Findings Of Fact At all times material hereto, Respondent held active Teaching Certificate 485203 with certification in Political Science and History. She is a hard worker, who, when orphaned, put herself through school, achieving a Master's Degree in Social Justice from Lewis University. Respondent was employed by Petitioner School Board as a social studies teacher at Miami Central Senior High School for the 1981-82, 1982-83, and 1983- 84 school years. During Respondent's first year with the Dade County school system, 1981-82, she was formally observed by her principal, Mr. Hal Guinyard, and other administrators. Respondent had problems with discipline of tardy students, absenteeism, classroom management and noise level control in the classroom and with devising and carrying through variations of instruction. On Respondent's annual evaluation for 1981-82, Respondent was recommended for employment but was found lacking in the area of classroom management. The specific observations leading up to this evaluation were that: Several students entered and left the room at will, other students remained in the halls during class time, some students in the classroom disturbed others in Respondent's class and even nearby classes with irrelevant and extraneous discussions and excess noise. There was excess noise from the late arrivals and those in the halls, too. The Respondent rolled on copy work from the chalkboard or text book with minimal student conversational feedback. Mr. Guinyard suggested to Respondent that she minimize busy work, create an orderly classroom environment, and explore alternative instructional techniques. On October 26, 1982, Respondent was formally observed in the classroom by Assistant Principal William Matlack, using the Teacher Assessment and Development System (TADS) of objective analysis. Mr. Matlack rated Respondent as unsatisfactory in the area of techniques of instruction. Excessive time was used by Respondent in preparing her students to take a test. Mr. Matlack prescribed help for Respondent in the area of techniques of instruction by assigning Respondent to observe three effective teachers and list four teacher activities, three student activities, and to analyze the time spent in organizing the class and in instructional activities. He also suggested that she read the TADS chapter on acceptable classroom procedures and teaching techniques and attached 33 pages of reading material to her evaluation, giving suggestions for classroom management, effective planning, techniques of instruction, and techniques of student-teacher relationships. He further advised Respondent of an in-service course in techniques of instruction. While Mr. Matlack did not rate Respondent as unacceptable in classroom management, he found that she still did not control her class for all the reasons previously noted by Mr. Guinyard. Rather than rate her as unacceptable in this area, he directed a memorandum dated October 29, 1982, to Respondent's attention indicating problem areas that could lead to further discipline problems if uncorrected. One of the problems was that Respondent was selling doughnuts for the athletic department between classes, and Mr. Matlack made her aware of the fact that students would be tempted to eat in other teachers' classes and that this was against the school rules. Respondent also was admonished concerning the security danger existing in her leaving money and keys lying about. On February 28, 1983, Respondent was again formally observed in the classroom by Mr. Matlack using the TADS and was found to be deficient in the areas of knowledge of subject matter, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was rated unsatisfactory in knowledge of the subject matter because the topics were not covered thoroughly and there was too much digression. There were 11 topics discussed and few were related to each other. Some of the areas were irrelevant, e.g., the importance of obtaining a good lawyer if one is going to win a lawsuit, how to obtain a house in Chicago, and the five black Presidents in the United States. Only 6 minutes were spent on how a bill becomes a law. Only 25 minutes were spent on the prescribed curriculum topics of cabinet duties, income tax, social security, Veterans' Administration, Federal Housing Authority, Health and Rehabilitative Services, and the Equal Rights Amendment, and the irrelevant topics already mentioned. Techniques of instruction was rated unacceptable because Respondent presented the material in a lecture form. The assignment on the board was very similar in technique (copy work for listing and defining terms, outlining a chapter) to what was used during the October 1982 observation; content was, however, different. The students were not ready for the assignment. There appeared to be no scope and sequence to the lesson. The lesson was very disjointed. The students were not involved when questions were asked, and their response was minimal. No effort was made to identify those students not participating or off task nor to involve all of them in the lesson. One or two students carried the class. Respondent did not appear to be effectively using the suggestions made by Mr. Matlack during his prior observation. Mr. Matlack explained to Respondent the need to create inspiration, create interesting presentations, move around the classroom utilizing various techniques and media, direct questions for the purpose of involving students, and for motivational use of questions geared toward individual abilities of respective students. He recommended Respondent re-read the TADS booklet that he had prescribed before. Respondent was rated "improved" in keeping grades for a variety of types of assignments in her grade book, but she still was not making informal assessments of her students' learning. Respondent was rated unacceptable in teacher-student relationships because she was not involving the students in instruction. The students appeared to do as they pleased. The classroom still did not present a neat and orderly atmosphere. The students seemed surprised at Respondent's attempt to enforce rules and regulations. This indicated to Mr. Matlack that the control was for his benefit, being implemented only for the instant period of observation. At the conclusion of the 1982-83 school year, Mr. Guinyard recommended Respondent for continued employment, but rated her overall unacceptable. He found her unacceptable for the year in knowledge of subject matter and techniques of instruction. She would continue on prescription (prescribed remediation efforts). Mr. Guinyard testified that he gave Respondent an extra year on prescription and brought in more help so that she might yet improve. During the 1982-83 school year, Mr. Guinyard recommended that Respondent observe other teachers and that she contact Mr. Hanson for help, which she did. Mr. Hanson is the Social Studies Supervisor for Dade County Schools. Mrs. Felicia Accornero (hereinafter Mrs. Mendez), is Assistant Principal for Curriculum (APC). She is not a trained social studies teacher but is certified to teach biology, chemistry, and gifted children. She is certified to work as an administrator, supervisor, or guidance counselor. Additionally, Mrs. Mendez discussed social studies concepts with other social studies teachers in an effort to be of more assistance to Respondent. On October 18, 1983, Respondent was officially observed in the classroom by Mrs. Mendez. Using the TADS analysis system, Mrs. Mendez rated Respondent deficient in the areas of knowledge of subject matter, classroom management, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in knowledge of subject matter because there were substantial errors in her presentation: incorrect spellings, incorrectly defined terminology, and unnecessary use of lay terms rather than formal terms. Mrs. Mendez' perception was that neither the students nor she, personally, understood the lesson as represented by Respondent. Mrs. Mendez recommended that Respondent work with her. Mrs. Mendez also prescribed particular pages from the TADS prescription manual, which included a detailed subject matter inventory. This was a checklist so that Respondent could understand the different areas where she could become knowledgeable so that her subject matter would be more accurate and more relevant to the students. Mrs. Mendez discussed subject matter with Respondent and discussed one lesson a week with Respondent prior to its presentation. At this time, Mrs. Mendez also rated Respondent unacceptable in classroom management because there were too many delays in the class due to the same deficiencies observed previously by Messrs. Guinyard and Matlack, specifically repetitive tardies, disruption by tardies noisy off-task irrelevant extraneous discussions among students during teaching, 50% of the time spent in opening and closing class and other non-instructional activities, lack of discipline, disorganized classroom and disorganized lesson presentation by Respondent. The lesson plan which was in Respondent's 1982-83 lesson plan book for October 18, 1983, was not the one which Mrs. Mendez observed in the classroom. She was give a separate lesson plan. Mrs. Mendez prescribed a TADS chapter on structuring classroom time so that the teacher moves from one activity to another without delay. Mrs. Mendez suggested that Respondent work with both her and the department chairman, Mrs. Consuelo Pino, to improve Respondent's classroom management. Mrs. Mendez rated Respondent unacceptable in techniques of instruction because Respondent was not following a sequence, was not clarifying directions and explanations when necessary, did not give students background information that was necessary for them to understand the topic, and did not perceive when her students did not understand the lesson. Mrs. Mendez prescribed reading a section from the TADS chapter on sequencing lessons and also prescribed help from herself and Mrs. Pino. Mrs. Mendez worked with Respondent to help her place her lesson plans in an understandable sequence. At least weekly for the next ten weeks, Mrs. Mendez helped Respondent. Mrs. Mendez provided Respondent with a book on questioning techniques, helped Respondent organize her room, showed her how to position her desk so that she would have a better view of the students, explained how a seating chart would help her keep accurate attendance quickly, explained how to utilize student folders so that materials would be easily accessible and so that the classroom and instructional techniques and procedures would accordingly be better organized. The prescription deadline was extended to accommodate Respondent. On November 8, 1983, a conference for the record was held with Mr. Mathew V. Lawrence, Mrs. Mendez, and a field representative of United Teachers of Dade. Mr. Lawrence had been Assistant Principal the first two years Respondent taught at Miami Central Senior High and became Principal there for the 1983-84 school year. The purpose of the conference was to discuss the October 18, 1983 observation and the continuing deficiencies. The prescriptions were discussed. The ramifications of continued deficiency were discussed. Respondent's responsibility for basic skills such as reading and spelling was discussed. Respondent was reminded that she was responsible not only for her subject matter, (history, social studies, political science) but for students' basic skills (reading, writing, spelling, grammar). 24.. On November 12, 1983, Mrs. Mendez again formally observed Respondent in the classroom using the TADS analysis technique. Respondent was aware that she would be observed that day. Respondent showed some improvement over the prior observation in that she presented some accurate information for most of the period; however, Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in preparation and planning because her objective was too simple and she did not list activities and assessment techniques, as required. Thereafter, Mrs. Mendez worked with Respondent on writing lesson plans and helped her write lesson plans. Mrs. Mendez found Respondent unsatisfactory in knowledge of the subject matter because Respondent made inaccurate statements, used incorrect grammar, and gave opinions rather than presenting both sides of an issue to students. Mrs. Pino made the same observation. During some parts of the lesson, it appeared that Respondent did not know what she was talking about. While the students appeared to understand most of the lesson, at times they did not. Mrs. Mendez also concluded that Respondent was not adhering to a structured plan but for this formal observation for the last formal observation Respondent had prepared lesson plans for observation days separate and apart from her normal procedure/plan for non-observation days. To improve Respondent's knowledge of subject matter, Mrs. Mendez recommended that Respondent review and study the textbook chapters prior to teaching the lesson because it did not appear that Respondent was doing this. Mrs. Mendez also gave Respondent the opportunity to prepare lessons and to explain them to Mrs. Mendez ahead of the time Respondent would present the material to the class so that Mrs. Mendez could monitor whether or not the information would be clearly presented to the class. Mrs. Mendez rated Respondent unacceptable in techniques of instruction upon much the same grounds as she used to substantiate the unacceptable rating for the categories of preparation and planning and knowledge of the subject matter, all essentially relating back to inadequacy of Respondent's lesson plans, or that the lesson plans were created solely for observation or to satisfy a prescription and were not for actual use. Petitioner's Exhibit 12 does not reflect a specific written prescription in this category, but Mrs. Mendez' oral testimony indicated further emphasis and helpful work on lesson plans was initiated. Respondent was next formally observed by Mr. Matlack on January 19, 1984. Respondent showed improvement this time but Mr. Matlack noted that Respondent needed to record her students' grades in her grade book more promptly as she received them. He also rated her unacceptable in classroom management primarily because of continued disruptions from tardy arrivals. Mr. Matlack directed Respondent to establish rules and regulations for students about coming into the class on time, bringing the needed materials, staying until the period ends, and prohibiting visitors into the classroom. He gave her specific suggestions on how to make these improvements and provided her with a memorandum outlining the deficiencies and prescribed help. Respondent's lesson plan for January 19, 1984, in Respondent's 1983-84 lesson plan book was only partially covered in the period observed that day by Mr. Matlack. On February 8, 1984, Mr. Lawrence rated Respondent unacceptable in classroom management on her midyear annual evaluation for 1983-84. On February 10, 1984, Mr. Lawrence held a second conference for the record with Respondent to discuss her performance assessments to date and his recommendation that she not receive a fourth year of annual contract. He also advised her that if she cleared her deficiencies, he would rescind his recommendation and would recommend a continuing contract. Respondent agreed to a fourth year annual contract. On March 13, 1984, Mr. Lawrence made his first official classroom observation of Respondent according to the TADS and found her to be very deficient. He felt that no teaching and learning were taking place. He observed her to be deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Mrs. Lawrence found Respondent unsatisfactory in knowledge of subject matter because the definitions she gave for vocabulary words were not accurate and not appropriate. The students did not seem to understand the class work. Respondent was not gearing the lesson for all of her students. The lesson plan in Respondent's 1983-84 plan book for March 13, 1984, was not the plan Mr. Lawrence observed being implemented that date. Mr. lawrence prescribed for Respondent to prepare lesson plans for five days that detailed the sequencing of concepts and how each concept would be explained and implemented. Respondent was to include a minimum of five ideas and concepts and give the cognitive levels covered in each area. Mrs. Mendez and Mrs. Pino were recommended as resources. Respondent was rated unacceptable in classroom management because students were coming to the room late and being admitted without any evidence they had been detained elsewhere and without reprimand or punishment by Respondent. There was no evidence the students had any knowledge of the correct procedure. Step by step instructions for correcting her classroom management in this area were given to Respondent by Mr. Lawrence. Mr. Tom Shaw later helped her in this area. Mr. Lawrence rated Respondent unacceptable in techniques of instruction because the only two methods she used during the class period were writing definitions for 10 minutes and answering questions from the end of the chapter in the textbook for 45 minutes. The questions at the end of the chapter were unrelated to the vocabulary work. Respondent gave no introduction to the material. There was no evidence of the students understanding the materials, and no opening or closure to the lesson. In order to aid Respondent to improve her techniques of instruction, Mr. Lawrence recommended that Respondent develop a list of at least 10 teaching techniques or suitable teaching methods. He directed her to utilize a minimum of two methods permitting students to actively participate. He directed her to prepare lesson plans for a week that demonstrated these methods and how the students would be involved. He suggested that Mrs. Mendez and Mrs. Pino be used as resources. Respondent was rated unacceptable in assessment techniques based on four student folders selected at random, each of which contained only five test cares and one or two additional sheets of work. The work in the student folders was not representative of what should have been there so late in the school year and therefore students' work was not accurately documented and could not be properly assessed for grading the child. The help that Mr. Lawrence prescribed for Respondent was to prepare two written assessment items per week for three weeks. Each test was to contain a variety of at least three types of questions. He wanted other corrected items such as homework and class work to be contemporaneously placed in student folders. He assigned Mrs. Mendez and Mrs. Pino to help Respondent. Pursuant to Mr. Lawrence's March 13, 1984 prescription, Mrs. Mendez explained to Respondent in a memorandum what was required in the student folders. Subsequently, when Mrs. Mendez reviewed the student folders, she found a student paper consisting of one incomplete sentence fragment graded "A". The student's grammar was not graded (p 14). This one example was clearly contrary to the criteria established by Mrs. Mendez and contrary to the criteria established by Mrs. Mendez and contrary to the instructions for the assignment outlined by Respondent but it still had been graded "excellent." At hearing, Respondent denied that she gave the paper an "A" and asserted that she would require from this particular student two examples the next day. On April 24, 1984, Respondent was formally observed simultaneously by two administrators (Mrs. Mendez and Paul Hanson) and was found by both administrators to be unsatisfactory in the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent had lesson plans and objectives based on the county curriculum, but was rated unacceptable in preparation and planning because her plans were not effectively implemented. She did not fill the allocated class time although only about 10% of the planned material was covered. One of the nine listed topics was "Communism." Section 233.064, Florida Statutes, spells out the content and mandates 30 hours for curriculum in "Americanism vs. Communism." On eleven different occasions, Mr. Hanson noted students were totally off task, disruptive and loud, and discussing topics that were not relevant to the lesson on Communism. The students were talking in little groups and in Mr. Hanson's opinion nothing academic was learned by the students during the period and consequently the students might thereby fall short of the statutorily required 30 hours. As a means to help Respondent, Mrs. Mendez suggested that Respondent prepare lesson plans for one week and check with the Assistant Principal who would observe the class to see if the plans were implemented. She recommended that Respondent seek help from both herself and Mrs. Pino. Respondent was rated unsatisfactory in knowledge of subject matter because the information that she provided concerning Communism was not accurate. There were a number of errors made by Respondent during the course of the lesson. Mr. Hanson prescribed help for Respondent by working with Dan Jones, Social Studies Specialist, during the week of May 11, 1984. Respondent was rated unacceptable in classroom management because of the numerous disruptions, extraneous conversations, and constant movement. Student tardiness was noted yet again. Respondent appeared frustrated but was not able to effectively control the situation and did not take any steps to correct or penalize the tardy students. As a means of helping Respondent, Mrs. Mendez suggested that Respondent work with Mr. Shaw who is the assistant principal that generally monitors attendance and discipline problems. Respondent was rated unacceptable in techniques of instruction because she did not deliver the instructional program acceptably in many areas. Also, upon the same grounds, Mr. Hanson prescribed help from Mr. Jones on this element. By memorandum dated May 7, 1984, Mr. Lawrence changed his recommendation for extended annual contract to dismissal because Respondent had failed to remediate her deficiencies and she was now more deficient than when he had observed her in March. Pursuant to Mr. Hanson's prescription of April 24, 1984, Mr. Jones worked with Respondent on May 17, 1984. He brought her material to use and discussed a number of areas: lesson planning and format, techniques, the Dade County balanced curriculum objectives, the possibility of his visiting one of her classes to provide feedback to her about her techniques of instruction, a possible policy of limiting hall passes, a technique for engaging students in group activities, and the need for having at least two activities per class. He brought three books for her to use, Ideals and Ideologies, The Russians, and Practical Methods for the Social Studies. He assisted with her lesson planning for the week of May 21-25, 1984. On May 24, 1984, Mr. Lawrence completed the annual evaluation of Respondent, rating her as deficient in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. This constituted three more unacceptable areas than on her midyear evaluation. Mr. Jones returned to help Respondent on June 4, 1984. Based upon his visitation, he wrote several suggestions for Respondent. Subsequently, when Mr. Jones observed the class, Respondent was attempting to implement some of the recommendations he had made but the presentation was not well structured or organized. Approximately fifty percent of the class period was lost in digressions and expounding of Respondent's personal opinions. Mr. Jones testified that it is appropriate for teachers to get students to express their opinions; however, those opinions should be based on knowledge of the course concepts and should come from the students, rather than from the teacher so as to encourage students to think independently, to make rational decisions, and to not merely absorb their teacher's opinion. In time of confusion, Respondent unduly delayed clarification of instructions. Mr. Jones opined that if he had been a student, he would have had to have asked questions also and in his opinion, the students were being deprived of a minimum acceptable level of instruction. On June 7, 1984, Respondent was again formally observed by two administrators (Mr. Hanson and Mr. Shaw) using the TADS analysis system. Respondent was rated unacceptable in knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Respondent's performance had declined since Mr. Hanson's prior observation. She now was rated as having one acceptable category out of six. Mr. Hanson noted that the "students would have been better off to review without teacher's assistance." Respondent gave incorrect information and was very vague. She made several content errors and confused government forms with economic systems, using the terms synonymously. Mr. Hanson, under the impression that Respondent was still being recommended for a fourth year annual contract, recommended that she take course work over the summer in classroom management and subject matter. Respondent was rated unacceptable in classroom management because again there were at least nine interruptions of the same kinds as previously observed. However, where previously the Respondent had ignored inappropriate behavior, this time she indulged in a disruptive outburst reprimanding one student very loudly. There was a student in the room who had been withdrawn from school two weeks prior and recently readmitted. In returning this student to the office for a status check, Mr. Shaw missed several minutes of Respondent's class and his observation is somewhat impaired by this absence. It is to Respondent's credit that even during this period of suspension, this particular student sneaked into school to attend her class. At no time were more than half of the students observed to be on task. Mr. Shaw recommended that the Respondent work with Mr. Hanson to improve her classroom management. Respondent was rated unacceptable in techniques of instruction because there were only passive activities being pursued and there was little feedback from the students. Respondent's technique was ineffective in encouraging class discussion. There was inadequate use of media. Because the lesson was not in proper sequence, it created academic confusion. Again, Mr. Shaw recommended that Respondent seek help from Mr. Hanson. Respondent was rated unsatisfactory in teacher-student relationships because of the general lack of respect on the part of the students and because of Respondent's erratic reaction to the student's behavior. The observers prescribed the same help. Respondent was rated unacceptable in assessment techniques because there was no means of assessing whether or not the students were understanding the review process that was taking place. The observers prescribed the same help. In 1983 Respondent was referred to a nine-credit social studies course taught by Mr. Hanson at Nova University as part of the administration's attempts to help her master the subject matter of her course. She cooperated by taking the course but failed it. Complaints of misgraded, missing, and plagiarized papers arose among students in Respondent's classes. Administrators concluded that Respondent lacked an appropriate procedure for receiving, organizing, and monitoring papers for grading purposes. Students and parents complained that no effective teaching was going on and that the disorganization in the classroom even prevented individualized learning. On another occasion, Respondent was informally observed by administrators giving wrong information to students as to the number of municipalities in Dade County. Administrators also observed that her grammar, verb tenses and word choice were not a good example to her students. The undersigned observed this pattern at hearing. At the hearing, Respondent testified to an incorrect number of Florida counties. During her testimony, Respondent used the non-word, "malicy" instead of "malice." She used the word "connotatins" several times in contexts which more properly would have required either the word "confrontations" or "altercations." In no respect was "connotations" an appropriate word selection and Respondent defined the word "connotations" as meaning "disagreements." Respondent contended that her emphasis on rote copying from the board and reading aloud was an appropriate response to large classes the majority of whose members did not possess basic skills. Respondent explained that what her observers perceived as her poor grammar was actually "street talk" she intentionally used to reach culturally deprived students. While these may have been legitimate motivations, they do not excuse Respondent's never having progressed in the use of proper grammar and varied teaching techniques for communication with students when other teachers in the same school were able to do so. Respondent's explanation also does not ring true in light of Respondent's numerous grammatical and content errors during her own testimony. Mrs. Pino, the department head, offered additional help to Respondent during Respondent's three years at Miami Central Senior High School. She discussed classroom management, ways to diversify teaching, and other problems which came up on a daily basis. She discussed parent contacts in order to help with classroom management. She gave Respondent additional copies of some papers that Respondent has lost. She reviewed lesson plans with Respondent many times and on occasion would review a lesson plan with her prior to an administrator's observation. Pursuant to Mrs. Mendez' request, Mrs. Pino observed a whole period in order to help Respondent learn how to make smooth transitions from one classroom activity to another. Respondent testified that she encouraged students to borrow books from her even if it meant looking the other way when she knew they were removing them. Loaning or giving books away might be altruistic upon Respondent's part, and indeed, helpful to students' learning the subject matter or developing a love of history, reading, etc., but Respondent's practice of encouraging the fantasy of theft for learning's sake is hardly in the best interests of the child or the teaching profession. Respondent, a Negro, contended that it was her attempts to instill in her students pride in their Black heritage which resulted in her negative ratings. She based this primarily upon body language of Mr. Matlack she said she observed when she showed him the pamphlet "The Five Negro Presidents" (R-1). She claimed there existed a rehearsed "plot" by all the Petitioner's witnesses on the basis of either her minority heritage views or on the basis of her election as a steward in the union, United Teachers of Dade. This explanation is not credible. While "Black History" may certainly be a valid part or enrichment of a high school social studies curriculum, it cannot legitimately usurp all of the class time properly allotted to prescribed curriculum. Moreover, inaccurate history, even inaccurate Black History, serves no valid purpose. The undersigned finds that it was not this theme on a single occasion which observers were concerned with in rating Respondent, but the inaccuracy and confusion of her presentation of that theme which resulted in her negative rating on the one occasion to which she refers. Also this pamphlet was not used at every observation and cannot be attributed as the incentive for so many negative ratings by so many different observers. It is also noted that Mrs. Mendez and Mrs. Pino are of Hispanic background. Although Respondent has responded to criticism positively, was eager to improve, and cooperated readily in all of her observers' suggestions, she still never achieved the standards of competency required and expected by the Dade County School Board. This is so despite extensive efforts of her colleagues to help Respondent reach acceptable performance standards. Respondent has failed to teach efficiently and faithfully due to her failure to communicate and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience.
Recommendation Upon the foregoing findings of face and conclusions of law, it is RECOMMENDED that the Dade County School Board enter a Final Order in Case No. 84-3171 finding Respondent guilty of incompetency, affirming her suspension, dismissing her from her employment with the Dade County School Board, and denying her any claim for back pay. Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order in Case No. 84-3171A finding Respondent guilty of incompetency and incapacity and revoking her Florida Teacher's Certificate for ten years, subject to reinstatement as provided by law. DONE AND ENTERED this 27th day of March 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1985. COPIES FURNISHED: Craig R. Wilson, Esquire The Law Building, Suite 204 315 Third Street West Palm Beach, Florida 33401 Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Miami, Florida 33132 William Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c), or (g), Florida Statutes (2013),2/ and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent holds a master's degree in early childhood education and is a teacher certified by the State of Florida in the area of elementary education. Respondent is also certified to teach language arts and social studies in middle school. At all times material to the allegations in this case, Respondent was employed by the Sarasota County School District (SCSD). During the 2005-2006, 2006-2007, 2009-2010, and 2010- 2011 school years, Respondent taught kindergarten at North Port Toledo Blade Elementary School (Toledo). During the 2007-2008 and 2008-2009 school years, Respondent taught first grade at Toledo. Respondent executed a professional service contract of employment for the SCSD on July 1, 2008, approximately a month before the start of the 2008-2009 school year. TEACHER EVALUATIONS In the SCSD during the applicable time, the instrument used for teacher evaluations was called the Professional Rubrics Investing and Developing Educator Excellence (PRIDE) performance evaluation system which contains a Florida Performance Measurement System (FPMS) Summative Observation Instrument, a Performance Improvement Plan (PIP) Checklist, and a PIP Classroom Instructional Level 1 & 2 form. Utilizing the PRIDE, SCSD teachers were required to demonstrate competency in four Domains. Each domain encompassed a specific aspect of teaching: I- Creating a Culture for Learning; II- Planning for Success; III- Instruction and Assessing Student Achievement; and IV- Communicating Professional Commitment; and each domain had several subparts. During an observation/evaluation, a teacher could receive one of four ratings: accomplished, developing, needs improvement, or unsatisfactory. A teacher who receives two or more "unsatisfactory" ratings in PRIDE domains I, II, or III, could be subject to termination from the SCSD. Following classroom observations, should a school administrator determine there are concerns regarding a teacher's performance, a PIP conference (conference) may be called. Those attending the conference are the teacher, a union representative,6/ the school's administrator(s), and a district representative. During the conference, the school's administrator discusses the classroom observations of what was working or not working in the teacher's classroom. The PIP is fully explained to the teacher. A PIP is for teachers who have been identified by their school administrators as having some performance challenges. Its purpose is to provide confidential support via a coach to those teachers who have been identified as performing below acceptable standards. Other support services that can be provided to a teacher include: an opportunity to observe a highly effective similar classroom of students; additional professional development courses; and regularly scheduled PIP conferences to review what has been observed between each conference. The PIP goal is to assist the teacher to become an effective and efficient teacher in the classroom. A PIP is generally established for two school years; however, it may be shortened if the teacher demonstrates improvement in the areas of concern. Once a PIP is in place, the school principal assumes the responsibility of observing and evaluating the teacher. After the conference, a coach is identified, contacted and asked to serve as the teacher's coach. As the PIP progresses, that coach and the school's principal are to provide feedback to the teacher. However, the parties decide the manner in which the feedback is to be provided. There are no set directions for when the principal must provide feedback, except at the regularly scheduled PIP conferences. In the event the teacher's performance has not improved after having a coach and time, an administrator (or administrators) from another school may be called in to observe and evaluate the teacher. This is to ensure that the teacher is evaluated by a neutral third party who is not part of the school's administration. Prior to the PRIDE system, the SCSD used a different evaluation system: the Teacher Performance Appraisal System (TPAS). TPAS provided for pre- and post-observation conferences with the teachers regarding the observations. This system provided timely feedback to the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(d), Respondent be placed on probation for a period of at least three years with such conditions as the Education Practices Commission may specify. DONE AND ENTERED this 23rd day of May, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 23rd day of May, 2014.
The Issue Whether Respondent, Teresa Wimmer, violated Florida Administrative Code Rules 6A-10.080, the Code of Ethics of the Education Profession in Florida (Code of Ethics), or 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida (Principles of Professional Conduct), as alleged in the Hernando County School Board’s March 9, 2015, notice of recommendation of termination, and March 24, 2015, modification of that notice; and, if so, the nature of the sanctions.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the system of public schools in Hernando County, Florida. Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Petitioner has the authority to discipline instructional staff and other school employees. § 1012.22(1)(f), Fla. Stat. Respondent has been a teacher at Pine Grove for roughly 11 years. During the 2014-2015 school year, Respondent was a teacher of first-grade students, with a class of approximately 18 students. As a classroom teacher, Respondent was expected to comply with the 2014-2015 Staff Handbook. Among the provisions applicable to Respondent was the following: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety and/or welfare of a student or for protection of themselves. Respondent has been the subject of several disciplinary proceedings over the years. In September 2004, Respondent was involved in an employee conference for grabbing a student’s arm on two occasions to correct misbehaviors, the result of which appeared to be a reprimand. The report of the employee conference was to remain in the school file for one year. In January 2006, Respondent was involved in an employee conference for making derogatory comments regarding a student and allowing classmates to do the same. Respondent was required to re-read the Code of Ethics and Professional Practice forms and write a letter of apology to the student and parents. The employee conference report closed with “[a]ny further behaviors involving embarrassment to students will result in further disciplinary action.” In September 2013, Respondent was involved in an incident that is of more direct relevance to this proceeding. In that instance, Respondent was accused of roughly handling students in her classroom. As a result, she was offered, and accepted, a Stipulation for Employee Discipline and Last Chance Agreement (Stipulation). In the Stipulation, Respondent acknowledged that she “engaged in misconduct by having inappropriate and unprofessional interactions with students in her classroom” and that such conduct “warrants disciplinary action up to and including termination.” In lieu of termination, the School Board and Respondent agreed that she would be suspended for ten days and, thereafter, serve a probationary period for the remainder of the 2013-2014 school year. The Stipulation further provided that Respondent “agrees that she will not engage in the conduct which gave rise to this Stipulation at any time or any place so long as she is an employee of the Hernando County School District. Further, [Respondent] understands that if she does engage in misconduct, it will result in disciplinary action, up to and including termination.” Respondent successfully completed the terms of her probation without incident. School principals, assistant principals, guidance counselors, and persons in similar duties are trained in Crisis Prevention Intervention (CPI), which is an approved method of restraining or transporting completely out-of-control students or removing children from the classroom. CPI training is not provided as a matter of course to classroom teachers. Respondent has not received CPI training. Holding a student’s hand is not a CPI hold. There is nothing inherently inappropriate with a teacher taking a student by the hand and walking with the student. The 2014-2015 Staff Handbook provides, in the section entitled “Return of Students to Classroom (Authority of the Teacher),” that: Teachers should follow their school’s procedure for the removal of students who are acting out. Suggestions include: having an adult accompany the student from the class or requesting an administrator to come to the class. (emphasis added). The routine procedure for removal of a disruptive or unruly student from the classroom is for the classroom teacher to call the office, whereupon Ms. Johnson, Ms. Kasten, or a guidance counselor, each of whom are trained in CPI, would go to the room, try to calm the student, and, if warranted, take the student to the office. Despite the procedure described above, Ms. Kasten testified that teachers, on occasion, “would bring the student down for me to talk to or the guidance counselor to talk to.” In such instances, “[t]hey would just walk them down” to the office. Although the teacher would usually call the office first, the evidence did not support a finding that a call was required or necessary, or that it happened in each event. Although the timing of those other events of taking students to the office was described as generally occurring “during their planning period or whatever, if they were at specials or whatever,” the preponderance of the evidence supports a finding that the act of walking a student to the office, per se, does not constitute a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook and that the school has not previously determined it to be so. Among the reasons for having teachers call the office for assistance with disruptive students is to limit those periods in which a teacher may leave students unattended or, as in this case, leave a co-teacher responsible for up to 36 students while the disruptive student was walked to the office. However, Ms. Tyree testified that there have been times when she would ask Respondent to “keep an eye on [her] class” while she went to attend to other things, and vice versa. There was no suggestion that asking a co-teacher to watch over a class was improper, as long as “your class is covered.” In the weeks prior to February 4, 2015, J.S., a student in Respondent’s classroom, had become increasingly disruptive in the classroom. The behaviors ranged from J.S. talking in “baby-talk” and rolling crayons on his desk, to choking another student with a lanyard. Respondent did not know why J.S.’s behavior had spiraled out of control, but indicated to Ms. Kasten that it was creating a problem for her ability not only to teach J.S., but to teach the other students in her classroom. The office was called on three occasions to deal with J.S., and Ms. Kasten went to the class to address the situations. On two occasions, J.S. remained in the classroom after Ms. Kasten’s intervention. On one occasion, Ms. Kasten removed J.S. from the classroom. On the occasion when Ms. Kasten removed him from Respondent’s classroom, J.S. was walking around the room and disturbing the other students. Ms. Kasten could not get J.S. to listen to her. Thus, she decided to take J.S. to the office. She did not employ her CPI training or use a CPI hold, but took him by the hand “with the idea of keeping him from getting away.” During the walk to the office, J.S. “was pulling a little bit” to try and get away.1/ There was no suggestion that the actions of Ms. Kasten in taking J.S. by the hand and walking him to the office were inappropriate or contrary to the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. On the afternoon of February 3, 2015, Ms. Kasten met with Respondent to discuss the behavior of J.S. in her classroom. Respondent was upset and frustrated with J.S.’s unruly behavior and wanted to know what could be done about it. Ms. Kasten suggested that the two of them could work to develop a behavior plan for J.S. and indicated that she would bring a plan to Respondent the next day for them to work on. The incident that forms the basis of this proceeding occurred on February 4, 2015. As students were entering the class for the day, Respondent heard screaming and the words “stop hitting me.” She turned and saw J.S. striking a female student with his fists. Respondent was able to verbally quell the disturbance. However, after initially returning to his seat, J.S. went to the back of the room where he began kicking table legs and other items. Respondent asserted that prior to her taking the student to the office, she called Ms. Kasten to advise her that she would be doing so and received permission from Ms. Kasten. Ms. Kasten had no recollection of having received any such call. The telephone records admitted at the hearing do not reflect that any calls were placed between Respondent’s line and the office.2/ There was no evidence to support a finding that the telephone records maintained by the school were unreliable. The greater weight of the evidence indicates that Respondent did not receive prior approval before taking the student to the office on the morning of February 4, 2015. However, the issue of whether Respondent received or did not receive permission to take J.S. to the office, and whether the act of doing so violated any school policy, was not pled as a basis for Respondent’s termination. On her way out of the classroom with J.S., Respondent passed through the classroom of her co-teacher, Ms. Tyree, with whom she shared a paired classroom, and stated to her something to the effect of “[c]an you watch my class? They told me to take [J.S.] to the office.” Although not a frequent occurrence, it was not unusual for Respondent and Ms. Tyree, as paired teachers, to watch one another’s classes while the other was out for short periods. In this case, Respondent’s class was covered while she walked J.S. to the office. Respondent took J.S. by the hand and tucked his arm inside her arm. Although J.S. did not want to go to the office, his resistance was described by Ms. Tyree as “verbal like ‘I don't want to go, I don't want to go.’ But there wasn't a, like, a tug of war going on there.” Respondent indicated that she took J.S. by the hand in order to keep him safe. Given J.S.’s actions of physically assaulting a fellow student, followed by continued physical agitation at the back of the room, Respondent’s concern for safety, not only for J.S., but for the other students in her charge, was warranted. The walk to the office was captured by the school’s video system. The video covered the time from 8:33:00 to 8:33:58. Respondent and J.S. are clearly visible in the video for approximately 30 seconds, from frame 08:33:04 to frame 08:33:32. The video is somewhat grainy, and certain details are not readily observable. However, the video is consistent with Respondent’s statement that she was holding J.S. by the hand. Thus, the preponderance of the evidence supports that Respondent was holding J.S. by the hand as she walked with him to the office and not by the “wrist area,” as surmised by Ms. Johnson. At frames 08:33:12 and 08:33:13, J.S. appears to briefly resist Respondent’s efforts to take him to the office by trying to remove his hand from Respondent’s hand as they walked side-by-side. Despite his resistance, Respondent was not “pulling/dragging” J.S. during those frames. At frames 08:33:18 and 08:33:19, J.S. appears to briefly pull away from Respondent. The action was that of J.S., not of Respondent. Respondent did not release J.S., but neither did she pull or drag J.S. The action at frames 08:33:18 and 08:33:19 is entirely consistent with that described by Ms. Kasten when giving the account of her earlier walk to the office with J.S. -- which did not involve a CPI hold -- when J.S. “was pulling a little bit” to try and get away. Despite J.S.’s efforts to pull away in both instances, neither Respondent nor Ms. Kasten was “pulling/dragging” J.S. during their walks to the office. For the remainder of the walk to the office, Respondent and J.S. walked side-by-side at a consistent pace. The evidence suggests that J.S. was vocal in his reluctance to be taken to the office, consistent with the description of his verbal resistance when being taken from the classroom as described by Ms. Tyree. The verbal resistance apparently continued, as evidenced by the reaction of the boy using the walker, who comes into the picture at frame 08:33:22. However, J.S.’s verbal protestations did not involve pulling or dragging and do not form the basis of a violation of the Code of Ethics, the Principles of Professional Conduct, or the School Board Staff Handbook. Respondent’s actions, though firm, did not appear to be aggressive. They were consistent with the description offered by Ms. Tyree, who testified that, as to the Respondent’s walk through her classroom, “there wasn't an altercation of, like, dragging or, you know -- it wasn't -- she was walking, he was walking. But he wasn't happy, you could tell that he didn't want to.” As Respondent entered the office with J.S., Ms. Kasten, the elementary assistant, was in the office, though on the other side of the office. Respondent approached the office with J.S. The door to the office opens out. It occasionally slams, and Ms. Kasten has seen it slam on students. In order to ensure J.S.’s safety, Respondent placed both of her hands on his arms to move him through the door and into the office. Respondent yelled for Ms. Kasten to “take him.” Ms. Kasten observed that Respondent was trying to get J.S. into the doorway to someone who could help. Although Respondent’s calls for Ms. Kasten to take J.S. were loud, her tone of voice was not pled as a basis for Respondent’s termination. Upon their entry into the office, Ms. Kasten went over to Respondent and J.S. J.S. stopped resisting once he saw Ms. Kasten. There was no evidence that J.S. was physically harmed in any way, i.e., there were no bruises, scratches, or marks of any kind. Respondent indicated to Ms. Kasten that J.S. had come to class very angry and was physically fighting with his female cousin. Ms. Kasten’s contemporaneous statement of the incident indicated that J.S. was “very upset that he had a fight with his sister.”3/ There was no suggestion that J.S. was upset about his walk to the office with Respondent. Ms. Kasten took J.S. off to the side and talked with him. After J.S. calmed down, Ms. Kasten advised Respondent that she would handle the situation from there, and Respondent left the office. J.S. was ultimately kept in the in-school suspension room for an hour or two. Ms. Kasten reported the incident to Ms. Johnson, who was not in her office or out front and did not witness the event. Shortly thereafter, in a conversation regarding other matters, Ms. Johnson reported to Ms. Martin at the District office that Respondent “brought a student in yelling and dragging.” Ms. Johnson was instructed to immediately remove Respondent from student contact. Ms. Johnson called to Respondent’s classroom and left a message with Respondent that she needed to speak with her. The following day, a meeting was convened to discuss the incident. Present at the meeting were Ms. Johnson, Respondent, and Respondent’s union representative. The confidential secretary to the school principal, Mr. Deen, was also in attendance to take minutes of the meeting. During her February 5, 2015, interview regarding the incident, Respondent indicated that “I was keeping him safe. I was holding his hand at first and he was okay. Then he started pulling away from me and I wanted to make sure he didn't hurt himself.” Her statement is consistent with the video. During the meeting, Respondent remained adamant that she had called Ms. Kasten and received the instruction to bring J.S. to the office. In conjunction with the investigation of the incident by Petitioner, Ms. Johnson reported the incident to the Department of Children and Families. The School Board received nothing from the Department of Children and Families to suggest that it found wrongdoing on the part of Respondent. Ms. Johnson believed, based on the information conveyed to her, that there was no reason for Respondent to remove the disruptive student from the classroom and that such action did not follow the protocol for the school for the removal of an unruly student. The alleged breach of protocol involved in taking the child to the office was not pled as a basis for Respondent’s termination. On February 18, 2015, Respondent was advised of the opportunity for a pre-determination meeting to be held the following week. Respondent took advantage of the opportunity. The pre-determination meeting was held on February 25, 2015. In attendance were Respondent, Ms. Martin, labor counsel Tom Gonzales, Ms. Johnson, and Joann Hartage, who appeared to be representing Respondent. Ms. Martin’s secretary, Sherrie Kudla, was also in attendance to take minutes of the meeting. During the pre-determination meeting, Respondent gave her account of the incident and was questioned, primarily by Ms. Martin. In addition to questions regarding the walk to the office, Ms. Martin asked about interviews of Respondent’s students undertaken by Ms. Johnson, which Ms. Martin found to be “very concerning.” Among the issues raised by Ms. Martin was “their perception [] that you yell and get aggravated with students and that you’re mean to [J.S.].” Although Respondent stated that she had read the statements, she was not involved in the interviews, and had no opportunity to ascertain the accuracy of the statements. More to the point, whether Respondent yelled or was a mean teacher was not pled as a basis for Respondent’s termination. At the conclusion of the pre-determination meeting, Ms. Martin conferred with the school superintendent, and the decision was made to recommend to the School Board that Respondent be terminated from employment. By letter dated March 9, 2015, Respondent was advised that, as a result of her “pulling/dragging a student to the front office,” the District determined that she had violated rules 6A-10.080(2) and (3), rules 6A-10.81(3)(a) and (3)(e), and the School Board Policy/Staff Handbook; that she was suspended with pay; and that she had the right to appeal the recommendation of termination. On March 23, 2015, Respondent appealed the recommendation of termination. By letter dated March 24, 2015, Respondent was notified that the recommendation to the School Board would be modified to one of suspension without pay, effective April 22, 2015, and referral of her appeal to the Division of Administrative Hearings. At the April 21, 2015, meeting of the School Board, the School Board authorized that this case be referred to the Division of Administrative Hearings, whereupon this case ensued. Ultimate Findings of Fact Based upon the facts as set forth herein, Petitioner failed to prove, by a preponderance of the evidence, that Respondent engaged in an incident of “pulling/dragging a student to the front office.” The preponderance of the evidence supports a finding that Respondent walked J.S. to the office and, despite J.S.’s verbal protestations and brief efforts to resist, did so in a safe and effective manner. Any “pulling” was brief and on the part of J.S., not on the part of Respondent. There was no “dragging.” The preponderance of the evidence demonstrates that a teacher’s act of walking an unruly or disruptive student to the office is not, in and of itself, a violation of any applicable procedure or standard and has not been determined to be so in the past. The preponderance of the evidence demonstrates that there is nothing inherently inappropriate or improper with a teacher taking a student by the hand and walking with the student. Issues of whether Respondent received telephonic approval to take J.S. to the office, should have left Ms. Tyree to watch her class, spoke to Ms. Kasten in a loud voice, or was loud or mean with her students were not pled as bases for Respondent’s termination, and, thus, cannot form the basis for any disciplinary sanction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Hernando County School Board, enter a final order: dismissing the March 9, 2015, notice of recommendation of termination; reinstating Respondent to a position equivalent to that previously held with the Hernando County School Board; and to the extent there is a statute, rule, employment contract, or collective bargaining agreement that authorizes back pay as a remedy for Respondent’s wrongful termination/suspension without pay, Respondent should be awarded full back pay and benefits. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 25th day of August, 2015, in Tallahassee, Leon County, Florida. S GARY EARLY 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 25th day of August, 2015.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed by the Petitioner against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent held Florida Educator's Certificate number 852375, valid through June 30, 2006, and covering the area of specific learning disabilities. At all times material to this case, the Respondent was employed as a teacher in an exceptional student education class at Middlebrook Middle School in the Orange County School District. Her students were 13 to 14 years of age. On more than one occasion during January of 2005, the Respondent read sexually explicit material from a book called "Dumb as Me" to her classroom. The book, admitted as the Petitioner's exhibit, includes graphic and explicit sexual content and frequent use of vulgar language. The classroom paraprofessional reported the matter to the school's principal, Valeria Maxwell. Ms. Maxwell went to the Respondent and discussed the report. During the discussion, the Respondent acknowledged that she read from the book to her students. Ms. Maxwell testified that the Respondent had not been authorized to read the book to her class. There is no evidence that the book was part of any lesson plan created by the Respondent. Ms. Maxwell testified that the students interviewed reported being embarrassed by the Respondent's reading the book to them during class, but none of the students testified at the hearing. Ms. Maxwell also testified that the Respondent's use of the text in the classroom seriously reduced the Respondent's effectiveness as a teacher and created a condition in the classroom that was harmful to learning. The Respondent's employment with the Orange County School Board was terminated on June 14, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order determining that the Respondent has violated Subsections 1012.795(1)(c), (1)(f), and (1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a) and revoking the Respondent's educator's certificate. DONE AND ENTERED this 24th day of June, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2008. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Cynthia Bradford 428 Los Altos Way, No. 201 Altamonte Springs, Florida 32714 Cynthia Bradford 30700 Wekiva River Road, No. 395 Sorrento, Florida 32776-9003 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida, 32399-0400
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
Findings Of Fact Respondent is a seventh grade student at Howard D. McMillan Junior High School. He received failing grades in all his first semester courses and regularly fails to accomplish his homework assignments. He has an absentee rate (unexcused) approaching 50 percent and is frequently late to those classes he does attend. Petitioner has attempted various counseling and disciplinary techniques without success. Although there have been some communication problems between school officials and Respondent's parents, they were aware of his poor grades and frequent absences.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Ybrahim Gonzalez, Jr., to its opportunity school. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Mr. Ybrahim Gonzalez, Sr. 6624 Southwest 148 Place Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons specified in the Notice of Termination of Employment Contract dated May 8, 2012.
Findings Of Fact The Duval County School Board is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida. Mr. Kristopher J. Hunter has been employed by the Duval County School Board as an Exceptional Student Education (ESE) teacher since 2006. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (Tenure Act) and the Collective Bargaining Agreement between Duval Teachers United and the School Board for 2009-2011. At the time of the events at issue in this proceeding, Mr. Hunter was assigned to Arlington Middle School. Mr. Hunter was born in Florida in 1977. He attended college at the University of Virginia, graduating in three years with a degree in Geography. He played professional basketball for about six years. He then returned to school and received a teaching degree from the University of North Florida. He began teaching at Arlington Middle School in the Duval County School District in 2006. He was teaching as an ESE teacher, successfully working with children with a range of cognitive and physical disabilities integrated into the least restrictive environment, that is, the regular school classroom environment. At the beginning of the 2011-2012 school year, Mr. Hunter was assigned to a classroom in the Day Treatment Program (DTP). The DTP is the most restrictive environment offered at Arlington Middle School for ESE students. The program is housed in a separate building at the back of the school, and has five teachers and 22 students. The students assigned to DTP are those with the most severe emotional and behavioral disorders, and Mr. Hunter's previous ESE experience did not include working with students of this type. Although his ESE qualification covered working with these students, Mr. Hunter felt unprepared. The DTP teachers have access to an "intervention room" and four "time out" rooms contained within the intervention room if it becomes necessary to remove a student from their classroom because of a high magnitude disruption. The teacher can call, and staff from the intervention room will respond to help remove the disruptive student. Mr. Gary Mericle is the Site Director for DTP, responsible for the overall administration of the program. He has taught Physical Education for about 12 years and is also the Athletic Director. He is not ESE certified, but has administered the DTP for three years. Mr. Mericle is trained in Professional Crisis Management (PCM), including the use of three techniques designed to gain control of a disruptive student in a safe, efficient, and secure manner to minimize danger to the student and others. The "wrist–triceps" hold is the simplest method to obtain basic physical control over a student; the "Sunday stroll" technique is a bit more secure; while the "bar procedure" is the most difficult to effect, but results in the student being immobilized in a prone position, and so is appropriate for the most violent situations. Each ESE teacher in DTP has a para-professional assistant in their classroom. Ms. Edna Lee is assigned as Mr. Hunter's assistant. Ms. Lee has 14 years of experience in ESE and has been working with the most severely disabled students for the last six or seven years. She has experienced highly disruptive behavior and violence on numerous occasions and has been trained in PCM. R.J. is an ESE student who was transferred into DTP at Arlington prior to the Christmas break. His behavior is erratic and unpredictable. R.J. is calm some days, but at other times he engages in violent behaviors, throwing any items within his reach in a room. Mr. Hunter was aware of these behaviors in R.J., but had never experienced them in his own classroom, although R.J. did "act out" in other ways "every single day." Sometime after the Christmas school break, Mr. Hunter was trained in the PCM techniques described above for the first time. Training for the school personnel had been staggered so that everyone would not be away from their duties at the same time. After his training and before the incident involving R.J. which led to this proceeding, Mr. Hunter had had occasion to use both the "wrist-triceps" and "Sunday stroll" techniques. Mr. Mericle was aware that Mr. Hunter had completed this training and had seen Mr. Hunter employ those tactics to manage disorderly students. In the early afternoon of April 2, 2012, R.J., who had been released from a voluntary "time out" in the intervention room, entered Mr. Hunter's classroom through the door at the lower-right corner1/ of the room. When he entered, Mr. Hunter was seated at his desk in the upper-left corner of the classroom, diagonally across from the door through which R.J. entered. Ms. Lee was seated at her desk in the upper-right corner of the room straight ahead of R.J. In the middle of the room were nine student desks, arrayed roughly in a square formation. Ms. Lee testified that as soon as R.J. entered the room, she could see that he was in an agitated state. Another student may have been in the room when R.J. first entered, but immediately left,2/ leaving only Mr. Hunter, Ms. Lee and R.J. in the classroom. R.J. began walking toward Ms. Lee, going to a computer set up on a table against the right hand wall. When he was unable to sign on at the computer because it was locked, he became even more upset, cursing and kicking the chair. Ms. Lee asked R.J. what was wrong, but he did not respond. He grabbed a fistful of pens or pencils and began to throw them. Mr. Hunter asked him to stop, and when he did not, Mr. Hunter warned him that he would have to call intervention. R.J.'s behavior continued, and Mr. Hunter used his walkie-talkie to call Mr. Mericle in intervention and asked him to come to the classroom. Mr. Mericle immediately responded to the call. There was no physical contact between Mr. Hunter and R.J. prior to the time Mr. Mericle entered the room. When Mr. Mericle entered, R.J. was out of control, throwing pencils, books, and other items. Mr. Hunter and Ms. Lee were still at their desks. After observing R.J. for only a moment, Mr. Mericle concluded that his behavior constituted a high magnitude disruption, and that R.J. needed to be escorted back to intervention. At this time R.J. was moving generally in a counter-clockwise direction around the room, on the outside of the student desks. He had been throwing pencils at the window above Mr. Hunter's desk, and some of these pencils had bounced off the windows and had hit Mr. Hunter. Mr. Mericle had responded alone because they were short-handed in intervention. Mr. Mericle went to Mr. Hunter's desk and asked for his help to restrain R.J. Mr. Mericle had dealt with R.J. before under similar circumstances and believed that R.J. could be restrained fairly easily with the "wrist- triceps" hold, in which two people approach the disruptive student from each side, securing the student's wrist with their outside hand and placing their inside hand on the underside of the student's upper arm. R.J. was of slight build, about five feet, eight inches tall, and weighing about 140 pounds. Mr. Hunter is a big man, about six feet, 10 inches tall, and weighing about 290 pounds. Mr. Mericle believed that R.J. could easily be restrained. R.J. was continuing his counter-clockwise walk around the room, now going down the left side of the room opposite the computers, and turning onto the base wall of the room which contained the door where he had originally entered. As he reached the counter against this base wall, he began to run his arm across the top of it, scraping all of the items that were sitting on the counter off onto the floor. He picked up a soap dispenser and threw it. Mr. Mericle and Mr. Hunter were approaching him from behind, and caught up with him as he was about ten feet away from the wall containing the computers, when R.J. was almost back to the point at which he had first entered the room. Just as Mr. Mericle was about to draw even with R.J. on R.J's left side and was reaching for his left arm, R.J. shot forward at a high rate of speed, slammed into the wall straight in front of him, and then slid down and collapsed to the floor. Ms. Lee testified that Mr. Hunter, who had been approaching R.J. from behind on R.J.'s right side, had raised his right foot and shoved it into R.J.'s lower back, propelling R.J. into the wall. Ms. Lee testified that while R.J. had been propelled into the wall from the push, that she believed R.J. was exaggerating the effect of the push, because the effect on R.J. was overdone, like "bad acting." Mr. Hunter then quickly followed R.J., picked him up off the floor by his shirt or shoulders, lifted him completely off of the floor, shook him, and slammed his back against the wall with R.J.'s face held above Mr. Hunter's head. Mr. Mericle said that he heard R.J.'s head hit the wall behind him. Ms. Lee stated that Mr. Hunter said to R.J. in a loud voice, "You can't come in my room doing this." When Mr. Hunter released him, R.J. dropped to the floor, and then got up and left the room. Mr. Mericle went after R.J., saying, "I've got him, I've got him." Ms. Lee testified that she found Mr. Hunter's actions to be "very shocking." Mr. Mericle followed R.J., who went to the front of the school. The School Resource Officer (SRO) was there and Mr. Mericle told the SRO what had happened before continuing his pursuit. Mr. Mericle caught up with R.J. on the softball field. He asked R.J. to return to the DTP building with him. R.J. went calmly, without any use of PCM. R.J. was subsequently transported by Jacksonville Fire Rescue to Shands Medical Center. There was no evidence at hearing of any serious injury. Mr. Hunter's version of events was slightly different. He testified that he stuck his foot out and that R.J. tripped. He stated that R.J. was holding a pencil like a knife in a threatening manner, and that this was the reason Mr. Hunter then grabbed R.J. and lifted him up against the wall. Mr. Hunter said that R.J. calmed down when he was lifted off of the floor and that Mr. Hunter then lowered R.J. back to the floor. Mr. Hunter testified that he never intended to harm R.J. and that he was just trying to get control of the situation. Mr. Hunter testified that R.J. could have hurt anyone in the room or even himself. Mr. Hunter admitted that his actions, even as he had described them, were not appropriate. Ms. Lee was a credible witness whose demeanor suggested that she did not wish to cause Mr. Hunter trouble. She relayed the facts as she saw them, while giving every benefit to Mr. Hunter in her own interpretation of those facts. Her testimony that Mr. Hunter kicked R.J. into the wall is credited. Ms. Lee's conclusion that Mr. Hunter "didn't lose control, but was only trying to get R.J.'s attention" seems quite charitable, however. In any event, it is not acceptable to kick students or lift them off the ground and slam them against a wall to "get their attention." Mr. Hunter's suggestion that his actions were motivated in part by defensive or safety concerns because R.J. was wielding a pencil is discredited. Neither Ms. Lee nor Mr. Mericle, both of whom were closely watching R.J., saw a pencil displayed in a threatening manner. Even if a pencil had been wielded as a weapon, the response was completely inappropriate. At all relevant times during this incident, there were three PCM trained adults in the room with a single ESE middle school student. Mr. Hunter did not cooperate with Mr. Mericle's efforts to use approved techniques. Shoving a student or picking him up and slamming him against a wall are inconsistent with the sanctioned procedures designed to defuse high magnitude disruptions in a safe and secure fashion. Mr. Hunter, provoked by R.J.'s behaviors, used physical force against R.J. in frustration and anger. Mr. Hunter did not intend to physically hurt R.J., but acted inappropriately to get R.J. under control. Ms. Sonita Young is the Chief Human Resources Officer for Duval County Schools. In determining the appropriate action to recommend to the Superintendent in this case, Ms. Young considered the progressive discipline policy reflected in the Collective Bargaining Agreement. Ms. Young testified that she discussed the matter with others, and that she concluded that termination was appropriate even though Mr. Hunter had not had the various steps of progressive discipline imposed on him earlier, because of the severe behavior in this incident. On May 8, 2012, a Notice of Termination of Employment Contract and Immediate Suspension Without Pay was sent to Mr. Hunter. On May 9, 2012, Mr. Hunter was arrested on felony child abuse charges based on the incident. Subsequently, on or about June 15, 2012, Mr. Hunter voluntarily entered and was accepted into a pretrial diversionary program in regard to his May 9, 2012, arrest. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that Duval County School Board policies prohibited the conduct described therein. Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that the State Educator's Code of Ethics and Principles of Professional Conduct of the Education Profession prohibited the conduct described therein. Respondent's demonstrated inability to follow prescribed protocols and his resort to physical force in dealing with an ESE student in frustration and anger impairs his effectiveness in the school system. Respondent's misconduct in office constitutes just cause to terminate his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Duval County School Board enter a final order terminating the employment contract of Kristopher J. Hunter as a teacher. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012.
Findings Of Fact Annie Jackson, currently Principal of Golden Glades Elementary, also served in that capacity during Elijah McCray's 6th grade experience there during the regular 1984-1985 school year. On December 10, 1984, Mrs. Jackson personally removed Elijah from the lunch room for shooting paper at other students. He was reprimanded after a conference and sent to an alternative eating place for a month. On March 5, 1985 the classroom teacher referred Elijah to Mrs. Jackson for disruptive behavior, running around, not working and splashing water. He was removed from class and received a conference with Mrs. Jackson. Mrs. Jackson called the parents the next day and reported the situation. On March 27, 1985 he was referred to Mrs. Jackson for laughing at his teacher and being defiant. On March 28, 1985 he was assigned 3 days outside detention by Mrs. Jackson because he had refused to serve assigned detention. On April 2, 1985, which was the day Elijah was due to return, Mrs. Jackson wrote his parents because he had again been referred to the office and defied the authority of the teacher referring him by not carrying the referral to Mrs. Jackson's office. He was referred to the school counselor by Mrs. Jackson. There was a subsequent 5 day suspension for disruptive behavior scheduled to begin on April 15, 1985. At 5:00 P.M. on that day, Mrs. Jackson personally conducted a teacher/parent/ student/administrator conference to discuss the April 15, 1985/ suspension. Present in place of the parents were Mr. and Mrs. Taylor, Elijah's grandparents. The teacher made known to the grandparents that she did not want Elijah back in her class because he would throw items and deny it and frequently disrupt the class by spitting in the classroom or by leaving the classroom to spit. The grandparents made known to the teacher, and to Mrs. Jackson that a sinus condition of Elijah's required him to spit frequently and Mrs. Jackson apparently engineered some rapport between the teacher and Elijah upon this information so that the planned 5 days suspension was rescinded by Mrs. Jackson. Mrs. Taylor testified that she was present at this meeting but felt she had not participated because she had left most of the talking to Mr. Taylor and Mrs. Jackson, but upon Mrs. Jackson's and Mrs. Taylor's testimony together it is specifically found that this parent contact did occur. On April 17, 1985, Mrs. Jackson referred Elijah to the school counselor because of a report from his classroom teacher that Elijah had said he would "swing his old gun" at her. While this language by the teacher is technically hearsay outside the admission exception, information on the report was recorded contemporaneously by Mrs. Jackson in the school records and regardless of what was actually said to the teacher, Mrs. Jackson personally observed the distraught behavior of the teacher in reaction to whatever threat had been made by Elijah. Mrs. Jackson called school security as a result. The investigation of the incident by Mrs. Jackson and the security investigator revealed that the teacher had been told by other students that Elijah had shot a relative of theirs but that he had in fact never done so. Elijah was warned that it is serious to make threats to teachers. On April 22, 1985 Mrs. Jackson received a formal written request from the classroom teacher requesting Elijah's removal from her class. Much of Mrs. Jackson's testimony suggests that the persistent disruptive behavior was that of the classroom teacher who referred Elijah for what she perceived as threats. This teacher was not present to testify. Elijah was returned to class by Mrs. Jackson over the teacher's objections with a final warning concerning making threats. A parent/teacher/student/ administrator conference was held to apprise the parents that this was a last chance. It may be that Mrs. Taylor was not present for this conference, but Mrs. Jackson indicates at least one adult was present on behalf of the child. On April 25, 1985, Elijah was returned to class. On April 30, 1985, Mrs. Jackson requested Officer Harris of Operation Pro Volunteer Listener to confer with Elijah about the seriousness of making threats. On May 1, 1985, Mrs. Jackson investigated a report that Elijah had threatened two girls (Mirland Joseph and Lesley Compton) in his class with a knife. The girls gave statements which Mrs. Jackson synopsized as stating that they thought they had been threatened with a knife by Elijah. The statements are not signed. The incident as reported in the statements composed by the principal are by themselves hearsay and that hearsay is not confirmed or corroborated by a statement made by Elijah directly to Mrs. Jackson that he had showed the girls the point of a nail file attached to a man's pocket toenail clippers and was "just joking with it." Mrs. Jackson received a broken pair of blunt toenail clippers from Elijah at the time of this admission and a xerox copy of the nailclippers was admitted in evidence as a true and correct copy of the implement. Because of the presence of the nailclippers, which Mrs. Jackson characterized as a "pointed object", Mrs. Jackson initiated transfer of Elijah to an alternative education program. She felt this was a lesser alternative to expulsion. Expulsion would otherwise be required by School Board policy in the presence of a "weapon." Mrs. Taylor testified that she had heard one of the girls who had given statements to Mrs. Jackson or perhaps a third girl named "Alexandra" say they had made up the May 1, 1985 incident. Mrs. Taylor stated Elijah and his sister had told her the night before the May 1, 1985 incident that the two girls or Elizabeth Carpenter was going to "start a problem for him the next day" or "going to fight him" the next day. There is no record evidence of failing grades, truancies, or unexcused absences for Elijah.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Elijah McCray to the appropriate grade level in a regular school program with a different classroom teacher than previously assigned. DONE and ORDERED this 30th day of September, 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 30th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire Law Offices McCrary, Valentine & Mays P.A. 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Sylvia Taylor 2971 N. W. 165 Street Opa Locka, Florida 33054 Madelyn P. Schere, Esquire 1450 N. E. Second Avenue Miami, Florida Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 28th day of December, 2000.
