Respondent’s suspension without pay from July 3, 2013, through the date of the Final Order be upheld, and that a reprimand be issued. The School Board adopted the Findings of Fact and Conclusions of Law, but rejected the recommendation regarding the penalty to be imposed, choosing instead to terminate Respondent’s employment. The School Board stated: It was only after careful deliberation that this Board decided to terminate Respondent’s employment at the outset of these proceedings. Thereafter, as a result of this administrative proceeding, the ALJ’s recommended discipline appears to be based on his impression of what he considers to be fair and his impressions of the specialized skills of Mr. Hester. Regardless of Mr. Hester’s expertise, his actions are inexcusable and potentially damaging to those colleagues who placed their trust in him, potentially damaging to the students these teachers serve. After careful deliberations before entering this Final Order for this administrative proceeding, the Board could not ignore its constitutional obligations and overarching duty to protect students and ensure that teachers are properly trained under the law, . . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and (j), and rule 6B-1.006(4)(b), (5)(a), and (5)(d), as alleged in Counts 1, 2, 4, 6, and 7 of the Administrative Complaint. It is further recommended that Respondent’s license as an educator be revoked, with the right to reapply to be determined by the Commission. DONE AND ENTERED this 3rd day of August, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2016.
The Issue Whether Respondent violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2008),1/ and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B- 1.006(5)(a), and, if so, what discipline should be imposed.
Findings Of Fact Ms. Dunn holds Florida Educator's Certificate 930668, covering the area of exceptional student education, which is valid through June 30, 2012. At all times pertinent to this case, Ms. Dunn was employed as a varying exceptionalities teacher at Seminole High School in the Pinellas County School District (School District). Deborah Joseph (Ms. Joseph), the director of School Partnerships for St. Petersburg College, hired Ms. Dunn for the Spring Semester of 2009 to supervise 12 student interns, teaching in various Pinellas County elementary schools. Ms. Joseph credibly testified that she asked Ms. Dunn what Ms. Dunn would do with her current employment as a Pinellas County teacher, if offered a job. Ms. Dunn stated that she would resign as a teacher. On January 30, 2009, during school hours, Ms. Dunn left the Seminole High School campus without permission from the school administration. When the school's assistant principal, Phillip Wirth (Mr. Wirth), questioned Ms. Dunn about her whereabouts, Ms. Dunn alternately claimed that she had been given permission by another principal to leave the campus and that she had been meeting with another teacher. Neither of Ms. Dunn's explanations was supported by the assistant principal or the teacher. Consequently, on March 9, 2009, Mr. Wirth gave Ms. Dunn a written reprimand for her conduct. The evidence clearly and convincingly shows that Ms. Dunn continued her employment as a teacher at Seminole High School while at the same time working a second job for St. Petersburg College, supervising student interns working in elementary schools. Unfortunately, Ms. Dunn's work hours at Seminole High School coincided with the student interns' work hours at the elementary schools. In order to work both jobs, the record shows that Ms. Dunn was routinely untruthful in her use of sick leave time and left the Seminole High School campus during school hours without permission. For example, the record shows that she requested sick leave on February 26, 2009; March 4, 2009; March 6, 2009; and March 17, 2009. On those very same dates, Ms. Dunn signed in to supervise interns at Pinellas Central Elementary School, Sandy Lake Elementary School, Plumb Elementary School, and McMullen Booth Elementary. Again, on one date, April 23, 2009, Ms. Dunn wrote in her leave request that "family and kids touch [of] flu" and that she was signing out for a doctor's appointment beginning at 9:30 a.m. The record shows on that same day Ms. Dunn miraculously recovered from the illness and was able to eat lunch at her husband's nearby restaurant at 11:50 a.m., and then supervise an intern at Pinellas Central Elementary School at 1:33 p.m. In addition to misusing sick leave, the record clearly showed that Ms. Dunn would leave the Seminole High School campus without permission or signing out and would falsify school records. For example, the record clearly showed that, on April 16, 2009, Ms. Dunn left the school campus without permission. The record shows that she signed out for lunch at 1:00 p.m. and that she returned at 1:30 p.m. However, the records also show at 1:45 p.m., that same day, Ms. Dunn signed into High Point Elementary in order to supervise an intern. Again, on April 22, 2009, Ms. Dunn left Seminole High School without permission or signing out at 9:46 a.m. Walter Weller (Mr. Weller), the principal of Seminole High School, credibly testified that co-teachers, like Ms. Dunn, are placed in exceptional student education classes in order to assist with the students' individual education plans and to help the students succeed. Further, he credibly testified that it was important that teachers remain on campus to keep classrooms covered, and it is a safety issue for the students. James Lott (Mr. Lott), an administrator in the Office of Professional Standards for the School District, credibly testified that the School District felt that progressive discipline was not appropriate in Ms. Dunn's case, because her actions amounted to stealing time and outright falsification of records. Ms. Dunn testified that she did not dispute that she had the second job and claimed that the collective bargaining agreement allowed her to work a second job. Ms. Dunn testified that she never used time off with pay and that the School District should have used a progressive discipline against her, rather than terminating her employment. Further, Ms. Dunn claimed that she and the School District had reached an agreement concerning her claim for unemployment compensation that the School District "would not go after my certificate." Ms. Dunn showed no remorse or acknowledgement of her many untruthful statements or wrongdoing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Dunn violated sections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j) and rules 6B-1.006(3)(a) and 6B-1.006(5)(a), and suspending her educator’s certificate for two years followed by a period of three years' probation during which she shall be required, along with standard conditions utilized by the Education Practices Commission, to complete a three-hour college level course in ethics during the first year of her probation. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 April, 2011.
