The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes, to terminate Respondent Todd Erdman’s professional service contract as a teacher with the Lake County School District, for the reasons set forth in Petitioner Lake County School Board’s (School Board) October 28, 2019, correspondence.
Findings Of Fact The School Board is charged with the duty to operate, control, and supervise free public schools within the School District of Lake County (School District). See Art. IX, § 4(b), Fla. Const.; § 1012.33(1)(a), Fla. Stat. 1 On July 31, 2020, the undersigned also entered an Order Concerning Exhibits R20 and R21, which were deposition transcripts of Ms. Kornegay and Harold C. Farnsworth, the Assistant Superintendent of Schools. The undersigned admitted these exhibits, over Petitioner’s objection, pursuant to Florida Rule of Civil Procedure 1.330(a)(2) and section 90.803(18)(d), Florida Statutes, but subject to any objections made during the depositions. Petitioner’s counsel noted that at the depositions, he made “form” objections, which may not have provided the complete basis for an objection. The undersigned allowed Petitioner the opportunity to provide a more detailed description of any form-type objections made during those depositions, within 10 days, and allowed Respondent to file a more detailed response to any of those objections, within 10 days of Petitioner’s filing. Petitioner did not file a response. The School Board hired Mr. Erdman in 2007, and he has been employed as a teacher at UMS since his hire, until the incident at issue. In August 2010, the School Board and Mr. Erdman executed a professional services contract, as defined in section 1012.33. The School Board has renewed this professional services contract on an annual basis, until the incident that is at issue. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education rules, and the Collective Bargaining Agreement (CBA) between the School Board and the Lake County Education Association, Inc. The CBA relevant to this matter was effective from July 1, 2018, through June 30, 2019. Mr. Erdman’s Employment at UMS The School Board employed Mr. Erdman as a teacher at UMS, which included children in the sixth, seventh, and eighth grades. During his employment, Mr. Erdman served in various service and leadership roles, including: girls’ basketball coach; boys’ assistant basketball coach; athletic director; testing coordinator; and representative of the school’s leadership team. Mr. Erdman also served as the chief chaperone for “Grad Venture,” a late-night field trip to Universal Studios in Orlando, for graduating eighth graders. Mr. Erdman also participated in volunteer opportunities, which included tutoring children, and participating in an organization of individuals who dressed up in full costume as “Stormtroopers” from the Star Wars movies and who would attend community and school events and fundraisers. During his career with the School Board, Mr. Erdman received positive employment evaluations. Prior to the incident at issue, the School Board had never disciplined Mr. Erdman. For the 2019-2020 school year, Mr. Erdman was the PASS teacher at UMS. “PASS” means “Positive Alternative to School Suspension.” A PASS teacher: Provides a supervised and structured environment for students assigned to the in-school suspension program, working with classroom teachers to coordinate the academic activities of assigned students and support students in completing the assigned work along with the implementation of social, emotional learning, behavioral and academic support. As the PASS teacher, the School Board required of Mr. Erdman specific duties and responsibilities, including that he “communicates appropriate behavior, school rules, and regulations to students in the program[,]” and “[t]eaches replacement behaviors in the In-School Suspension classroom; reinforces appropriate behavior.” Mr. Erdman had the opportunity, as PASS teacher, to teach certain students from all grades at UMS. TikTok TikTok is a social media network and video-sharing application that allows its users to create and share 15-second videos that incorporates lip- synching, singing, and dancing; additionally, users can create original videos. TikTok’s lip-synching feature allows the user to lip-sync to music, movies, and comedy routines, while being recorded. TikTok users must create an account on the TikTok social media network before creating videos. As a social media network, TikTok allows users to “follow” other users, share their videos, and communicate, all through the TikTok social media network. TikTok has other features as well. A user can add text and effects to a video. A user can edit a video that another user has shared, and add their edited video to the original video, creating a “duet.” Mr. Erdman testified that he created a TikTok account during the summer of 2019. He further testified that, in his account settings, he set his account to “private,” so that he would not share any videos or communicate with anyone else through the TikTok social media platform. Mr. Erdman testified that he created his TikTok account under the username “swfan29,” a reference to his affinity for the Star Wars movie franchise. Additionally, he registered his TikTok account with a personal Google account. Mr. Erdman’s other personal email address, “jangofett29@aol.com,” is another reference to Star Wars. During the summer of 2019, and prior to the start of the school year in August 2019, Mr. Erdman created videos with his smart phone using TikTok. He testified that he created some videos with children’s songs and movies to entertain his kids over summer break. And, he testified that he created some videos with Mrs. Erdman, his wife, which were of a more sexual or adult nature, and that he created some of these videos in the couple’s master bedroom and bathroom. Mr. Erdman testified that he shared some of these videos with his friends by text, as opposed to using the TikTok social media platform, to communicate and for entertainment. Erdman testified that he stopped making TikTok videos in August 2019, before the start of the school year. On or around August 3, 2019, Mr. Erdman testified that someone stole his smart phone, which he had left in his car while attending a back-to-school event. Mr. Erdman reported this stolen smart phone to his provider, Verizon. On August 10, 2019, and again on August 17, 2019, Mr. Erdman received notices from his e-mail provider of attempted sign-ins to his “jangofett29@aol.com” account from locations in Belarus and the Czech Republic. September 2019 Incident and Investigation On or around September 5, 2019—after the school year had started, and immediately after Lake County Schools reopened after closing because of Hurricane Dorian—the School Board and UMS received complaints from various students, parents, and School Board employees who had viewed numerous TikTok videos of Mr. Erdman under the username “jfett1975.” Principal Frazier explained that he began receiving complaints, via email and text message, the evening before September 5, 2019, from parents and a staff member, concerning Mr. Erdman’s TikTok videos. He testified that he spoke with Vice Principal Rogers about this, and referred this matter to the School Board’s employee relations department. Vice Principal Rogers testified that she also received phone calls and texts concerning Mr. Erdman’s TikTok videos, spoke with Principal Frazier, and then called Mr. Erdman, who was not at school that day. She testified that she spoke with Mr. Erdman twice on September 5, 2019, and told him not to report to UMS the next day. Mr. Erdman testified that he deleted his “swfan29” TikTok account that same day. Around this same time, Superintendent Kornegay viewed one of Mr. Erdman’s TikTok videos. She stated that she was “appalled” at its contents, and asked Assistant Superintendent Harold C. Farnsworth to look into the videos. Ms. Cooper conducted the investigation of Mr. Erdman’s TikTok videos. Upon learning of these videos, Ms. Cooper, under Assistant Superintendent Farnsworth’s direction, alternatively placed Mr. Erdman during the pendency of the investigation. Ms. Cooper, who candidly admitted that she was not familiar with TikTok at the onset of this investigation, first spoke with Principal Frazier and Vice Principal Rogers. She then created a TikTok account and searched for videos under the username “jfett1975,” which she had learned of from her discussions with Principal Frazier and Vice Principal Rogers. Ms. Cooper also received, from Principal Frazier, a list of students who had complained about the TikTok videos. Ms. Cooper interviewed these and other students, as well as parents and co-workers, who had complained about these TikTok videos or who Mr. Erdman requested Ms. Cooper speak to. All told, Ms. Cooper interviewed eight students, six parents, five School Board employees, Mr. Erdman, and four additional witnesses at Mr. Erdman’s request. During this investigation, Ms. Cooper testified that she found “at least” a hundred videos that feature Mr. Erdman, and which Mr. Erdman (under the username “jfett1975”) was tagged in, or was in a duet with someone. A description of the TikTok videos under the username “jfett1975,” which students, parents, or Lake County school administration viewed and provided to the School Board, and which were received into evidence at the final hearing include: A video depicting Mr. Erdman drinking a beer; he is asked by a voice off-camera if he is really drinking a beer before work, to which Mr. Erdman lip-synch responds, “You’re damn right I’m having a beer, have you been to that fucking job, have you dealt with those fucking idiots all day, let me do me”; A video depicting a shirtless Mr. Erdman, with water dripping from his face, in which Mr. Erdman lip synchs to a song that repeats the lyric, “I need Onstar to find the clit”; A video depicting a shirtless Mr. Erdman, in a candlelit bathtub, lip synching, “I want to fuck you into the middle of next week,” with a woman’s voice off-screen answering “ok”; A split-screen video, also known as a “duet,” with an unidentified woman, in which Mr. Erdman lip-synchs, “Baby girl, I don’t care if you’re big, small, got big-ass titties or no rack at all. You could have nice thick thighs or that thigh gap – you can still come over here and sit on my face”; A video depicting Mr. Erdman licking a piece of garlic bread, in which Mr. Erdman lip-synchs, “I don’t know if you know this or not, but as soon as I’m finished with this, you’re next”; Another split-screen video, or “duet,” with an unidentified woman, in which Mr. Erdman lip-synchs, “You sucked that guy’s dick? But you said you only had sex with three other guys, you never mentioned him[,]” and then, after a response from the woman, “Anyway, something like 36, does that include me … I’m 37?”; A video depicting a shirtless Mr. Erdman, in which an unidentified woman off-screen says, “Just so you know, a dick is not an apology. I mean, I’m going to bend over though, but it’s not an apology”; A video in which Mr. Erdman is in his car, recording himself speaking, where he says “Hey everybody” and continues to state that he “hopes everybody had a great day and great evening,” and stated that he wanted to “remind everyone to have fun out there,” “be kind to each other,” and that he will “talk to you and see you in some videos tomorrow”; this TikTok also video states, at the bottom of the screen, that the “original audio” was created by “jfett1975”; Another duet, with an unidentified woman, in which Mr. Erdman lip- synchs, “I hope you are ok with anal”; Another duet, with another unidentified woman, in which she asks, “Hey babe, did you know a bull fucks 3,000 times a year, why can’t you do that,” to which Mr. Erdman lip-synch replies, “ask the bull if he fucks the same miserable cow every night”; and Another duet, with an unidentified woman (and a screen name “chubzmonkiee23”) in which she asks Mr. Erdman if he will be her “TikTok Brother,” to which Mr. Erdman replied, “yes.” Two of the six parents Ms. Cooper interviewed testified at the final hearing: Mr. Hart, who has three children, two of whom previously attended UMS, and one who is a current UMS student, testified that his three children showed him four of the TikTok videos described in paragraph 32. Mr. Hart stated, after viewing these videos, that he was concerned that Mr. Erdman had interacted with his daughters, and had served as the UMS girls’ basketball coach. He further stated that Mr. Erdman used “horrible judgment”; and Ms. Goff, who has a daughter at UMS, testified that her daughter showed her four of the TikTok videos described in paragraph 32. Ms. Goff testified that she was “disgusted” and refused to send her daughter back to UMS until she found out that Mr. Erdman had been removed from the school. Principal Frazier and Vice Principal Rogers testified that they believed that these TikTok videos were offensive and inconsistent with the morals and standards expected at UMS, that these TikTok videos negatively impacted the learning environment at UMS, and that they believed that Mr. Erdman failed to exercise good judgment in making these TikTok videos. Mr. Erdman’s Explanation and Investigation Recommendation Mr. Erdman provided a five-page statement as part of the School Board’s investigation, dated September 5, 2019. The statement does not mention the theft of Mr. Erdman’s smart phone. The statement provides a detailed explanation of irregularities that occurred with Mr. Erdman’s personal Google account, which he believed resulted in a hacking of his “swfan29” TikTok account. Mr. Erdman, in his first interview with Ms. Cooper on September 24, 2019, stated that his TikTok account had been hacked, and that he was not responsible for the public posting of the videos described in paragraph 32. He told Ms. Cooper that his TikTok account username was “swfan29,” and not “jfett1975.” In a second interview on October 14, 2019, Mr. Erdman similarly stated that his TikTok account had been hacked. Mr. Erdman testified at the hearing that someone stole his smartphone on August 3, 2019, and that he had received notices from his e- mail provider of attempted sign-ins to his personal e-mail address, “jangofett29@aol.com,” from foreign countries, thereafter. Mr. Erdman, and Mrs. Erdman, confirmed that Mr. Erdman, or the two of them, made the TikTok videos described in paragraph 32, with the exception of those videos that were “duets” with other women. Both testified that Mr. Erdman’s “swfan29” account was set to private—meaning that they believed the videos would never make their way into the public domain—and that Mr. Erdman never intended to share these videos publicly through the TikTok social media network, or have “followers” of his “swfan29” account. Mr. Erdman testified that he never notified TikTok of the suspected hack of his “swfan29” account. Essentially, to credit Mr. Erdman’s explanation that he is not responsible for the public sharing of the videos described in paragraph 32 on the TikTok social media platform, the undersigned would need to find credible evidence that all of the following occurred: Mr. Erdman’s “swfan29” TikTok account was set to “private,” meaning that any content he (or his wife) created was completely shielded from public view for as long as it remained “private”; Someone stole Mr. Erdman’s smart phone on August 3, 2019, after he made the TikTok videos, and someone thereafter hacked his personal Google account that he used to register the “swfan29” TikTok account (Mr. Erdman provided evidence and testimony that he received notice of an attempted sign-in of his “jangofett29@aol.com” email account); Someone then hacked his “swfan29” TikTok account, presumably through hacking his Google or “jangofett29@aol.com” account, or possibly through hacking the TikTok account on his stolen smartphone; Someone then created a “jfett1975” TikTok account (which, by coincidence, is similar to his email account, an homage to Mr. Erdman’s Star Wars affinity, and a number that Mr. Erdman used previously to reflect the year he was born); Someone in control of the “jfett1975” TikTok account transferred the content from Mr. Erdman’s “swfan29” TikTok account to the “jfett1975” account and made sure these videos could be publicly posted or shared across the TikTok social media platform; Someone in control of the “jfett1975” TikTok account posed as Mr. Erdman, accepted followers, and created “duets” with other TikTok users, including a user named “chubzmonkiee23,” and would have manipulated these “duet” videos to make it look like Mr. Erdman is actually interacting with these other TikTok users; Someone in control of the “jfett1975” account was able to manipulate the video described in paragraph 32(h) above (in which Mr. Erdman, in his own voice, asks everybody to “be kind to each other” and the like) to indicate that the “original audio” was created by “jfett1975”; and Mr. Erdman’s failure to notify TikTok of the suspected hack of “swfan29” was inconsequential. Ms. Cooper investigated whether Mr. Erdman’s “swfan29” TikTok account had been hacked, and whether Mr. Erdman was the owner of the “jfett1975” TikTok account. She concluded that Mr. Erdman was the owner of “jfett1975,” and had posted at least one hundred videos under that username. She based this conclusion, in part, on a duet video with a woman with the username “chubzmonkiee23” in which “chubzmonkiee23” asked Mr. Erdman, under the “jfett1975” username, to be her TikTok brother, and Mr. Erdman, actually interacting with this woman, responded yes. Ms. Cooper also based this conclusion on the “jfett1975” profile page, which had Mr. Erdman’s picture and many videos, including those listed in paragraph 32, and the profile page of “chubzmonkiee23,” which listed her TikTok brother as “jfett1975.” Ms. Cooper’s investigation concluded with a recommendation that Mr. Erdman’s employment with Lake County Schools be terminated. Recommendation for Termination Superintendent Kornegay made the recommendation to terminate Mr. Erdman’s professional services contract. She testified that she never considered a lesser form of punishment, stating: I felt like this was, in my many, many years as we discussed in education, this is probably one of the most disturbing and most appalling things that I’ve ever seen from an educator…. I have no doubt that my decision to terminate Mr. Erdman is right for students and that I am upholding the commitment that I made several years ago to protect our kids. Superintendent Kornegay further testified that it did not matter to her that Mr. Erdman intended for the TikTok videos to be private and that these videos were never intended to be viewed by the public; Superintendent Kornegay stated that: [R]egardless, they were viewed by children and parents. And I think that as the employees in alignment with our code of ethics, there were policies that he bears the burden to make sure if they were not intended for outside viewing, that that not occur. And it did. Superintendent Kornegay also testified that the TikTok videos: brought the school district into disrepute and disrupted the orderly process of the school district; demonstrated that Mr. Erdman engaged in conduct that brought him into public disgrace or disrespect; resulted in a disruption to the learning environment; reduced Mr. Erdman’s ability to effectively perform his duties as a PASS teacher at UMS; and demonstrated that Mr. Erdman engaged in conduct that exposed students to unnecessary embarrassment or disparagement. Mr. Erdman’s Additional Evidence Mr. Erdman called several colleagues as witnesses, who testified that they had not seen the TikTok videos. For example, Ms. Beckett, who is a former UMS teacher, had not seen the TikTok videos. Ms. Thompson Morrison, the UMS bookkeeper and accountant (and not a teacher), testified that she had not seen the TikTok videos. Ms. Widman, who is a former UMS teacher and currently teaches at a different school, also testified that she had not seen the TikTok videos. And, Ms. Thomas, a current UMS teacher, testified that she had not seen the TikTok videos, and did not think the TikTok videos were widespread among the UMS students. These former colleagues testified to Mr. Erdman’s good character and their respect for him as an educator. Mr. Erdman testified that he shared some of the TikTok videos with a friend named Amanda Yaudes. He testified that he had a falling out with Ms. Yaudes. Mr. Erdman also presented evidence of social media postings of two School Board members, who are subject to School Board Policy 6.00 (“Principles of Professional Conduct”), in an attempt to establish the social norms in the School District. The various social media postings presented of one School Board Member, Mr. Mathias, appear to contain attempts at humor that some would consider vulgar, boorish, offensive, and sometimes political, but also contain references to updates to school district programs. The other social media post presented of Ms. Luke included a video of a young woman lip-synching to a song that contained vulgar lyrics, but also included other social media posts that contain references to school district programs.2 2 While the School Board members may be subject to School Board Policy 6.00, neither are teachers or contract employees of the school district. Ultimate Findings of Fact Mr. Erdman created and appeared in the TikTok videos described in paragraph 32, using the TikTok social media application. Those TikTok videos contain lewd and offensive material. Mr. Erdman contends that he never intended to share these videos publicly through the TikTok social media network, and that these TikTok videos made their way into the public after hackers manipulated his TikTok account. The undersigned finds that Mr. Erdman’s explanation is not credible, as the sequence of events outlined in paragraph 39 to reach such an explanation is not plausible. The undersigned finds that the School Board established, by a preponderance of the evidence, that Mr. Erdman either posted the TikTok videos publicly using the “jfett1975” account, or posted them to the “swfan29” account and shared them in a manner that did not ensure that they remain private. Further, the TikTok videos described in paragraph 32 ultimately made their way into the public sphere, and students, parents, and school district personnel viewed and became aware of them. Mr. Erdman violated rule 6A-10.081(1)(b), because the School Board established, by a preponderance of the evidence, that he failed to exercise best professional judgment and integrity. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A- 5.056(2)(b). Mr. Erdman violated rule 6A-10.081(1)(c), because the School Board established, by a preponderance of the evidence, that he failed to maintain the respect and confidence of his colleagues, students, and parents, and failed to sustain the highest degree of ethical conduct. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), which concerns “misconduct in office.” Mr. Erdman violated rule 6A-10.081(2)(a)1., because the School Board established, by a preponderance of the evidence, that he failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students’ mental and/or physical health and/or safety. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rules 6A-5.056(2)(b), (c), and (d), which concerns “misconduct in office.” Mr. Erdman violated rule 6A-10.081(2)(a)5., because the School Board established, by a preponderance of the evidence, that he intentionally exposed students to unnecessary embarrassment or disparagement. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A-5.056(2)(b), (c), and (d), which concerns “misconduct in office.” Mr. Erdman violated rule 6A-10.081(c)1., because the School Board established, by a preponderance of the evidence, that he failed to maintain honesty in all professional dealings. As a result, the School Board has also established, by a preponderance of the evidence, a violation of rule 6A- 5.056(2)(b), which concerns “misconduct in office.” Mr. Erdman violated rule 6A-5.056(1), which concerns “immorality,” because the School Board established, by a preponderance of the evidence, that his actions constituted immorality, which is “conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.” Additionally, the School Board has established, by a preponderance of the evidence, that Mr. Erdman violated School Board Policy 6.301(4), by engaging in conduct unbecoming of an employee of the School Board that brings the school district into disrepute or that disrupts the orderly processes of the school district. Mr. Erdman violated rule 6A-5.5056(3)(a)2., which concerns “incompetency” and “inefficiency,” because the School Board established, by a preponderance of the evidence, that he failed to communicate appropriately with and relate to students. The School Board established that Mr. Erdman’s conduct constituted “immorality,” and thus, under article VIII, section 2 of the CBA, Superintendent Kornegay was not required to follow the steps of progressive discipline, and had just cause to terminate Mr. Erdman’s professional services contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Lake County School Board enter a final order terminating Mr. Erdman’s professional services contract. DONE AND ENTERED this 6th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2020. COPIES FURNISHED: Eric J. Lindstrom, Esquire Egan, Lev, Lindstrom & Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed) Stephen W. Johnson, Esquire Johnson Turner PLLC 215 North 2nd Street Leesburg, Florida 34748 (eServed) Patricia M. Rego Chapman, Esquire Dean, Ringers, Morgan & Lawton, P.A. Post Office Box 2928 Orlando, Florida 32802 (eServed) Douglas T. Noah, Esquire Dean, Ringers, Morgan & Lawton, P.A. Post Office Box 2928 Orlando, Florida 32802 (eServed) Diane Kornegay, Superintendent Lake County Schoosl 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant Principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as Principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an Intern Principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time Intern Principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and (5) accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, a fact which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract. Employment Requiring a Teaching Certificate At the time of hearing, Ms. Maynard had not found employment requiring a teaching certificate since being suspended, without pay and benefits, by the School Board on or about March 18, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education enter a final order: Finding that Doreen Maynard committed Counts 2 (only as to gross immorality), 3, 4, 5, 7, 10, 12, 15, and 16; Dismissing Counts 1, 6, 8, 9, 11, 13, 14, and 17; and Suspending Doreen Maynard's educator's certificate for three years, with denial of an application for an educator's certificate for the three-year period, and, after completion of the suspension, placing her on probation for one year under terms and conditions deemed appropriate by the Commissioner of Education. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2011.
Findings Of Fact Ms. Osteen is employed by the School Board as a content staffing specialist in the Exceptional Student Education (E.S.E.) program. Her duties include the placement and monitoring of students in the Leesburg area that are identified as exceptional students. Ms. Osteen is responsible for declaring she student's eligibility for the program and for effectuating placement of those students. At times, in her duties as a staffing specialist, Ms. Osteen determines the number of hours of instructions that E.S.E. students are to receive and prepares individual educational plans (IEPs). As an additional duty, Ms. Osteen is employed as a homebound teacher, carrying out those tasks after the completion of her normal work day which is from 8:00 a.m. until 3:30 p.m. She was the homebound teacher assigned to William (Billy) Vickery during February and March, 1988. Homebound teachers in the Lake County School System are compensated by submitting a monthly time sheet to the Exceptional Student Education Office. They are paid on an hourly basis cumulative over the month based upon the number of hours actually worked. Payment is only for instructional time with the student, not driving or commuting time. NOTE: PAGE 4 OF THIS RECOMMENDED ORDER IS UNAVAILABLE The composite of the four (4) different F.T.E. weeks determines the money a particular child earns in the system. Instruction of Billy Vickery by Ms. Osteen from February 17, 1988, through February 29, 1988, would have no impact on the F.T.E. count for the Lake County School System because it was after the count and the window period. There is no window period after the F.T.E. week. The entire staff is notified of the F.T.E. periods as they are published near the beginning of the school year. Teachers typically are not, however, involved in reporting the F.T.E. Nancy Vickery, Billy Vickery's mother, made a complaint to the Superintendent's office, in early February concerning Ms. Osteen's performance. Ms. Vickery explained that her concern was the amount of time Billy was receiving in homebound instruction. Ms. Vickery knew that Billy was to receive eleven (11) hours from Ms. Osteen weekly. After Ms. Vickery's conference with the school personnel, she began keeping, at their request, a record of the amount of time Ms. Osteen actually spent instructing Billy. Subsequently, Ms. Vickery created a summary of her time records and submitted it to the School Board. From February 10, 1988, through February 16, 1988, Ms. Vickery reported that Ms. Osteen spent approximately two (2) hours in homebound instruction of Billy. From February 17, 1988 through February 29, 1988, Ms. Vickery reported approximately three (3) hours by spent by Ms. Osteen in homebound instruction of Billy Vickery. After Ms. Vickery's complaint, the School Board hired an independent investigator to make a surveillance report of the number of hours that Ms. Osteen was in fact at the Vickery residence from February 17, 1988, through the end of the month. The surveillance report showed that Ms. Osteen spent two (2) hours and fifty-seven (57) minutes at the Vickery home from February 17, 1988, through the end of the month. Ms. Osteen submitted a time record to the School Board indicating that she had worked a total of forty-four (44) hours during February in the homebound program of instruction of Billy Vickery. Ms. Osteen claimed eleven (11) hours during the week of February 10, 1988, through February 16, 1988, and nineteen (19) hours from February 17, 1988, through the end of the month. Ms. Osteen admitted that she did not put in the hours claimed. In fact, she also admitted not working during the F.T.E. week, February 8, 1988, through February 12, 1988, and not giving Billy Vickery eleven (11) hours a week instruction from February 1, 1988, through February 17, 1988. The homebound teacher keeps a daily planning book, an attendance register, and a copy of the individual education plan as well as time sheets. Ms. Osteen conceded that homebound teachers are required to keep an attendance register, but that she used her register as a grade book instead. Ms. Osteen claimed that she used her plan book as an attendance registry, but acknowledged that it did not accurately reflect the days that Billy was instructed. Ms. Osteen did not keep an attendance record. Ms. Osteen's plan book is filled in retroactively, meaning that she makes entries for what she had done with Billy, as opposed to planning what she will do. The plan book does not accurately reflect the times or dates spent on the material and Ms. Osteen conceded she filled in the February plan in March with work done partly in March. Mr. Osteen made retroactive entries in the registry, coordinating it with the plan book, and the registry did not reflect what happened on any particular day. Ms. Osteen's testimony was confusing and contradictory regarding the actual instruction given Billy, especially in math. From the records presented and Ms. Osteen's testimony, it cannot be determined what actual instruction hours were given to Billy. Eight (8) witnesses testified either that Ms. Osteen's reputation was that of a truthful person or that they would believe her. Ms. Osteen was described as meticulous, conscientious, thorough and as one who follows the book. Ms. Osteen expected to be paid for the time that she turned in for February claiming that she planned to complete the work and make up the time before pay day. Ms. Osteen claimed that she did not intend to defraud the school system of any money. Ms. Vickery kept a time record for Ms. Osteen's visits to the Vickery home from March 1, 1988, through March 11, 1988, noting that Ms. Osteen made one visit for four (4) minutes and one other visit to have Ms. Vickery sign the time sheet. Ms. Osteen disputed Ms. Vickery's records, claiming that in March she had made up eight (8) hours of the time turned in for February. However, even Ms. Osteen admitted that by the end of the first week in March, she would have owed Billy the eleven (11) additional hours he was entitled to for that week. According to Ms. Osteen's own computations, she still owed Billy ten (10) hours from February. Thus, by March 10, 1988, Billy Vickery was behind twenty-one (21) hours in instruction by Ms. Osteen's own admission. Ms. Osteen's computations are, however, incredible in view of the surveillance report and testimony of Mrs. Vickery. In fact, by March 10, 1988, Billy Vickery was owed at least sixteen (16) hours of instruction for the time period of February 11, 1988 through February 29, 1988, additional hours for the F.T.E. week, and eleven (11) hours for the first seven (7) days of March. The March time records refute Ms. Osteen's claim that she intended to make up the February time. She continued instead to fall further behind with the hours of instruction due. Ms. Osteen attempted to explain her reporting of hours not spent with Billy Vickery by claiming that if she had not, the child would have been denied his entitlement and the County would have lost its F.T.E. There was no basis in fact for these assertions. Ms. Osteen may have believed this, but was incorrect. Ms. Vickery kept a child during the month of February that was ill with Scarletina. Ms. Vickery also conceded that Sandy had illnesses during the time that she taught Billy and had advised her that Ms. Osteen's son had pink eye. However, illness is not relevant to the issues of falsification of the time or attendance records. Ms. Osteen claimed that there was precedence for her falsification of the records, including the fact that she had falsified the time records before for Billy Vickery as well as for another child. Further, Ms. Osteen claimed that School Board personnel falsified records all of the time. The Lake County School Supervisor of Exceptional Student Education conceded that a teacher on occasion is allowed to swap time, but that the practice was not encouraged. Such a request must be written and signed by both the teacher and the supervisor. That was not done in this case. Homebound teachers sometimes extend the time sheet forms to include Saturdays and Sundays as well as holidays in order to accurately report hours worked. Homebound teachers are encouraged to perform the homebound instruction on Monday through Friday and to consider the educational principles that it is better to do small chunks at a time rather than one extended day on a Saturday. Ms. Osteen had turned in a time sheet the last day of school before Christmas vacation reflecting hours not given at that time for a previous student. Additionally, in 1987, Ms. Osteen had been unable to complete the last week in May for Billy Vickery but turned in the time sheet claiming the hours as she had in the past. Ms. Osteen stated that she went back in June to give the additional instruction and that this procedure was approved by her supervisor. Apparently, it was common practice in the Lake County School System for IEPs to be corrected by back-dating, obtaining signatures at a later date, and placing check marks in appropriate places. These corrections were made to reflect what actually had happened. Information known not to comport with the facts was not, however, placed on forms. While it is a common practice for employees to make corrections in forms, it is not an accepted practice to create false statements on forms or records. Witnesses testifying concerning record corrections consistently drew a distinction between falsifying documents and making corrections to reflect what had actually occurred. No falsification of documents was reported.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lake County enter a Final Order finding Sandra Osteen guilty of the violations set forth above and dismissing her from her employment in the school system. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2029 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, SCHOOL BOARD OF LAKE COUNTY Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-16(1- 16); 18-39(17-38); 41(39); 42 & 43(40); and 44(41). Proposed finding of fact 17 is unnecessary. Proposed findings of fact 40, 45 and 46 are rejected as being argument and as relating to legal conclusions. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, SANDRA OSTEEN Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(1 & 2); 7(8); 10(17); 12 & 13(32); 19 & 20(38); and 22(39). Proposed findings of fact 3-6 and 11 are unnecessary. Proposed findings of fact 8, 9, 14-18, and 23-26 are subordinate to the facts actually found in this Recommended Order. Proposed findings of facts 27 and 28 are rejected as being argument and as relating to legal conclusions. COPIES FURNISHED: Walter S. McLin, III, Attorney at Law Post Office Drawer 1357 Leesburg, Florida 32749-1357 Richard H. Langley, Attorney at Law Post Office Box 188 Clermont, Florida 32711 Freddie G. Garner, Superintendent The School Board of Lake County, Florida 201 West Burleigh Boulevard Tavares, Florida 32778 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 ================================================================= SETTLEMENT AGREEMENT =================================================================
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated August 22, 2002, and in the Notice of Specific Charges filed October 12, 2002, and, if so, whether dismissal from employment is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002). At the times material to this proceeding, Mr. Starr was employed by the School Board as a social studies teacher at Lake Stevens. After receiving a degree in political science from Loyola University, Mr. Starr enrolled in the social studies education program at Florida International University. Mr. Starr completed this program in the summer of 1998 and applied for a teaching position with the Miami-Dade County public school system. He was hired as a substitute teacher and placed in a substitute teacher pool so that he worked at various schools, and he also taught in the Adult Education Program at North Miami Senior High School. Dr. Alvin Brennan became the principal of Lake Stevens in January 2000. In or around November 2000, he hired Mr. Starr to teach social studies at Lake Stevens. At the times material to this proceeding, Arnold Montgomery was the assistant principal at Lake Stevens who, among other duties, supervised the social studies program, observed teachers' classroom performance, and acted as a resource person regarding curriculum, instructional, and academic issues at the school. In a Teacher Assessment and Development System Post- Observation Report dated January 18, 2001, Dina Carretta, an assistant principal at Lake Stevens, rated Mr. Starr acceptable in all six categories of the Teacher Assessment and Development System evaluation instrument. Mr. Starr's failure to keep a standard grade book. In early November 2001, Dr. Brennan learned that the State Department of Education intended to include Lake Stevens in a Full-Time Equivalency audit. The grade books of the teachers at Lake Stevens were to be reviewed as part of the audit to ensure that Lake Stevens accurately reported its full- time equivalents to the district so that the State could ultimately determine the accuracy of the number of full-time equivalents reported by the various school districts to the State. On or about November 2, 2001, Dr. Brennan instructed all of the teachers at the school to turn over their grade books to him for review so that he could prepare for the audit. It is one of the responsibilities of a teacher to maintain a grade book that contains the attendance record and grades for each student in his or her classes. Mr. Starr did not submit a grade book to Dr. Brennan in response to this instruction, and Dr. Brennan called Mr. Starr to his office and directed him to turn over his grade book. Mr. Starr told Dr. Brennan that he was experimenting with a computerized grade book and that only he could understand it.2 Dr. Brennan explained to Mr. Starr that each teacher is required to keep complete and accurate grade books because funding is dependent on the number of students attending a school and because grade books are official documents that must be produced to parents who ask about their children's grades and attendance. Mr. Starr still did not provide his grade book to Dr. Brennan as instructed. During roughly this same timeframe, Mr. Montgomery began preparations for an observation of Mr. Starr's classroom performance in accordance with the Professional Assessment and Comprehensive Evaluation System ("PACES"), which is a tool for evaluating teachers that came into use in the Miami-Dade County public school system in or about 1999. Mr. Montgomery intended to conduct an observation of Mr. Starr's classroom in late November 2001, and, in accordance with procedure, Mr. Montgomery scheduled a pre-observation conference with Mr. Starr for November 19, 2001. In the notice of the pre-observation conference, Mr. Montgomery asked Mr. Starr to bring his grade book, lesson plans, and three student folders to the conference. Mr. Starr did not attend the pre-observation conference and did not provide the materials that Mr. Montgomery had requested. Mr. Montgomery followed up with Mr. Starr and asked him again to provide the requested documents; Mr. Starr responded that he would provide the documents, including the grade book, at a later time. Mr. Starr did not provide his grade book to Mr. Montgomery prior to or at the November 26, 2001, observation. Dr. Brennan held a Conference-for-the-Record with Mr. Starr on December 7, 2001, to discuss Mr. Starr's failure to comply with Dr. Brennan's directive to provide him with a proper grade book; Ms. Carretta was also in attendance. It is noted in the Summary of the Conference-for-the-Record, dated December 13, 2001, that Mr. Starr was asked whether the United Teachers of Dade represented him, and he responded that he was not a member of the union. In the Summary of the Conference-for-the-Record, Dr. Brennan recorded that the purpose of the conference was to discuss Mr. Starr's non-compliance with School Board Rule 6Gx13- 4-1.21 and with administrative directives requiring that he properly maintain a grade book. Dr. Brennan explained to Mr. Starr during the conference the importance of maintaining a grade book to record daily attendance and grades for his students and advised him that one of his responsibilities as a teacher was to maintain a proper grade book. At the December 7, 2001, Conference-for-the-Record, Dr. Brennan advised Mr. Starr that, although there were authorized computer grade book programs, the program with which Mr. Starr was experimenting was not authorized. Dr. Brennan directed Mr. Starr not to use any computerized or computer- assisted grade books without first obtaining Dr. Brennan's approval and instructed him to ask Arnold Montgomery, an assistant principal at Lake Stevens, to help him set up and maintain a standard grade book. Mr. Starr did not believe that he was required to get Dr. Brennan's approval for the use of a computer grade book "right off the bat."3 In his view, the rules provided that Dr. Brennan had the authority to demand that he not use a computer grade book but that the School Board allowed computer grade books in general. Mr. Starr continued to use his computerized "grade book," and he did not provide a grade book to Dr. Brennan or to Mr. Montgomery during the 2001-2002 school year, despite being instructed to do so on numerous occasions.4 At some point, Mr. Starr provided Dr. Brennan with sheets of paper that Mr. Starr identified as his computerized grade book, but Dr. Brennan was unable to understand the documents that Mr. Starr presented to him. Mr. Starr's failure to adhere to Lake Stevens' discipline plan. Currently, and at the times pertinent to this proceeding, Lake Stevens has in place a discipline plan developed by the school's Discipline Committee pursuant to which teachers are required to go through five steps before taking the sixth step of requesting administrative action with respect to students who presented discipline problems. This six-step discipline plan has the approval of the teachers and administrators at Lake Stevens. Pursuant to the plan, the teachers at Lake Stevens are grouped into teams of six teachers, who work in collaboration in carrying out each step of the six-step discipline plan. It is Dr. Brennan's responsibility to ensure that the six-step discipline plan is implemented. The main elements of the six-step discipline plan are as follows: When a student misbehaves in a teacher's classroom, the teacher first initiates a discussion about the student at the daily team meeting to determine whether any other teachers on the team have a problem with that student. If necessary, the team moves to the second step, which requires that the team conduct a conference with the parent(s) of the student. If the problem still is not resolved, the third step is initiated and the student is required to confer with a school counselor. The fourth step in the six-step plan requires that the student meet with both the school counselor and the team. The fifth step is a parent/student conference with the school counselor and the team. If the problem has not been resolved after these five steps have been completed, the team then moves to the sixth step and the teacher is permitted to complete a referral sending the student to a school administrator for intervention.5 The referral must be routed through the team leader. Once the team leader approves a referral, the team leader meets with the administrator for the particular grade-level, and they decide the appropriate punishment for the student. If a teacher refers a student for administrative action before the first five steps in the plan are completed, the team leader sends the referral back to the teacher with instructions to follow the appropriate procedure. According to Mr. Starr, there was chaos in his classroom by December 2001. Prior to this time, he had spoken with Dr. Brennan about the problems he was having maintaining discipline, and Dr. Brennan told him he needed to learn to handle the problems himself. Dr. Brennan insisted that Mr. Starr strictly adhere to the six-step discipline plan, and Dr. Brennan refused to provide direct assistance to Mr. Starr even though Mr. Starr repeatedly requested his assistance. In Dr. Brennan's view, it is the teacher's responsibility to manage the learning environment, and it is not the responsibility of the principal to help the teachers maintain discipline in their classrooms. To this end, Dr. Brennan encouraged Mr. Starr to work with the team of teachers on his grade level on a daily basis for assistance in managing his classroom. In addition, Dr. Brennan directed Mr. Starr to discuss techniques for classroom management with the members of a Professional Growth Team that was appointed in December 2001 to assist Mr. Starr and with Mr. Montgomery, who was available to assist Mr. Starr. Mr. Starr resisted all efforts to assist him in managing his classroom. Mr. Starr absolutely refused to adhere to the six-step discipline plan during the entire 2001-2002 school year and repeatedly prepared referrals and sent students to the administrative offices without having completed even the first step of the six-step plan. Mr. Starr did not attend team meetings and isolated himself from the team. Because of his refusal to work with his team, it was very difficult for anyone to help Mr. Starr deal with students that he considered disruptive and defiant. Mr. Starr refused to adhere to the six-step discipline plan because he disagrees with the philosophy of the plan; he believes that misbehavior must be addressed with immediate consequences and that, because it took days to complete the five steps required before a referral could be made, the plan reinforced his students' perceptions that there were no consequences to defiance and disruption in his classroom.6 Mr. Montgomery had numerous conferences with Mr. Starr about his failure to follow the six-step discipline plan, specifically about his not following the first five steps in the plan, but, rather, going directly to the sixth step and referring misbehaving students to Dr. Brennan's office. Mr. Starr told Mr. Montgomery periodically throughout the 2001- 2002 school year that the six-step discipline plan did not work for him and that he was not going to follow the plan. Mr. Starr described the conditions in his classroom in a memorandum to Dr. Brennan dated March 5, 2002: The situation in my classroom has become dangerous and untenable due to rampant student defiance. Students no longer obey what the instructor directs them to do, and they are no longer in compliance with any class rules. Lesson objectives are not being met due to the chaos, and there is a potential that student[s] may be injured. Mr. Starr referred in his memorandum to a number of "management referrals" that he contended had not been processed by the administration, and he attributed the chaos in his classroom to "administrative neglect." Mr. Starr concludes his memorandum by stating: "The weakness in my management is due to lack of administrative support because of inadequate follow-up." Mr. Starr sent copies of this memorandum to the district office, the regional superintendent and the district superintendent of schools.7 Dr. Brennan responded to Mr. Starr's memorandum by discussing the situation in Mr. Starr's classroom with the administrator handling discipline matters for the sixth grade;8 during the discussion, Dr. Brennan "question[ed] the validity of the statements that Mr. Starr was making in his letter."9 Dr. Brennan then referred Mr. Starr to the leader of his team and to the grade-level administrator for the sixth grade for a review of the six-step discipline plan. Dr. Brennan also instructed Mr. Starr to work with his team on discipline problems. Dr. Brennan found it very difficult to assist Mr. Starr, however, because, in Dr. Brennan's view, Mr. Starr resisted all of the administration's efforts to help him with the discipline problems in his classroom and refused to implement the six-step discipline plan. In addition, many of the students identified by Mr. Starr as discipline problems were not causing problems for any of the other teachers on Mr. Starr's team. Mr. Starr's refusal to complete prescriptive activities. Mr. Starr was in his second year of an annual contract during the 2001-2002 school year and was, therefore, considered a new teacher subject to two formal PACES observations each year. Whenever a PACES observation is scheduled, the teacher is notified at least a week in advance, and a pre-observation conference is scheduled. The teacher is told to bring to the pre-observation conference his or her grade book, lesson plans, and other materials for review so that everything will be in order at the time of the observation, and the teacher and the administrator who is to conduct the observation discuss the observation procedures. Currently, and at the times material to this proceeding, new teachers at Lake Stevens are given a "free" observation, if necessary, in addition to the two required formal observations. The purpose of the free observation is to allow the administrator observing the teacher to identify the teacher's deficiencies, to discuss the deficiencies with the teacher, and to provide the teacher with assistance to remedy the deficiencies prior to the formal observation. A teacher who has deficiencies in the first observation is given a week or more to work on correcting any deficiencies before an official observation is conducted. Mr. Montgomery scheduled a PACES observation of Mr. Starr's classroom performance for November 26, 2001. In preparation for this observation, Mr. Montgomery scheduled a pre-observation conference for November 19, 2002, and he directed Mr. Starr to bring with him to the meeting his grade book, his lesson plans, and three student folders. As noted above in paragraph 10, Mr. Starr did not attend the conference, and he did not produce any of the materials requested by Mr. Montgomery. Mr. Montgomery, therefore, did not have an opportunity to review these items prior to the observation. Mr. Montgomery determined during the PACES observation on November 26, 2001, that Mr. Starr's classroom performance was deficient in a number of the components of the PACES evaluation instrument. Mr. Montgomery attributed these deficiencies in large part to Mr. Starr's failure to have a lesson plan prepared for his classes and to his inability to manage his classroom. Had Mr. Starr's classroom performance been acceptable during the November 26, 2001, observation, that observation would have been considered his formal PACES observation. Mr. Starr's classroom performance had serious deficiencies, however, and the November 26, 2001, observation was treated as a "free" observation. Mr. Montgomery met with Mr. Starr after the November 26, 2001, observation, discussed the deficiencies in his classroom performance, and instructed him to provide the grade book, lesson plans, and student folders that Mr. Montgomery had previously requested before the formal PACES observation of his classroom performance. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on December 3, 2001, after having given Mr. Starr one week's notice. Mr. Starr again failed to provide his grade book, lesson plans, or student folders, and Mr. Montgomery found his classroom performance deficient in five out of the seven PACES domains: Mr. Montgomery found that Mr. Starr was deficient in planning for teaching and learning; managing the learning environment; enabling thinking; classroom-based assessment of learning; and professional responsibility.10 On or about December 13, 2001, Mr. Montgomery and Dr. Brennan conferred with Mr. Starr to discuss his December 3, 2001, observation. Mr. Starr was provided with a copy of the observation and was told to work with a Professional Growth Team for assistance in correcting the deficiencies in his classroom performance. He was also directed to work with a buddy, a peer, and a master teacher to learn how to set up a grade book and to learn what must be included in a lesson plan. A Professional Growth Team consists of two teachers, one selected by the teacher and one selected by Dr. Brennan. Mr. Starr selected Ms. Davis and Dr. Brennan selected Ms. Scriven-Husband as members of the Professional Growth Team.11 Dr. Brennan gave Ms. Davis and Ms. Scriven-Husband a general outline of Mr. Starr's deficiencies and advised them of the areas in which they were to work with Mr. Starr. The work of the Professional Growth Team was done under the supervision of Dr. Brennan, and he was advised that Mr. Starr was not completing the tasks given him by the Professional Growth Team. One of the items Mr. Starr was to produce for the Professional Growth Team was a long-range plan. Dr. Brennan wanted Mr. Starr to produce a long-range plan so the Professional Growth Team could determine whether he knew how to plan a lesson. Dr. Brennan was advised that Mr. Starr did not provide such a plan to the Professional Growth Team. When Dr. Brennan questioned Mr. Starr about the plan, Mr. Starr replied that he intended to prepare it over the Christmas holidays. Dr. Brennan told him to provide the plan by the end of the day; Mr. Starr did not do so. Mr. Montgomery scheduled an informal observation of Mr. Starr's classroom performance on or about February 8, 2002. Mr. Montgomery had spoken periodically with members of Mr. Starr's Professional Growth Team between the December 3, 2001, and February 8, 2002, observations and had been advised that Mr. Starr had not provided the Professional Growth Team with his grade book, lesson plans, or student folders and that Mr. Starr had not sought the team's assistance in correcting the deficiencies identified in the December 3, 2001, observation. Mr. Montgomery again instructed Mr. Starr to provide his grade book, lesson plans, and student folders prior to the February 2002 observation. In response to this instruction, Mr. Starr advised Mr. Montgomery that he used an electronic grade book and that his lesson plans were on his Palm Pilot because he felt that he had more flexibility using these tools than trying to work with written documents. Mr. Montgomery told Mr. Starr to provide hard copies of the lesson plans and the grade book, as required by the Miami-Dade County public school system procedures; Mr. Starr did not provide the requested documents to Mr. Montgomery. Mr. Montgomery observed numerous deficiencies in Mr. Starr's classroom performance during the February 8, 2002, observation, and Mr. Montgomery discussed the results of the observation with Dr. Brennan. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on March 1, 2002. Again, Mr. Montgomery noted a number of deficiencies in Mr. Starr's classroom performance, specifically in seven components of Domain I, Planning for Teaching and Learning; eight components of Domain II, Managing the Learning Environment; two components of Domain V, Enabling Thinking; and one component of Domain VI, Classroom-Based Assessment of Learning. Dr. Brennan discussed the results of the March 1, 2002, observation with Carnel White, the Region Superintendent for Lake Stevens, who instructed Dr. Brennan to proceed to develop a Professional Improvement Plan.12 Dr. Brennan was, by this time, certain that Mr. Starr was not going to correct the deficiencies in his classroom performance, since the deficiencies noted in the March 1, 2002, observation were the same deficiencies noted in previous observations. Mr. Starr met with Dr. Brennan and Mr. Montgomery in a Conference-for-the-Record on March 15, 2002, to discuss the results of the March 1, 2002, observation.13 An extensive Professional Improvement Plan was developed for Mr. Starr during the Conference-for-the-Record: Mr. Starr was required to complete course work for Domains I, II, V, and VI; he was required to discuss with the Professional Growth Team 17 assigned readings and to submit written summaries of these readings to Dr. Brennan for his approval; and he was required to discuss with Dr. Brennan and identify for him techniques and strategies for 14 components in which he was deficient, to apply the new techniques and strategies, and to maintain and submit to Dr. Brennan logs charting the successes and failures in his application of these new classroom techniques and strategies. All of the courses and plan activities in the Professional Improvement Plan were to be completed by April 9, 2002.14 Mr. Starr was advised at the March 15, 2002, Conference-for-the-Record that he should speak to Mr. Montgomery if he had any concerns about the Professional Improvement Plan. Mr. Starr did not complete the plan activities set forth in the Professional Improvement Plan by the April 9, 2002, deadline. On April 9, 2002, Dr. Brennan called Mr. Starr to the office to ask him to submit the written plan activities required by the Professional Improvement Plan; although Mr. Starr presented himself at the main office, he refused to go into Dr. Brennan's office to meet with him. According to Dr. Brennan, Mr. Starr also advised him at this time that he did not intend to comply with any further administrative directives. On April 10, 2001, after conferring with Dr. Brennan, Mr. White placed Mr. Starr in an alternate work assignment at his residence, pending a district-level Conference-for-the- Record requested by Mr. White. The district-level Conference- for-the-Record was held at the Office of Professional Responsibilities on April 12, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan; his insubordination; his violation of Rule 6B-1.001, Florida Administrative Code; and his future employment status with the School Board. The April 12, 2002, Conference-for-the-Record was conducted by Barbara Moss, District Director of the Office of Professional Standards, and Ms. Moss prepared a Summary of the Conference-for-the-Record dated May 3, 2002. In the summary, Ms. Moss noted that, prior to the conference, Mr. Starr asked to bring an attorney to the Conference-for-the-Record and to tape the proceedings and that he was told that attorneys and tape recordings were not permitted. Ms. Moss also noted that Mr. Starr accused Dr. Brennan of harassing him and that she discussed with Mr. Starr the procedure for reporting harassment and gave him an Equal Employment Opportunity packet. Ms. Moss further noted that Mr. Starr stated that he wanted to file a grievance against Dr. Brennan and that she explained the procedure for filing a grievance and gave him a copy of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade, which contained the formal union grievance procedure. Mr. Starr was not, however, a union member and did not have access to this procedure. Mr. Starr's failure to comply with the plan activities specified in the Professional Improvement Plan dated March 15, 2002, was discussed at the April 12, 2002, Conference-for-the- Record. It is reported in the summary that Mr. Starr stated that he believed the evaluation process was designed to make him fail and that there was a conspiracy against him. According to the Summary of the Conference-for-the- Record, Mr. Starr confirmed during the conference that he had told Dr. Brennan that he wouldn’t comply with Dr. Brennan's directives, explaining that he defied Dr. Brennan because Mr. Starr perceived that Dr. Brennan was abusive and belligerent in his dealings with him. The summary also reflects that Mr. Starr's failure to provide Dr. Brennan with a student grade book and with attendance records was specifically discussed at the Conference-for-the-Record. The summary of the April 12, 2002, Conference-for-the- Record reflects that Mr. Starr was issued the following directives: He was directed to comply with all administrative directives; to complete all Professional Improvement Plan activities and to submit them to Dr. Brennan by the end of the workday on April 15, 2002; to maintain a grade book, a record of students' attendance, and lesson plans; and to implement Lake Stevens' discipline plan to effect classroom management. Mr. Starr was also told to submit to Dr. Brennan by April 15, 2002, an updated grade book and student attendance records. Finally, Mr. Starr was advised that he could return to Lake Stevens and resume his teaching duties on April 15, 2002. Mr. Starr indicated at the conclusion of the April 12, 2002, Conference-for-the-Record that he would comply with the directives. Finally, Mr. Starr requested at the April 12, 2002, district-level Conference-for-the-Record that Mr. White order Dr. Brennan to relieve him of the sixth period class, stating, according to the summary, that he was not capable of teaching six periods. Mr. White instructed Dr. Brennan to assign the sixth period to another teacher, which Dr. Brennan did.15 When Dr. Brennan did not receive Mr. Starr's completed Professional Improvement Plan activities by April 15, 2002, he extended the deadline to April 16, 2002. Mr. Starr did not provide the materials on April 16, 2002, and Dr. Brennan summoned Mr. Starr to his office.16 According to Dr. Brennan, Mr. Starr was disruptive when he arrived at the administrative offices in response to Dr. Brennan's summons on April 16, 2002. Mr. Starr announced in the main office, in front of several members of the school staff, that he was not going into Dr. Brennan's office, and he told Dr. Brennan not to summon him to Dr. Brennan's office again.17 Dr. Brennan telephoned Ms. Moss on April 16, 2002, after this incident, and advised her that Mr. Starr "had been blatant in his insubordination" and that either Mr. Starr would have to leave the Lake Stevens campus or he, Dr. Brennan, would leave.18 On April 17, 2002, Dr. Brennan conducted a PACES observation of Mr. Starr for his annual evaluation. The Observation Form for Annual Evaluation indicates that Dr. Brennan observed Mr. Starr's classroom performance from "12:30 to 12:50."19 Mr. Starr again failed to have a lesson plan, and Dr. Brennan found that Mr. Starr was deficient in every component of the six PACES domains evaluated. The evaluation form reflects that a post-observation meeting was held on April 19, 2002, at which time Mr. Starr signed the evaluation form and wrote on the form that he did not agree with the evaluation. On April 18, 2002, Dr. Brennan issued a notice advising Mr. Starr that a Conference-for-the-Record had been scheduled for April 22, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan, gross insubordination, violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and violation of School Board Rule 6Gx13-4A-1.21. According to the Summary of the Conference-for-the- Record, the conference was held in Mr. Starr's absence because of "his refusal to comply with an administrative directive." Dr. Brennan referred in the summary to Mr. Starr's "refusal to report to the principal's office" and categorized the refusal as insubordination and conduct unacceptable for a School Board employee. Assistant Principal Dina Carretta was the only person other than Dr. Brennan attending the Conference-for-the-Record. During the April 22, 2002, Conference-for-the-Record, Dr. Brennan prepared a Professional Improvement Plan for PACES Domain VII, Professional Responsibilities, having found Mr. Starr deficient in that domain, because he failed to comply with the March 15, 2002, Professional Improvement Plan; failed to submit by the required date the activities set out in the Professional Improvement Plan; and failed to comply with "district and school site requirements regarding grade book and student's attendance records." Mr. White again placed Mr. Starr on alternate work assignment at his residence, effective April 24, 2002. Ms. Moss included in the Summary of the Conference-for-the-Record held April 12, 2002, which she prepared on May 3, 2002, a notation that, on or about April 24, 2002, she spoke with Mr. Starr and advised him that he could resign his position if he did not wish to comply with administrative directives and the Professional Improvement Plan activities. According to the notation in the summary, Mr. Starr again affirmed that he would comply with the directives and the plan activities. After she prepared the summary of the April 12, 2002, Conference-for-the-Record, Ms. Moss submitted it to the School Board's attorneys for review because Dr. Brennan and Mr. White had recommended that Mr. Starr's employment with the Miami-Dade County public school system be terminated. The bases for the termination recommendation included gross insubordination, violation of School Board rules, and violation of the Code of Ethics of the Education Profession. In July 2002, after it was decided that a recommendation would be made to the School Board that Mr. Starr be terminated as a teacher with the Miami-Dade County public school system, Ms. Moss met with Mr. Starr to advise him of the recommendation; she also gave Mr. Starr another opportunity to resign his position, which he refused. Summary. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Starr repeatedly refused to comply with directives and instructions from Dr. Brennan and Mr. Montgomery that were reasonable and within the scope of their authority and that, in at least one instance, Mr. Starr openly and publicly defied an order given by Dr. Brennan. Mr. Starr freely admits that there was a serious lack of discipline among the students in his classroom and that the problems were so severe that he was unable to teach and the students were unable to learn. Mr. Starr also admits that he defied Dr. Brennan in almost everything that Dr. Brennan directed him to do and that he was repeatedly insubordinate towards Dr. Brennan. Although Mr. Starr's defiance of Dr. Brennan's directives consisted, for the most part, of a stubborn refusal to do as Dr. Brennan directed, Mr. Starr did cause a public disturbance in the main office by refusing to enter the principal's office when summoned on April 16, 2002, thereby openly defying Dr. Brennan's authority to summon Mr. Starr to his office. Mr. Starr's refusal to comply with reasonable administrative directives and his blatant defiance of Dr. Brennan reflected discredit on Mr. Starr as a teacher. The evidence is also sufficient to establish with the requisite degree of certainty that, from December 2001, until he was removed from the classroom on April 24, 2002, Mr. Starr did not make any effort to work with Mr. Montgomery or with his Professional Growth Team to improve his teaching and class management deficiencies, nor did he make any effort to complete the activities set forth in the Professional Improvement Plan that were designed to assist him in achieving professional growth. Mr. Starr's failure to strive for professional growth by working to correct the deficiencies identified in Mr. Montgomery's December 3, 2001, and March 1, 2002, observations negatively affected his ability to teach his students. Mr. Starr refuses to accept responsibility for the lack of discipline in his classroom. Rather, he faults Dr. Brennan for failing to help him impose discipline on those students who were misbehaving and defying Mr. Starr's authority. According to Mr. Starr, the six-step discipline plan did not work, and, once the students realized that there were no consequences if they behaved badly, it was impossible for him to manage the students in his classes. Mr. Starr also believes that, if Dr. Brennan cared about Mr. Starr's professional development, Dr. Brennan would have "developed a specific strategy of corrective action for students that were defiant" towards him.20 Mr. Starr considers his defiance of and insubordination towards Dr. Brennan "principled," and he believes that he had "no other reasonable recourse" but was forced by Dr. Brennan to defy Dr. Brennan's administrative directives.21 Additionally, Mr. Starr justifies his refusal to complete the Professional Improvement Plan activities, to keep a standard grade book, to adhere to the six-step discipline plan, and to prepare lesson plans on the grounds that Dr. Brennan behaved towards him in an abusive and belligerent manner and attempted to set him up for termination. It may well be, as Mr. Starr contends, that Dr. Brennan began losing patience with Mr. Starr, as the 2001-2002 school year progressed; it may well be that Dr. Brennan's manner towards Mr. Starr became increasingly abrupt; and it may well be that Dr. Brennan could have provided Mr. Starr with more assistance than he was willing to provide. Whatever Dr. Brennan's failings as Mr. Starr's principal, however, Mr. Starr was not justified in defying Dr. Brennan, in refusing to obey Dr. Brennan's directives, and in generally behaving in a manner inappropriate for a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Finding that Stephen J. Starr, Jr., violated School Board Rule 6Gx13-4A-1.21 and committed gross insubordination and misconduct in office; Sustaining his suspension; and, Terminating his employment as a teacher with the Miami-Dade County public school system. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2003.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent has held a teaching certificate issued by the State of Florida, valid through June 30, 2002. At all times material hereto, Respondent was employed by the School Board of Miami-Dade County, Florida, as a language arts (English) teacher, assigned to Lake Stevens Middle School and subsequently assigned to her own home as an alternate work site. On May 4, 1995, Lucille Collins, an assistant principal at Lake Stevens, conducted a conference with a student, that student’s parent, and Respondent. During the conference, Respondent became enraged and began shouting at Collins. Collins terminated the conference and attempted to return to her office. Respondent followed her, continuing to shout as the two proceeded toward Collins’ office. The student and the parent witnessed Respondent's behavior. On February 8, 1996, Assistant Principal Collins convened a conference with Respondent and Dorothy Johnson, the principal’s secretary, to address conflicts between Respondent and Johnson. Toward the end of the meeting, Respondent became agitated. She began shouting at Collins and trying to provoke another argument with Johnson. On May 2, 1996, Respondent entered the teachers’ workroom and started yelling at Collins. Collins directed Respondent to stop and to come meet with her privately, but Respondent refused twice to meet with Collins. Respondent remained “out of control” and continued yelling as she moved through the office and out into the hall near the cafeteria. On May 15, 1996, Collins conducted a TADS observation of Respondent. A TADS observation is an extended and formal observation of a teacher in a classroom to determine if the teacher possesses the minimum competencies required of a classroom teacher. The trained observer is required to assess six categories that must be deemed satisfactory in order for the teacher to receive an acceptable evaluation. The teacher undergoing the TADS observation is required to submit to the observer lesson plans, student folders, and the grade book. On that day Respondent was unable to produce a lesson plan or grade book. Respondent was given five days to produce the required materials. As of May 20 Respondent had not complied. However, she did eventually comply, and the TADS observation showing Respondent was deficient was then voided. On October 2, 1996, Dr. James Monroe, Executive Director of the Office of Professional Standards for the Miami- Dade School Board, directed Respondent to attend a conference- for-the-record on October 7. The purpose of the conference was to address an act of battery by Respondent and her fitness for future employment. Respondent attended the meeting. At the meeting, she was referred to Dr. Michael Hendrickson for a psychological evaluation. Respondent went to Hendrickson who opined that Respondent was able to return to her teaching duties, with the following recommendations: (1) that Respondent seek help through the School Board’s Employee Assistance Program; (2) that Respondent undergo a neurological examination to rule out any neurological problems; and (3) that Respondent undergo psychotherapy once a week for a year. Based upon that evaluation, Respondent was permitted to return to her classroom. Shortly thereafter, an event known as “Back to School Night” was held at Lake Stevens. During that evening, teachers at Lake Stevens are required to be present in their classrooms to meet with parents. Respondent did not attend and did not advise the administrators at the school that she would not attend. Several parents complained to the principal and to Assistant Principal Collins that Respondent was not in attendance and that they were concerned because they had not received progress reports from Respondent and did not know if their children were passing or failing in Respondent’s class. Due to the parents’ concerns, the principal instructed Collins to conduct another TADS observation of Respondent. On October 22, 1996, Collins conducted another TADS observation of Respondent. She observed that Respondent's grade book had no recorded grades for periods five and six. She noted that the student folders contained no graded assignments. Respondent could not produce any graded tests, quizzes, weekly exams, unit tests, or progress checks. Respondent had not completed organizing the students' class work, homework, or folders in any observable fashion. In addition, Respondent's lesson plans were incomplete. On October 30, 1996, Collins reviewed with Respondent her written evaluation of Respondent's performance during the TADS observation. The written report noted Respondent's deficiencies and directed Respondent to comply with a prescription plan. Respondent was given specific deadlines, as follows: submit five sample graded tests and five writing portfolios to Collins by October 31; submit a complete and up- to-date grade book to Collins by November 1; complete all student folders and portfolios and have them available for review by November 1; read relevant portions of the TADS Prescription Manual by November 12, and submit activities for review and discussion with her department chairperson by November 12. Respondent acknowledged receipt of these directives by signing the TADS report on October 30. Respondent failed to comply with those directives and has never complied with them. Collins reported to Principal Willie B. Turner Respondent's failure to comply with her directives. On December 11, 1996, Principal Turner sent Respondent a memorandum directing her to report for a conference-for-the- record to be held in his office on December 16. The purpose of the conference was to discuss Respondent's non-compliance with the TADS prescription plan. On December 12 Respondent approached Principal Turner while he was on bus duty in front of Lake Stevens Middle School. Turner invited Respondent to speak to him after he was finished. Respondent came to his office and began "venting" at Turner, screaming at him and using "choice words." Turner told Respondent to leave his office, but she refused. Other staff members who were attracted by Respondent's screaming attempted to remove Respondent from Turner's office. With the help of the school's resource office, they were eventually able to do so. Immediately after the December 12 incident in Turner's office, Respondent was removed from Lake Stevens Middle School and assigned to work at her home. The conference originally scheduled to be held at Lake Stevens was re-scheduled to be held at the Office of Professional Standards on December 16. At the meeting, which Respondent attended, she was directed by Dr. James Monroe to contact the Employee Assistance Program immediately, undergo the required neurological evaluation, and attend the required psychotherapy once a week for a year. On or about January 9, 1997, Respondent contacted the Employee Assistance Program but declined to participate. On January 31, 1997, Dr. Monroe sent Respondent a memorandum in which he noted that she had not complied with his three prior directives. Respondent was given five additional days to comply and was informed that her continued failure to comply would be considered gross insubordination. Respondent attended a follow-up visit with Dr. Hendrickson on March 6, 1997. Following this visit, Hendrickson advised Dr. Monroe in writing that Respondent should undergo a psychiatric evaluation to assess her behavior and aggressive outbursts. Upon receiving Hendrickson's report, Dr. Monroe scheduled a meeting with Respondent for March 25. Respondent acknowledged receipt of that notice on March 19. Respondent attended the March 25 meeting. By that time, she had complied with the requirement that she undergo a neurological examination. At the meeting, she presented to Dr. Monroe a letter from a Dr. Cheryl Nowell indicating that Respondent had commenced psychotherapy on January 21, 1997. At that time, however, Respondent had still not undergone a psychiatric evaluation. On April 8, 1997, Dr. Monroe sent Respondent a memorandum summarizing the March 25 meeting. He again directed Respondent to undergo a psychiatric evaluation, gave Respondent five days to comply, and advised Respondent that her failure to comply would be considered gross insubordination. Dr. Monroe transmitted the information furnished by Respondent at the March 25 meeting to Dr. Hendrickson for review. After reviewing the information, Dr. Hendrickson wrote to Dr. Monroe that he believed that Respondent still needed to undergo a psychiatric evaluation. Dr. Monroe subsequently advised Respondent of that continuing requirement. Respondent did not undergo a psychiatric evaluation. On April 29, 1997, Dr. Monroe notified Respondent that she was to report for a conference at the Office of Professional Standards on May 1. Respondent signed the notice on April 29. The purpose of the meeting was to discuss Respondent's continued refusal to comply with prior directives. On April 30, 1997, Respondent contacted Dr. Joyce Annunziata, the Assistant Superintendent of the Office of Professional Standards. Respondent, through her union representative, advised Annunziata that Respondent would not attend the meeting unless she was escorted by an uniformed Metro-Dade County deputy or City of Miami police officer. Respondent stated her reason to be that she was in fear of her life due to what she perceived to be threats from Dr. James Monroe. Dr. Annunziata investigated Respondent's assertion and found it to be without merit. Her union representatives at every prior meeting with Dr. Monroe had accompanied Respondent, and Dr. Monroe had not physically threatened Respondent. Respondent failed to appear for the May 1 meeting. At her request, the meeting was re-scheduled for May 2. Respondent continued to insist a deputy sheriff or police officer accompany her. On May 2, Dr. Annunziata notified Respondent's union representative in writing that Respondent's demand for an uniformed law enforcement officer would not be met, that Respondent must decide if she would attend the meeting or not, and that Respondent's failure to attend the meeting would be considered gross insubordination. Respondent failed to attend the meeting. On that day Principal Turner recommended that the Miami-Dade County School Board terminate Respondent from further employment. Dr. Monroe decided to give Respondent one more chance. He re-scheduled the meeting for May 13, 1997, sent Respondent a written notice, and read the notice to Respondent over the telephone. Respondent was advised that her failure to attend the re-scheduled meeting would result in termination of her employment. Despite having notice, Respondent did not attend the May 13 meeting as she had failed to attend the May 1 and 2 meetings. On June 13, 1997, Respondent received an overall unacceptable TADS evaluation for the 1996-97 school year. She achieved an unacceptable rating in the categories of preparation and planning, assessment techniques, and professional responsibilities. Respondent's continuing failure to attend the conferences scheduled by Dr. Monroe constitutes gross insubordination. Further, Respondent's failure to comply with the reasonable TADS prescriptive plan given her to overcome her classroom deficiencies constitutes gross insubordination. Respondent's failure, in conjunction with her TADS observation, to have records of students' grades, graded assignments, graded exams, lesson plans, and student writing portfolios constitutes incompetence. Respondent received an unacceptable evaluation based upon her classroom performance on October 26, 1996. She achieved two subsequent unacceptable evaluations for professional responsibility for her continuing failure to comply with directives given to her, not for conduct in her classroom. Finally, she achieved an unacceptable annual evaluation. In light of Respondent's long-standing history of aggressive behavior, the Miami-Dade County School Board's requirement that she submit to a psychiatric examination was reasonable. Respondent's failure to comply with that directive was unreasonable and further constitutes gross insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and permanently revoking her teaching certificate. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2001. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 J. Wiley Horton, Esquire Pennington Law firm Post Office Box 10095 Tallahassee, Florida 32302-2095 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Helen B. Williams Post Office Box 551894 Carol City, Florida 33055-0894
The Issue Did Respondent leave the Southside Middle School campus without permission in the 1989-90 school year; in that same year, did Respondent make a threatening complaint in writing to Vice Principal, Peggy Williams; in that same year, did Respondent fail to submit a written report of a fight between students; did Respondent use profanity in the school year 1990-91 while employed at Southside Middle School; did Respondent leave campus without permission and leave his classes unattended in the school year 1991-92 while employed at Lake Shore Middle School; did Respondent engage in inappropriate conduct with students by grabbing a male student, M.F., by the shoulders and squeezing that student's shoulders and making that student go to his knees in the school year 1992-93 while employed at Lake Shore Middle School; did Respondent in that same year grab and hit A.H. in the chest and in the stomach; did Respondent in that same year pull the student, J.W.'s ear; did Respondent in that same year plan a field trip to Walt Disney World, Florida, without approval from the Duval County School District; did Respondent fail to follow district procedures for purchasing t-shirts and sweatshirts for students; did Respondent in the school year 1993-94 while employed at the Lake Shore Middle School fail to comply with guidelines in submitting a "no show" list related to student attendance; and did Respondent engage in profanity in the presence of students in that same year?
Findings Of Fact At times relevant to the inquiry Respondent has held Florida teaching certificate number 638543 covering the areas of health, biology, and physical education. In the fall of 1989, Respondent began employment with the Duval County, Florida, School Board in a teaching position at Southside Middle School. While serving as a teacher at Southside Middle School, Respondent broke up a fight between two students that was occurring in a hallway. Following the incident his obligation was to file a written report detailing the facts. That report was due immediately. The Respondent had to be reminded twice before rendering the report. The report was rendered before the students met with a school hearing officer to resolve the incident. In the fall of 1991, Respondent voluntarily transferred to an assignment at Lake Shore Middle School. That school is also part of the Duval County School District. On one occasion while Respondent was employed at Lake Shore Middle School, Timothy Hamel, another teacher at that school, observed that Respondent's class had been left unattended from approximately 3:40 p.m. until 4:00 p.m. On another occasion, while Respondent was employed at Lake Shore Middle School, Respondent left campus at a time when he did not have classes and did not return until after school had concluded for the day. As a consequence, he missed instruction periods for some classes that he was responsible for teaching. This circumstance was established through testimony from Arlene Guthrie, Assistant Principal for Curriculum at Lake Shore Middle School. The proof submitted at hearing did not satisfactorily demonstrate that the Respondent had made arrangements to cover classes which he missed on this occasion. In the spring of 1993, Respondent was interested in taking some students on a field trip to Walt Disney World, Florida. A conversation was held between the Principal at Lake Shore Middle School and the Respondent concerning this field trip. The principal was persuaded that it was too late in the year to schedule a field trip. Nonetheless, Respondent replied that he was going on the field trip and would rent a van on his own to transport the students, separate and apart from school sanctioned transportation. In the conversation concerning the field trip, the principal asked Respondent if he had obtained parent/guardian permission slips for the students to attend the outing. Respondent replied in the affirmative. A permission information sheet directed to the parents or guardians pertaining to the nature of the field trip was prepared on the Lake Shore Middle School letterhead and signed by Respondent, as sponsor for a school club known as Manhood, Achievement, Community Service. That information sheet indicated that the trip would take place on May 28-30, 1993. Further, it indicated that expenses would be taken care of, except for meals and spending money for the students. The correspondence went on to indicate that the parents or guardians would be informed of the hotel address after receipt of confirmation of room reservations. The information sheet indicated the departure and return time. Respondent confirmed the knowledge of the parents about those details by having them sign the information sheet. As discussed between Respondent and the principal, there was no mention in the information sheet about Respondent arranging for transportation on his own by renting a van. When the principal asked Respondent about the duration of the trip, Respondent indicated that it was more than a single-day trip. The principal wanted to know if Respondent had made arrangements for a place to stay. At that time, Respondent replied that no such arrangements had been made but that Respondent would obtain a place to stay. The principal was not convinced that the parents and guardians were sufficiently apprised of the nature of this outing and told Respondent that Respondent could not take the trip. After the conclusion of the conversation between the Respondent and the principal, Respondent still insisted that he was going on the field trip to Walt Disney World. In the conversation between the principal and Respondent concerning the field trip, the issue related to the payment for the trip was addressed. The principal was concerned that there was not enough money to pay for the trip and asked the Respondent how the balance of the money was to be paid. Respondent replied that the parents would pay. When the principal asked if Respondent had consulted with the parents concerning this additional cost, the answer was no. The conference between the principal and Respondent was held two or three days before the trip was to take place. When it became obvious that the school district, from the principal's perspective, did not wish to sanction the trip, matters were left in the posture that if the Respondent wanted to go on the trip as an adult in charge of those children, then that arrangement would have to be carried out between Respondent and the parents. In that setting of a private trip the school district did not want the Respondent to create the appearance that the trip was a trip sanctioned by the school district. Eventually correspondence was given to the Respondent from Gerlieve R. Oliver, Assistant Superintendent, Middle Schools, Duval County School System, confirming that the Respondent did not have permission to take an official school trip to Disney World. The correspondence also informed the Respondent that he could not take a non-school related trip, given that the written communications to parents concerning the trip was made on school letter head, thus creating the appearance of being a school sponsored trip. This appearance caused the school district to instruct the Respondent that he could not take a non-school trip either. This communication dated May 26, 1993, informed the Respondent that the parents or guardians of the students who were to be taken on the trip would be made aware of the telephone conversation between the Respondent and Ms. Oliver concerning the field trip. The conversation between Respondent and Assistant Superintendent Oliver was instigated by Respondent. It is that telephone conversation that led to the preparation of the correspondence. The correspondence from the assistant superintendent to the Respondent reminded the Respondent that if he failed to follow the directions that he might put himself in jeopardy concerning employment with the district and admonished Respondent to be more careful in adhering to directions. The correspondence from Ms. Oliver to Respondent also mentioned that if Respondent were more careful about following procedures in the future that this would result in the Respondent being able to provide opportunities for his students. This is taken to mean opportunities such as field trips. While Respondent was employed at Lake Shore Middle School there was a policy related to what is referred to as a "no show" list. In particular, at the commencement of the school year a given school counts the number of students in attendance as a means of determining the amount of money the school is entitled to for conducting its operations. The expectation is that the individual school teacher will document this count by calling a roll each day and turning in a slip to the administrative offices verifying the students who did not attend school on that day. Respondent did not comply with that requirement. While Respondent was teaching at Lake Shore Middle School an incident occurred between male students K.A. and M.F. in the school lunch room. K.A. and M.F. were arguing. Respondent came over and broke up the argument by grabbing both of the students by their respective shoulders. On two other occasions while Respondent was in the lunch room with the students, he grabbed A.H. around the neck in the first encounter and the second encounter grabbed that student by the shoulder. When Respondent grabbed A.H. around the neck the student winced and frowned. The reason for that initial encounter between the Respondent and A.H. is not clear. On the second occasion Respondent grabbed A.H. by the shoulder, A.H. had similar expression in that he winced and frowned. Again it is unclear concerning the reason for Respondent's actions. In the experience of K.A., while attending a class taught by Respondent, he observed Respondent curse in class on a somewhat frequent basis. That frequency was as much as four times a day, three days a week. On one occasion K.A. observed Respondent grab D.A. around the neck and tell D.A. to sit down or Respondent was going to be "kicking his fucking ass." Other curse words that K.A. heard the Respondent use were words like "ass", "damn", and "asshole". According to Ms. Guthrie, an expert in education, cursing in front of students, using inappropriate discipline such as grabbing necks and shoulders of students and leaving the class unattended on more than one occasion, constitutes a circumstance in which the Respondent has lost his effectiveness as a teacher. That opinion by Ms. Guthrie is accepted.
Recommendation Based on the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that a Final Order be entered finding Respondent in violation of the four counts in the Administrative Complaint and suspending the Respondent's teaching certificate for thirty (30) days. DONE AND ENTERED this 24th day of March, 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 24th day of March, 1995. COPIES FURNISHED: Nathan L. Bond, Esquire 2121 Killarney Way, Suite G Tallahassee, Florida 32308 J. David Holder, Esquire 1408 Piedmont Way Tallahassee, Florida 32312 Steven A. Williams 6200 South Barnes Road, P-20 Jacksonville, Florida 32216-5633 Karen Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Petitioner has sufficient grounds to support dismissal of Respondent from employment.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher by the School Board and currently holds a professional services contract. He began working for the School District on or about March 2007, in the middle of the 2006-2007 school year. His first assignment was at Holmes Elementary School where he worked on a “waiver,” since he did not have an elementary education certification. The principal asked him to get his certification in elementary education, which he did. According to Respondent, he was asked to start working early because the principal did not have enough teachers. During that year, he was evaluated as meeting standards in all areas of evaluation and was rehired for the 2007-2008 school year. Prior to becoming a teacher in Miami-Dade County, Respondent served in the United States military from 1978-1985, and had worked as a registered nurse. He holds an associate’s degree from Miami-Dade College, a bachelor’s degree from Florida International University (“FIU”), two master’s degrees from FIU, an academic certificate in gerontological studies from FIU, and an academic teaching certificate from FIU. For the 2007-2008 school year, Respondent worked at Little River Elementary School (“Little River”). The principal at Little River asked Respondent to work on another “waiver,” this time for teaching English as a Second Language students (“ESOL”). After completing the necessary coursework, Respondent received an ESOL certification. Respondent remained at Little River through the 2008-2009 school year until he was involuntarily transferred to Scott Lake Elementary School (“Scott Lake”) for the 2009-2010 school year. During the latter two years at Little River, he was evaluated as meeting standards in all areas. According to Respondent, he was transferred to Scott Lake because the administration of Little River objected to the number of student discipline referrals (“SCMs”) he was writing on students. Respondent reports having written somewhere between 600 and 700 SCMs on students over the years. Respondent freely admits he wrote many SCMs at every school he worked at and highlights that fact as an excuse for why he performed poorly. During Respondent’s first three years of employment at Holmes Elementary and Little River, he was evaluated across the board on his annual evaluations as “Meets Standards.” During this period of time, the only other rating an employee could receive was “Does Not Meet Standards.” During the 2009-2010 school year, Respondent’s principal for his first year at Scott Lake was Valerie Ward. During the 2009-2010 school year, the School District made changes to the teacher performance evaluation system. Use of the Instructional Performance Evaluation and Growth System (“IPEGS”) was implemented. The IPEGS Summative Performance Evaluations (“SPEs”) were now comprised of eight Performance Standards, where a teacher could be rated “Exemplary,” “Proficient,” “Developing/Needs Improvement,” or “Unsatisfactory.” In her first year with Respondent, Ms. Ward rated him “Proficient” in all eight standards. At the end of the 2009-2010 school year, Ms. Ward placed Respondent on a 90-day performance probation pursuant to section 1012.34. During this 90-day probation process, he was observed by administration on at least five different occasions, was put on several improvement plans, and had several meetings with administrators. The 90-day probation process is very time- consuming for both the subject employee and the employee’s administration. In other words, it is not the preferred task of a busy principal, unless he or she must, and then only when it is warranted by poor performance. Respondent believes Ms. Ward placed him on performance probation to retaliate against him because he complained about the temperature in his classroom. This is the first of many excuses and justifications Respondent has offered to explain criticisms of his performance by administrators. For the 2010-2011 school year at Scott Lake, Respondent was again evaluated as proficient in all areas. On or about April 2012, Principal Lakesha Wilson- Rochelle assumed Ms. Ward’s role at Scott Lake. Principal Rochelle signed off on Respondent’s summative evaluation during the 2011-2012 school year, but did not fill it out, since it had already been completed by someone else. The score placed Respondent in the “needs improvement” category. She signed it only because she was required to do so, and the summative evaluation rating she gave him for the next school year was even worse by several points. It was also during the 2011-2012 school year that IPEGS underwent another change. Now there were seven professional practice standards on which teachers were evaluated and one standard that was based on actual student data. Use of IPEGS IPEGS was approved by the Florida Department of Education (“FDOE”) for all years relevant to this case. The IPEGS processes from the 2013-2014 school year forward consisted of the following: Each teacher that had been teaching for more than two years received one formal observation. If during that observation the teacher’s performance was sufficient, nothing more need be done, outside of a summative evaluation at the end of the year. However, informal feedback is given to teachers throughout the year after classroom walkthroughs and through other means. If a teacher was observed to be deficient in one or more standards during the formal observation, the teacher and administration would engage in something called “support dialogue” in which support in various forms is provided to the teacher, so that the deficiencies can be remediated. If the teacher still exhibits performance deficiencies after the support dialogue, they are placed on the 90-day performance probation. While on performance probation, the teacher is observed another four times after the initial observation. After the second, third and fourth observations, if the teacher has not remediated, the administration develops an improvement plan, which must be followed. The improvement plan gives the teacher assignments and assistance to aid him or her in remediating any deficiencies. Also, each teacher, regardless of whether placed on performance probation, receives an SPE, as well as a Summative Performance Evaluation Rating (“SPE Rating”) of either “Highly Effective,” “Effective,” “Developing/Needs Improvement,” or “Unsatisfactory.” In addition to the seven professional practice standards, a data component is also factored into the SPE Rating known as the VAM. The VAM As explained by Director of Research Services Dr. Aleksander Shneyderman (“Dr. S”), the VAM is a statistical model that attempts to measure a teacher’s impact on student learning growth through the use of a multi-level lineal regression. Dr. S has been working with the VAM, since its inception in 2010-2011. He has studied it and keeps abreast of Florida’s rules and regulations of how to calculate it. Dr. S and his office calculate what is called “Local VAM” for the School District. He also provides trainings to School District employees on the use of the VAM. Dr. S was tendered and accepted in this proceeding as an expert in VAM calculation. Local VAM is usually calculated in September/October by his office after the previous year’s testing data become available. Various assessments are used to create the Local VAM. It is calculated in compliance with state statutes, and the methodology is approved each year by FDOE. Also, the methods for calculating the Local VAM are bargained for and ratified by the United Teachers of Dade (“UTD”) teacher’s union. The Florida VAM is calculated by the State using a model that is approved by the Florida Commissioner of Education. The results of the Florida VAM are given to Dr. S’s office by the State. The Florida VAM is created using the Florida Standards Assessment (“FSA”). In the 2013-2014 and 2014-2015 school years, Respondent’s Local VAM scores were calculated by Dr. S’s office and based upon his students’ results on the Stanford 8 Achievement Test, 10th edition. UTD approved the methodology in VAM calculation for both of these years. For the 2015-2016 school year, Respondent’s VAM score was the Florida VAM in English language arts for fifth grade. The goal of the VAM is to measure a teacher’s effectiveness on student learning growth. In order to do this as accurately as possible, students are compared to similar students for an “apples to apples” comparison. Only students with the same demographic characteristics, as well as the same prior year’s test scores are compared to one another. The demographic factors considered are English Language Learner (“ELL”) status, gifted status, disability status, relative age (which considers whether a child was retained in a previous grade), and attendance (which was added in 2014-2015). Student demographics and the prior year’s test scores must be exactly the same. Based on these demographics and past scores, an expected score is created for each student. If the student exceeds that score, the credit for that success is given to the teacher. The School Board and Dr. S concede that the VAM does not account for every possible student performance variable, because, simply put, this would be impossible, since there are a limitless number of factors that could be considered. Moreover, certain factors are forbidden to be used by the Legislature, including socioeconomic status, race, gender, and ethnicity. (See § 1012.34, Fla. Stat.). Respondent argues that because not every imaginable factor that might affect a student’s grade is captured, that the VAM is not useful. Respondent claims that factors beyond the teacher might be causing poor performance, for example: lack of parental engagement. While levels of parental engagement could impact student performance, the School Board states that it is following state statutes to the letter and doing the best it can within the applicable statutory framework. Moreover, just as factors outside of consideration might hurt student performance, other factors might enhance performance, and the teachers receive those possible benefits as well--for example, if parental engagement is good. Those benefits would flow to the teacher, despite not having earned them through his or her personal efforts. Moreover, the VAM score ranges that are used to classify teachers are bargained for with UTD. The ranges have confidence intervals developed through the application of margin of error calculations that mitigate uncertainty to protect and “safeguard” teachers from unfair classifications. In many instances these safeguards give the teachers the benefit of the doubt to make sure they do not fall into the lowest category, which is “unsatisfactory.” Noticeably absent from these bargained for “safeguards” is any mention of how much instructional time a teacher must have with a class before those students’ data can be used to calculate a teacher’s VAM score. UTD has not bargained for any special rules designating when teachers can and cannot be held accountable for their class’ data based on the time they have instructed that class. As such, the only relevant inquiry is whether those students are with that teacher during the FTE period in February. Also, the law (see § 1012.34, Fla. Stat.) makes no mention of any minimum length of instructional time necessary to hold a teacher accountable for his or her students. The 2013-2014 School Year at Scott Lake Refusal to teach basic Spanish In May 2013, near the end of the 2012-2013 school year, Principal Rochelle advised Respondent that he would be teaching a kindergarten class for the 2013-2014 school year and that he would be required to teach them one hour of introductory Spanish. In an email to Principal Rochelle, Respondent asserted that he believed he was being assigned to teach Spanish to the kindergarteners in retaliation for his extensive reporting of student SCMs. In that same email, he advised her that he did not want to teach Spanish. Prior to being advised of this assignment, the School District conducted a language proficiency assessment for Respondent with both a written and verbal component, which he passed. Principal Rochelle had personally seen Respondent speak fluent Spanish to her school secretary and the art teacher. Because Respondent spoke fluent Spanish, or, at least, “conversational” Spanish (as admitted by Respondent’s counsel in his opening), she gave him the assignment. Moreover, as a principal, she had the right to assign Respondent as she saw fit. School Board Policy 3130 - Assignments reinforces this assertion stating, in relevant part, “Instructional staff members may be reassigned to any position for which they are qualified in order to meet needs of the District and pursuant to the collective bargaining agreement.” In order to teach the one-hour basic Spanish component of the class, Respondent did not need to be certified to teach Spanish. He only needed an elementary education certification, which he had. He even attended a training class on the implementation of the Spanish program. Respondent admits he can speak Spanish, write basic Spanish, has taken Spanish classes and passed the School District’s proficiency exam. Curiously, he objected to them giving the proficiency exam to him based on the grounds he was “singled out” for having a Hispanic last name, having been overheard speaking the language, and because he is not from a Spanish-speaking country. These are not reasonable objections when the School District explained the objective reasons listed above regarding Respondent’s qualifications to provide the basic- level Spanish instruction. Respondent persisted in his belief that he is “not qualified” to teach kindergarten Spanish despite all the evidence to the contrary. Respondent simply refused to do something that he was entirely capable of doing and that was within his ambit of responsibilities. He described one of the lessons he was allegedly incapable of teaching as follows, “You put a CD in the player. The kids sing songs in Spanish. The kids cut out pictures of objects and match them to a picture with the word in Spanish.” The kindergartners in his class did not speak Spanish; they spoke English. The Spanish component of the class was very basic and involved things like vowels, colors, puppets, basic books, and vocabulary words. Contrary to Respondent’s assertions, no complex grammar or sentence structure was involved. Such things are not even part of ordinary English kindergarten instruction, as admitted by Respondent. Moreover, he was provided with materials from which to draw the instruction. Principal Rochelle does not speak Spanish herself, yet believes she could teach the Spanish component, as it is a “piece of cake.” Respondent filed a grievance regarding the Spanish assignment. In order to appease and accommodate Respondent, Principal Rochelle eventually sent a Spanish teacher to his room to teach the Spanish component. However, Respondent then complained that the grades she was entering still had his name attached to them in the computerized grading system. Finally, the principal decided to move him to a first-grade class in early November 2013. Undoubtedly, the requests of Respondent led to this assignment change. Formal IPEGS observation On March 11, 2014, Principal Rochelle performed her formal observation of Respondent pursuant to IPEGS. On that day, no performance deficiencies were noted. However, throughout the year, Principal Rochelle had conducted many informal observations and walkthroughs of his classroom and had already provided him feedback regarding his performance and her expectations. Examples of that feedback can be found in an August 27, 2013, email from Principal Rochelle to Respondent. Moreover, according to Principal Rochelle, teachers tend to be on their best behavior during these observations–-which makes sense, because they know the boss/evaluator is watching. The formal observation is also only a snapshot in time of the teacher’s performance on a particular lesson; it is not a reflection of the entire year’s performance. Respondent has argued that Principal Rochelle has retaliated against him. If that were the case, this observation would have been a perfect opportunity to retaliate against him. However, she found no deficiencies in his performance on this day. Scott Lake SPE—Professional Practice Throughout the rest of the school year, Principal Rochelle made other credible observations regarding Respondent’s performance. Despite her counseling that he meet with parents, he refused to do so. He refused to participate in activities, including field trips, school celebrations, and award ceremonies. Other teachers actually had to hand out awards for him at the ceremony. He refused to implement group instruction techniques and did not take advantage of the presence of reading and math coaches. He refused to implement progressive discipline and “red, green, yellow” behavior management techniques. He refused to implement various discipline strategies laid out in the Student Code of Conduct and school-wide discipline plan prior to writing SCMs on students. Principal Rochelle recalls that he wrote approximately 25 SCMs on one student within the first nine weeks of school and made no attempt to address the behavior issues with the student’s parents. At one point Principal Rochelle accommodated his request to have a student removed from his class. Since this was only Principal Rochelle’s first full year as principal of Scott Lake, and she was still new to the school, she tended to give the teachers the benefit of the doubt when completing their SPEs. She also had a few teachers who had to be terminated for lack of professionalism that were more of a priority for her than Respondent. As such, she rated Respondent as “effective” in six standards on his SPE and as “developing/needs improvement” for the Communication standard. In her view, “effective” is akin to a “C” grade, whereas “highly effective” is “A plus/high B” status, “developing/needs improvement” is a “D,” and “unsatisfactory” is an “F.” When asked what Respondent would have rated himself in these seven standards, he testified he would have given himself five “highly effectives” and two “effectives.” He believes Principal Rochelle rated him lower than she should have as a result of retaliation against him for him not wanting to teach Spanish. This is Respondent’s second claim of retaliation against Principal Rochelle, and third claim of retaliation overall. Principal Rochelle’s denial of such retaliation is credited based upon her testimony at hearing and the exhibits offered in support. Despite the fact that Respondent’s 2013-2014 SPE seemed adequate to a casual observer (with the only obvious blemish being the “developing/needs improvement” in the Communication standard), when compared to his peers, a different story emerges. His professional practice points total put him in the bottom .8 percentile for all teachers district-wide and in the bottom 2.6 percentile for all first-grade teachers district-wide. Without belaboring the data, Respondent’s professional practice scores are at the bottom of the barrel, regardless of how you spin them. Scott Lake VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 12.5 points–-the lowest possible score. He was one of 11 first-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2013-2014 school year was “Needs Improvement.” Only 29 percent of his first-grade students met or exceeded their performance expectations. Respondent’s VAM was based on the performance of his first-grade students. Respondent believes that, since he was moved to the class in early November 2013, and the SAT exam was given in April, he should not be held accountable for their performance. In order for him to have a fair shake, he claims he would have had to be there instructing the students on week one. Respondent says the amount of time he was given was not fair because, “if I’m the lowest teacher in Miami-Dade County, and here for termination, no, sir, I don’t think it was fair.” If the rule Respondent proposes were implemented as policy, any teacher could simply avoid responsibility for their student’s performance by requesting a transfer sometime after the first week of the year. It is also not uncommon for teachers to have students added or subtracted from their classes throughout the year for a multitude of reasons. This is a fact of life that teachers have to be able to cope with in the ordinary course of business for the School District. Moreover, and somewhat ironically, if another teacher had been teaching Respondent’s students for a portion of the year, based on his SPE Ratings and student achievement data, Respondent probably would have had better scores. The students would likely have been getting a more effective teacher than he. Respondent also claims Principal Rochelle gave him a lower functioning group of students, who were behind in their learning. He explained that he knew they were low-functioning because he gave them “STAR tests” to gauge their ability levels. When pressed on cross-examination, Respondent admitted that he only tested his own students and never anyone else’s. Therefore, it would be impossible for him to know whether his students were any lower-functioning or further behind than any other teachers’ students. Respondent’s doubtful claim is further undercut by Principal Rochelle’s credible testimony that she selected the members of his first-grade class at random from overcrowded classrooms. Respondent’s claims that he was robbed of instructional time by field trips and fundraising activities, matters that are required of all teachers, are unconvincing excuses for his students’ poor performance. The 2014-2015 School Year at Norwood Shortly after the start of the 2014-2015 school year, Respondent requested a hardship transfer to Norwood Elementary School (“Norwood”) because the school day at Scott Lake was going to be increased by one hour. Despite the fact that he would have been compensated approximately $4,500.00 for this time, he chose to transfer schools. Principal Kevin Williams (or Dr. Williams) had a teacher on leave so he assigned Respondent to fill that gap. Respondent started teaching a kindergarten class, but was moved to a second-grade class during the first week of school. Prior to conducting a formal IPEGS observation of Respondent, Dr. Williams had performed several walkthroughs of his classroom. Based on these walkthroughs, Dr. Williams advised Respondent that he was not properly implementing the school discipline plan. Respondent also refused to implement “grouping” of the students during instruction time. Dr. Williams also had a reading coach model lessons for Respondent and assigned him a teaching assistant. Respondent was the only teacher who received this level of assistance. Dr. Williams even went so far as to have two meetings with UTD prior to his formal evaluation of Respondent in order to help him. By October 2014, Dr. Williams had already explained his expectations to Respondent. Formal IPEGS observation On October 1, 2014, Principal Williams performed the formal IPEGS evaluation of Respondent. Principal Williams noted no deficiencies on that day. Generally speaking, Principal Williams does not view these observations as punitive. Over the years, Dr. Williams has conducted approximately 240 observations of teachers, and, generally, the employees are “on point” when being watched. Moreover, like Principal Rochelle, Dr. Williams views these observations as a snapshot of teacher performance while the SPE captures the year- long performance. In the report of the observation, Dr. Williams suggested that Respondent promote interactions with students, encourage more student participation, connect to prior student knowledge and interests, and present concepts at different levels of complexity, among other items. Norwood SPE—Professional Practice After the formal observation, Dr. Williams continued to conduct walkthroughs of Respondent’s class. He observed the same issues with refusing to use “grouping” and refusing to properly implement the discipline plan. Respondent never took advantage of the modeling techniques that were provided for him. He also was not implementing differentiated instruction. Dr. Williams himself held a professional development class on campus for the school discipline plan, which, instead of attending, Respondent attended a social studies class off campus. Instead of following the prescribed discipline plan, Respondent was trying to control the behavior of his students with treats. Similar to his time at Scott Lake, he refused to participate in field trips, staff gatherings, award assemblies, and student activity days. Respondent had lesson plans, but did not always follow them. He would spend an inordinate amount of time on vocabulary. He gave some tests, but would refuse to grade other tests. The pattern of his teaching was inconsistent, at best. On his SPE, Principal Williams rated Respondent as “effective” in five standards, “highly effective” in one, and as “developing/needs improvement” for the Learning Environment standard. Dr. Williams’ rating for Learning Environment was lower because Respondent failed to implement appropriate discipline strategies despite being told to do so. In eight years of being a principal, this was the first time he had ever given a teacher a “needs improvement” rating. He mostly gives his teachers combinations of “highly effective” and “effective,” if they do what they are supposed to do. Nevertheless, Dr. Williams testified he still went easy on Respondent because he was new to the school. In terms of his SPE professional practice points, Respondent scored in the bottom two percentile for second-grade teachers district-wide and was the worst rated second-grade teacher at Norwood. Instead of following the discipline plan, Respondent was using the emergency call button, writing SCMs, and writing to the superintendent to have ten students removed from his class. Another teacher at the school, Mr. W, had the exact same set of students as Respondent, only he taught them in the afternoon and not in the morning. He had none of the same behavior management issues Respondent had with this same group of children. Respondent claimed that Mr. W was able to manage the children better because, like the students, he was African-American. When asked how Respondent would have rated himself in these seven SPE standards, he would have given himself six “highly effectives” and one “effective.” He believes Principal Williams rated him lower than he should have as a result of retaliation against him for writing SCMs and because he complained about the size of his initial kindergarten class. This marked Respondent’s fourth claim of retaliation overall. Principal Williams credibly denied such retaliation at the hearing. Norwood VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 8.75 points-–the lowest possible score, again. He was one of 50 first-grade teachers district-wide who scored the bare minimum putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only six percent of his second-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from Norwood should not be considered because of his students’ behavioral issues. He also stated he did not have enough textbooks to send home with students. Much like at Scott Lake, he believes he was intentionally given bad students. This is peculiar for two reasons. First, Dr. Williams first tried to assign Respondent another class, but Respondent complained that one was too big. To accept this argument, the viewer would have to believe Dr. Williams knew Respondent would reject the larger class, and the principal had another one in the wings filled with “bad” students to make Respondent look ineffective. Second, Mr. W had none of the same problems Respondent did with this same group of students in the afternoon. To accept this contention, Principal Williams’ plan only “worked” on Respondent, since he was singled out for retaliation. This line of argument is nonsensical, at best. The 2015-2016 and 2016-2017 School Years at Aventura Waterways K-8 In looking for the right fit, Respondent was sent to Aventura Waterways K-8 (“AWK8”) for the 2015-2016 school year. He remained there for the 2016-2017 school year until he was dismissed from his employment in March 2017. As at his previous school assignments, the administrators at AWK8 tried to work with Respondent and the UTD to let him know their expectations prior to the formal observations. During these two school years Respondent was observed formally by Principal Luis Bello and Assistant Principal Ileana Robles on no less than nine occasions. In both years, during his initial observations, his performance was found to be deficient; and he was immediately placed on support dialogue and, eventually, 90-day performance probation. During these two probationary periods, he was provided assistance through improvement plans and completed all his improvement plan assignments. The goal was to help him remediate his deficiencies. The only change he ever implemented was switching from block to weekly lesson plans. Both his instructional delivery and the learning environment never improved. During these observations, Principal Bello and Assistant Principal Robles both observed the same repeated deficiencies, which they described in meticulous detail at the hearing. Summarizing their testimony, the issues concerning Respondent were: Pacing. Respondent spends too much time on issues and did not complete entire lesson plans. Questioning students. Respondent only uses basic, easy to answer questions; does not ask enough questions; or is dismissive of questions. Failing to properly explain concepts to students or to activate prior knowledge. Respondent fails to prompt students in order to generate interest in the subject matter and holds no conversations about the material in class. Not using challenging enough material. Respondent’s material was so basic that parents were concerned their children were getting grades they did not deserve and not learning grade- appropriate material. Principal Bello described Respondent’s instruction as “robotic” and lacking any semblance of “passion.” AWK8—Professional Practice On his SPE, Principal Bello rated Respondent as “effective” in two standards, and “unsatisfactory” in five standards. Principal Bello’s ratings were in line with the repeated deficiencies discussed above. He awarded Respondent “unsatisfactory” ratings because Respondent never remediated his deficiencies. Principal Bello credibly stands by his SPE Ratings as honest and admits to spending a great deal of time on them. In terms of his SPE professional practice points for 2015-2016, Respondent scored in the bottom (0) percentile for fifth-grade teachers at AWK8, all teachers at AWK8, fifth-grade teachers district-wide, and all teachers district-wide. When asked what Respondent would have rated himself in these seven standards, he would have given himself seven “highly effectives.” He believes Principal Bello rated him lower than he should have been rated, but could not say why. AWK8 VAM and overall SPE Rating Respondent’s State VAM score for learner progress points was 8.5 points-–the lowest possible score, for the third year in a row. He was the only one of 98 fifth-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only 32 percent of his fifth-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from AWK8 are not legitimate for a variety of reasons, none of which relate to his own shortcomings. Respondent’s excuses and the reasons not to credit those excuses are as follows: Respondent argues that his VAM cannot be counted against him because his afternoon class of fifth graders were ELL, and they spoke a variety of languages, including French, Russian, Hebrew, Portuguese, Spanish, and Turkish. His theory was that they performed poorly because of their poor grasp of the English language. For VAM scoring purposes, this excuse should not be credited because the VAM already takes into account their ELL status by comparing them only to other ELL students with identical demographics and prior test scores; and they are not expected to perform as well as non-ELL students. However, by Respondent’s own admission his afternoon ELL class was the best class he had had in ten years of teaching. He said they had emotional balance, presence of mind, and good parental engagement. He even explained how his ESOL certification assisted him in understanding how to teach them. According to him, by the end of the year, the students were at the level where they would be having conversations. Respondent also had another ESOL-certified teacher assist him for a portion of the year, which was a standard practice. Finally, ELL students, who are brand new to the country, are not calculated into the VAM because there are no prior year scores for which they can be compared “apples to apples.” Respondent himself testified that the lowest level ELL students did not get graded. This makes sense because Respondent testified that his afternoon ELL class was 31 students-–yet only 15 ELL students were factored into the data used to calculate his VAM score for 2015-2016. In sum, the grades of the lowest English language functioning students were not even held against him. Respondent next argues that the numbers of students in both his morning and afternoon classes at AWK8 exceeded class size restrictions. Respondent “believes” his morning class had 24 or so students, but only 18 after the special education students were removed. When the student data is examined, it appears that Respondent only had 15 non-ELL students factored into his VAM score. As for the afternoon ELL class, otherwise considered by him the best class he has ever had, Respondent claims there were 31 in that class. Even assuming Respondent’s numbers are accurate (and they do not seem to be, given the VAM data), these class sizes do not run afoul of class size restrictions and are commonplace at AWK8. The School District operates on averages for class size compliance and everyone teaching fifth grade at AWK8 had similar class sizes. None of those other teachers had the same problems Respondent did. Moreover, Respondent reported the alleged class size violations to the FDOE, and they did nothing about it. Respondent further argues that his morning group of students was once again a “bad” group that did not give him a “fair shot.” According to Respondent, he had a student who would sit in a garbage can and another that would tell him “F_ _k you” every day. He had behavior concerns with four to five students in the morning class. Eventually, the student who sat in the garbage can was removed from the class. Respondent then testified that these behavior issues were exacerbated by his absence from the classroom when he was performing his improvement plan activities. He now appears to be placing his behavior concerns on the administration for doing their job by trying to assist him and by remediating his deficiencies. Behavior management is integral to being a teacher. A teacher must not be allowed to escape his or her own responsibility for performance shortcomings by blaming it on the students. At every school where Respondent has taught, he has admittedly written a large number of SCMs, had behavior issues with his students, and believes he was purposely given “bad” students. The only common thread among these schools is Respondent. Nevertheless, he refuses to acknowledge that he might possibly be even a part of the problem and believes he has done nothing wrong. Respondent also blames his poor VAM on the fact that fundraising activities, book fairs, student activity days, and dances all detracted from instructional time at AWK8. This is the same excuse he used for his poor VAM at Norwood and holds no weight, since these are activities that all teachers at all schools must cope with as part of the instructional process. Respondent’s Termination by the School Board Respondent’s case was the first of its kind brought pursuant to section 1012.33(3)(b) (“3-year provision”), since this was the first time the School District had the requisite number of years’ data available. Of the thousands of teachers working for Miami-Dade County Public Schools, Respondent was part of a singular group of seven to nine teachers who fell into the three-year provision of the statute having the necessary combination of “needs improvement” or “unsatisfactory” final overall SPE Ratings. Of that handful of teachers, Respondent was the single worst. Respondent’s performance actually declined each year despite the assistance provided for and made available to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 15th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of March, 2018. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board Suite 912 1450 Northeast Second Avenue Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether just cause exists to terminate Respondent's employment with Petitioner based on violations of Florida Administrative Code Rules 6A-5.056(2), , and (5), for incompetence, misconduct in office, and/or willful neglect of duties, respectively.
Findings Of Fact The Board is responsible for hiring, monitoring, and firing employees at its schools, including Manatee and Pinewoods. At all times relevant hereto, Respondent was an employee of the Board. Respondent was hired by the Board on August 22, 2005, as a second grade teacher at Harns Marsh Elementary. She taught second grade at that school for three years. At the end of her third year, Respondent was awarded a professional services contract. Prior to the beginning of her fourth year at Harns March, Respondent was told she was being moved to a fifth grade class for the upcoming school year. Inasmuch as she preferred teaching second grade, Respondent voluntarily transferred to Manatee for the 2008-2009 school year, as there was a second grade position open there. Manatee is a Title I school, serving a distinct population of students with various emotional or behavior issues. After teaching second grade at Manatee for one year, she was moved to a third grade class for the 2009-2010 school year, then back to second grade for the 2010-2011 school year. The principal at Manatee, Louzao, began to have concerns about Respondent commencing in the 2009-2010 school year. The annual evaluation Louzao initially prepared for Respondent after the 2009-2010 school year had contained less than satisfactory scores. In the face of a possible grievance of those scores by Respondent and the teacher’s union, Louzao upgraded the scores to satisfactory. Louzao was a fairly new principal, being at that time in only her third year as an administrator. She did not feel comfortable defending her negative evaluation against a formal grievance. Louzao also believed a satisfactory evaluation would encourage Respondent to improve. As a result of some of her concerns, Louzao ultimately moved Respondent to third grade for the 2010-2011 school year. Louzao felt like Respondent might interact better with students slightly older than the second grade students she had been teaching. However, some of the third grade students’ parents complained to Louzao about Respondent, resulting in some students being transferred out of Respondent’s class to another third grade class. It was not Louzao’s normal policy to transfer students; she would prefer that the teacher and students work through their issues. In this case, however, Louzao felt like removal of the students would be most beneficial as Respondent continued to work with the school guidance counselor dealing with her classroom demeanor. The teacher-student relationship was never fully corrected to Louzao’s satisfaction. For example, the first student was transferred out of Respondent’s class in August, then another in October, and yet another in November 2010. Louzao met or talked with Respondent daily and had her assistant principal counsel Respondent in an effort to improve Respondent’s teaching skills. At the end of the 2010-2011 school year, Louzao gave Respondent another evaluation with generally satisfactory scores, but listed several “areas of concern,” i.e., areas that needed additional work. Louzao would have given Respondent less than satisfactory marks, but she had failed to adequately document Respondent’s shortcomings during the school year, a requirement for unsatisfactory evaluations. Louzao then attempted to deal with Respondent’s inability to properly interact with her students by moving Respondent to a fifth grade class for the 2011-2012 school year.1/ Louzao believed that Respondent’s sarcasm and coarse demeanor would be more well-received by older students. Almost immediately, however, parents began to make complaints about Respondent. Louzao was contacted by parents who reported that Respondent had called students “retarded” or “stupid.” School staff questioned a number of students and received verification from those students that the remarks had been made. Based upon that verification – although it was not absolute proof that the comments were made – Louzao contacted the Board’s professional standards office to begin further investigation into the allegations. It was also reported that Respondent was refusing to allow children to use the bathroom when needed. Again, while Respondent admitted to having a fairly strict bathroom policy, there is no proof that children were actually denied bathroom privileges. The school, nonetheless, found sufficient student verification of the allegation to make it a point of discussion with Respondent. Then, in September 2011, an incident occurred which led to an investigation of Respondent by the Department of Children and Families. The incident involved discipline in a school stairwell. The security videos from a stairwell near Respondent’s classroom showed students walking and running up and down the interior, non-air conditioned stairwell numerous times for approximately 20 minutes without water or rest. There is no dispute about what the videotapes show; Respondent admits that she had the students doing “training” to prevent them from ascending and descending the stairs improperly. Several parents complained to the school about the staircase discipline incident. Respondent described the matter as follows: She had been having a lot of trouble with this particular class; they were very disrespectful. The students would misbehave when they were moving from the classroom to other areas of the school. Particularly, the students would run up and down the stairs. To change that behavior, Respondent decided to teach the students how to walk up and down the stairs. To that end, she had the students walk up and down the stairs over and over until they did it properly. The videotape accurately reflected that it took some students more attempts to stop running and that some students never did stop running. The activity was not, according to Respondent, punishment; rather, it was a teaching moment. She had seen a student injured at a prior school because of running down the stairs, and Respondent did not want that to happen again. Respondent said she just lost track of how much time the students were on the staircase. To administration, however, it looked like Respondent was disciplining the students in an extremely harsh fashion. The Board does not condone such actions by its employees. After the staircase discipline matter, Respondent was suspended with pay. A pre-determination hearing was held, but Respondent said the staircase incident was not mentioned. Rather, she was questioned about various allegations that had been made by students and their parents. The allegations included: Calling a student a “retard;” saying someone was stupid; not allowing students adequate bathroom breaks; making fun of a student’s name; and yelling at students. Upon completion of the pre-determination meeting, Respondent was suspended with pay and sent home. She was later assigned to an office job so that she could be of some benefit to the Board during her suspension. The investigation concluded with the issuance of a Letter of Reprimand to Respondent, who was also required to attend a class on classroom management and a Code of Ethics training session. She was not allowed to return to the classroom at that time. In January 2012, at the beginning of the second semester of the 2011-2012 school year, a second grade teaching position came open at Pinewoods. The Board’s Professional Standards office called Dr. Carlin and told her the Board wished to have Respondent fill the position. Dr. Carlin agreed to the assignment. Dr. Carlin did not speak to Louzao about Respondent and did not know of Respondent’s prior issues at Manatee. Respondent’s testimony that Dr. Carlin stated she was aware of “everything that happened at Manatee” is not credible. Respondent first went to Pinewoods on or about January 19, 2012. She was introduced to the school and to her classroom by Dr. Carlin. Dr. Carlin attempted to prepare Respondent and to provide all the support and assistance she could to insure Respondent’s success. One of the items of support provided by Dr. Carlin, was a website containing the school handbook which sets out all of Pinewood’s policies for teachers and other staff members. Respondent remembers meeting Dr. Carlin on a Thursday and being told she would start co-teaching the class with the out-going teacher the following Monday, January 23, 2012. It was Respondent’s understanding that she would then begin teaching on her own the following Friday, January 27, 2012. (Respondent said her understanding was based on an email she received from the Professional Standards office informing her about the new assignment. However, the email was not produced as an exhibit in this case.) In fact, Respondent was introduced to the class on Friday January 20, 2012, the out-going teacher’s last day. She took over the class the following Monday, January 23, 2012, on her own. Dr. Carlin remembers spending a fair amount of time with Respondent on Respondent’s first day before introducing her to the class. Respondent’s first day with the students in her new class was atypical; it was a field day of sorts at the school, so the students were out of the class more than they were in. At the beginning of the class period, however, Respondent noticed that the children were socializing and talking for the first few minutes after arrival. Respondent asked the out-going teacher if she always allowed the children to do that, and was told she did. That was a different approach than the one normally taken by Respondent. She had hard-fast rules about what students should do upon entering the classroom, e.g., turn in their homework, bring their homework notebook to the teacher’s desk, sharpen their pencils, use the bathroom, and then do advanced reading or use the computer until regular instruction began. Respondent’s approach was much more strict and instruction-oriented than the prior teacher’s. Within two or three days of Respondent assuming her new teaching position, some of the students’ parents began calling the school with complaints. The initial complaint was that Respondent was assigning weekend homework in violation of the school’s policies. When Respondent became aware of the policy, she ceased that practice. Dr. Carlin believes Respondent should have known the policy after reading her school handbook, but the book was over 50 pages long and contained a lot of information. Thus, Respondent’s temporary violation of that policy is excusable. More troubling, however, were the complaints concerning Respondent’s alleged verbal abuse of students and her rude demeanor. Parents who visited Respondent’s classroom found her to be aloof, stand-offish, and she seemed not to be engaged with the students. It was reported again that Respondent was refusing to allow students to use the bathroom as needed. There is no competent evidence to support the allegation, but it is troubling that the same complaint that had been made by parents at Manatee was being made by parents at Pinewoods. The Board’s director of professional standards received “weekly, if not daily,” calls from parents and administration complaining about Respondent almost from the day she started her employment at Pinewoods. Dr. Carlin visited Respondent’s classroom on several occasions to see for herself whether there were any “teaching” issues that needed attention. Dr. Carlin met with Respondent on February 1, 2012, just one week after Respondent started teaching at Pinewoods. The purpose of the meeting was to discuss the parents’ complaints and to provide suggestions for doing better in the classroom. Respondent was not told at that time that she was being formally reprimanded. A letter dated February 6, 2012, memorialized the February 1, 2012, meeting and constituted a written reprimand for Respondent’s behaviors in the classroom. Despite the prior meeting, Respondent was surprised by the written reprimand. The letter set out six categories of problems that had been identified by Dr. Carlin from letters and conversations with a number of parents: Lack of respect shown to students and parents, e.g., rolling her eyes and speaking in disrespectful tones; Classroom not warm and supportive. Refusing to help children and making them cry; Refusing to allow children restroom privileges when needed; Moving through the curriculum too fast; Giving excessive homework; and Causing children to cry and become distressed about coming to school. Respondent denied each of the allegations and expressed surprise about the parents’ complaints. She also said that part of the blame for any problems lay with the students; they were not respectful to her and had no rules of conduct.2/ Dr. Carlin knew, however, that the prior teacher had rules for her classroom and the children were well-behaved. Respondent signed the letter, acknowledging receipt. The letter then set forth some guidelines or action plans that were to be implemented immediately by Respondent. In response to the first item, prohibiting Respondent from yelling at students or speaking in a disrespectful tone, Respondent seemed to go to the other extreme. She became very quiet and almost apathetic in her relationship with the students. Respondent did meet expectations in the other items, at least to some degree, though Dr. Carlin was not totally satisfied with all Respondent’s actions. Finally, the letter provided four distinct suggestions for improving her conduct and teaching habits, including: Use of the Peace Education materials in her classroom, including I-Care Rules. Respondent was to meet with Mrs. Cutting and Ms. Roberts for assistance with implementing the materials. Use of the Board’s academic plans for subject areas. Respondent was to meet with Mrs. Cutting and Mrs. Hardee to receive coaching and modeling with regards to the materials. Initiation of a classroom plan outlining her expectations for students. Following all directives in “this letter.” In response to the four suggestions, Respondent: Met with Mrs. Cutting and Ms. Roberts about the Peace Education materials. However, Respondent did not demonstrate implementation of the materials in her classroom. Respondent met with Mrs. Cutting and Mrs. Hardee about use of the Board’s academic plans. However, she did not utilize the plans on a regular basis. Respondent did initiate a classroom plan outlining her expectations for students. Dr. Carlin described the plan as inferior and had to re-write it (with assistance from her staff). Respondent considered her plan to be adequate in all regards, even prior to editing by Dr. Carlin. The fourth guideline was somewhat nebulous, so it is difficult to ascertain whether Respondent complied with the directive. After the letter was issued, Dr. Carlin waited for a week to give Respondent an opportunity to incorporate the guidelines and suggestions. She then conducted three formal observations of Respondent’s classroom to determine whether the guidelines and suggestions were being followed. She prepared written synopses of her observations. The assistant principal, Ms. DeMarchena, also did an observation that was codified in written notes. The gist of the observations by administrative staff was that Respondent was unresponsive to students, uncaring in her demeanor, lethargic in her efforts to teach, and somewhat rude. Dr. Carlin described Respondent as “the worst teacher I have ever seen in my career.” Dr. Carlin noticed a totally lethargic demeanor by Respondent after the February 1, 2012, meeting and February 6, 2012, written reprimand. Respondent seemed to just stop caring about her job. Dr. Carlin said of her visits to Respondent’s classroom, “I really couldn’t quite believe my eyes.” There were 18 students in Respondent’s classroom at Pinewoods. Eight of their parents made formal complaints to Dr. Carlin about Respondent’s classroom demeanor or teaching skills. Three of those parents testified at final hearing and expressed overall dissatisfaction with Respondent’s teaching abilities. The parents observed that their children did well at school prior to Respondent’s arrival, then did well after Respondent’s departure. While Respondent was teaching, however, their children were unhappy, unmotivated, and emotionally distressed. Two of the parents had teaching experience and measured Respondent both professionally and from their perspective as parents. These parents also discussed Respondent’s behavior and teaching abilities with many of the other parents from the class. The parents’ complaints included the following: Respondent ignored two parents when they came into the classroom, a response the parents had not experienced from any other teacher. Respondent did not engage her students in the celebration of a holiday (Valentine’s Day), even upon intervention by a parent who brought treats for the students. Respondent’s classroom was messy and disorganized. Students who had previously enjoyed school were now reluctant to attend Respondent’s class. Students feared Respondent and were afraid to complain about her strictly enforced policies, e.g., bathroom and pencil sharpening limitations. One parent reported that her child prayed each night that Respondent would be nice to the class. Pinewood’s curriculum specialist, Ms. Hardee, was asked by Dr. Carlin to observe Respondent in the classroom and to provide assistance as needed. Ms. Hardee intervened to assist Respondent to gain access to the web-based accelerated reading materials when Respondent initially experienced problems. She also helped Respondent understand the homework policy and other school policies. When observing Respondent’s classroom, Ms. Hardee found that not all students were actively engaged. Ms. Hardee also substituted for Respondent on one occasion and could not find a lesson plan for that day. Respondent said the lesson plan was right in the middle of her desk and does not know why Ms. Hardee could not find it. Many of the parents, as well as administrators, reported that Respondent’s classroom was extremely messy and disorganized. It is, therefore, understandable that Ms. Hardee would not find the lesson plan. Hardee, who was called by Respondent as a witness, provided extremely credible testimony. During her review of Respondent’s class, Hardee found a “lack of procedures” in the classroom and the students were not engaged during instruction time. Hardee described Respondent’s style as “flat, without expression or enthusiasm.” One parent of a student at Manatee, the prior school at which Respondent had taught, testified on Respondent’s behalf. She praised Respondent’s teaching and said Respondent did a good job with her child. Of the several parents’ testimony, the Manatee parent’s was the least persuasive. On February 22, 2012, Dr. Carlin met with Respondent and addressed the many concerns raised by parents and the observations made by herself and her staff. Respondent and Dr. Carlin discussed all the problem areas and Dr. Carlin told Respondent unequivocally that failure to correct the problems would result in sanctions, up to and including termination of employment. It was Dr. Carlin’s intention to place Respondent on a very short leash, intending to act quickly if things did not drastically improve. However, that very evening Dr. Carlin received three additional letters from upset parents complaining about “very disturbing” incidents in Respondent’s classroom. Dr. Carlin contacted the Professional Standards office and the Board’s attorney the next day. In consultation with those people, Dr. Carlin decided that, notwithstanding, her representations to Respondent the day before, she must remove Respondent from the classroom before irreparable harm was done to the students. She then notified Respondent – on February 23, 2012 – that she was being suspended with pay pending further review. The entire situation concerning Respondent’s classroom demeanor and actions was then reviewed by the Professional Standards office. That office determined that just cause existed to terminate Respondent’s employment. Dr. Carlin concurred with the decision. By letter dated April 20, 2012, Respondent was notified that a recommendation for termination of employment would be made to the Board at its next meeting. The letter also notified Respondent that she was suspended without pay effective April 23, 2012. Respondent rejects all of the complaints against her as being without basis or truth. She says the “staircase discipline” issue was just a misunderstanding; she simply lost track of how much time she made the children walk up and down the stairs. She did not, however, grieve the reprimand issued for that incident. Respondent says the children simply misunderstood her bathroom policy; it was correct and appropriate. The parents’ comments about her were, she said, derived from their children’s mistaken perception of her demeanor and attitude. And, even though Respondent acquiesced and took a behavior management class and a class on teacher’s code of ethics, she did not believe she needed them or that they taught her anything. Respondent’s testimony lacked credibility and was not persuasive. The most credible and persuasive evidence presented in this case indicates that Respondent does not recognize how she comes across to students and their parents. Respondent’s demeanor and teaching style, while it may be comfortable to her, is not consistent with good teaching practices. She is dour, lethargic, unfriendly, scary to her students, and defensive. Because she does not understand her own shortcomings, Respondent has become incompetent and has willfully neglected her duties as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, upholding the termination of Respondent, Elaine Partenheimer's, employment for the reasons set forth above. DONE AND ENTERED this 19th day of October, 2012, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2012.
The Issue The issue for determination is whether Respondent should be suspended, without pay and benefits, and terminated from employment with Petitioner for the offenses set forth in the Amended Administrative Complaint.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: (a) the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an intern principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time intern principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Finding that Doreen Maynard committed misconduct, immorality, and gross insubordination, violating section 1012.33(4)(c), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(2), (3), and (4); and Suspending Doreen Maynard, without pay and benefits, and terminating her employment. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2011.
