Findings Of Fact Mary L. Baxter has been employed by the Polk County School Board for approximately 14 years, first as a classroom teacher, then as assistant principal, and in 1984 she was appointed as principal of John Cox Elementary School in Lakeland. While assigned to John Cox Elementary School, Petitioner was issued an annual contract for eleven months (Exhibit 5). Neriah E. Roberts is the Northwest Area Superintendent of Polk County Schools and was in that position at all times here relevant. As Northwest Area Superintendent, Dr. Roberts was Petitioner's immediate supervisor and supervised seventeen additional principals of the Polk County School System. Functions of the area superintendent include acting as liaison between the communities and the schools in his area responsibility, assisting the principals in obtaining funding for maintenance and other school activities and overseeing the performance of these principals. As Petitioner's immediate supervisor, Dr. Roberts prepared Petitioner's performance evaluation. In his first annual evaluation of Petitioner's performance (Exhibit 4), Dr. Roberts reported that Petitioner met performance standards. However, two of those blocks contained comments regarding performance by Petitioner that needed to be improved. Under "Student Services," Dr. Roberts commented that Petitioner should reassess her disciplinary procedures. Dr. Roberts had received complaints from parents of children at John Cox Elementary School indicating Petitioner was paddling an excessive number of pupils. When he checked the discipline records with Petitioner, he found some 97 pupils had been paddled during that school year. That discovery lead to Dr. Robert's comments. Under "Management" on the evaluation, Dr. Roberts commented that Petitioner should open lines of communication between her staff and her assistant principal. Dr. Roberts had received comments from teachers at John Cox that Petitioner was short tempered and was not popular with members of her instructional staff. On one occasion while Petitioner was principal at John Cox, Dr. Roberts met with the staff at John Cox at which meeting five or six teachers commented unfavorably on Petitioner's relations with her staff. Such reports formed the basis of these comments by Dr. Roberts above noted. In addition to placing the two comments on the March 25, 1985 evaluation, Dr. Roberts submitted a letter to Petitioner dated March 27, 1985 (Exhibit 6) in which he elaborated on the comments placed on the evaluation. Dr. Roberts held another conference with Petitioner on August 14, 1985, which he memorialized in a letter to Petitioner dated August 23, 1985, (Exhibit 7). In this letter, he referred to his March 27, 1985, letter and stated that letter was intended to substitute for a more formal professional development plan. In the evaluation of Petitioner dated March 3, 1986, Dr. Roberts reports that Petitioner successfully met minimum standards in all sections of the evaluation. However, in Section 1, comments are made that "Improvement has been made in leadership style, but this does not preclude the need for continued improvement." Under Item 11 on this evaluation, the comment appears that "Your flexibility and adjustment to this community and students has been good. Due to the inability to read the dates on some of the evaluations contained in Exhibit 4, it is impossible to tell which evaluation was for the second year and which is for the third year Petitioner was principal at John Knox. From Dr. Roberts' testimony, it appears that the evaluation for the second year is included in Exhibit 6, and the evaluation reports in Exhibit 4 in which the date is not legible was for her third year at John Cox. At the expiration of Petitioner's three years as principal at John Cox, she became eligible for a multi-year contract, and Dr. Roberts recommended her for such a contract. When this recommendation reached the superintendent's office, Donald R. Cox, Assistant Superintendent for Personnel, noted that the recommendation was inconsistent with school board policy and contacted Dr. Roberts to remind him of the policy that before administrative personnel can be given a multi-year contract, their performance evaluations must be totally satisfactory in each category on the evaluation report for the three years preceding the awarding of a multi-year contract. Dr. Roberts then contacted Petitioner by phone to tell her she would not receive a multi-year contract. Petitioner was quite upset during this conversation and indicated to Dr. Roberts that she would resign. She was requested to put her resignation in writing. This conversation occurred near the end of the week, and the following work day (either Friday or Monday) Dr. Roberts and Dr. Cox met with the superintendent. During this meeting, the status of Petitioner was brought up, and Dr. Roberts told the superintendent that Petitioner had indicated she would resign. Shortly thereafter on January 12, 1987, the superintendent of schools submitted a letter to Petitioner (Exhibit 5), accepting her verbal resignation as principal at John Cox Elementary School and advising her that she would be reassigned to the first available vacancy as assistant principal. By letter dated June 15, 1987 (Exhibit 10), Petitioner indicated she had not resigned and that the charges against her were based on information she had been given no opportunity to challenge or rebut. The superintendent then authorized Dr. Cox to set up a meeting with Petitioner and Dr. Roberts to try and resolve the differences. At this time, it was clear that no valid resignation had been submitted by Petitioner, and this was no longer an avenue to be pursued by the school board. Dr. Cox was authorized by the superintendent to offer Petitioner continued employment as principal of John Cox Elementary School, a transfer to another school as assistant principal at no reduction in salary or a return to professional status as instructional personnel. A meeting was scheduled and held shortly after June 15, 1987 between Roberts, Cox and Petitioner at which Cox offered the above noted alternatives to Petitioner. Petitioner then stated she did not want to remain at John Cox, but would like a lateral transfer to another school as principal. Cox was not authorized to approve the lateral transfer requested by Petitioner and told her he would relay that request to the superintendent and advise Petitioner. When Dr. Cox presented this proposal to the superintendent, the latter indicated he would refuse to recommend to the school board that Petitioner be employed at any other school to a position higher than assistant principal. Cox relayed this information back to Petitioner, and she was subsequently assigned as assistant principal at North Lakeland Elementary School at the same salary she had received as principal at John Cox. Petitioner subsequently requested the hearing to challenge this action, and these proceedings followed.
The Issue The issue in this case concerns whether Respondent is entitled to a new professional service contract as a teacher, or whether the Petitioner may appropriately terminate the Respondent's employment by not entering into a new professional service contract with Respondent.
Findings Of Fact Since the 1988-89 school year, Respondent, Gloria Steel, has been employed as a classroom teacher with the Palm Beach County School District. At all times material to this proceeding, she held a professional services contract. From the beginning of her employment with the Palm Beach County School District, through the 1992-93 school year, Respondent appears to have had a rather uneventful and lackluster professional career. Although all of her evaluations during those years rated her as satisfactory, her supervisors were of the opinion that, in general, she was a weak teacher who needed to improve many aspects of her teaching skills. During the school years from 1988-89 through 1992-93, there does not appear to have been any action by the School District to place Respondent on a teacher assistance plan. When the 1993-94 school year began, a new principal, Ms. Sue Slone, was appointed at Crystal Lakes Elementary School, where Respondent was then teaching. That year, too, appears to have been rather uneventful for the Respondent. She continued to teach second grade, as she had done for several years. For that year Principal Slone gave Respondent a satisfactory annual evaluation. The annual evaluation did not list any areas of concern. During the 1994-95 school year, Respondent was reassigned to teach a third grade class. Respondent experienced some difficulties making the transition from teaching second grade to teaching third grade. At the end of that school year, Respondent received an annual evaluation from Principal Slone that rated her as satisfactory, but, for the first time in Respondent's career with the School District, listed more than one area of concern. As originally issued, Respondent's annual evaluation for 1994-95 listed the following four areas of concern: Instructional Organization and Development Presentation of Subject Matter Communication: Verbal and Nonverbal Demonstrates Knowledge of Subject Matter Also included on Respondent's 1994-95 annual evaluation form were the following comments: Mrs. Steel has had a difficult time transitioning from second to third grade. A professional development plan will be developed for the 1995-96 school year. She has already begun seeking assistance from other staff members. Respondent disagreed with the content of her 1994-95 annual evaluation. Respondent and Ms. Helene Samango, a Classroom Teacher Association ("CTA") representative, met with Principal Slone to dispute the annual evaluation. During that meeting, Principal Slone agreed, without a formal grievance, that there was insufficient documentation to support the area of concern related to "Communication: Verbal and Nonverbal." Accordingly, Principal Stone revised the evaluation by removing that area of concern from the evaluation. The first observation of Respondent during the 1995-96 school year was on October 11, 1995. On that day, Assistant Principal Heiser observed Respondent's teaching for approximately twenty-five minutes. He was very concerned about what he observed. His concerns included such matters as Respondent's failure to teach anything for twenty-five minutes. Respondent also failed to stop misconduct on several occasions and lost instruction momentum on several occasions. During most of the observation, six or seven students in a class of twenty- five were not engaged. In general, the classroom was chaotic. Following the observation on October 11, 1995, Assistant Principal Heiser discussed the observation with Respondent and advised her of his major concerns. He also discussed the matter with Principal Slone. On October 18, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss their concerns about her teaching deficiencies. They offered Respondent the assistance of a Peer Assistance and Review ("PAR") teacher, a teacher with extensive experience who comes into the classroom and words directly with the teacher who is having difficulty in the classroom.1 As a result of that offer, Respondent was in the PAR program for approximately one year. On October 19, 1995, Respondent was also provided with a School Site Assistance Plan. The plan was designed to address the specific teaching deficiencies that Principal Slone and Assistant Principal Heiser were concerned about. Assistant Principal Heiser conducted an informal observation of Respondent's class for twenty-four minutes on December 1, 1995. Again, he observed deficiencies in Respondent's teaching that concerned him. Following the informal observation, he discussed his observations with Respondent and suggested ways she could improve her teaching. On December 4, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss her teaching. Assistant Principal Heiser discussed his most recent observation of Respondent and described the teaching deficiencies he had observed. At the meeting they also discussed Respondent's progress on the School Site Assistance Plan. Respondent had accomplished some, but not all, of the activities on the plan. Both Mr. Heiser and Ms. Slone emphasized to Respondent that she needed to work over the holidays on her professional reading and she needed to complete all of the activities on the assistance plan. Respondent's mid-year evaluation was prepared on December 7, 1995. Principal Slone identified eight (8) areas of concern, with the documentation for those concerns being provided by the observations of Principal Slone, Assistant Principal Heiser, and Mr. Spence.2 Concerns were in the following areas: (1) management of student conduct, (2) instructional organization and development, (3) presentation of subject matter, (4) communication: verbal and nonverbal, (5) knowledge of subject matter, (6) ability to plan effectively, (7) self control, and (8) adherence to and enforcement of school policies. Principal Slone included the following comments on Respondent's mid-year evaluation form: Mrs. Steel was given a school site assistance plan in October. At our conference 12/4/95, it was evident that she had not done the required activities to assist her in correcting the areas of concern. Many of the same problems that were observed last year continue to date. I believe she needs to address these areas immediately. She particularly needs to do the professional reading requested. My major concern is the misinformation that is given to students during direct teaching. The deficiencies noted on the December 7, 1995, mid- year evaluation were a fair and accurate itemization of deficiencies in Respondent's performance during the period covered by the evaluation. During the period covered by the evaluation, Respondent's teaching performance was repeatedly and consistently unsatisfactory. Due to the continuing deficiencies in Respondent's performance, the School Site Assistance Plan was continued for the next semester. Respondent's participation in the PAR program also continued. During the second semester, Respondent was observed by Principal Slone on January 31, 1996, and by Assistant Principal Heiser on March 28, 1996.3 While there were some improvements in some of Respondent's teaching skills, none of the improvement was significant or consistent. There was improvement in the areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies," which involve matters other than classroom teaching skills. On March 29, 1996, Principal Slone prepared Respondent's annual evaluation for the 1995-96 school year. The evaluation rated Respondent's performance as unsatisfactory. The evaluation identified six areas of concern, all of which had previously been identified as areas of concern on the mid-year evaluation. (The areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies" were not listed as areas of concern on the annual evaluation on March 29, 1996.) The annual evaluation included the following comments: It is evident that Mrs. Steel has been working to improve her performance, however, at this time, consistency is lacking. In spite of the assistance provided by a PAR teacher as part of a school site Professional Development Plan, Mrs. Steel continues to have difficulty in the areas of concern. It is my expectation that Mrs. Steel continue to strive for acceptable levels of performance. As a result of Respondent's continued teaching deficiencies during the second semester, on February 6, 1996, Principal Slone had written to the Superintendent to request that Respondent be notified that she would be given a year within which to correct the identified deficiencies. In pertinent part, the letter read as follows: On December 7, 1995, I completed a mid- year evaluation of Gloria Steel's performance as a classroom teacher (copy attached). I noted deficiencies in the following areas: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Communication: verbal and Nonverbal Demonstrates Knowledge of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Self Control Adheres to and Enforces School Policies I have discussed my concerns with Ms. Steel and provided her with assistance in correcting these deficiencies. However, these deficiencies still exist. Therefore, I am requesting that you provide notice to Ms. Steel as required by Section 231.36, Florida Statutes, that she will be given the subsequent school year within which to correct these deficiencies. Following receipt of the Principal Slone's letter of February 6, 1996, the Superintendent of Schools, by letter dated March 27, 1996, advised Respondent that she would be given the next school year within which to correct the deficiencies identified by her principal. In pertinent part, the Superintendent's letter read as follows: Please be advised that I have been notified by your principal, Sue Slone, that your current performance as a classroom teacher is unsatisfactory. You have previously been advised of deficiencies by your principal. Pursuant to Section 231.36, Florida Statutes, this letter is to notify you that you will be given the next school year to correct the deficiencies noted by your principal. You will be placed on a Professional Development Plan as detailed in the Classroom Teacher Assessment System (CTAS). If the deficiencies are not corrected during the prescribed time period, a change in your employment status may be recommended. If you have any questions concerning the procedures involved in this situation, please contact, Dr. Walter H. Pierce, Assistant Superintendent/Division of Personnel Services. Shortly thereafter, School District personnel began providing district level assistance to Respondent. During the summer months, June through August, Respondent was required to read and complete various professional materials and to attend summer inservice. By letter dated April 17, 1996, Respondent wrote to Dr. Walter H. Pierce and requested a transfer for the 1996-97 school year. The letter did not state any reason for the requested transfer. By letter dated July 9, 1996, Dr. Pierce advised Respondent that her request for transfer had been considered pursuant to Section 231.36(3)(e)1, Florida Statutes, and that the request for transfer was denied. The union representative Ms. Helene Samango made at least two further requests to Dr. Pierce that he grant the requested transfer. Ms. Samango asserted that there was a personality conflict between Principal Slone and Respondent which would make it unlikely or impossible for Respondent to receive a fair evaluation from Principal Slone. On each occasion that Ms. Samango raised the issue of Respondent's request for a transfer to another school, Dr. Pierce denied the request for a transfer. Dr. Pierce was not convinced that there was any personality conflict between Principal Sloan and Respondent that would prevent Respondent from receiving fair evaluations. Dr. Pierce believed that the 231 Professional Development Plan was fair and objective, and that it could be appropriately implemented without transferring Respondent to another school. Also, as a matter of policy, Dr. Pierce preferred not to transfer teachers who were having performance difficulties. Principal Slone's evaluations of Respondent's performance as a teacher were based solely on Principal Slone's professional evaluation of what she saw and what was reported to her by other administrators who observed Respondent's teaching performance. Principal Slone's evaluations of Respondent were not motivated by any inappropriate personal considerations. Most of the observations of Respondent's teaching performance were done by observers who used the FPMS summative observation instrument. That instrument is an accepted and appropriate instrument of observing and evaluating teacher performance in the classroom. Specifically, it was an appropriate instrument for use in the observations of Respondent's performance in the classroom.4 Dr. Barbara Jeanne Burdsall is employed by the School Board as the Manager of Professional Standards. Dr. Burdsall is responsible for developing, monitoring, and providing remediation for the evaluation systems for teachers. Dr. Burdsall's department receives copies of all mid-year and annual evaluations. They are reviewed by Dr. Burdsall to determine whether a teacher needs assistance and, if so, whether a School Site plan or a District plan should be initiated. School Site plans are initiated for teachers with fewer than five concerns. District plans are initiated for teachers with five or more concerns. Dr. Burdsall was responsible for implementation of Respondent's 231 Professional Development Plan. As was her right, Respondent requested a meeting for an informal review of the documentation of unsatisfactory performance. Dr. Burdsall conducted that meeting on June 4, 1996. The purpose of the meeting was to review the deficiencies and the documentation of the deficiencies for adequacy. Helen Samango, the CTA Representative, was present at the meeting. No questions were raised about the sufficiency of the documentation. The Palm Beach School Board has the following plans and procedures to assist teachers who have performance deficiencies: the School Site Plan, which deals with just the school site principal and the teacher, the Peer Assistance and Review Program, which trains master teachers to assist teachers who are having difficulties in the classroom, and the 231.36 Professional Development Plan, which follows the statutory provisions of Section 231.36, Florida Statutes. The Department of Education approved the School Board's 231 Professional Development Plan. Dr. Burdsall is of the professional opinion that the School Board of Palm Beach County Teacher Evaluation System complies with all of the requirements of Sections 231.29, and 231.36, Florida Statutes.5 Dr. Burdsall established a team to implement the Respondent's 231 Professional Development Plan. The team included Dr. Burdsall, a curriculum person, an outside university professor, other district experts, and the school site administrators. The team members could use the FPMS summative observation format or they could prepare narrative reports of their observations. Each observation by a team member was required to last at least twenty minutes. Each observer was also required to follow the requirements of the collective bargaining contract. The team included experts in various aspects of teaching, teacher observation, teacher evaluation, and teacher training. All of the team members provided, or attempted to provide, assistance to the Respondent during the 1996-97 school year. Dr. Burdsall provided Respondent with a summer remediation program and strategies, a list of all of the seminars available in Respondent's areas of concern, and a copy of the portion of the 231 Professional Development Plan, which would be implemented in the fall. Among other things, that portion of the plan identified the observers who would be working with Respondent. The portion of Respondent's 231 Professional Development Plan for August through December of 1996 consisted of workshops, seminars, professional observations with feedback and strategies for improvement, school site administrator assistance, and a mutually agreed-to colleague to work with Respondent in the classroom. After the summer months' activities, Dr. Burdsall held a September 3, 1996, meeting with Respondent, Principal Slone, Assistant Principal Heiser, and CTA Representative Helene Samango. Respondent expressed enthusiasm about the new school year. She had completed her work over the summer, was continuing with her PAR teacher, and wanted to attend some full- day workshops. Respondent was notified as to when the observers would be visiting her classroom. Respondent was advised that if she wanted to observe instruction within the school or elsewhere in the district, Ms. Samango would contact Ms. Burdsall, and the District office would provide the funds. Respondent asked to work with Ms. Carla Lehrma and Ms. Gwen Simpson, both of whom were third-grade teachers at Crystal Lakes Elementary School. Throughout Respondent's 231 Professional Development Plan she had access to as much peer assistance and modeling as she felt she needed. The peer assistance was in addition to the year of assistance by the PAR teacher. Respondent's mid-year evaluation was completed on December 6, 1996, and was based on six (6) observations. On that evaluation, Respondent was rated as unsatisfactory with six identified areas of concern. Respondent was continued on the 231 Professional Development Plan. A meeting was held with Respondent regarding the plan on December 17, 1996. During both semesters of the 1996-97 school year, Respondent was observed by Principal Slone and by other professional observers. The other professional observers who observed Respondent's classroom teaching were Ms. Sandra Gero, Assistant Principal Larry Heiser, Ms. Kathleen Gustafson, Dr. Jeanne Burdsall, Ms. Barbara Clark, and Dr. Mary Gray. All of the observers documented the same areas of concern that Principal Slone observed. There was a lack of subject matter being presented; a lack of instructional organization and development; and a lack of classroom management. The students were not on task and the choice of instruction was not appropriate. Respondent was not demonstrating knowledge of the subject matter or an ability to plan effectively. By way of example, Dr. Mary B. Gray observed Respondent on October 8, 1996, and on February 12, 1997. Dr. Gray is an Assistant Professor in the Department of Educational Leadership at Florida Atlantic University, and has been in that position for eighteen years. In that position, Dr. Gray teaches personnel development and leadership courses. She also teaches supervision of instruction. These are all preparatory courses for school administrators. During her observation on October 8, 1996, Dr. Gray was in the classroom for the full fifty-five minute period. There were twenty-nine students present, and during Dr. Gray's scan of the classroom, about a third of the students were not doing anything they were supposed to be doing. During the period Respondent did not state what the objective was for the lesson. She lost momentum and told the students to put their heads down because she said she was not happy with them. A clock was used that was not related to the lesson. There was no objective stated. The children were confused about what was going on. Some of respondent's efforts at classroom control were ineffective. There was no meaningful content taught during the period. On February 12, 1997, Dr. Gray observed Respondent's teaching for thirty-two minutes. There were twenty-seven students present. Dr. Gray observed a mathematics class. Respondent started eight minutes late. Again the pacing was slow. Dr. Gray observed the same pattern of teacher behavior that she had observed before. Multiple questions were a problem in both observations. Respondent accepted some incorrect answers from students without providing the correct answers. There continued to be a serious problem with the off-task behavior. Respondent's teaching was not improving to any significant degree. Based on her two observations of Respondent, Dr. Gray was of the professional opinion that Respondent was not a competent teacher. Ms. Sandra Gero observed Respondent on September 25, 1996, and on January 13, 1997. Ms. Gero is an Area 2 Instructional Support Team Member. In her position she supports the schools in any way necessary in matters concerning instruction and personnel issues. Ms. Gero is involved in observations of teachers on 231 Professional Development Plans. On September 25, 1996, Ms. Gero observed Respondent's classroom for 55 minutes. Ms. Gero observed a language arts lesson, because this is her area of expertise. The children were doing a handwriting assignment, printing upper and lower case letters. This activity was developmentally inappropriate for third grade. Ms. Gero did not see anything of instructional significance to the activity. As the students moved into a reading activity Ms. Gero observed that negative behavior was being reinforced. Ms. Gero observed Respondent's use of ineffective instructional strategies. At 9:30 a.m. five students were off-task. By 9:45 a.m. there were eight students off-task. Ms. Gero observed serious problems with student management and the lack of a classroom management plan. There was no direct teaching. At the conclusion of the observation, Ms. Gero made some suggestions to Respondent that would, hopefully, help her improve her teaching. Ms. Gero's second observation lasted an hour and a half. Ms. Gero observed disjointed chaos in the classroom. The children's disruptive behavior was controlling the entire classroom. By 8:20 a.m. there had been no meaningful instruction. From about 8:30 a.m. until about 9:00 a.m. Respondent was at her desk looking through papers. During this second observation there was a worse classroom situation than during the first observation. There was no direct teaching during the ninety minutes of her observation. The six deficiency areas were still present. In Ms. Gero's independent professional opinion, Respondent is not a competent teacher. Assistant Principal Heiser observed Respondent's class on October 2, 1996. Instructional organization was becoming a major issue. There was still no presentation of subject matter and the deficiencies previously identified were still observed to be present. Dr. Burdsall observed the Respondent's classroom teaching on December 2, 1996. The observation reflected that there was no teaching of subject matter, and there was a lack of management of student conduct. Dr. Burdsall's observation directly reflected the deficiencies previously documented by Principal Slone. There was no meaningful teaching going on during the observation. Dr. Burdsall observed Respondent's classroom teaching again on February 20, 1997. Again there was no meaningful instruction taking place. It was very chaotic. Dr. Burdsall was able to form an independent opinion as to Respondent's competency. That opinion was that Respondent is incompetent to teach. Ms. Barbara Clark observed Respondent on November 8, 1996, and on February 26, 1997. Ms. Clark is a program planner for the School Board of Palm Beach County, Florida. She has been with the School District for almost twenty (20) years. Her responsibilities include creating or facilitating the writing of curriculum, preparing materials for teachers, and providing inservice to teachers. Both of Ms. Clark's observations of Respondent lasted for approximately an hour and a half. Ms. Clark met with Respondent after the observations and provided feedback to her regarding the observations. Ms. Clark invited Respondent to call her if she could be of any further assistance. Ms. Clark's independent professional opinion, based on her observations and past professional training and experience, was that Respondent is not an effective teacher. Ms. Clark observed some improvement in Respondent's teaching at the second observation, but the improvement was not sufficient to be effective. During the course of the implementation of Respondent's 231 Plan, Dr. Burdsall, the Principal, the Assistant Principal, the Union Representative, and the Respondent met periodically to discuss the observations, the progress of the Respondent's work, any areas that needed clarification, and to see if there was any further assistance that could be offered. Respondent was also provided with a math aide, Herbert Cohen. Dr. Burdsall, the Principal, the Assistant Principal, and the Union Representative, met with Respondent on November 26, 1996. At the meeting they discussed the continuing need to tie activities to objectives and to the theme. Respondent had attended several seminars and workshops. They also reviewed the observations completed by Ms. Clark and Ms. Gustafson, addressed the issues of centers and cooperative learning in Respondent's classroom, discussed the mistakes that were being made by Respondent with respect to spelling, and gave Respondent some strategies to help her focus her teaching. Assistant Principal Heiser did not see any improvement in Respondent's teaching; the same problems continued to exist. Dr. Burdsall met with the Principal, the Union Representative, and the Respondent on February 28, 1997, to again assess the status of Respondent's progress on the plan and to determine what additional assistance was needed. The original concerns were still present. On March 12, 1997, Assistant Principal Heiser and Principal Slone completed an Annual Evaluation for Respondent. In completing the annual evaluation, Principal Slone relied on her own observations and on all of the other observations by the members of the professional development team. Respondent continued to have six areas of deficiency, in spite of extensive remediation and assistance. Respondent continued to have a consistent pattern of problems in the six specific areas identified. Because the deficiencies had continued, Principal Slone communicated to the Superintendent that Ms. Slone was not recommending Respondent for reappointment for the 1997-1998 school year. Based on the Principal's evaluation of Respondent and the recommendations the Principal made to the Superintendent, Respondent was notified by the Superintendent that she would not be re-appointed, and that she had the right to request a hearing before the Division of Administrative Hearings
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Palm Beach County, Florida, enter its final order denying renewal of Gloria Steel's professional service contract. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1999.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as a school custodian based on the allegations contained in the Notice of Specific Charges filed June 21, 2001.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public education within the school district of Miami-Dade County, Florida. See Section 4(b) of Article IX of the Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a custodian at Miami Edison Middle School (Miami Edison) and Horace Mann. Both schools are public schools located in Miami-Dade County, Florida. On May 16, 2001, Petitioner voted to suspend Respondent's employment as a school custodian and to terminate that employment. Respondent is a non-probationary "educational support employee" within the meaning of Section 231.3605, Florida Statutes, which provides, in pertinent part, as follows: As used in this section: "Educational support employee" means any person employed by a district school system who is employed as a teacher assistant, an education paraprofessional, a member of the transportation department, a member of the operations department, a member of the maintenance department, a member of food service, a secretary, or a clerical employee, or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or district school board pursuant to s. 231.1725. . . . "Employee" means any person employed as an educational support employee. "Superintendent" means the superintendent of schools or his or her designee. (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by district school board rule in cases where a collective bargaining agreement does not exist. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement, or in district school board rule in cases where a collective bargaining agreement does not exist . . . In the event a superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. Respondent is a member of the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME). AFSCME and Petitioner have entered into a Collective Bargaining Agreement (the Agreement) that includes provisions for the discipline of unit members. Article II of the Agreement provides that Petitioner may discipline or discharge any employee for just cause. Article XI of the Agreement provides specified due process rights for unit members. Petitioner has provided Respondent those due process rights in this proceeding. Article XI of the Agreement provides for progressive discipline of covered employees, but also provides that ". . . the degree of discipline shall be reasonably related to the seriousness of the offense and the employees [sic] record. " Article XI, Section 4C of the Agreement provides that employment may be terminated at any time for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. On February 6, 1996, Respondent was issued a memorandum from the principal of Miami Edison involving Respondent's use of profanity in the presence of students. In the memorandum, the principal directed Respondent not to use profanity on school grounds. On May 21, 1998, Respondent, Mark Wilder, Clarence Strong, and a student were in the cafeteria of Horace Mann preparing for a fund raising activity. Respondent spouted profanities directed towards Mr. Wilder and threatened him with a mop handle. Respondent feigned a swing of the mop handle, causing Mr. Wilder to reasonably fear he was about to be struck by the mop handle. Mr. Wilder had done nothing to provoke Respondent. Mr. Strong knew Respondent and was able to defuse the situation. Mr. Wilder reported the incident to Senetta Carter, the principal of Horace Mann when the incident occurred. Ms. Carter reported the incident to Petitioner's director of region operations. Respondent received a copy of the School Board rule prohibiting violence in the workplace. After investigation, the school police substantiated a charge of assault against Respondent. On March 15, 1999, Petitioner's Office of Professional Standards held a Conference for the Record (CFR) with Respondent pertaining to the incident with Mr. Wilder. Respondent was specifically directed to refrain from using improper language and from displaying any action that another person could interpret as being a physical threat. On October 25, 2000, during the evening shift, Respondent physically assaulted William McIntyre and Noel Chambers while all three men were working as custodians at Horace Mann. Respondent shouted profanities towards both men, threatened them, and violently grabbed them by their shirt collars. Respondent punched Mr. McIntyre in the area of his chest and broke a chain Mr. Chambers wore around his neck. Mr. Chambers and Mr. McIntyre reported the incident to Robin Hechler, an assistant principal at Horace Mann. Respondent came to Ms. Hechler's office while she was interviewing Mr. McIntyre about the incident. When Ms. Hechler attempted to close the door to her office so she could talk to Mr. McIntyre in private, Respondent put his hand out as if to move Ms. Hechler out of his way. Ms. Hechler told Respondent not to touch her and instructed him to wait outside her office. Ms. Hechler later told Respondent to come in her office so she could interview him. Respondent was acting irrationally. Ms. Hechler told him if he could not control himself she would call the school police. Respondent replied that was fine and walked out of her office. Ms. Hechler reported the incident to the school police, who ordered Respondent to leave the premises. Following the incident, neither Mr. Chambers nor Mr. McIntyre wanted to work with Respondent because they were afraid of him. In response to the incident involving Mr. McIntyre and Mr. Chambers, the principal of Horace Mann referred Respondent to the Petitioner's Employee Assistance Program on November 2, 2000. Respondent's shift was changed so he would not be working with Mr. Chambers or Mr. McIntyre. On November 7, 2000, Respondent attacked J. C., a student at Horace Mann, in the cafeteria area of Horace Mann to punish J. C. for something Respondent thought J. C. had said or done. Respondent shouted profanities towards J. C. and choked his neck. J. C. was very upset and injured by Respondent's attack. Respondent was arrested on November 7, 2000, on the offense of battery on a student. On February 21, 2001, he was adjudicated guilty of that offense, placed on probation for six months and ordered to attend an anger control class. Respondent was also ordered to have no contact with J. C. School Board Rule 6Gx13-4-1.08, prohibiting violence in the workplace, provides as follows: Nothing is more important to Dade County Public Schools (DCPS) than protecting the safety and security of its students and employees and promoting a violence-free work environment. Threats, threatening behavior, or acts of violence against students, employees, visitors, guests, or other individuals by anyone on DCPS property will not be tolerated. Violations of this policy may lead to disciplinary action which includes dismissal, arrest, and/or prosecution. Any person who makes substantial threats, exhibits threatening behavior, or engages in violent acts on DCPS property shall be removed from the premises as quickly as safety permits, and shall remain off DCPS premises pending the outcome of an investigation. DCPS will initiate an appropriate response. This response may include, but is not limited to, suspension and/or termination of any business relationship, reassignment of job duties, suspension or termination of employment, and/or criminal prosecution of the person or persons involved. Dade County Public Schools [sic] employees have a right to work in a safe environment. Violence or the threat of violence will not be tolerated. School Board Rule 6Gx13-5D-1.07, provides that corporal punishment is strictly prohibited. Respondent's attack on J. C. constituted corporal punishment. School Board Rule 6Gx13-4A-1.21, provides as following pertaining to employee conduct: I. Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
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. DONE AND ORDERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Frank Ferguson 7155 Northwest 17th Avenue, No. 9 Miami, Florida 33147 John A. Greco, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Dr. Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether the actions taken by the superintendent and staff of the Duval County School Board prior to December 1, 1974, were sufficient to achieve comparability pursuant to the provisions of Title I of the Elementary and Secondary Education Act of 1965, as amended.
Findings Of Fact Congress amended the Elementary and Secondary Education Act of 1965 by Public Law 91-230 instituting a project referred to as the Title I Program. The Respondent, Department of Education, has the responsibility of administering the Title I Program and dispensing federal funds to the various school districts throughout the State of Florida. Petitioner, Duval County School Board, is a large urban school district of some 112,000 students and 10,000 employees. There are 134 schools in the district of which 28 are designated as E.S.E.A. Title I Project Schools. The statute under consideration is 20 U.S.C.A. Sec. 241(e): "(a) A Local educational agency may receive a grant under this sub-chapter for any fiscal year only upon application therefore approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) . . . (3) That . . .(c) state and local funds be used in the District of such agencies to provide services in project areas which, taken as a whole, are at least comparable to services being provided in areas in such districts which are not receiving funds under this sub-chapter: . . . provided further, That each local educational agency receiving funds under this sub-chapter shall report on or before July 1, 1971 and on or before July 1 of each year thereafter with respect to its compliance with this clause; . . ." The regulation under consideration which was promulgated to implement the statute is Regulation Sec. 116.26, a part of which reads: "(a) A state educational agency shall not approve an application of a local educational agency for a grant under section 141(a) of the Act, or make payments of Title I funds under a previously approved application of such agency, unless that local educational agency has demonstrated, in accordance with paragraph (c) of this section, that services provided with State and local funds in title I project areas are at least comparable to the services being provided with State and local funds in school serving attendance areas not designated as Title I project areas. Such approval shall not be given unless the local educational agency also provides the assurances and the additional information required' by paragraph (e) of this section with respect to the maintenance of comparability. For the purpose of this section, State and local funds include those funds used in the determination of fiscal effort in accordance with Section 116.45." 116.26(c) "If any school serving a Title I Project Area is determined not to be comparable under this paragraph, no further payments of Title I funds shall be made to the local educational agency until that agency has taken the action required by paragraph (k)(1) of this section to overcome such lack of comparability." Regulation Sec. 116.26(k)(1) in part reads: "that such local educational agency has allocated or reallocated sufficient additional resources to Title I Project Areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance." Petitioner, Duval County School Board, has been the recipient of Title I funds on a year to year basis since 1965, but was deemed by the Respondent to be in violation of the federal requirements from December 1, 1974 through January 2, 1975 for the reason that Petitioner had not "achieved comparability" for that period of time. Funds withheld from Petitioner, in excess of $325,000 are involved in this hearing. The following sequence of events are pertinent: On or about July 1, 1974, the Duval County application for Fiscal Year 1974 was filed and approved based on the assurance that comparability existed in Duval County and would be maintained throughout the 1974-75 school year. On or about September 27, 1974, the Respondent advised local school districts that October 1, 1974 was the date for collecting the data on which the comparability report for Fiscal Year 1975 would be based. On October 7 and 8, 1974, and again on November 7 and 8, 1974, conferences and meetings were held with representatives of various school boards, including those of the Petitioner. The purpose of these meetings and conferences was to inform these school boards concerning the requirements of achieving and maintaining comparability. On November 20, 1974, in a memorandum from Woodrow J. Darden marked "URGENT" the Respondent advised all Superintendents, the Finance Officers and Title I Coordinators that the comparability reports were due on or before December 1, 1974. A part of said memorandum stated: "If the comparability report submitted by your district did not meet the measures to determine comparability as outlined in the Federal Regulations, administrative or Board action for the purpose of reallocating resources should be taken on or before December 1, 1974, to bring the schools into compliance." The date of December 1, 1974 is established by Regulation 116.26(b)(7). On November 26 and 27, 1974, the Superintendent authorized a reallocation of instructional staff and authorized budgetary transfers to bring Petitioner up to the required level of comparability. On December 1, 1974, Petitioner filed its report. On December 17, 1974, the Director, Special Projects, received a copy from Department of Education of a MAILGRAM from Robert R. Wheeler, Acting Deputy Commissioner for School Systems, United States Office of Education to Honorable Ralph Turlington, stating: "this is to remind you that your agency is required under Title I of the Elementary and Secondary Education Act not to make any further payments as of December 1 to any local educational agency that has not as of that date complied with the comparability requirements in 45 CFR 116.26 and to notify each such agency not to obligate any Title I funds after that date. Compliance with this requirement is subject to Federal Audit. Your continued cooperation is appreciated." By a letter dated December 18, 1974, the Respondent notified Petitioner funds were being withheld for the period of December 1 through December 16, 1974. An audit was conducted by Petitioner following the withholding of funds of December 18, 1974, and this audit revealed that comparability had still not been achieved. A revised report dated December 27, 1974 indicated that additional personnel still were needed to meet comparability requirements. Pursuant thereto additional personnel reported to work on or about January 2, 1975. By a letter dated January 16, 1975, the Respondent rescinded the prior authorization that had permitted the resumption of the use of Title I funds as of December 16, 1974 and extended the period of withholding of Title I funds through January 1, 1975. Following the notification to Petitioner that the funds were being withheld, the Petitioner requested a hearing in order to appeal the withholding of the Title I funds for the period of December 1, 1974 through December 16, 1974. This request for a hearing was later amended to include the period of time from December 15, 1975 through January 1, 1975. Petitioner contends: That it complied with the requirements of the subject statute and regulation when it unconditionally committed itself on November 26, 1974 to the employment of necessary personnel by the establishment and budgeting of all necessary positions and direction that such positions be filled. Petitioner further contends that good faith on its part and substantial compliance is all that the statute and regulation require. Respondent contends: That the subject statute and regulation require that compliance with the comparability requirements is a continuing state of being and must be maintained throughout the year. Respondent further contends that the Federal statute and regulation require not only that the positions be budgeted and directions be given to employ but that the positions be actually filled and the personnel on the job on or before the filing of the report required by Regulation 116.26(b)(7). The Hearing Officer further finds: That both Petitioner and Respondent have demonstrated a dedication and concern for the schools within their respective jurisdictions; That both Petitioner and Respondent have been diligent in trying to act within the provisions of the subject statute and regulations; That the personnel of both the Petitioner and Respondent are familiar with the requirements of the statute and regulation but the federal requirements are subject to different interpretations by reasonable persons. There was no meeting of the minds of the parties from the federal, state and local governmental units as to the required method of compliance with the laws.
The Issue Whether Respondent committed misconduct in office and violated Miami-Dade School Board Rules, and, if so, whether such conduct constitutes just cause to dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner 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, pursuant to article IX, section 4(b) of the Florida Constitution and section 1001.32, Florida Statutes. At all times pertinent to this proceeding, Respondent was employed as an exceptional student education ("ESE") teacher at Olinda Elementary School ("Olinda"), a public school located in Miami-Dade County, Florida, and part of the Miami-Dade Public Schools. At all times pertinent to this proceeding, Respondent's employment was governed by the collective bargaining agreement ("UTD Contract") between Petitioner and the United Teachers of Dade, Petitioner's rules, and Florida law. Applicable Requirements of IDEA and Florida Law The Individuals with Disabilities Education Act ("IDEA") requires, as a condition of receiving federal funding assistance for educating disabled students, that local education agencies (in this case, Petitioner and Olinda) establish and maintain procedures in accordance with the IDEA and state policies and procedures implementing the IDEA, to ensure that students with disabilities are guaranteed certain safeguards regarding the provision of a free appropriate public education ("FAPE"). See 20 U.S.C. § 1415(a); see also 34 C.F.R. § 300.201. Therefore, it is imperative that Petitioner comply with the procedural and substantive requirements of the IDEA and implementing federal regulations, and with Florida Statutes and administrative rules implementing the IDEA in Florida. To this end, Petitioner requires personnel employed by Miami-Dade County Public Schools (the "District") to strictly follow the standards and processes it and the individual schools within the District have established to provide ESE services to disabled students consistent with the IDEA and Florida law. The IEP is a critical component in providing FAPE to disabled students under the IDEA. See 20 U.S.C. § 1402. The IEP is a written statement for a disabled student that, among other things, describes the student's present level of academic achievement and functional performance; sets forth measurable annual goals designed to enable the student to be involved and make progress in the general curriculum; identifies special education, related services, and supplementary aids and services that will be provided to assist the student in obtaining the annual goals; and establishes the means by which the student's progress will be measured. See Fla. Admin. Code R. 6A-6.03028(3)(h); 34 C.F.R. § 300.320. The IEP for each student must be developed, reviewed, and revised in accordance with Florida Administrative Code rules1/ that establish the composition of the IEP team, the respective roles of its members, the procedures for conducting IEP team meetings, and the substantive requirements for the IEP. Creation and Maintenance of IEPs at Olinda Respondent began teaching at Olinda in September 2010. Respondent was assigned the responsibility for creating and maintaining IEPs for the third, fourth, and fifth grade ESE students2/ at Olinda for the 2010-2011 school year. IEPs are created at Olinda pursuant to a process established by the school's administration and the local education agency ("LEA") representative,3/ consistent with the IDEA, state law, and District policy. Specifically, ESE teachers are responsible for creating, developing, and maintaining the IEPs for the school's disabled students. As part of this process, the teacher responsible for a particular disabled student notifies the parents and IEP team members4/ regarding the IEP team meeting and schedules the meeting. The meeting is held with as many team members as possible in attendance. The teacher then creates the IEP using the District's Special Education-Electronic Management System ("EMS"). To create the IEP, the teacher logs onto EMS using his or her unique employee identification ("ID") number and unique password. The employee ID number and password are confidential and may only be used to log into EMS by the teacher to which they belong. The teacher creates a draft IEP, which is circulated to each IEP team member who attended the meeting for comment and input. The teacher then revises the draft as appropriate, finalizes the IEP, and obtains the signatures of the team members who attended the meeting. The finalized IEP is to be signed only by the persons who actually participated in the IEP team meeting.5/ Once the IEP is signed by all team members, the teacher faxes it into EMS and it becomes designated as "Final."6/ The teacher responsible for creating the IEP is the only person authorized to fax it into EMS. Once the IEP is Final, a hard copy is to be printed and included in the student's cumulative folder. Once the IEP is "Final," it cannot be changed without going through the established procedures to modify the IEP, including notifying all IEP team members and conducting an IEP meeting. Audit of IEPs at Olinda On or about February 25, 2011, Adrian Montes, the Principal at Olinda, was informed that the parent of an Olinda ESE student had complained to the Florida Department of Education regarding the placement of her child. Montes contacted the parent regarding her concerns. The parent denied having made such a complaint. The student's IEP was soon scheduled for annual review, so Montes decided to attend the IEP meeting. The meeting was conducted on February 28, 2011. At the meeting, Montes noticed Respondent making numerous mistakes regarding creation of the IEP. Concerned about the integrity of the IEP creation process at Olinda, he requested Leticia Fernandez, the school's LEA representative and head of its ESE program, to conduct an audit of Olinda's IEPs. On or about March 1, 2011, Fernandez reported to Montes that three IEPs for students for which Respondent was responsible were missing from the students' cumulative folders, where pursuant to school protocol, they are required to be kept.7/ Montes asked Respondent about the missing IEPs. Respondent provided him with hard copies of the documents the following day. According to Respondent, these copies had been stored in her classroom. Montes compared the hard copies with the electronic versions of the same students' Final IEPs stored in EMS, and noted several discrepancies between the hard copies and the electronic version of the Final IEPs in EMS. Fernandez' audit revealed that school-wide, five IEPs contained discrepancies between the hard copies and the Final electronic versions stored in EMS, and that in some cases the IEPs were missing signatures or appeared to have falsified signatures. All five IEPs belonged to students for which Respondent was responsible. IEPs for which Respondent was Responsible Respondent was responsible for creating and maintaining the IEPs for J.A.B., J.D.H., L.L.E., S.M.M., and C.A.M. The Final IEPs for some of these students contained signatures that did not belong to the person purported to have signed the IEP, and some were not prepared or finalized in accordance with the District's established protocol for creating IEPs. Specifically, with respect to J.A.B., the signature for general education teacher Gabriella Delgadillo appearing on the Final IEP was not hers. With respect to J.D.H., the parent's signature appearing on the Final IEP was not hers. She credibly testified that she did not attend any IEP meetings for her child, would have attended had she been notified, and did not sign the Final IEP. Additionally, Respondent obtained the signatures of general education teacher Charrise Mosley and exceptional education teacher Vickie Dunnom on the IEP even though neither attended an IEP meeting for J.D.H. With respect to L.L.E., the signature on the Final IEP for Gabriella Delgadillo was not hers and she did not attend any IEP meetings for L.L.E. With respect to S.M.M., the signature for Charrise Mosley that appears on the Final IEP was not hers.8/ Respondent also requested and obtained Mosley's signature on the IEP even though Mosley did not attend the IEP meeting for S.M.M. With respect to C.A.M., Gabriella Delgadillo, Vickie Dunnom, guidance counselor Adriana Sanabria, and school psychologist Azadeh Trinidad-Oroujalipour all credibly testified that they had not attended an IEP meeting for C.A.M., and each credibly testified that the signature appearing on the Final IEP was not hers. C.A.M.'s parent also testified that she had never been notified of, and had not attended, any IEP meetings for C.A.M. Charges in Notice of Specific Charges Proven Petitioner's Notice of Specific Charges alleges that Respondent corrupted the IEP creation process in violation of the IDEA, Florida law, and Petitioner's rules, by forging the signatures of certain school personnel on IEPs of students for which she was responsible; asking IEP team members to sign IEPs for students without having attended the IEP meetings for those students; and designating IEPs as "Final" in EMS without having conducted IEP meetings for those students. Respondent testified that she did not forge any signatures on the IEPs and she further claimed that on some of the IEPs, her signature was forged. No witnesses testified that they saw Respondent or anyone else forge signatures on the IEPs. However, Respondent, through her unique confidential employee ID number and password, was the only person who had access to EMS to fax in the finalized IEPs on which the falsified or forged signatures appeared. The circumstantial evidence in this case gives rise to the inference, unless rebutted, that Respondent falsified or forged signatures of IEP team members IEPs in violation of Florida and federal law, as charged in the Notice of Specific Charges.9/ Respondent failed to present credible evidence to rebut this inference. Specifically, Respondent claimed that because the student cumulative files were stored in a cabinet that was not always locked and therefore accessible at times to other school personnel, others had opportunity to forge the IEPs and, in fact, did so. However, her testimony on this point was vague and speculative; she did not present any specific, credible evidence regarding who may have forged the IEPs, or when, why, or how they did so, and her testimony was not corroborated by any other witnesses. Furthermore, whether the cumulative folders were accessible to others, or even whether hard copies of the IEPs in the folders were forged, does not explain or otherwise negate that falsified signatures appeared on the Final IEPs that were faxed into EMS. Accordingly, the undersigned finds that Respondent falsified or forged signatures of IEP team members IEPs in violation of Florida and federal law, as charged in the Notice of Specific Charges. Additionally, the credible evidence establishes that Respondent sought and obtained the signatures of IEP team members who had not attended meetings for the students whose IEPs they were asked to sign. Respondent's actions in doing so were contrary to Olinda's established protocol that only persons attending an IEP meeting for a particular student are to sign that student's IEP. Respondent claimed that she was forced to seek signatures of IEP team members who had not attended the meetings because Montes would not excuse them from class, so they were unable to attend. However, her testimony was not corroborated by any other witnesses, several of whom were IEP team members whose signatures she obtained even though they had not attended IEP team meetings. The undersigned finds Respondent's testimony on this point unpersuasive. The evidence also establishes that Respondent did not conduct IEP meetings for certain students before finalizing those students' IEPs. Specifically, the teachers (other than Respondent) whose names appear on the Final IEPs of L.L.E. and C.A.M. credibly testified that they did not attend any IEP meetings for these students. The parents of these students also credibly testified that they were not notified of, and did not attend, any IEP meetings for their children. Without the teachers and parents comprising the IEP teams for these students in attendance, the IEP team meetings for these students could not have taken place. Respondent did not present any credible evidence that she did, in fact, conduct the IEP meetings for these students. Accordingly, it is determined that Respondent finalized certain students' IEPs without having conducted IEP team meetings for those students, as charged in the Notice of Specific Charges. Findings of Ultimate Fact Petitioner seeks to terminate Respondent's employment as a teacher with Miami-Dade County Public Schools. Pursuant to section 1012.33(1)(a),10/ Petitioner can terminate Respondent only for "just cause." "Just cause" is defined to include, among other things, "misconduct in office." Florida Administrative Code Rule 6A-5.056(3)11/ defines "misconduct in office" as a violation of the Code of Ethics of the Education Profession as adopted in rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in rule 6B-1.006, which is so serious as to impair the individual's effectiveness in the school system. Petitioner's rules 6Gx-4A-1.21 and 6Gx-4A-1.21 incorporate these standards and make them applicable to District personnel, including instructional personnel. The persuasive evidence establishes that Respondent violated the Code of Ethics of the Education Profession codified in rule 6B-1.001. Her actions in failing to hold or conduct IEP meetings for disabled students in her charge and in falsifying or forging signatures on Final IEPs for these students did not adhere to Florida or federal law regarding the creation and maintenance of IEPs, a key component in the delivery of a free appropriate public education pursuant to disabled students pursuant to the IDEA and Florida law. By her actions, Respondent demonstrated that she did not value the worth and dignity of the students for which she falsified IEPs or failed to hold IEP meetings. She did not pursue the truth and failed to demonstrate devotion to excellence or dedication to the acquisition of knowledge by her students. Further, her actions demonstrate that her primary professional concern was not for her students or the development of their potential. She did not exercise acceptable professional judgment or integrity, and her actions in falsifying the IEPs and failing to hold IEP meetings were unethical. The persuasive evidence also establishes that Respondent violated the Principles of Professional Conduct for the Education Profession, rule 6B-1.006. Specifically, Respondent did not protect her disabled students from conditions harmful to learning, and, in fact, affirmatively engaged in conduct harmful to their learning. She also intentionally suppressed subject matter relevant to her students' academic progress. By failing to follow the procedures and requirements of the IDEA and Florida law, she denied her disabled students' rights regarding the opportunity to obtain a free appropriate public education. She did not maintain honesty in her professional dealings and submitted fraudulent information on documents in connection with her professional activities. The persuasive evidence demonstrates that Respondent's actions also violated Petitioner's rule 6Gx-13-4A-1.21, "Responsibilities and Duties." Specifically, she engaged in conduct that did not reflect credit on herself or on the school system. She did not prepare, maintain, and submit accurate reports regarding her disabled students pursuant to Florida law, Department of Education Rules, Petitioner's rules, and the established IEP creation process at Olinda. By falsifying IEPs and failing to conduct IEP meetings, she failed to efficiently and faithfully teach her disabled students in accordance with Florida law. The persuasive evidence also establishes that Respondent violated Petitioner's rule 6Gx-4A-1.213, the "Code of Ethics." Petitioner's rule incorporates the standards established in rules 6B-1.001, the Code of Ethics of the Education Profession in Florida, and 6B-1.006, the Principles of Professional Conduct for the Education Profession in Florida. As previously discussed, the evidence establishes that Respondent violated the standards established in these rules. Further, Respondent violated rule 6Gx-4A-1.213 by failing to make the well-being of her disabled students and the honest performance of her professional duties her core guiding principles, failing to treat her students with respect and fairness, and failing to deliver her job duties in an efficient and effective manner. Based on the foregoing, it is determined that Respondent's conduct constitutes misconduct in office, and that her misconduct is so serious as to impair her effectiveness in the school system. Accordingly, it is determined that just cause exists for Petitioner to terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order terminating the employment of Respondent, Walita McBride, as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 31st day of July, 2012.
The Issue The issue is whether the Education Practices Commission should impose a penalty or sanctions against Respondent’s teaching certificate pursuant to Sections 1012.795 and 1012.796, Florida Statutes, and Florida Administrative Code Rule 6B-1.006, based upon the allegations contained in the Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator’s Certificate No. 602255, which encompasses Elementary Education and English to Speakers of Other Languages, which is valid through June 30, 2003. After beginning her teaching career working in its Reading Lab, Respondent began teaching a fourth-grade class at Ft. Pierce Elementary School. After a year in that position, she taught for approximately nine years at Bayshore Elementary School, also teaching fourth grade, then transferred to St. Lucie Elementary School, where she also taught a fourth-grade class her first year. St. Lucie Elementary School was a new school, which had opened in August, 1996. Respondent taught third grade during the 1998-1999 and 1999-2000 school years at St. Lucie Elementary School after being reassigned from her fourth-grade class. Dr. Jane Hartman is, and was, at all material times, principal of the school. Among her many duties, Dr. Hartman evaluates the instructional staff and attempts to be in the various classrooms frequently. Dr. Hartman provides feedback and support to her teachers in a variety of ways, including staff development days, written suggestions to teachers, and grade chair meetings. Teachers at St. Lucie Elementary School are given a copy of the school handbook, which is discussed at the beginning of each year. In the event Dr. Hartman receives a parent complaint, she first contacts the staff member to discuss the issues. Thereafter, Dr. Hartman arranges a face-to-face conference with the parent, administration, and the teacher, to ensure that everyone is “comfortable that the relationship has mended” so they can “move forward.” During Respondent’s first year at St. Lucie Elementary School, 1997-1998, Dr. Hartman received some complaints from parents concerning Respondent’s dealings with the parents of her students and with various classroom management issues. Dr. Hartman engaged in informal counseling with Respondent concerning these complaints, and observed some changes on Respondent’s part, although not enough. Dr. Hartman and other members of her administration frequently sent notes to Respondent concerning recommendations and criticisms about her classroom performance. Dr. Hartman reassigned Respondent to a third-grade class at the end of her first year teaching at St. Lucie Elementary School, believing that Respondent would have more success with a smaller number of students who, being younger, might be easier to teach. The average age of a fourth-grade student is nine years old. During her career as an educator, Dr. Hartman has both taught fourth graders and had the opportunity to observe fourth graders in the classroom. Fourth graders are normally at that age where they love their teacher; are able to read and write; are creative; and are ready to learn about their world. Dr. Hartman believed Respondent’s class to be an average class of students, a “sweet class in that they not only cared what was said to them personally,” but also, “what was said to their friend, what was said to someone who wasn’t as strong academically.” Respondent referred to many of the students in the class as having behavior problems. Ms. Drew, a music teacher at St. Lucie Elementary School, taught many of Respondent’s students the year they were in her class. Ms. Drew found these students not to be “bad,” but to be “children who had some bad experiences.” Ms. Drew “felt bad” for many of the students who were in Respondent’s class and agreed to teach a fifth-grade class the next year to help many of Respondent’s former fourth graders. Petitioner’s witnesses at hearing consisted primarily of students from Respondent’s fourth-grade class and their parents. The students complained that Respondent had belittled them in her class and made their fourth-grade year a miserable experience. The former students related comments having been made that they were “slow,” “stupid,” “babies,” “stupid idiots,” and that Respondent was “smarter and had more education than all your parents put together.” The students testified that Respondent yelled at them, “was mean,” told them to “shut up,” embarrassed them in front of the other students, and threatened to tape record them so that their parents could hear how much they misbehaved in class. One student was embarrassed in front of the class when Respondent insisted she call her mother on a speakerphone to address why she had not returned her paperwork and money for a candy sale. Another student reported to his mother that Respondent, an African-American herself, told him he was “acting like a stupid nigger.” Many of the students testified that, while they had previously enjoyed school, after being in Respondent’s class, their self-esteem had been shattered by Respondent’s behavior in class. St. Lucie Elementary School followed “Loving Discipline A to Z,” a guide for teachers to follow regarding discipline. Respondent failed to follow these guidelines. Respondent would punish the entire class for the actions of a few students by making them write sentences that, in some cases, were grammatically incorrect. Respondent would also punish the entire class for the actions of a few students by not allowing them to have recess or go to music or art classes outside the regular classroom. Respondent, for another form of punishment, would not choose “Lynx Leaders,” an award given to students who performed well. Respondent enforced inconsistent policies concerning use of the restroom. Although she testified that students could use the restroom whenever they needed as long as it was vacant, at times she refused to allow students to use the restroom, resulting in at least one student wetting his pants in class on more than one occasion and being ridiculed by other students in the class. The allegations by the students against Respondent were made at the time the students were in her class, both verbally to their parents and in writing to their parents and school officials, as well as in testimony at hearing, six years after they had been in Respondent’s fourth-grade class. Respondent’s disciplinary measures were too harsh for fourth graders. Assistant Principal Linda Applebee testified that Respondent had problems following directions. Respondent failed to participate in a bus evacuation drill in February of 1998, and failed to perform a required book check at the end of a nine-weeks' period, which resulted in the school not billing parents for missing books and therefore having to pay for books that were not returned. Dr. Hartman testified that “chaos” reigned in Respondent’s classroom, and that there had never been a teacher, either before or after Respondent, who had such difficulty maintaining classroom management. Dr. Hartman suggested that Respondent observe other classrooms where her students experienced physical education, art, or music, and did not experience the same disciplinary problems. Respondent never took Dr. Hartman’s suggestion. Respondent admitted to some chaos in her classroom when she described one day when a student was simulating a sex act on the floor while another one scribbled on her desk with a marker. Respondent blamed these problems on “poor parenting skills” rather than on her inability to control the classroom. Respondent had a policy of calling a student’s parents when a student refused to follow a warning to behave, but she failed to follow her own procedure. Dr. Hartman believed that Respondent did not follow school procedures and had difficulties with classroom management. Dr. Hartman repeatedly gave Respondent advice and support, but Respondent failed to change her behavior. For example, Dr. Hartman met with Respondent on September 7, 1998, to discuss the resources available at the school for dealing with classroom management. Dr. Hartman informed Respondent that 1) Level I infractions should be handled by the individual staff member involved, rather than immediately calling the front office, which Respondent often did; 2) Discussions about a student should not be held in front of the student or the class; 3) Students should be given supplies needed to participate in class; 4) Students need to be told what to do; 5) Students should be praised for doing what is expected; 6) Students should not be placed in the planning room for time out; and 7) Respondent should point out only positive behaviors of the students. Dr. Hartman explained that violations of these items as set forth in her letter dated September 7, 1998, would have a negative effect on her competence to perform as a teacher. Respondent refused to attend monthly faculty meetings on a regular basis. Further, when she did attend, Respondent often had to be called and reminded to attend, then arrived late and refused to sit with her team members, sometimes even typing at a computer during the meeting. Faculty meetings are important because they help the administration achieve its goals of having a school act with consistency and a common vision and purpose. Respondent sometimes failed to cooperate with parents and the administration in the scheduling and conducting of parent-teacher conferences. At least one family had to involve both Dr. Hartman and the School Board in order to hold a meeting with Respondent. Often, the meetings proceeded badly with Respondent taking little or no responsibility for the issues expressed by the parents. In January of 1998, an incident occurred involving Respondent at a basketball game in St. Lucie County between Lincoln Park Academy and its cross-town rival. Respondent’s daughter, along with one of her friends, was arrested at the game because they refused to listen to law enforcement officers who attempted to remove them from a confrontation with other students who had congregated outside the over-filled gym where the game was taking place. When Respondent arrived at the rowdy scene outside the basketball game, she began to argue with the two law enforcement officers who were arresting Respondent’s daughter and her friend. Respondent used racial epithets directed at the two officers and engaged in disorderly conduct. She called Officer Terry Miller, an African-American, an “Uncle Tom” which he took to mean an African-American person who takes the side of white people rather than people of his own color. She called Lieutenant David Trimm, who is white, a “cracker,” a racial slur used to describe a white person who is prejudiced against African-Americans. In addition to the racial epithets, Respondent attempted to incite the crowd by yelling about the Ku Klux Klan getting away with whatever they want, and that no arrests would have been made had the crowd been predominately white rather than African-American. Based upon Respondent’s actions, both Officer Miller and Lieutenant Trimm feared for their safety. Both officers had dealt with arrests of minors in the past and with their parents who become upset when they see their sons or daughters in handcuffs, but Respondent’s behavior was “totally different” from what they had experienced in the past. Officer Miller “was shocked” at Respondent’s behavior, especially in light of the fact that she was a teacher, and Lieutenant Trimm would have arrested her had he known at the time she was a teacher. Respondent’s behavior at the basketball game was unprofessional and so racially charged that a riot could have resulted from her actions. Dr. Hartman did not reprimand Respondent at the time of the incidents giving rise to this hearing because she believed Respondent could actually improve and change her behavior. After Respondent failed to take Dr. Hartman’s and Ms. Applebee’s advice, Dr. Hartman decided to change Respondent’s position so that she taught third-grade students, in hopes that “a little bit younger would soften her a bit.” Dr. Hartman’s reassignment of Respondent to a third- grade class for the following school year necessitated that her classroom be moved. Some of Respondent’s classroom items had been moved at the beginning of the 1999-2000 school year, and Respondent attempted to take compensatory leave at the start of the year, but failed to follow the proper procedures which included seeking prior permission from Dr. Hartman. Dr. Hartman called Respondent into her office to discuss Respondent’s failure to follow school policies concerning attendance and attitude at faculty meetings and unauthorized use of compensatory time. Respondent did not respond to Dr. Hartman’s questions, but handed her a letter of resignation, accompanied by an anonymous letter criticizing her teaching abilities that had been left in Respondent’s school mail slot. Respondent claims to have written the resignation letter the night before in response to the anonymous letter that she considered to be “harassment.” The substance of the letter, purportedly from a “very concerned parent,” was that Respondent “will always be remembered as a miserable, nasty, uncaring, cruel teacher that does not deserve to teach anyone, especially children.” Respondent further claims that she wrote the letter of resignation in an attempt to be transferred from St. Lucie Elementary to another school. Respondent is aware that, in order to be considered for a transfer to another school, she must first interview with that school and be offered a position. No other school had offered Respondent a position at the time she handed her resignation letter to Dr. Hartman. Therefore, Dr. Hartman could not have considered her request for a transfer. Initially, Dr. Hartman only read the first part of the resignation letter since, once she realized she was going to be without a teacher on the first day of school, she acted quickly to inform her assistant, Ms. Applebee, so that she could immediately seek a substitute to start the next morning. Once Ms. Applebee read the letter, she perceived it to be a threat to the safety of the students and faculty of St. Lucie Elementary School. Dr. Hartman did not read the entire letter until 6:00 p.m., on August 19, 1999, the first day of school because she was busy with all of the special challenges the first day of school presents every year. Once she read the letter, however, Dr. Hartman had “extreme concerns” about the following paragraph: After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I’ve been under your supervision. This included lack of administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude toward students, minorities, and me. These are conditions in [sic] which no one should be subjective [sic] in the workplace. In fact, it seems to almost define going postal. (Emphasis added) Dr. Hartman believed the “going postal” language meant that Respondent might come in and shoot people. Assistant Principal Applebee was concerned for their safety, after she read the letter. Ms. Jane Grinstead, Executive Director of School Operations for Zone 2, St. Lucie County School District, thought the letter constituted a threat. Even Respondent admitted that her husband warned her that “somebody might take your letter offensively,” yet she still gave it to Dr. Hartman. The letter came to Dr. Hartman at a time that was close to the shootings at Columbine High School in Colorado. Dr. Hartman was trained to be on alert for the type of traits that might be exhibited by a person who would do violence at a school. Those traits include antisocial behavior and failure to follow procedures, two traits exhibited by Respondent during her tenure at St. Lucie Elementary School. Further concern arose because this was a time when some United States Postal workers had assaulted, shot and killed their supervisors and some innocent bystanders. As a result of her concerns, Dr. Hartman contacted Ms. Grinstead who put her in touch with Dave Morris, head of security for the St. Lucie County School District. Mr. Morris arranged for a school resource officer to follow Dr. Hartman around the next school day, August 20, 1999. At the end of the day, Assistant School Superintendent, Russell Anderson, spoke with Respondent and informed her that if she wanted to resign, she must leave the school premises, and the resignation would be accepted at the next School Board meeting. During the meeting with Respondent, Mr. Anderson discussed her claims of harassment with her and offered her the chance to file a formal complaint for harassment against Dr. Hartman. Also, Respondent’s union representative, Ms. Clara Cook, informed her that she could file a formal complaint, yet Respondent declined to do so. Based upon his safety concerns, Mr. Anderson asked the school resource officer, Mr. McGee, to escort Respondent off campus. He then drafted a Notice of Temporary Duty Assignment which informed Respondent that she is “further prohibited from being on any school district property.” Respondent requested to rescind her resignation on August 23, 1999. On August 24, 1999, Respondent’s letter of resignation was rescinded and she was suspended without pay by the St. Lucie County School District. On October 6, 1999, Respondent was suspended without pay and notified that the St. Lucie County School District would recommend that she be terminated at the next School Board meeting based on her violation of School Board policies. After a hearing, Respondent was terminated by the St. Lucie County School District as a result of the contents of the resignation letter. As a result of the incidents culminating in her dismissal, Respondent’s effectiveness as a teacher has been called seriously into question. Dr. Hartman explained that an effective teacher is one who “cares about children, cares about their learning, knows how to communicate, [is] open to learning themselves at all times, [is] very caring, compassionate, willing to work with others, realizing the accountability and responsibility that we hold each day, celebrating. You have to be very intelligent because you’re constantly thinking on your feet, planning and preparing and organizing.” Assistant Principal Applebee believes that Respondent did not like the children she taught because she noticed Respondent was not always nice to them; she complained about them; and the children believed they had no one in the classroom who cared about them. Ms. Grinstead, a school district administrator with 35 years of experience, believes that an effective teacher is one who is 1) sensitive; 2) caring toward children; 3) communicates well with peers; 4) communicates well with parents and students; and 5) can give suggestions on ways the parents and the school can work together for the children. Other teachers at St. Lucie Elementary School “rallied to assist” Respondent’s class. Ms. Drew decided to teach fifth grade so she could teach the same students who had been in Respondent’s fourth-grade class. Dr. Hartman would not reemploy Respondent. Assistant Superintendent Anderson would not recommend Respondent for re-employment in the St. Lucie County School District based on the seriousness of the charges. Assistant Principal Applebee would never re-employ Respondent because she did not believe Respondent to be an effective teacher. Officer Miller believes that Respondent should not be reemployed as a teacher by the St. Lucie County School District. Each of Respondent’s former students and their parents does not believe that Respondent should be employed as a teacher anywhere. Respondent takes no responsibility for any of the allegations made against her. She believes that she did nothing wrong, but that the problems complained of by the administrative staff, law enforcement personnel, her former students, and their parents are the result of either discrimination, harassment, or manipulative children and their parents who refuse to take responsibility for their children’s behavior. Despite all the complaints lodged against Respondent by her former students and their parents, her former principal, assistant principal, school district administrators, and law enforcement officers, Respondent received satisfactory evaluations from Dr. Hartman for the period in question in this case. Respondent currently works for the Head Start program, caring for three- and four-year-old children. Before the Administrative Complaint was filed in this case, a substantially similar Administrative Complaint (the same except for the statutory citations which were renumbered by the Florida Legislature) was filed and scheduled for hearing before DOAH. The case proceeded to hearing and the prior Administrative Law Judge opened the record. Petitioner then attempted to amend the Administrative Complaint to correct statutory citations that had been renumbered by the Legislature. Respondent objected to Petitioner’s ore tenus motion to amend. When the Administrative Law Judge announced that he would not rule on the motion to amend at the hearing, Petitioner announced that it was voluntarily dismissing the Administrative Complaint without prejudice and would thereafter file a new complaint with the revised statute numbers. Respondent asserted at that time that she believed Petitioner’s voluntary dismissal would be dispositive of the claims and allegations in it; that she did not agree to a voluntary dismissal; and that she was prepared to proceed. Nonetheless, Petitioner voluntarily dismissed the Administrative Complaint, and DOAH entered an Order Closing File.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s teaching certificate be revoked for a period of 10 years, with reinstatement subject to the provisions of Subsection 1012.795(4)(b), Florida Statutes. DONE AND ENTERED this 11th day of June, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2004. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Mark F. Kelly, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether just cause exists to terminate Respondent's employment with the Lake County School Board.
Findings Of Fact The Parties Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Lake County, Florida. At all times relevant hereto, Respondent was employed as a teacher in the School Board's online learning program. Events of March 26, April 11, and April 14, 2014 The first incident giving rise to this proceeding occurred on March 26, 2014, in Mount Dora, Florida. On that occasion, Brandy Herron, a former School Board employee, was shopping with an acquaintance (Kelly Richter) at an Office Depot store. Respondent, accompanied by his 15-year-old daughter, was also present in the establishment. The record reflects that Mrs. Herron and Respondent were no strangers, having worked together——acrimoniously——at the same elementary school from 2007 to 2008. As such, it is not surprising that, upon seeing Respondent in the store, Mrs. Herron noted his presence to Ms. Richter. Regrettably for all involved, Respondent misinterpreted Mrs. Herron's innocent remark to Ms. Richter as a personal affront. Eschewing self-restraint, Respondent approached Mrs. Herron and demanded to know if she was talking about him. Moments later, while gazing at Mrs. Herron's breasts, Respondent uttered, "fakey, fakey, fakey." Predictably, Mrs. Herron asked Respondent to back away. Respondent eventually did so, but not before he told Mrs. Herron that, because he was unwilling to fight a woman, he would instead "beat [her] husband's ass." For good measure, and to the dismay of Mrs. Herron, Respondent repeated his "fakey, fakey, fakey" refrain. On the heels of his encounter with Mrs. Herron, Respondent drove (with his daughter in tow) to Mr. Herron's place of business. Upon his arrival, however, Respondent was informed by a member of Mr. Herron's staff that Mr. Herron was out of the office.1/ The second encounter at issue occurred on the evening of April 11, 2014, on the campus of Lake Tech College ("Lake Tech"), a vocational charter school located in Lake County. At approximately 9:00 p.m., Respondent accompanied two of his minor children to Lake Tech, where Respondent's father-in-law, Jack Miller, is employed as the school's assistant director. It is undisputed that the presence of Respondent and his children at Lake Tech was at the invitation of Mr. Miller, who had arranged for his secretary to notarize certain test registration documents. (Respondent's children were scheduled to take the ACT examination early the next morning.) Per Mr. Miller's instructions, Respondent accompanied his children to an office adjacent to Lake Tech's welding classroom, where a school secretary proceeded to notarize the documents. At that time, a welding class was wrapping up, one of whose students, 21-year-old Ozzie Villafranca, nodded a greeting to Respondent. From this innocent nod, Respondent erroneously concluded that Mr. Villafranca had ogled his 15-year-old daughter. By all accounts, Respondent overlooked this perceived slight (temporarily at least), completed the business at hand, and accompanied his two children to the parking lot. At that point, and without provocation, Respondent returned to the entrance to the welding classroom, where Mr. Villafranca was getting some fresh air. Respondent approached Mr. Villafranca and demanded to know if he had a "problem." Taken aback by Respondent's peculiar conduct, Mr. Villafranca replied that there was no problem. Moments later, Mr. Villafranca's cousin, Eddie Villafranca (also an adult vocational student), joined the encounter, at which time Respondent asked if he, too, had a problem. When Eddie did not respond, Respondent inquired of the cousins, "do you little boys want to get your asses beat?" Fortunately, much of the foregoing incident was witnessed by Mr. Miller, who repeatedly implored Respondent to go home. After three explicit warnings, Respondent returned to the parking lot and drove away. The next incident, which occurred on April 14, 2014, was comparatively less serious. On that occasion, Stephanie Burnett, a School Board employee, was shopping in a Target store when she was approached by Respondent's wife, Sue-Ellen Anselmo. During the brief conversation that ensued, Mrs. Anselmo identified herself to Ms. Burnett, accused Ms. Burnett of trying to destroy her family (by supposedly providing, some years earlier, misinformation to the School Board during an investigation of Respondent), and called Ms. Burnett a "bitch." Mrs. Anselmo then proceeded to walk away, at which point Ms. Burnett, who was rattled by the exchange, began to wheel her shopping cart elsewhere. Moments later, Ms. Burnett encountered Respondent, who, upon seeing her, exclaimed, "I read your statement and you're a liar." Needless to say, the foregoing incidents were reported to and investigated by the School Board. Although one or more of the episodes——particularly the first two——likely would have warranted Respondent's termination, the School Board instead issued a "Level II Written Reprimand." The reprimand, whose relevant content is quoted below, was issued on June 3, 2014, by Dominick Pedata, the School Board's supervisor of employee relations: This Level II reprimand is to put you on notice of your three separate incidents involving your behavior outside of the office. An investigation proceeded regarding these allegations. On March 26, 2014, it was documented by a police report that you harassed one former employee and her husband regarding a prior Lake County Schools investigation that you were involved in. On April 11, 2014, it was reported that you threatened two students at Lake Tech Education Center in the parking lot with physical harm and were asked to leave on several occasions or the police would be called to escort you off the campus. On April 14, 2014, it was documented by a police report that you and your wife threatened a Lake County Schools employee regarding a prior Lake County Schools investigation. These are clear violations [of] Florida Administrative Code [Rule] 6A-10.081 Principles of Professional conduct for the Education Profession in Florida . . . . Moving forward you are not to approach any employee regarding a prior investigation, and/or enter a Lake county School campus and act in an aggressive or harassing manner toward a student. Any similar issues will lead to further disciplinary action up to and including termination. Please let me know if you have any questions. (emphasis added). The foregoing language makes plain that the School Board had completed its investigation regarding the incidents of March 26, April 11, and April 14, 2014, and that Respondent's "Level II Reprimand" constituted formal disciplinary action in connection with those events.2/ Thus, as discussed later in this Order, the School Board is now precluded from terminating Respondent for the same misconduct. Psychological Evaluation As noted previously, the School Board advances an alternative basis for termination, namely, that Respondent is guilty of "incompetency." On this issue, the record reflects that on June 3, 2014, Mr. Pedata directed Respondent to report for a "Medical Fit for Duty Examination" with Dr. Wally Austin, a licensed psychologist. At or around that time, Mr. Pedata furnished Dr. Austin with police reports and other investigative documents relating to the incidents of March 26, April 11, and April 14, 2014. Consistent with Mr. Pedata's directive, Respondent thereafter reported to Dr. Austin's office and submitted to a psychological evaluation. The evaluation, which Dr. Austin conducted on June 24, 2014, comprised three elements: a one- hour interview; the Minnesota Multiphasic Personality Inventory- 2 ("MMPI-2"); and a follow-up interview of approximately 5 to 10 minutes. Dr. Austin concedes that, during the interview, Respondent's speech was "clear, logical, and coherent," and that there was "no evidence of a thought disorder, perceptual disturbance, or psychosis." Nevertheless, Dr. Austin was troubled by the fact that, when pressed about the episodes of March 26, April 11, and April 14, Respondent provided descriptions of the events that varied significantly from the accounts of the other involved parties (as documented in the police reports and other materials provided to Dr. Austin by the School Board). For example, Respondent insisted that he was not present at the Target store on April 14, 2014, and, thus, did not interact with Ms. Burnett on that date. Operating under the premise that Respondent had engaged in "grossly inappropriate behavior" during the episodes of March 26, April 11, and April 14,3/ Dr. Austin thought it prudent to "get objective information." To that end, Dr. Austin administered the MMPI-2, a widely-used, standardized test of adult personality. Unfortunately, Respondent's answers to the MMPI-2 resulted in a high "lie" (or "L") scale (one of the test's three "validity" scales) that rendered the entire evaluation invalid. As Dr. Austin explained, a high L scale typically occurs when test takers attempt to depict themselves as unrealistically virtuous. Notably, however, Dr. Austin equivocated whether the high "L scale" resulted from conscious behavior on Respondent's part. At one point, for example, Dr. Austin testified that Respondent "had the ability to answer [] in a more forthright manner."4/ Later, though, Dr. Austin credibly opined that Respondent believed in the truthfulness of his test responses: Well, that's the part we didn't get into. He faked it – when I say "faked it good," there is [sic] other scales that indicate that John believes what he is saying. So for him, he is not faking it. * * * [B]ecause by [the L scale] being so high, it invalidates the report because it lowered all of the other scores. And the psychopathology would come up, but you don't know what it is because he denies everything. But it is not a conscious denial, he believes what he believes. Pet'r Ex. 10, p. 68:5-9; 68:23-69:3 (emphasis added). Upon the completion of the MMPI-2, Dr. Austin conducted a brief follow-up interview with Respondent, at which point the evaluation concluded. The following day, on June 25, 2014, Dr. Austin notified the School Board that, in his view, Respondent was "not fit to return to work in the school system." A charging document soon followed, wherein the School Board alleged that Respondent is guilty of incompetency: Based on the results of the medical fit for duty you are also charged with "Incompetency." Under F.A.C. 6A-5.056(3), Incompetency is the "inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Inefficiency under 6A- 5.056(3)(a)2 is "Failure to communicate appropriately with and relate to students[,]" and 6A-5.056(3)(a) is "Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents." Incapacity under 6A- 5.056(3)(b)1 is "Lack of emotional stability." Your actions clearly reflect incompetency in this regard. Pet'r Ex. 17. In its Proposed Recommended Order, the School Board reiterates its position that Dr. Austin's findings and/or the incidents of March 26, April 11, and April 14, 2014, demonstrate Respondent's incompetency. For the reasons explicated below, the undersigned is not so persuaded. First, the School Board is precluded from basing the incompetency charge upon the episodes for which Respondent was previously reprimanded. The psychological evaluation likewise cannot support the incompetency charge, as it is evident that Dr. Austin's opinion was informed almost exclusively by Respondent's previously-punished misconduct. Consider the following exchanges between Dr. Austin and School Board counsel: Q. Okay. And what are those duties, just in your own words, that you would expect for a teacher who is, in fact, fit for duty to perform? A. I think the question is very broad. Because I would like to answer it by ruling out what I don't expect. Q. Okay. A. I don't expect there to be threats of violence to hit other students – to hit students where the teachers now are starting to get violent with the kids, or young men, students of the county. Or I don't expect teachers or adults to conduct themselves inappropriately in the school setting or in public to the point that you were going down the street to fair it out with someone's husband. You know, those kinds of things, I don't think that is becoming of a school teacher. * * * A. All right. I am not assessing his ability to teach. I am assessing: Is he fit to be in the room. Q. Correct. A. I am looking at an individual who has had five episodes of grossly inappropriate behavior: The Triangle School thing one, the Home [sic] Depot lady, the flirting, the technical school, the Target. He has had inappropriate behavior in multiple settings; in the school setting, in the public with the school teachers; he is going over to people's work environments. His inappropriate behavior has involved teachers, it has involved students, it has involved administrators. He has been called on the carpet and had consequences of police reports filed on him, changes in school, three-days [sic] suspension. And it keeps going on and on . . . . If a person has done something twice, three times, four times they are very likely to do that behavior again. What faith do I have that [Respondent] is not going to threaten violence to teachers or to students when he leaves my office . . . ? Pet'r Ex. 10, p. 35:7-22; p. 36:3-8. The only reasonable interpretation of the foregoing testimony is that Respondent's earlier misdeeds were a necessary component of Dr. Austin's opinion. At bottom, then, the School Board is attempting to accomplish indirectly (i.e., terminate Respondent by channeling his previously-punished misconduct through an expert, who opines that the misconduct demonstrates unfitness) what it cannot do directly (i.e., terminate Respondent for the previously-punished misconduct). As noted shortly, basic due process precludes such an outcome. Moreover, and in any event, Dr. Austin's evaluation, which comprised a single office visit, was insufficiently comprehensive to evaluate properly Respondent's fitness to carry out his required duties. On this point, the undersigned credits the testimony of Respondent's expert witness, Dr. DeLeon, who opined that an appropriate evaluation would necessarily include multiple office visits over a period of time.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lake County School Board enter a final order: dismissing the charges brought against Respondent in this proceeding; and awarding Respondent any lost pay and benefits. DONE AND ENTERED this 26th day of March, 2015, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2015.
Findings Of Fact Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing." Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system. Respondent was born on August 14, 1970.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction. DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 486-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 James M. Ratliff Esquire Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132
The Issue Whether Respondent shall be dismissed from employment with the Dade County School Board upon grounds of incompetency and gross insubordination pursuant to Section 321.36, Florida Statutes, and Rules 6B-4.09(1) and 6B-4.09(4), Florida Administrative Code.
Findings Of Fact Respondent was, at all times relevant, an employee of the School Board of Dade County, Florida on an continuing contract as a teacher. Respondent is a 49 year old native of Bolivia, South America. She was educated in Bolivia, Paris, and the United States, receiving a Bachelor's degree from the University of Miami in approximately 1969 and a Master's degree from Northwestern University. Respondent's positions with the Dade County School Board may be summarized as follows: In early 1970 she was a teacher of English as a Second Language (ESOL). From 1971 to 1973, she served as a media specialist (librarian) at Blue Lakes Elementary School. From 1973 to 1978 she was a media specialist (librarian) at Seminole Elementary School. From 1978 to 1981 she was a third grade teacher of normal students at Douglas Elementary School and from 1981 until her suspension between the 1983-1984 and 1984- 1985 school terms, she was a first grade teacher at Kinloch Park Elementary School. Respondent started employment with the Dade County School Board in 1970. While employed, she received annual evaluations; her evaluations and performance from 1971 to November 1, 1983 were all favorable, except for an evaluation in the 1979-1980 school year. Approximately June 3, 1980, Respondent was given an annual evaluation for her performance as a third grade teacher at Douglas Elementary School for the 1979-1980 school year. Therein, then-principal Eugene Turano found her unacceptable in six of the eight observable evaluation criteria. This annual evaluation resulted from two formal observations. In February 1980, Respondent was observed and evidenced disciplinary and teaching difficulties related to the reading program. This was Respondent's first experience teaching third grade and her first assignment to that school. Mr. Turano assigned Ms. Whipple, his assistant principal, to work with Respondents concentrating on lesson planning. The subsequent observation did not indicate much improvement. At each of these observations, Respondent had the entire third grade in one reading group, which grouping was felt by Mr. Turano not to respond to individual needs. Also bulletin board use by Respondent was not conducive to encouraging student interest or providing assessment feedback. Respondent stayed at her desk instead of giving children individual attention. Because Respondent was thereafter absent on sick leave from March until May 1980, there was no time for diagnostic prescription. As a results Mr. Turano gave Respondent the benefit of the doubt and did not formally recommend her termination or return to annual contract as he normally would have done. He did formally recommend her for employment and did personally suggest to Respondent that she take some summer school courses. In March, 1981, the Respondent received an official letter of reprimand for failure to implement her authorization for a period of leave of absence from the school system. Although this constitutes official disciplinary action by Petitioner, Dr. Gray's explanation of the reasoning behind it is not persuasive that anything occurred here beyond an absenteeism problem eventually fully- authorized by Petitioner. Respondent came to Kinloch Park Elementary in the 1981- 1982 school term to teach first grade. Respondent's 1981-1982 annual evaluation by then- principal Dr. James McKenna was overall acceptable. Then-Assistant Principal Lucy Williams observed Respondent in the 1982- 1983 term and, finding her teaching deficient, put Respondent on prescription. Her class of two groups of non-readers and one group which had just begun to read at the first grade level was kept small. Mrs. Williams taught all lessons herself for a while and gradually released the class to Respondent's full control again. Because Respondent complied by keeping adequate grades and lesson plans, by dividing her reading students into three groups, and by decorating with visual aids on the bulletin boards, Mrs. Williams removed Respondent from reading class prescription in the spring of 1983 before Mrs. Williams' transferred to another elementary school. Mrs. Williams removed Respondent from the prescription without observing her in reading. At that time, however, Respondent continued to have assistance in the area of math instruction. Starting in the 1983-1984 term, Respondent taught a Chapter One first grade class of 15 both English-speaking and non-English-speaking students. Kinloch Park Elementary had become an all Chapter One school in February, 1983. "Chapter One" is a classification that comprises students in a federally funded program designed to teach only basic skills for the entire day. The Chapter One first grade class of Respondent was in the lower twentieth percentile of learning ability. On November 1, 1983, Respondent was formally observed by Kinloch's new principal, Dr. Cecelia Hack, for evaluation purposes. New, more detailed observation forms were being used by Dade County at this time. Respondent was found to be unacceptable in six of the eight standard evaluation criteria. Most noticeably, Respondent was failing to use the directed reading approach all teachers had been instructed by Dr. Hack to use. This system, contemplated by the teacher's manual, provides for assembling three reading groups based on individual student assessments, which groups rotate through activities made up of teacher direction and two varieties of follow-up activities. Based upon Dr. Hack's observations and testimony, it is found that on this occasion, Respondent concentrated too much time on the workbooks did not provide the group working independently with sufficient and correct materials, did not have her evaluation folders up to date and had only one grade per child and that grade was for report card purposes. She also had not returned adequate amounts of graded materials to the students so as to provide acceptable feedback and encouragement to them. Dr. Hack further observed lack of courteous interchange between Respondent and her class. Respondent's comments to her students were terse, intimidating, and not encouraging to small children. The Room was cold and sterile without lively bulletin boards to spark student interest, encourage desire to learn, or to provide pride of accomplishment and additional feedback to the students. Respondent conferenced with Dr. Hack and the assistant principal, Norma Aguilar, on November 3, 1983 and was put on prescription. Among other actions for remediation, Dr. Hack suggested that Respondent provide classroom activities reflecting the assigned instruction policy. She further suggested that Respondent sit and plan on a regular basis with two other teachers of Chapter One first graders. She arranged for Respondent to visit other classrooms and asked Dr. Charles Sherwood, Petitioner's Director of Basic Education, to send members of his staff to work with Respondent. A Mrs. Gonzalez, Chapter One Specialist, came several times to assist Respondent in implementing the Chapter One program. Mrs. Ellen Williams came to update the student assessments for Respondent. A time- line was established for December 1, 1983. Assistant Principal Aguilar's assistance was part of the prescriptive measures assigned for Respondent. She visited Respondent on at least a weekly basis to check on Respondent's lesson plans and to talk about what Respondent was supposed to be doing. Respondent was instructed that she must duplicate her own materials for class as that was part of each teacher's duties, but she was provided reading materials she needed on her prescription and tapes with recorded lessons so that the children could do more independent work. Respondent expressed resentment of the prescribed activities. She turned in no lesson plans. Mrs. Hack also expected Respondent to attend an in- service course on the primary education program (PREP) and that she use "RSVP," a diagnostic prescriptive reading program. Although Respondent completed the in-service workshop ending in late February or early March, she did not complete her material to be turned in until June 25, 1985. On December 6, 1983, Respondent was formally observed by Assistant Principal Norma Aguilar, for evaluation purposes and was found unacceptable in three categories of the standard evaluation criteria. Mrs. Aguilar had been part of Respondent's previous prescription. Because of hers and Ellen Williams' involvement, the requirement for assessment techniques had been met and the grade book was up-to-date. Respondent had improved her teacher-student relationships somewhat in that Respondent had learned to give some positive reinforcement to her students. At that time, although some deficiencies had been corrected pursuant to the previous prescription, Respondent remained unsatisfactory in preparation and planning knowledge of the subject matter, and in techniques of instruction. Instructional activities, and follow-up thereto and reading progress were inappropriate for the students. Various groups now were set up but all groups were set at the same activity at the same time instead of each group rotating through three activities within each instructional hour. Respondent continued to use terms considerably above the children's understanding; her directions were unclear to small children; and she persisted in using only the workbooks for directed teaching. Prescriptive measures were again set out for the improvement of Respondent's teaching performance. On February 15, 1984, Respondent was again formally observed for evaluation purposes by Dr. Hack and was found unacceptable in five categories of the standard evaluation criteria. One category was not rated. The deficiencies were much the same as in November 1983. Particular problems were again noted in preparation and planning knowledge of the subject matter, classroom management, and techniques of instruction. Arrangements had not been made by Respondent for materials and the supplemental activities were not appropriate for the children doing the lesson plans. The children exhibited little respect for the material and did not seem to understand what was expected of them. Respondent constantly found fault with the children but contrariwise accepted sloppy written work. Respondent answered this criticism by saying she did not concern herself with neatness and manuscript form on math papers. Mrs. Hack felt Respondent was confused about what she was doing and although Respondent was grading more papers, Respondent was not returning graded papers regularly to meet the constant need of the children for feedback. Mrs. Hack felt Respondent's class should have moved much faster by so late in the school year and that the reading aspect was very weak. As remediation, Dr. Hack prescribed that Respondent use the teacher's manual and the "RSVP" decoding kits and books and that Respondent emphasize independent student activities that would keep all the students constructively occupied throughout each class hour. Further prescriptive measures were assigned. On March 22, 1984, Respondent was formally observed by Dr. Charles Sherwood, Petitioner's Director of Basis Education, for evaluation purposes and was rated unacceptable in four of the standard evaluation criteria. One category was not rated. At that time, Respondent's lesson plan was unacceptable because it provided insufficient student work. She was not using the required "9-block plan," rotating three groups of readers three times during the class session in twenty minute intervals per rotation. Her lesson plan showed an absence of anything but page numbers, which was directly contrary to county policy requiring minimally that objectives, independent activities, and evaluation methods be set out in the formal lesson plan. Appropriate classroom management was lacking in that many students were off- tasks although Dr. Sherwood noted that there was no genuine misbehavior. Respondent's only technique of instruction remained the directive approach. Her assessment technique was deficient in that only the first few weeks' assessment scores were evident. The children were about five months behind others comparably situated. In Dr. Sherwood's opinion, Respondent's excessive verbal instruction was not good for young students struggling with English who needed demonstrations rather than lectures. He felt Respondent's students were making less progress than normal for a Chapter One class. Further prescriptive measures were assigned Respondent after a conference with Dr. Hack. On April 18, 1984 Respondent was observed and evaluated again by Dr. Sherwood as unacceptable in four criteria. Two criteria were not rated. This left Respondent unacceptable in four out of six categories. Because of the short timeframe for prescribed remediation, Dr. Sherwood had assigned Ellen Williams' Director of the South Central Reading Center, to help Respondent. Mrs. Williams had worked with Respondent on methods of directing a reading lesson, maintaining close access to a chalkboard for introducing new vocabulary in context without the teacher having to leave the reading group, and had helped Respondent arrange the classroom furniture for group reading (instead of using rigid rows of desks). Thereafter, Respondent had returned the room to its original state. Dr. Hack and Mrs. Aguilar confirmed that a mobile chalkboard had been provided Respondent. Respondent explained her removal of the mobile chalkboard from her room as being done due to safety considerations occasioned by its sharp edges in near proximity to the faces of small children, but this does not explain why Respondent could not accomplish physical rotation of three groups of children so that each reading group would be near Respondent at the wall chalkboard during one of the required three teaching activities. The problems and unacceptable teaching activities observed by Dr. Sherwood on his second visit were very similar to those he observed on his first visit: absence of evaluation procedures and all students doing the same lesson regardless of their level of achievement. However, with Mrs. Williams' help, Respondent's records for evaluating student levels remained relevantly current. Dorothy Adside, an administrator at the level between area supervisor and school principal observed Respondent teaching on May 30, 1984. Prior to this observation, Mrs. Adside dispatched a primary educational specialist Mrs. Fulton, who conferred with Respondent and gave Respondent in-the-classroom assistance on two occasions. At the May 30 observation, however, Mrs. Adside found Respondent not acceptable in the categories of preparation and planning classroom management, techniques of instruction, and teacher-student relationships. She noted that there were no motivations for the children, not sufficient vocabulary development and not sufficient questioning from Respondent or use by her of visual study aids. Respondent's use of the "Round Robin" method of oral reading prevented the children from following her in their books as she read and otherwise thwarted the idea of rotating three activities for each group within a single class period. As a result of all the previous observations, evaluations, and unfulfilled prescriptions, Respondent's annual evaluation for the 1983-1984 school year was found to be unacceptable in four categories and unacceptable overall on June 1, 1984. There is a significant discrepancy between the testimony of the Petitioner's witnesses and that of Respondent with regard to the in-service courses assigned as prescriptive measures. On the basis of the documentary evidence as well as the candor, demeanor, and credibility of all witnesses as well as the detail provided by Dr. Hack and Mrs. Aguilar concerning these prescriptive measures and their personal observation of Respondent's participation and non-participation in all or part of these courses, Respondent's testimony that no course assignment was ever made is not persuasive. It is found that Respondent was orally requested to enroll in certain in-service training programs offered for February 25 to March 3, 1984, April 10 to May 15, 1984, May 5 to May 12, 1984, and June 2 to June 9, 1984, but these requests were not always reduced to a written prescription and Respondent may, indeed, have understood that she was only required to attend in-service training when the instruction was reduced to writing. None the less, Respondent enrolled in one course February 25 to March 3, 1984, but did not complete her work until ordered to do so by Mrs. Aguilar in June 1984. At the conference-for-the-record on April 30, 1984, Dr. Hack observed Respondent changed facial expression and made sounds expressing resentment of various remedial prescriptions required of her. Respondent attributed most of her difficulties to a personality clash with Dr. Hack and to Dr. Hack's calling Respondent to her office on twelve occasions during the 1983-1984 school year to discuss Respondent's problems. In light of so many unacceptable evaluations from so many observers, Respondent's analysis is rejected. While testifying concerning her reading groups, Respondent demonstrated a lack of understanding of the threefold rotating group concept based on individual student assessments by stating that she had created a fourth group for four new Nicaraguan students who spoke no English merely because they entered her class in the middle of the year and that she had created the fourth group on the theory that the new students would have to start with the first work book in the first grade series. Respondent has had admitted in evidence her grade book for the 1983- 1984 term. It does not in every instance corroborate Petitioner's witnesses' testimony. It evidences at least one weekly grade in each subject but each subject is on a different page. This finding does not, however, significantly diminish or impugn the credibility of a number of Petitioner's witnesses who observed that Respondent kept insufficient grades. In making this determination considerable weight is attached to Respondent's own testimony that she chose to record only one weekly grade instead of recording all test and progress scores by date of the item graded. Her voluntary election to use one weekly grade per subject over grades on all items falls short of the prescription assigned to her. Respondent maintained that evaluations of her performance are clouded by the evaluators' failure to take into account the many problems inherent in anyone educating the Chapter One child. This premise is not accepted. Six of other Kinloch Park Elementary teachers of larger Chapter One first grade classes managed adequately in the 1983-1984 term. Mrs. Lucy Williams, Respondent's witness, testified that it should be easier to teach Chapter One students because there are less subjects and fewer students in classes under such a program. Dr. Gray, Petitioner's Executive Director of its Division of Standards, testified by way of expert opinion that he had considered transferring Respondent to a non-Chapter One school but decided against it because the nature of the assessment system used by Dade County is a measurement of basic teaching skills and is not a measurement of only specialized skills for Chapter One classes. Petitioner did not offer Respondent the opportunity to transfer to a different (Non- Chapter One) type of class. Dr. Patrick Gray further testified that in his opinion, Respondent's first grade class in 1983-1984 was deprived of a minimal educational experience. This opinion is accepted over Respondent's assertion that a promotion of the majority of her class to second grade demonstrates her competency as a teacher. Respondent's premise is rejected in part upon Dr. Hack's testimony that even the students' Stanford Achievement Test scores would not give an accurate picture of what Respondent had successfully taught because these scores measure only all accumulated knowledge from all sources throughout broad fields of knowledge up to a specific time in each child's life. The witnesses who testified for Petitioner established the Respondent was unable to properly teach the Chapter One students.
Recommendation Upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED that a Final Order be entered ratifying Respondent's dismissal without pay and denying any claims for back-pay and benefits. DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1985.
The Issue Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section of the Policies and Procedures Manual of the School Board of Manatee County, Florida, by: Respondent’s using school district property for personal gain, by working on tasks related to a student-based educational European trip through Education First (EF) during her district duty hours in the spring of 2009. Respondent’s consuming excessive alcoholic beverages in the presence of students and parents of Buffalo Creek Middle School (BCMS) during an EF trip in the summer of 2009. Respondent’s reporting to BCMS on August 14, 2009, in order to collect her personal belongings, and appearing to be inebriated Respondent’s contacting witnesses to the investigation to discuss details of the investigation. Respondent’s coming on school grounds on December 7, 2009, while under the influence of alcoholic beverages.
Findings Of Fact The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida. Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school. Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district. Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year. While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the school intercom and these meetings occurred on school property in the evenings. Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper. During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips. Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students. In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe. Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip. The EF trip to Europe took place from June 22, 2009, to July 1, 2009. On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations. Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive. On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents. Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors. On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day. The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around. On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior. While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation. Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents. After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation. Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules. Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns. Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip. Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission. After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules. Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible. Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation. Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip. On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated. The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their meeting on October 13, 2009, the School Board suspended Respondent without pay. While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee. On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance. When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol. The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
