The Issue Whether Respondent, Latunya Gibbs ("Respondent" or "Gibbs"), committed the violations as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Petitioner, BCSB, is located at 600 Southeast Third Avenue, Fort Lauderdale, Florida. BCSB is in charge of the Broward County School District ("the District"). Robert W. Runcie is the Superintendent of BCSB. The Superintendent is statutorily obligated to recommend the placement of school personnel and to require observance with all laws, rules, and regulations. He is authorized to report and enforce any violation thereof, together with recommending the appropriate disciplinary action against instructional personnel employed by the Board. Gibbs is employed by BCSB as a teacher pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes. She was first hired by BCSB on August 24, 1993. Gibbs holds a Florida Educator's Certificate in Elementary Education. The Superintendent recommended that Gibbs be terminated from her employment with BCSB. On October 2, 2018, the Board adopted the Superintendent's recommendation. BCSB provided all notice and process that was due as it pertains to the investigation and procedural requirements through the Board's adoption of the Superintendent's recommendation for termination. Gibbs was assigned as a teacher at MLE for school years 2015-16, 2016-17, and 2017-18. In 2015-16, Gibbs was assigned to teach second grade. On September 2, 2015, she was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. During the 2016-17 school year, Gibbs was assigned to teach third grade at MLE. Gibbs had 18 students in her class. On May 24, 2017, Gibbs received notice of an investigation into an allegation that she falsified records pertaining to student evaluations and achievements for promotion to the fourth grade. These records included student assessments for the Benchmark Assessment System and third grade Portfolios. On June 19, 2017, Gibbs received notice that the investigation was expanded to include an allegation that she submitted falsified documents to utilize FMLA leave and that she falsified a training certificate. Fabricated BAS Assessments The District uses the Fountas & Pinnell Benchmark Assessment Systems ("BAS"). It is used to determine a student's independent, instructional, and frustration reading levels. BAS assessments are conducted one-on-one by the teacher. In part 1 of the assessment, the student reads aloud and talks about the system's leveled fiction and nonfiction books, while the teacher observes and notes the reader's behaviors on constructed forms. In part 2, the teacher conducts a Comprehension Conversation. There is an optional part 3, which uses a reading prompt to elicit student response to the text. BAS assessments are done for all students in grade levels Kindergarten through 3, and for those students in grades 4 and 5 who score a one or two on the Florida Standards Assessment ("FSA"). For BAS, there are three assessment periods each school year. The District deadline for the third assessment period was May 26, 2017. MLE set an earlier internal deadline for its teachers of May 19, 2017, to insure that the District deadline would be met. On May 11, 2017, Gibbs was provided with a substitute so she could have the opportunity to complete BAS assessments. After school on Friday, May 12, 2017, there was a Response to Intervention ("RTI") meeting at MLE. Gibbs told Marlen Veliz ("Veliz"), MLE's Principal, that she had completed the BAS assessments for two of her 18 students. Gibbs stated that she was confident that she would be able to complete all student assessments by the May 19 deadline, and that she did not need a substitute for an additional day. Gibbs was at school on Monday, May 15, 2017, but then was absent for an extended period. She was absent on May 16 through 19, and 22 through 24. Principal Velez asked Ms. Shamequia Wright ("Wright"), a third grade teacher and union steward, and Ms. Hend Hafez ("Hafez"), an MLE Literacy Coach, to help assess Gibbs' students. On Thursday, May 18, 2017, Wright and Mr. Lawrence Hennequin ("Hennequin"), third grade team lead, entered Gibbs' classroom to look for the students' BAS folders. They could not find the BAS folders, and only found blank scoring sheets. They held up a BAS folder and asked the students where they could find the folders. The students informed Hennequin and Wright that they had never seen the folders. Hennequin and Wright left Gibbs' classroom to get their own materials so they could start assessing students. Wright proceeded to assess Gibbs' students on May 19 and May 22., 2017 On May 23, 2017, Hafez was asked to gather the BAS assessments that Wright had completed. Wright told Hafez that the assessments were on the round table in Gibbs' classroom. Hafez collected the BAS materials from the round table in Gibbs' classroom and provided them to the office. Upon trying to enter the BAS scores into the BASIS system, it was discovered that Gibbs had entered all of the students' scores on May 15, 2017. In order to have done this, Gibbs would have had to complete assessments for 16 students on that day. Principal Veliz knew this was an impossible task and, therefore, questioned the validity of the scores. Principal Veliz asked the District for a review. By May 26, 2017, the office had received all of the protocols--the student BAS folders containing the data for all three of the assessment periods--from all of the third grade teachers with the exception of Gibbs. The Assistant Principal, Joan Rosa ("Rosa"), made an announcement over the P.A. reminding all of the teachers who had not submitted their protocols to do so prior to 3:00 p.m. Gibbs never brought any of the protocols for any of the three assessment periods to the office. On May 26, 2017, Mildred Grimaldo ("Grimaldo"), Director of Literacy from the District, went to MLE to conduct a review and reassess Gibbs' students. The team conducted a reassessment of five students. Hafez reassessed the remaining students. It was found that the scores entered in BASIS on May 15, 2017, by Gibbs did not align with the reassessments completed by Grimaldo's team or Hafez. Of the 18 students in Gibbs' class, only six scored a three or above on the FSA. Six students scored a two and five students scored a one. One student was absent. Gibbs was scheduled for mandatory BAS training on January 13, 2017, but she did not attend. Gibbs received a verbal reprimand for missing the training. Gibbs received training as part of a calibration conversation that took place on April 4, 2017. The Literacy Coach also had previously shared (November 2016) a link to a Brainshark presentation, which included suggested best practices from Fountas & Pinnell and those implemented in the District. Gibbs did not review the Brainshark presentation. Incomplete Portfolios and Falsified Promotion Testing Section 1008.25(5)(b), Florida Statutes, and Board Policy 6000.1 indicate that any student in third grade who does not meet the reading promotion criteria, which is a two or higher on the FSA, can be promoted to fourth grade based on good cause promotion criteria. The good cause promotion criteria consists of the completion and passing of a third grade Portfolio as an alternative to a passing FSA score. All third grade teachers are required to have their students complete the third grade Portfolio. Student Portfolios are based on work completed by the students in connection with what they are being taught by the teacher. The teachers are to teach the State standards. The Portfolios gauge students' mastery of the reading information standards, reading literature standards, and language standards. There are eight cycles that were put together by the District to help teachers teach the reading information standards, reading literature standards, and language standards. Each cycle has certain tasks that students must complete. The tasks are to be graded by the teachers and kept as part of the Portfolios. The grade is based on a four point system, with one being the worst and four being the best. If a student does not score a three out of four on a particular standard, the student is then given an additional passage and multiple choice test. The student must receive at least a 70% on the multiple choice test to show proficiency in the standard. Scores for the Portfolio tasks as well as the multiple choice test, if necessary, are recorded on a form entitled Third Grade Assessment Portfolio: Cumulative Student Record Form ("Portfolio Record Form"). MLE had an in-house deadline of May 1, 2017, to submit all Portfolios along with the summary sheets. The District's deadline was May 5, 2017. On May 1, 2017, Gibbs emailed Hafez asking for assistance finishing the last tasks for the Portfolios. Principal Veliz received Gibbs' Portfolio Record Form and Portfolios on or about May 4, 2017. Veliz must sign each Portfolio Record Form. She also reviews the Portfolios. Veliz noticed that Gibbs' Portfolio Record Form indicated a perfect score, four out of four, for every one of her 18 students. Additionally, even though every student allegedly received a perfect score, Gibbs also had a score for the multiple choice test for every standard for every student. Had a student actually received a perfect score on the tasks, the multiple choice test would have been unnecessary. This raised a red flag for Veliz. Based on the concerns, Veliz asked Hafez and Rosa to bring her Gibbs' box of Portfolios. The box was sealed, almost completely, with duct tape. As a team, Veliz, Hafez, and Rosa opened Gibbs' Portfolio box. They spot checked a few of the students' work and noticed significant discrepancies in what Gibbs recorded and the student product. Hafez and Rosa were asked to review all of Gibbs' students' Portfolios. It took a week to review all of the Portfolios. The team found errors that included, but were not limited to: incorrect grading; the sample answer was provided (i.e., the teacher answer key); missing tasks; missing test items; task given multiple times despite mastery of the task; blank or incomplete tasks; discrepancy in time frame of dates; items done as homework as opposed to class work; missing multiple choice sheets; and the inclusion of non-summative task items. Veliz reached out to Ms. Nicole Mancini, Director of Elementary Learning, to have someone from the District rescore the Portfolios. Dr. Teri Acquavita and Ms. Shellie Gory ("Gory"), supervisors for the District, conducted a District review. There were discrepancies between the District review and Gibbs' grading. On May 9, 2017, Veliz emailed Gibbs requesting her monthly data along with the alternative portfolio multiple-choice assessments. Gibbs submitted the monthly data. Gibbs did not submit the multiple-choice alternative data, and has never submitted the multiple-choice data. However, on that same day, Gibbs sent two of her students to Hafez asking for copies of the multiple-choice tests. Gibbs told all of the parents that their students would be promoted. Unfortunately, five of Gibbs' students scored a one on the FSA. The Portfolios should have been used as good cause promotion criteria for those students, but they were too deficient. The students were promoted and placed into intervention programs the following year. Falsified Test Administrator Certificate School year 2016-17 was the first year that the FSA was to be given to students via computer. All MLE teachers were directed by Veliz to complete a Test Administrators' ("TA") Certification Course from American Institutes for Research ("AIR"). The FSA was given on April 27 and 28, 2017. On February 7, 2017, the school was scheduled to take an infrastructure practice test to make sure the school's system had the capacity to handle the testing by computers. On February 6, 2017, Gibbs received assistance from School Counselor, Ms. Gigi McIntire ("McIntire"), and the Micro-Tech, Mr. Osvaldo Hernandez ("Hernandez"), to create her password and receive a link for the infrastructure practice test. Gibbs' class did not take the infrastructure test. On February 8, 2017, Veliz met with Gibbs to discuss the fact that her class had not completed the infrastructure test and the importance of practicing with her students prior to the FSA. During the meeting, Gibbs claimed that she had not been given the link and she had not received the password until the very end because Hernandez had helped all other teachers and left her for last. This was not true, however, because Gibbs received her password and the link on February 6, 2017. Gibbs submitted a TA Certificate on March 13, 2017, which had her name handwritten on it and which did not state a date of completion of the course. The certificate looked as though it was a screen shot from the computer. The certificates that were submitted by all other teachers looked different. They had their names typed on the certificate and the date that the course was completed. Gibbs was supposed to have her students practice taking the test on a computer. The expectation was that students would have done this multiple times before having to take the FSA. On April 24, 2017, Veliz approached some third grade students and asked them how their computer practice test was going. Several students from Gibbs' class stated that they had not practiced yet because their teacher did not know how to log in. Students from other classes stated that they had practiced several times. This alarmed Veliz. Veliz asked McIntire to provide copies of all the TA Certificates. Veliz saw that the only certificate with a name handwritten in was that of Gibbs. Veliz contacted the AIR Help Desk. Mr. Anthony Nembhard ("Nembhard") confirmed that Gibbs had only used her password to log in on February 6, 2017, and had not logged in at any other time. Nembhard provided Veliz with Case No. 545991, and showed Veliz how to print a report indicating that Gibbs had not completed the course. It was uncovered that a teacher could scroll through the course without actually taking it and get to a "Congratulations!" page that looked like what Gibbs had submitted as her certificate. A screen shot of this page could be printed out. On April 25, 2017, Veliz went into Gibbs' classroom with Hernandez to assist students in practicing prior to the test. None of the students had any idea how to log in, did not know which browser to use, and every single one of them indicated that it was their first time accessing this practice test. The students were confused and did not know how to log in. This student confusion took place in the presence of Gibbs, Hernandez, and Veliz. When Gibbs was asked if she had her students do the practice test, Gibbs indicated she had done everything she needed to do. Gibbs' defense, that her printer was not functioning properly to print a complete TA Certificate, is not credible. Gibbs apparently printed a TA Certificate in which everything printed perfectly, except her name, which she handwrote. She offered no explanation for failing to provide instruction to her students on how to utilize the computer so they would be ready to take the FSA. Falsified FMLA Certification of Healthcare Provider Gibbs sought and was granted Family Medical Leave Act ("FMLA") intermittent leave in 2012. Gibbs reapplied for FMLA intermittent leave every year thereafter from 2013 to 2015, and was approved by Ms. Marjorie Fletcher ("Fletcher") of the BCSB Leaves Department on each instance. Gibbs submitted a FMLA certificate of healthcare provider form from ARNP Princy Bhat-Bhardwaj ("ARNP Princy"), certifying Gibbs' need for another FMLA leave for the period of November 15, 2015, to November 15, 2016. ARNP Princy is employed by Metcare, Gibbs' primary medical care provider. The frequency and duration section of the form on paragraph 11 were left blank. In order to process Gibbs' leave request, Fletcher faxed this form back to Metcare to request that it fill in the frequency and duration section of the form. The form was faxed back to Fletcher with the frequency and duration section of the form filled in. However, Fletcher noticed that the beginning and ending dates of the certification on paragraph nine, as well as the date of the signature on the bottom of the form, were whited out and written over. Fletcher called Metcare to verify their fax number which was fax-stamped at the top of the form. A person at Metcare could not verify the phone number listed on the top of the form. ARNP Princy confirmed to Fletcher that the handwritten portion of the date of the signature was not her handwriting. ARNP Princy also confirmed that the beginning and ending dates of the certification on paragraph nine of the form was not her handwriting. ARNP Princy testified that if she signs a form, it is her practice to date the form at the same time. According to ARNP Princy, Metcare's procedure for filling out and executing FMLA certifications is directed by the patient. In some instances, they fill out and execute FMLA certifications and directly send it to a patient's employer. In other instances, the form is handed back to the patient to submit to their employer. Gibbs submitted another FMLA certificate of healthcare provider from ARNP Princy, certifying Gibbs' need for another FMLA leave for January 29, 2016, to June 10, 2016. On May 23, 2017, legal counsel for Metcare, confirmed to the Leaves Department that it had not completed a FMLA certificate for Gibbs since January 2015. It is evident that one or more FMLA forms submitted on behalf of Gibbs were falsified. However, no evidence was presented that the documents were altered by Gibbs or that they were ever in her possession prior to their submission by someone to the Leaves Department. Although no one other than Gibbs would seemingly have a motive to modify these forms, Gibbs denied falsifying them. While Fletcher certainly had a legitimate basis to question the validity of these forms, there was insufficient evidence to demonstrate that Gibbs knowingly submitted false information to secure ongoing intermittent leave. Prior Discipline Gibbs has prior disciplinary actions consisting of two verbal reprimands and several corrective actions (i.e., summary memoranda). She received a verbal reprimand on January 27, 2017, for failing to attend the scheduled Professional Learning Community on BAS at McNab Elementary on January 13, 2017. She received another verbal reprimand on December 11, 2017, for intentionally exposing a student to unnecessary embarrassment or disparagement. Gibbs received received summary memos concerning: the need to attend all scheduled afternoon meetings; the need to promote positive interactions with students; the need to be punctual; the need to follow procedures and protocols for drills; the need to instruct for an entire period; the need to closely monitor and track student progress; the need to adhere to timelines and complete school-wide assessments in a timely manner; the need to understand standards; for sending a grammatically incorrect letter to a parent; for lack of intervention with behavior issues in the classroom; for intentionally exposing students to embarrassment with references to boyfriends and girlfriends; the need the adhere to timelines and complete school-wide assessments in a timely manner; and the need to use guided reading during the reading block. On September 2, 2015, Gibbs was placed on administrative reassignment due to a personnel investigation. She remained on administrative reassignment for the remainder of the school year. The personnel investigation involved two issues. One issue was about conduct that occurred during the 2014-15 school year when she was assigned to Walker Elementary as a VPK teacher. The alleged conduct was that she charged parents a fee if their child was picked up late from VPK and that she planned on charging a fee for the end of school graduation ceremony. The other issue was for conduct that occurred during the 2015-16 school year. It was alleged that on August 26, 2015, she pushed a student out of the classroom and pinched his back. Based on these two incidents, the Education Practices Commission issued a letter of reprimand to Gibbs, which is part of her BCSB personnel file. Ultimate Findings of Fact The evidentiary record overwhelmingly reveals a pattern by Gibbs of misconduct, gross insubordination, incompetence, willful neglect of duty, and violation of school board policies. The evidentiary record amply supports suspension without pay and termination of her employment for just cause.
Conclusions For Petitioner: Denise Marie Heekin, Esquire Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 6th day of March, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2020. COPIES FURNISHED: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33675 (eServed) Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 (eServed) Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 (eServed) Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, 10th Floor Fort Lauderdale, Florida 33301 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues for determination are whether Respondent's suspension should be upheld and whether his employment with Petitioner should be terminated, as set forth in Petitioner's action letter dated August 21, 2003.
Findings Of Fact At all times material hereto, the School Board was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Florida Constitution, and Section 1001.32, Florida Statutes (2002). At all times material hereto, Mr. Moore was employed full-time with the School Board as a paraprofessional at Robert Renick Educational Center (Renick) and subject to the rules and regulations of the School Board in accordance with Section 1012.33, Florida Statutes (2002). The UTD Contract, between the School Board and UTD, also governs the terms and conditions of Mr. Moore's employment. In April 1977, Mr. Moore began his employment with the School Board and was assigned to Renick. He remained at Renick as a paraprofessional through February 9, 2003. In December 1996, prior to beginning his employment with the School Board, Mr. Moore was charged with possession of stolen property and driving with a suspended license and an expired registration. A few months later, on February 20, 1997, Mr. Moore completed an application for employment with the School Board and indicated on the application that he had no criminal charges pending. However, at the time that he made application for employment, the charges of December 1996 were pending. Mr. Moore does not contest several performance problems and deficiencies for the period October 19, 1998 through March 10, 2002. By memorandum dated October 27, 1998, Mr. Moore was notified by the assistant principal, James DeWitt, that he violated School Board policy on October 19, 1998, by allowing a student to be in possession of the key to his classroom. Mr. DeWitt advised Mr. Moore that a reoccurrence of the violation would lead to a conference-for-the-record. By memorandum dated October 17, 2000, Mr. Moore was notified by Mr. DeWitt that he had arrived late at school that same day without notifying the main office of his tardiness in accordance with the UTD Contract. Mr. DeWitt directed Mr. Moore to adhere to the established work hours and advised Mr. Moore that further failure to adhere to his work schedule would result in disciplinary action. By memorandum dated November 2, 2000, Mr. Moore was notified by Mr. DeWitt that, on November 1, 2000, he (Mr. Moore) was playing a game on his computer while the students were taking a test even though he was required to monitor the test; and that his (Mr. Moore's) failure to supervise and monitor the test resulted in a student writing the answers in the wrong section of the test. Mr. DeWitt directed Mr. Moore to adhere to his duties in his job description and advised Mr. Moore that, among other things, his lack of supervision would not be tolerated and that his failure to adhere to the duties would result in disciplinary action. By memorandum dated March 5, 2001, Mr. Moore was notified by the principal, Eugenia Smith, that, among other things, he was on leave without authorization for 17 days of the 2000-2001 school year, from February 8, 2001 through March 5, 2001. Ms. Smith directed Mr. Moore to, within three (3) days of the date of the memorandum, provide his intended date of return or resign from employment with the School Board. By memorandum dated December 20, 2001, Mr. Moore was notified by Mr. DeWitt that, on December 5, 2001, because of his (Mr. Moore's) lack of supervision, a student pushed the emergency call button twice even though no emergency existed. Mr. DeWitt directed Mr. Moore to adhere to his duties in his job description and advised Mr. Moore that his failure to adhere to the duties would result in disciplinary action. By memorandum dated March 8, 2002, Ms. Smith notified Mr. Moore that he had been tardy for several days, specifying the days of tardiness. On March 8, 2002, a conference-for-the-record was held with Mr. Moore to address his tardiness, including noncompliance with verbal and written directives regarding his tardiness. Also present were, Ms. Smith, Mr. DeWitt, and a UTD representative. At the conference-for-the-record Mr. Moore was given specific directives regarding future tardiness, which were to be to work on time and to adhere to procedures in the UTD contract. A summary of the conference-for-the-record dated March 10, 2002, was prepared and was subsequently signed by Mr. Moore. By memorandum dated November 8, 2002, Mr. Moore was notified by Mr. DeWitt that, on November 7, 2002, Mr. Moore's personal telephone was confiscated because it had been used in the classroom as an extension of the school's telephone system. By memorandum dated November 13, 2002, Mr. Moore was notified by Mr. DeWitt that his (Mr. Moore's) use of his personal telephone as an extension of the school's telephone system was a violation of the School Board's policy prohibiting telephones in the classroom unless approved by the administration. Mr. DeWitt directed Mr. Moore to adhere to School Board policies and advised Mr. Moore that failure to do so would result in disciplinary action. Mr. Moore does not contest violating the School Board's policy regarding the use of his personal telephone in the classroom. By memorandum dated January 17, 2003, Mr. DeWitt notified Mr. Moore that, on January 22, 2003, he (Mr. Moore) left the school for approximately one and one-half hour, from approximately 11:50 a.m. to 2:20 a.m., without signing-out as required by the School Board's policy. Mr. DeWitt directed Mr. Moore to adhere to the scheduled work hours and advised (Mr. Moore) that his failure to so adhere would result in further disciplinary action. On January 22, 2003, Mr. Moore was arrested based on an outstanding warrant for the December 1996 charges previously indicated. Renick is a special center for emotionally handicapped and severely emotionally disturbed students. The student's have emotional problems, which interfere with their ability to learn. The teachers, including paraprofessionals, at Renick are specially trained to deal with the behavior problems of the students. The School Board adheres to a graduated system of discipline for students, which consists of the following: first, student conferences are held, then parent conferences, and then parent-teacher conferences; and after the conferences, indoor suspension, then detention, and, lastly, outdoor suspension. Also, located in each classroom is a call button to call security for assistance if needed. The use of profanity and corporal punishment is prohibited by School Board rules. As a paraprofessional with the School Board for several years, Mr. Moore knew or should have known the School Board's graduated system of discipline, rules, and policies. Training is provided for teachers, including paraprofessionals, in the management of students at Renick, who are misbehaving. Also, in-house workshops are provided. The training is "crisis management," which was formerly safe physical management. In crisis management, physical restraint is the last resort; interventions are used instead. A student's parent must consent in writing for the use of physical restraint; however, even without consent, physical restraint may be used for situations that do not de-escalate. If physical restraint is used, the situation must be documented and the student's parent must be notified. One intervention is a prearranged intervention in which the student and teacher agree on a technique to be used by the teacher to make the student aware that his/her behavior is escalating. The prearranged intervention may be, for instance, a pulling of the student's ear. If the prearrange intervention fails to de-escalate the student's behavior, another intervention referred to as proximity control may be used. In this technique, the student feels the teacher's presence by the teacher moving towards the student, which interrupts the student's behavior. If no interventions, whether verbal or non-verbal, de- escalates the student's behavior, which begins to get out-of- control, forms of physical restraint may be used, as a last resort. One form of physical restraint is for the teacher to hold the student with his/her hand to communicate to that student that his/her behavior is escalating, with safety being the primary issue. If the student's behavior continues to escalate, the teacher may resort to a more restrictive restraint such as the cradle. In using this technique, both the student and teacher are standing, with the student having his/her back to the teacher, and the teacher holding the student, with safety being the primary issue. Again, the teacher is attempting to have the student realize that his/her behavior is escalating. If the student's behavior continues to escalate, the teacher may take the student to the floor. One technique used is the cradle assist. In this technique, the student is brought to the floor by the teacher and the student is held by the teacher in a cradle-like position. If the student's behavior continues to escalate, the teacher, with the assistance of a colleague, may hold the student to the floor. Using a colleague, assists the student in calming down. Whenever physical restraint is used, the parents of the student are notified. Furthermore, the student is counseled, and the student's file must be documented regarding the use of physical restraint. Mr. Moore received the training as to the interventions and the physical restraints. Furthermore, he attended at least one in-house workshop. Therefore, Mr. Moore had knowledge of the behavior techniques. A past performance problem involving Mr. Moore and a student was documented by a memorandum dated July 24, 1998 from Mr. DeWitt to Mr. Moore. The memorandum addressed "alleged misconduct" by Mr. Moore committed on July 20, 1998, in which Mr. Moore allegedly choked a student, when he was putting the student in time-out, and used inappropriate language by calling the student a "faggot." Although the memorandum indicated that Mr. Moore stated that he may have grabbed the student's neck, the memorandum did not indicate that the allegation was confirmed. Mr. DeWitt directed Mr. Moore to "refrain from using inappropriate procedures and language" while performing his duties. The statement by Mr. Moore showed that he admitted, not denied, that he did take some action with the student. Regarding incidents with students, the Amended Notice of Specific Charges alleges a specific incident, occurring on December 19, 2002, between Mr. Moore and a student, J. G. Allegedly, Mr. Moore told J. G. that he "was going to kill him" and "for him [J. G.] to meet him [Mr. Moore] at the store in five minutes since he [J. G.] was bad, so they could fight"; and that he "was going to make him [J. G.] his girl"; Furthermore, Mr. Moore allegedly called J. G. a "fat bitch." Additionally, Mr. Moore allegedly told another student, X. W., that he would "fuck X. W.'s mother in the grave" and called X. W. a "faggot." Also, Mr. Moore allegedly grabbed another student, I. J., and subsequently, another student, M. S., and pulled their arms behind their backs and pushed them against a wall. Further, the Amended Notice of Specific Charges contains a general allegation of how Mr. Moore treated students, i.e., "Moore often hit students with a broomstick on the legs and buttocks, pushed students to the ground, picked a student up and slammed him to the floor, wrestled students in the classroom, and often called them gay." As to the general allegation, student D. J. testified regarding Mr. Moore pushing a student to the ground. D. J. testified that he did not want to do his work and attempted to leave the classroom without permission from Mr. Moore; that Mr. Moore would not allow him to leave the room; and that Mr. Moore placed him on the floor, face first, with his (D. J.'s) arms behind his back in a manner that hurt him (D. J.). No one else was in the classroom to witness the alleged incident. No specific time period was provided for the alleged incident. Mr. Moore's testimony did not address this particular incident. In considering D. J.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. D. J.'s demeanor and candor, during his testimony, detracted from the credibility of his testimony. The undersigned does not find D. J.'s testimony convincing. Even if Mr. Moore engaged in the physical restraint of D. J., the evidence presented fails to demonstrate that Mr. Moore's action was inappropriate under the circumstances. D. J. was attempting to force his way out of the class. However, Mr. Moore failed to document the incident and notify D. J.'s parents that physical restraint was used. Also, as to the general allegation, student M. L. testified regarding picking a student up and slamming the student to the floor. M. L. testified that, except for him, all the other students in the class had completed their work and were in the rear of the classroom with the teacher; that he had just completed his work and was walking to the rear of the class when Mr. Moore walked into the classroom; that Mr. Moore told him that he was out of his seat without permission; and that Mr. Moore picked him up and slammed him to the floor, placing his (Mr. Moore's) knee in M. L.'s back. Mr. Moore testified that M. L. was out of his seat without permission and that M. L. was running in the classroom and would not sit down even though Mr. Moore asked him to sit down and stop running. M. L. admitted that he had been disciplined before for running around in the classroom. Mr. Moore admits that he put M. L. to the floor, which de-escalated the situation, and that he then allowed M. L. to get up. Furthermore, Mr. Moore admits that he did not document the incident and did not notify the parents of M. L. that physical restraint had been used on M. L. No testimony was presented from Mr. Moore's supervising teacher, Jaime Calaf, regarding the incident with M. L. No other testimony was presented. As to the incident with M. L., the only witnesses testifying were M. L. and Mr. Moore. In considering M. L.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. M. L.'s demeanor and candor, during his testimony, and his admission that he had been disciplined for the same action previously detracted from the credibility of his testimony. Specifically, the undersigned is not convinced that M. L. had completed his work, that he was not disruptive, that Mr. Moore slammed M. L. to the floor, and that Mr. Moore put his knee in M. L.'s back. Mr. Moore admits that he put, not slammed, M. L. to the floor. The undersigned does not find M. L.'s testimony convincing. The evidence presented fails to demonstrate that Mr. Moore's action was inappropriate under the circumstances. However, Mr. Moore failed to document the situation and failed to notify the parents of M. L. as required that physical restraint had been used with M. L. Regarding the general allegation that Moore often hit students with a broomstick on the legs and buttocks, wrestled students in the classroom, and often called them gay, M. L. testified as to Mr. Moore punching students in the arm, who were misbehaving, and O. B. testified as to Mr. Moore hitting students with a broom. M. L. testified that, at times, Mr. Moore punched him and other students in the arm when they were misbehaving. The undersigned's decision as to M. L.'s credibility remains the same. The evidence fails to demonstrate that Mr. Moore punched students who were misbehaving. O. B. testified that Mr. Moore attempted to hit him once with a broom when he was misbehaving and, at times, hit other students with a broom when they were misbehaving. In considering O. B.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but that also the students should expect to be treated in accordance with the School Board's established crisis management techniques. O. B. testified that he did not consider J. B. to be a disruptive student; whereas, the evidence presented, regarding J. B., clearly indicates that J. B. is a disruptive student. O. B.'s demeanor and candor, during his testimony, together with his unsupported conclusion that J. B. was not a disruptive student, detracted from the credibility of his testimony. The undersigned does not find O. B.'s testimony convincing. Further, Mr. Calaf testified that, on occasions, he observed Mr. Moore grabbing students in the back and getting rough with them. Mr. Calaf did not testify that he reported his observations to the principal or other person who could exact discipline upon Mr. Moore. Moreover, Mr. Calaf did not testify that what he observed was inappropriate or contrary to the established crisis management training. Consequently, Mr. Calaf's observations cannot be used to support the alleged inappropriate conduct by Mr. Moore. Regarding the specific incident involving J. G. in the Amended Notice of Specific Charges, according to the principal of Renick, Eugenia Smith, she would not have recommended the dismissal of Mr. Moore if it had not been for the incident on December 19, 2002, involving J. G., a middle school student at the time. No dispute exists that the School Board uses progressive discipline. For Ms. Smith, the incident involving J. G. was the incident that triggered the dismissal of Mr. Moore. As a result, this incident is the defining incident for Ms. Smith's decision to recommend dismissal of Mr. Moore and, therefore, if this incident is not proven, the basis for her recommendation of Mr. Moore's dismissal no longer exists. As to the specific incident involving J. G., the witnesses to the incident are J. G., other Renick students in the class, and Mr. Moore. No dispute in the testimony exists that, on December 19, 2002, Mr. Moore and J. G. got into a shouting match and that Mr. Moore never touched J. G. At Renick, J. G. was disruptive in his classes and had had many discipline problems. One psychologist at Renick, Joseph Strasko, described J. G. as physically disruptive and aggressive. Another psychologist at Renick, Theodore Cox, Jr., had observed J. G. engaging in inappropriate behavior. Also, Mr. Strasko described J. G. as a student who would not tell the truth when it was detrimental to him (J. G.); whereas, Mr. Cox had not known J. G. to tell an untruth. As to whether J. G. would tell the truth, the undersigned finds Mr. Strasko to be more credible and, therefore, finds that J. G. will not tell the truth when it is detrimental to him (J. G.). As to what lead to the shouting match, only Mr. Moore was certain as to what happened. The undersigned finds Mr. Moore's testimony credible regarding this aspect of the incident. J. G. was bullying a new student in the class and had physically moved toward the new student. Mr. Moore interceded to stop the bullying by J. G. and to protect the new student, requesting J. G. to take his seat but J. G. refused. Mr. Moore kept himself between J. G. and the new student, thereby, preventing J. G. from advancing upon the new student. What Mr. Moore said during the shouting match is where the testimony differs. However, no dispute exists as to certain aspects of the incident: that J. G. became angry and disrespectful toward Mr. Moore; that J. G. stated to Mr. Moore that, if Mr. Moore put his hands on him, he (J. G.) would bring his father and brother to Renick and they would deal with Mr. Moore; and that J. G. used profanity with Mr. Moore. Mr. Moore denies that he used profanity or disparaging remarks during the incident with J. G. The crisis management expert, Mr. Strasko,2 testified that it is not appropriate for a teacher to shout profanities at a student who is shouting profanities at the teacher; and that a teacher is required to be professional even when students are being disruptive. X. W., a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that Mr. Moore called J. G. a "fat bitch" and called him (X. W.) a "punk." X. W. is J. G.'s cousin. D. J., a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that he did not hear about what J. G. and Mr. Moore were arguing. However, D. J. testified that, when J. G. told Mr. Moore that he (J. G.) was going to bring his (J. G.'s) brother, Mr. Moore told J. G. to bring his brother and that he (Mr. Moore) would "lay him on the ground." O. B. a student who was at Renick in the class at the time of the incident on December 19, 2002, testified that, when J. G. told Mr. Moore that he (J. G.) was going to bring his (J. G.'s) brother, Mr. Moore told J. G. to bring his brother to the store and that they would deal with it then. O. B. further testified that J. G. and Mr. Moore were calling each other gay and other derogatory names. Further, regarding the incident on December 19, 2002, Mr. Calaf did not witness the incident. Mr. Calaf returned to the class after the incident had occurred and observed J. G. crying and Mr. Moore and J. G. shouting at each other. Mr. Calaf did not testify as to what Mr. Moore and J. G. were shouting but did testify that he advised Mr. Moore that he (Mr. Moore) should not shout at students and should always remain professional, not getting on the level of the students. As to J. G.’s being disruptive in the class, Mr. Calaf testified that J. G. was generally disruptive and that usually Mr. Moore could calm J. G. down. The undersigned finds Mr. Calaf's testimony credible. In considering J. G.'s credibility, the aforementioned factors describing J. G. must be considered. In considering X. W.'s credibility, the undersigned must include, as a factor, that the students at Renick have behavior problems but also that teachers are required not to use profanity and to be professional. Further, the undersigned must consider the fact that X. W. is J. G.'s cousin, which was unbeknownst to Ms. Smith. In considering D. J.'s credibility, the undersigned must consider the factor that D. J. complained that Mr. Moore used physical restraint against him in an earlier incident in which the only witnesses were he and Mr. Moore. The incident and D. J.'s credibility are addressed earlier in these findings. In considering O. B.'s credibility, the undersigned must consider that O. B. complained that he observed Mr. Moore hitting students at Renick with a broom. The incident and O. B's credibility are addressed earlier in these findings. In considering Mr. Moore's credibility, the character testimony provided by Mr. Strasko and the character letters provided by Mr. Moore's colleagues must be considered. Mr. Strasko and Mr. Moore's colleagues address, among other things, what they consider the appropriate manner in which Mr. Moore handled students who were having behavior problems. Further, Mr. Moore's length of employment with the School Board, and his aforementioned past performance situations must be considered, including the one documented alleged inappropriate crisis management technique and language used by Mr. Moore in July 1998. Taking all of the aforementioned factors of credibility into consideration, the undersigned finds Mr. Moore's testimony more credible than the students, the character testimony and letters persuasive, and the lack of evidence, as to what was said, by a witness who was not involved in the incident, i.e., Mr. Calaf. Therefore, the undersigned finds that Mr. Moore did not use profanity during the incident of December 19, 2002. Mr. Moore did not report the incident involving J. G. Mr. Moore did not believe that the incident rose to the level that reporting was necessary. Moreover, no physical restraint was used. On May 1, 2003, a conference-for-the-record was held with Mr. Moore by the School Board's Office of Professional Standards (OPS) to review his employment history and future employment with the School Board. Among those in attendance with Mr. Moore were a UTD advocate, Ms. Smith, and the assistant superintendent for the Office of Exceptional Student Education and Student/Career Services. By a summary of the conference- for-the-record, dated June 6, 2003, the conference-for-the record was memoralized. By memorandum dated May 28, 2003, Ms. Smith and the assistant superintendent recommended the dismissal of Mr. Moore. By letter dated August 21, 2003, the School Board notified Mr. Moore that at its meeting on August 20, 2003, it took action to suspend him and initiate dismissal proceedings against him from all employment with it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order: Finding Algernon J. Moore, Jr. in violation of Counts I and IV in accordance with this Recommended Order. Dismissing Counts II and III. Upholding the suspension of Algernon J. Moore, Jr. Dismissing Algernon J. Moore, Jr. from all employment with the Miami-Dade County School Board. DONE AND ENTERED this 30th day of December 2004, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2004.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Carol City Senior High School (Carol City). At all times material to the instant case, Mary Henry has been the principal of Carol City and James Meehan has been an assistant principal at the school. At all times material to the instant case, Respondent was a language arts teacher at Carol City holding an annual contract. Respondent began teaching at Carol City in September of 1997. She remained at the school until February of 2000. In accordance with the School Board's Teacher Assessment and Development System (TADS), which it developed in concert with the United Teachers of Dade, the collective bargaining representative of the School Board's teachers, school principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe required remedial activities designed to improve the teacher's performance. The categories of classroom performance that are assessed are "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," "teacher-student relationships," and "assessment techniques." Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. TADS was modified following the 1997 session of the Florida Legislature to provide for a 90-day "performance probation period" for annual contract and professional service contract teachers determined to be performing unsatisfactorily. The modification was set forth in a Memorandum of Understanding between the School Board and the United Teachers of Dade, which provided, in pertinent part, as follows: Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days conduct a conference-for-the-record which address: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days, excluding school holidays and vacations), which begins upon the employee's receipt of the written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments, and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment . . . . Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent.- Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. . . . On October 21, 1999, Respondent was formally observed in her classroom by James Meehan, an assistant principal at Carol City and a certified TADS observer. Mr. Meehan rated Respondent deficient in "preparation and planning" (Category I.B.2.); "knowledge of subject matter" (Category II.A.2.); "classroom management" (Categories III. B.2. and 4. and III.C.1. and 4.); and "techniques of instruction" (Categories IV.H.1. and 2.). These unsatisfactory ratings were justified. Following Mr. Meehan's October 21, 1999, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (First Report). The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson plan prepared by the instructor was not followed. The stated objective in the lesson plan was: "Student will demonstrate test taking skills and ability to visualize descriptive language; FCAT worksheet (reading comprehension)." The activities used to accomplish these objectives were stated as follows: "Test on literature; pictures of a descriptive passage with language being discussed included; reading comprehension worksheets." The actual lesson consisted of: (1) quiz on run-on sentences; (2) the introduction of the elements of a short story by the instructor; (3) the reading of an essay which the instructor mistakenly identified as a short story; and (4) students' written responses to "Questions for Study and Discussion," after the reading of the essay. There was no demonstration by students of their ability to visualize descriptive language, no FCAT reading comprehension worksheet, and no literature test." PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairman, on each Friday, for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.A.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor attempted to teach the elements of a short story by applying them to a work by Maya Angelou which is described in the handout given to students, as a "self-contained section from her first autobiography," and later on as an "essay" in the "Questions for Study and Discussion." The instructor continuously referred to this literary work as a short story; however, it is a work of non-fiction. The instructor erroneously applied the elements of a short story such as exposition complication, conflict, climax, and denouement to this non- fiction literature. This work was an example of a descriptive essay, not a short story. PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairperson, on each Friday, for review and discussion, prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.A.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not utilize non-verbal techniques to redirect off-task learners. Off-task behavior was frequent and persistent throughout the class period. Of the 30 students present, 20 were off-task for significant period[s] of time. Students in A1, B1, C2, C4, D1, D2, G1, and G4 slept some 20 minutes or more. The students in F1 and F2 continuously passed notes to one another while the student in E4 read a sports catalog for at least 30 minutes. At one point, the students in A4 and G3 walked to the front of the room in back of the instructor, exchanged notes, and returned to their seats. The student in B5 combed the hair of the student in B4 and afterwards massaged his hands. The student in A1, when not sleeping, played with her hair. Other students stared into space or otherwise wasted time. The instructor never attempted to use non-verbal techniques such as eye contact, silence, clapping, or proximity to redirect these off-task behaviors. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, designated by the assessor, to record how he/she has successfully used non-verbal techniques to deal with off-task student behavior. The instructor will type a summary of the interview and develop a plan, incorporating some of the suggestions, to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Julia Fehr, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Often times during the period, 50 to 70 percent of the students were off-task. Students were engaged in activities not associated with the lesson. They daydreamed, drew pictures, wrote notes, slept, or were distracted in other ways. The instructor made an attempt to verbally redirect some students who were off-task; however, they were not revisited and the off-task behavior continued when the instructor directed her attention elsewhere. The student in E4 was told to put his catalog away. He then put his head down on his desk instead. He was not revisited. The students in A1 and F1 were told to do their work and move their desks closer to the front of the room. When they did so, they continued their off-task behavior, F1 by throwing papers across the room into the garbage pail and gyrating to imaginary music, A1 by continuously getting up from her desk and fiddling with her hair. Neither student was revisited. Verbal and non- verbal techniques to maintain the attention of redirected learners were not employed by this instructor. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, to record how he/she has successfully use[d] verbal and non- verbal techniques to maintain the attention of redirected learners. The instructor will type a summary of this interview and develop a plan, incorporating some of the suggestions presented, to reduce the frequency of recurring off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably resigned to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior had not been established or were not clear to learners. Of the 30 students present, 14 arrived late. None of these students was asked for an explanation. The only reaction from the instructor was, "Do you see how aggravating this is?" When students had to sharpen pencils, they left their seats and walked across the room. Four students were observed leaving their seats to sharpen pencils while the instructor was lecturing or reading to the class. When disposing of garbage, several students threw their papers across the room. The student in F1 and another student in row G played basketball with balled up paper and the trash can. When responding to questions, students would blurt out answers. There was no systematic method established for asking or answering questions. At the end of the period, before the bell, 11 students left their seats and began walking around the room. One student left his seat and walked across desks to get to the side of the room. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, for suggestions on how to deal with inappropriate student behavior during class. She will type a summary of each interview. The material will be submitted to Mr. Meehan for review and discussion. Mr. Meehan and Pamela Salkey, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly or appropriately by this instructor. During the quiz, students in A3, A4, and F1 continuously looked at other students' papers, while students in A5 and B4 conversed. These behaviors continued without the instructor identifying or responding to the students involved. At another point during the lesson, the student in B5 yelled, "I don't give a fuck," loud enough to be heard across the room. There was no response from the instructor. The magnitude and frequency of talking that occurred during the lesson made it extremely difficult for students to hear what the teacher was saying and for students to complete their assignments. During the last 35 minutes of the class when students were assigned to respond to 4 questions dealing with the reading selection, only 8 of 30 students completed the assignment, 12 handed in no paper at all, while 7 did 1 or 2 of the questions. PRESCRIPTION PLAN ACTIVITIES The instructor will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a reward system to promote and maintain appropriate student behavior in class. The instructor will submit the plan to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan, Ms. Howard, and Ms. Theodora Woltch, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Areas of confusion were not identified before learners asked questions. During the quiz on run-on sentences, students were confused as to what to do. Many students were puzzled as to why they could not use coordinating conjunctions or another method of connecting run-on sentences, rather than being restricted to writing two separate sentences as instructed by the teacher. Confusion was exacerbated by an explanation on the reverse side of the test which stated, "In fact, it is often better to join them than to put them into separate sentences." When students asked if they could use another method, the instructor said they could not, but would not be incorrect if they did. Students remained puzzled as to what was acceptable. These potential areas of confusion with the run-on sentence should have been anticipated by the instructor, but were not. PRESCRIPTION PLAN ACTIVITIES The instructor will construct detailed lesson plans each week and discuss potential areas of confusion with her department chairperson on the Friday prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help Respondent improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION When students were assigned to write the answers to "Questions for Study and Discussion," several students asked if they could work in groups. The instructor responded that they could work in pairs. She then changed her mind and said they had to work individually. Afterwards, she again said they could work in pairs. Students were puzzled as to what to do. Students were further confused by what question they were assigned. Initially, the instructor assigned question 1, then 2 through 5, and later on told a student, "Do number 2 and I'll be happy." Again, many students were confused. When the instructor assigned students to grade each other's quiz papers, students did not understand what was correct, what was minus 5, and what was minus 10. The student in F3 stated that he was confused and the student in E3 claimed, "I don't understand." The instructor made no attempt to clarify these misunderstandings. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor chosen by the assessor, regarding how he/she approaches the organization [of] his/her lessons on a daily, weekly, and long term basis. The instructor will type a summary of this interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.2. On October 28, 1999, Ms. Henry held a conference- for-the-record with Respondent to discuss the contents of the First Report, a copy of which was provided to Respondent. Also present were Mr. Meehan and United Teachers of Dade representatives. An explanation of the deficiencies found by Mr. Meehan was given. In addition, Respondent was advised of the commencement (that day, October 28, 1999) of the 90-day "performance probation period" and warned that "failure to demonstrate remediation of [her] deficiencies may result in termination of [her] employment contract" and that failure to complete "prescription plan activities" by the November 22, 1999, deadline would "result in an unacceptable rating on the Professional Responsibilities Component of TADS." On November 17, 1999, Ms. Henry held another conference-for-the-record with Respondent. Also present were United Teachers of Dade representatives. The purpose of the conference was to discuss Ms. Henry's findings concerning an incident that had occurred in Respondent's classroom during her fifth period class on October 5, 1999. Ms. Henry had determined, based upon statements from students, that Respondent, during this fifth period class, had "inappropriately disciplined a student by grabbing her by the arm to remove her from the classroom." 1/ At the conference, Ms. Henry advised Respondent of the determination she had made and admonished Respondent accordingly. Among other things, she told Respondent that she should seek the assistance of an administrator or security monitor if she had a disruptive student in her classroom. The following day, November 18, 1999, Respondent received a letter of reprimand from Ms. Henry, which read as follows: On October 5, 1999, you inappropriately disciplined a student while instructing your language arts class. You violated Rule 6Gx12-5D-1.07- Corporal Punishment and 6Gx13-5D-1.08- Maintenance of Appropriate Student Behavior. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline are outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.07 and the Faculty Handbook- Item 9 - Classroom Management, Item 16- Corporal Punishment Policy, and Item 85- Supervision of Students. You are immediately directed to refrain from using any physical means to manage student behavior. Your are also immediately directed to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the above documents. The infraction, Case Number E-02750, was substantiated by students' statements. You are hereby officially reprimanded for violating your professional contractual responsibilities in that you grabbed the student's arm to remove her from class. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are hereby directed to implement approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. The reprimand was signed and dated (November 18, 1999) by Respondent. Respondent failed to complete the "prescription plan activities" set forth in the First Report by the November 22, 1999, deadline. On December 8, 1999, Respondent was formally observed in her classroom by Ms. Henry, who, like Mr. Meehan, is a certified TADS observer. Ms. Henry rated Respondent deficient in "knowledge of subject matter" (Categories II.B.2. and 3.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1.,3., and 4.); "techniques of instruction" (Categories IV.A.2. and 3. and F.1. and 3.); and "assessment techniques" (Categories VI.A.2., 3., and 4. and B.2. and 3.). These unsatisfactory ratings were justified. Following Ms. Henry's December 8, 1999, observation, she completed a "record of observed deficiencies/prescription for performance improvement" (Second Report), a copy of which was provided to Respondent. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.2., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The sequence of information presented was not logical. The teacher's lesson for the entire two hour block involved a test on vocabulary words, a bell shaped curve drawn on the chalkboard with the words "exposition," "climax" and "resatution (resolution)" around it, and an FCAT assignment for students to answer questions from pages 48, 49, and 50. Before one activity was completed, the teacher moved on to the next and then back again. This vacillation between activities was continuous throughout the lesson. At no point did the teacher attempt to establish a connection between elements of the lesson. There was no meaningful framework established by the teacher in which students could relate one component of the lesson with another. PRESCRIPTION PLAN ACTIVITIES The teacher will observe Ms Hayes' class during period 4 and summarize the instructional activities, techniques and strategies used by the teacher. The teacher must submit her observation in typed form to Ms. Henry, the principal. Elois Hayes, a language arts instructor at Carol City, and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to help to improve her performance in Category II.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.3, and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher failed to select or incorporate important dimensions and applications of the subject to make the lesson meaningful to learners. Without preparation or warning the teacher began to call loudly four words to students to write down. After much student confusion about the vocabulary words, the teacher then drew a bell shaped curve on the board and asked students to read a story and write down the exposition, climax, and resolution. Shortly after assigning this activity, the teacher wrote another assignment on the board and instructed students to answer questions from the assigned pages. The classroom activities required only copying answers and writing responses to questions on paper. At no time did the teacher provide examples or explanations nor did she attempt to engage the students in any meaningful or relevant activities. The lesson presented by the teacher demonstrates limited knowledge by the teacher in selecting activities that required higher order thinking skills such as reasoning, synthesis, comparison, or evaluation. PRESCRIPTION PLAN ACTIVITIES The teacher must plan and present lessons on different cognitive levels beginning with information that is knowledge based and extends to the highest level which is evaluation. All lessons should be introduced, presented on two or more cognitive levels and summarized by the teacher. The teacher must prepare appropriate lesson plans which must be submitted and discussed with Ms. Henry, the principal. Ms. Henry was listed in the Second Report as a "recommended resource" Respondent could draw upon to improve her performance in Category II.B.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.4., and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Subject matter was not presented at more than one cognitive level. The entire lesson was presented on the knowledge level. The instructional activities were limited to copying from the chalkboard. To entice students to copy or write assignment, the teacher instructed the class that each student would get three A's for the assignments. There were no other techniques used to encourage higher order thinking skills. PRESCRIPTION PLAN ACTIVITIES The teacher must meet with her department chairperson and media specialist to review lesson plan objectives, activities and supplemental materials that incorporate higher levels of reasoning in her lesson plans. The teacher must submit and discuss her lesson plans with Ms. Henry on a weekly basis. Ms. Henry, Ms. Howard, and Elaine VanNostrand, a media specialist at Carol City, were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.2., and directed Respondent to engage in and complete by January 6, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were constant unnecessary delays and disorderly behavior by both the teacher and students. The teacher began class by calling out vocabulary words during which time she stopped several times to threaten students about their behavior and about not taking the vocabulary test. She repeatedly told students, "Go to the office and get your class changed, if you don't want to be in here." Students talked loudly, moved freely around the classroom and yelled out answers to the vocabulary test. Approximately 9 to 12 students refused to do anything. Confusion resulted from the lack of clear directives being provided by the teacher. Time was wasted when the teacher argued with students, repeatedly yelled out the same vocabulary words to students, and passed out literature books to individual students who asked in confusion, "What words? What page? What are we doing? What story are we supposed to read? I don't know what you are talking about." So much time was wasted that the entire class became chaotic and neither teaching nor learning occurred. Approximately 65 to 75 minutes of instructional time was lost to unnecessary delays. PRESCRIPTION PLAN ACTIVITIES The instructor will invite her department chairperson to observe her class. During that time the visitor is to record the time the instructor spends on various activities while in class. Using the data, the instructor will then analyze her instruction on the basis of how much time she spends on instructional versus noninstructional activities. Once that information is known, the instructor will develop strategies to reduce her percentage of noninstructional time while in class. The instructor will type a summary of the results of this exercise. She will submit the material to Ms. Henry for review and discussion. Ms. Howard and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the allocated time period. The lesson attempted by the teacher ended at 1:40 p.m. while the students continued to do whatever they chose to do until 2:30 p.m., which was the time the class was scheduled to end. There was drumming and dancing, students playing church, students walking and socializing individually and in groups, hair combing, 4 to 5 students sleeping at various times and students who just took a break from misbehaving. Their teacher made no attempt to regain control of the classroom or to continue with the instructional activities. Instruction stopped 40 minutes before the scheduled end of the class. PRESCRIPTION PLAN ACTIVITIES The teacher must develop a seating chart for each class and use the seating chart to help maintain classroom management. The teacher must also make parental contacts and keep a log of all contacts made or attempted. The seating chart and parent contact log must be submitted to Ms. Henry for review and discussion. "Seating Chart," "Parental Contact Log," Student Service Staff," and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by January 8, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use non-verbal techniques to redirect off-task learners. Twenty-three students were present during the lesson. Of that number, 19 students in the classroom exhibited constant off-task behavior that lasted throughout the class period. Students were constantly observed walking around the classroom, drumming on desks, combing their hair, playing with the television, yelling, singing and dancing. The entire class was in a state of frenzy. The teacher did not use non-verbal techniques such as proximity, clapping or facial expressions, to redirect students to the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record the number of times she identifies and responds to off-task behavior. The teacher will also analyze her instruction and lesson plans to devise a strategy to significantly reduce the frequency of off-task behavior observed in her classroom. The teacher will submit her seating charts and strategy to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by January 4, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Constant and persistent off-task behavior was noted in this teacher's classroom. Students were observed talking, walking around the room, sleeping, singing, drumming on desks, dancing and playing with the television. Although the teacher yelled our commands and threats for behavior to cease, the behavior reappeared quickly once the teacher's attention was redirected to someone or something else. At 1:40 p.m. the teacher seemed defeated. She sat at her desk and attempted to address the assignments with students who were standing around her desk amidst total confusion. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will submit the seating charts with the recorded instances of misbehavior to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by January 13, 2000, the following "prescription plan activities" reasonably designed help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior were not established or clear to the students. Throughout the class period, 80% of the class were talking, walking around the room, yelling at other students or the teacher, singing, drumming on desks, dancing, combing hair, or turning on the television. The noise level was so high that the teacher had to yell to make a point. At one time the teacher walked over to the observer and said, "I guess you are happy. This is what happens when you bribe students in order to fire me." The teacher also advised students by stating, "Find a spot on the wall and talk to it and don't ask me anything." Other than yelling out commands to sit down, be quiet or threats to get out of the class, recurrent inappropriate behaviors were allowed to occur without consequences. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. The assertive discipline plan will be submitted to Ms. Henry for review and discussion prior to implementation. Ms. Henry and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.3., and directed Respondent to engage in and complete by January 10, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly by this teacher. Students were observed in various acts of off- task behaviors. The behaviors would sometimes persist until students became tired of that misbehavior and moved to another inappropriate behavior. The teacher appeared angry and overwhelmed with students' misbehavior. Off-task behavior was not dealt with quickly. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave and the resulting consequences imposed by the teacher. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The charts and the resulting analysis will be submitted to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by January 7, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this teacher. Students were observed throughout the class period engaging in inappropriate behaviors. In certain instances, the teacher responded in anger yelling out a command to sit down or stop talking. As soon as the teacher's attention was diverted to another off-task behavior or question, the behavior challenged earlier would return. No consequences were ever imposed by the teacher when she addressed any particular behavior. PRESCRIPTION PLAN ACTIVITIES Using outside resources, the teacher will identify and describe, at least two additional behavior management techniques which have been shown to be effective in the classroom. Using the information obtained, the teacher will devise a written plan to significantly reduce the frequency of inappropriate behavior in [her] classes. The teacher will submit this information to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.2., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructional methods employed by this teacher were not appropriate for the needs and abilities of the learners in the classroom. The teacher began the class by saying, "You are going to have a vocabulary test." Students were confused as to what vocabulary test they were to take, while some students stated that, "You never assigned us any words to study." After much confusion, the teacher yelled out four vocabulary words for students to write down. While students were copying vocabulary words from each other, the teacher hurriedly drew a bell curve on the chalkboard, wrote three words around the bell curve and asked students to find a sentence in the story that related to each of these words. Again, students informed the teacher that the class had not read the story. The teacher continued with this assignment by asking students to get a literature book. The teacher then began to vacillate between the vocabulary words and the bell curve relating to the story. Later, in the class period, the teacher wrote another assignment on the chalkboard which required students to answer question from the FCAT booklet. Students became frustrated, inattentive and disengaged with the lesson. PRESCRIPTION PLAN ACTIVITIES The lesson plans will reflect at least (3) different methods of delivering each lesson. The teacher will review the plans and methods with Mrs. Howard and Ms. Henry prior to their delivery. Ms. Henry and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The only materials used by the teacher were the chalkboard, textbook and FCAT workbooks. Supplemental materials such as handouts, computer assisted instruction, textbook glossary of words or dictionary and/or sticky notes were not employed to bring variety to the lesson and stimulate students' interest. The off-task behaviors manifested by students were the consequences of the teacher's failure to use a variety of materials. The instructor's limited use of basic curriculum materials was not appropriate for the needs and abilities of the learners in this class. PRESCRIPTION PLAN ACTIVITIES The instructor will meet with her department chairperson and the director of the Media Center in order to obtain assistance in finding supplementary materials that may assist her in her endeavors to instruct her English classes. The instructor will list the materials available and develop a plan to utilize some of these materials in her classes. The instructor will submit a copy of the list and the plan to Ms. Henry. The instructor will discuss the plan with Ms. Henry prior to implementation. Brenda Harrell, a media specialist at Carol City, Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.1., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not establish the necessary background for the lesson. She began the lesson by calling out vocabulary words. A majority of the students informed the teacher that they had not been assigned any vocabulary words for study. The next assignment required students to use a short story to respond in writing to the three words (exposition, climax and resolution) written around the bell shaped curve on the chalkboard. The teacher insisted the students had read the story. Students likewise indicated that they had not read the story because of an incident relating to the teacher's stolen purse on the day they should have read the story. Next, the teacher placed another assignment on the chalkboard from the FCAT booklet. It was apparent from the students' responses that there was no background or prerequisites for the lesson nor did the teacher facilitate students' understanding of the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher must prepare lesson plans that require more than student centered activities involving reading, writing, and copying answers from a textbook. The teacher must prepare lesson plans that are teacher/student centered and provide for the various levels of cognitive learning. She must also include activities that will motivate students to participate in the lesson. The lesson plans must be submitted to Ms. Henry prior to their implementation. "Lesson Plans," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.1 The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.3., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher presented three different lesson components which were not appropriately sequenced during the class period. She began the lesson with four vocabulary words which [were] not related to any lesson. It appeared that the sole purpose of this exercise was to give the students a test. The next assignment was for students to find a sentence in the story that related to words written around a bell curve. Several students asked, "What story?" Other students informed the teacher that they never got to read the story because of her stolen purse. The teacher ignored the students' comments and proceeded with the assignment amidst confusion. In the last assignment, students were instructed to answer questions on certain pages from the FCAT booklet. Because of the lack of appropriate sequencing in the lesson components, students were unable to understand the lesson presented. PRESCRIPTION PLAN ACTIVITIES The teacher will include in her lesson plans the sequence in which the components of the lesson will be presented. The teacher will also include in her lesson plans at least three (3) different methods of delivering each lesson. The lesson plans will be submitted to Ms. Henry for review and discussion prior to implementation. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not solicit responses or demonstrations from students. Students were asked only to write their responses to vocabulary words, to write sentences [with] words listed on the bell shape[d] curve and to write answers to question[s] from the FCAT booklet. At no time did the instructor ask students for a verbal response nor did she ask them if they understood the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will solicit informal responses from individual students as well as assessing students in a group. The teacher must also assess student demonstrations of the instructional objectives. This assessment must be properly labeled and dated in the gradebook. A weekly review will be made by Ms. Henry. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Multiple levels of learning were not monitored. The teacher did not appear to monitor any level of learning. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least two (2) class activities each week that require[] multiple levels of assessment of students' performance. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION A review of the teachers' gradebook and students' folders revealed only two to five teacher graded assignments. There was no documented nor observed activities in which students evaluated their own or each others' performance. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least one (1) class activity each week that requires students to assess their own classwork or the classwork of another student. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use a variety of assessment techniques to assess students' performance. A review of the gradebook revealed that only two to four grades had been recorded since the beginning of the school year. A review of students' folders revealed only two to three papers filed with dates [of] September, 1999. During the observation period, students were only required by the teacher to provide written responses to assignments. Most students did not complete the assignments. Of the 23 students present only 3 submitted papers for the FCAT assignment while 6 did so for the reading assignment and 17 for the vocabulary quiz. The teacher made no attempt to assess students' progress other than collecting papers at the end of the class. There was no evidence in the gradebook or student folders of unit tests, projects, homework, etc. PRESCRIPTION PLAN ACTIVITIES The teacher will present to Ms. Henry on a weekly basis her gradebook and sampling of students' folders showing classwork and the teacher's assessment of that classwork. The teacher must also properly label grades in the gradebook according to the assignment and date. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete "weekly on Friday," from January 3, 2000, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were no summative assessments reflected in students' folders nor in the teacher's gradebook for the period of August 31 through December 8, 1999. There were only two to four grades recorded for her five classes during the above period. There were no unit test[s] with a variety of test items. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a unit test which will include the following: 20 multiple choice question[s] 10 matching items 5 fill in the blank items 2 essay questions Submit to principal for review prior to testing of students. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. Respondent failed to timely complete the "prescription plan activities" set forth in the Second Report. On January 19, 2000, Ms. Henry presented Respondent with a memorandum advising Respondent that she was being "granted 24 hours to complete" these activities and that "[f]ailure to comply w[ould] result in disciplinary action." On January 25, 2000, Respondent was again formally observed in her classroom by Mr. Meehan. Mr. Meehan rated Respondent deficient in "preparation and planning" (Categories I.A.1. and 2. and B.1. and 2.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1. and 4.); "techniques of instruction" (Categories IV.B.1.,2., and 3.); and "assessment techniques" (Categories VI.A.1., 2., and 4 and B.2. and 3.). These unsatisfactory ratings were justified. Following Mr. Meehan's January 25, 2000, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (Third Report). The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have written lesson plans for the lesson presented. She did not have a stated objective, a homework assignment, activities or a means of monitoring student progress. PRESCRIPTION PLAN ACTIVITIES The instructor will develop weekly lesson plans containing objectives, activities, homework, and a means of monitoring student progress. She will submit the plans to Mr. Meehan for review and discussion on each Friday prior to their implementation. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The objectives of the lesson were not based on nor did they go beyond the Competency Based Curriculum or the Sunshine State Standards. Since there was no written lesson plan and learning outcomes were not communicated to students, it was difficult to decipher what the instructor was attempting to accomplish. When preparing to distribute a handout to students at the beginning of the period, she stated, "These are the wrong ones." She distributed them anyway. Since there weren't enough copies, she said, "You'll just have to share. Students worked on these handouts for approximately one hour. She then sent two students to leave the room to get workbooks. Without explanation, she assigned page forty-one. Students worked on this assignment for approximately thirty minutes. Neither of these assignments was reviewed nor evaluated. Students were given free time for the remainder of the period. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare detailed lesson plans with objectives based on the Competency Curriculum and the Sunshine State Standards. She will review these plans with Ms. Howard, Language Arts Chairperson, on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson presented by the instructor did not fill the allotted time with prepared content and instructional activities related to objectives. The first hour of the period was consumed on a vocabulary puzzle. The next thirty minutes were spent on a spontaneous assignment given from page forty-one of a workbook. Neither assignment was reviewed. The remainder of the period was given as free time. PRESCRIPTION PLAN ACTIVITIES When preparing her weekly lesson plans, the instructor will divide the time allotted for each period into thirty minute intervals. She will them state the specific activities that will take place within each of these intervals. She will discuss these timelines with Ms. Ann Howard on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION In the absence of a lesson plan, the instructor distributed puzzles and gave an assignment from a workbook. The remaining portion of the class was assigned as free time. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard, regarding how to best utilize the time allotted in block scheduling to plan her classes. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the class period. The instructor stated that she wanted to close the period by allowing students to watch thirty minutes of television but could not because Mr. Meehan was in the room. She assigned free time instead. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding how to utilize the final thirty minutes of a two hour block to enhance student learning. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Woltch was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category III.A.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use non-verbal techniques to correct off-task behavior that was evident throughout the class period. Many of the twenty-eight students in attendance were off-task for significant periods of time. During the portion of the class when students were given classwork, three students in rows B and C read Spider Man comics, while the two students in the front of row A worked on unrelated assignments. Two students in the last seats of the middle rows of the classroom slept in each other's arms. A student in front of them drew on the arms of the student next to him. Another student in the middle of row B slept and one in the front of row C played the drums on his desk. During the entire two hour block, students left their seats to walk around the room, talk, and play. The off-task behavior was so extensive that the instructor accused the observer of collaborating with students to cause distractions. A student named Torrey stated, "Mr. Meehan, Ms. Abril thinks we're down." The student in front of row A told the instructor, "They don't do that." The instructor never attempted to return students to task by the use of non-verbal techniques such as eye contact, clapping, silence or proximity. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Julie Fehr's class to see how she uses non- verbal techniques to deal with off-task behavior in her classes. She will then discuss with Ms. Fehr the techniques observed. The instructor will type a summary of her discussion and submit it to Mr. Meehan for review. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use techniques to maintain the attention of learners who were redirected. At times during the period more than thirty-three percent of the students were off-task. Students were engaged in activities not associated with the lesson. They talked, sang, slept, and worked on unrelated assignments. The instructor attempted to verbally redirect some students, but their off-task behavior was not revisited and therefore resumed when the instructor turned her attention elsewhere. One young man in row B was corrected for using a Game Boy. He began to read a comic instead. His off-task behavior was not revisited and continued uninterrupted. He proceeded to share his comics with those around him. A young man named Torrey was told to get back to his seat after walking to the side of the room to see his reflection in a mirror. When he returned to his seat, he began to sing. His off-task behavior was never revisited. Verbal and non-verbal techniques to maintain the attention of redirected learners were not evident in this instructor's classroom. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Theodora Woltch's class to observe how she deals with off-task student behavior. The instructor will prepare a typed summary of this observation and develop a plan to incorporate some of the strategies she learned to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review prior to implementation. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The inappropriate behavior manifested by students throughout the class period indicated that expectations about behavior were not made clear to learners. When seeking clarification about the puzzle assignments, students repeatedly blurted out questions without raising their hands. No standardized procedures were established for students to turn in their assignments. Some walked to the front of the room while others passed their papers to students in front of them or beside them. Students left their seats at will to walk around the room or open the classroom doors. With five minutes remaining in the period all of the students, except one, left their seats to go to the door. Some pushed the door open while others tried to close it. These inappropriate behaviors indicated that expectations about behavior had not been communicated previously. PRESCRIPTION PLAN ACTIVITIES The instructor will establish a set o[f] rules regarding appropriate student behavior and classroom procedures. She will type these rules and discuss them with Mr. Meehan before posting them around her classroom. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this instructor. Of the twenty-eight students present in the classroom more than 50 percent walked in late, thereby disturbing students attempting to do the puzzle assignment. Nothing was said by the instructor. Neither the students in rows B and C who began singing, "I'm a Soul Man," nor the students in row A who began singing an unidentified song, were given consequences as a result of their misbehavior. The instructor made no attempt to subdue or control the constant buzz created by students talking and yelling to each other across the room. Most of the students present contributed to this noise which lasted the entire two hour period. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. In addition, the teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The teacher will submit this information to Mr. Meehan for review and discussion. The "Assertive Discipline Handbook" and Mr. Meehan were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about weaknesses in their performance. The assignments for the class period were a puzzle and page forty-one of the "Buckle Down" workbook. These assignments were neither reviewed nor corrected during the class period. Since the instructor failed to monitor the performance of students as a group or individually, she was not able to provide feedback regarding inadequacies in their work. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback regarding their inadequacies. She will type a summary of the interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about strengths in their performance. The instructor failed to monitor the performance of the students on any of the assignments during this class period. She was therefore unable to acknowledge good work and adequate performance. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback about their good work. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION No suggestions for improving student performance were made by the instructor during the class period. The instructor neither orally reviewed the answers to the assignments nor individually corrected student work. Consequently, she could not make suggestions for improving student performance and an opportunity for enhancing student learning was lost. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard about how learning is enhanced when suggestions for improvement are specific to the learner and the learning task, and when they are communicated in a way that encourages continued effort. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION During this two hour class period there was no formal or informal examination of pupil work by the instructor. She made no attempt to periodically assess student progress by moving about the room making appropriate observations and asking pertinent questions. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding making informal assessments of student work by moving about the room and asking probing questions. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not solicit responses or demonstrations from pupils relative to instructional objectives. She did not ask questions that reflected lesson content nor did she require students to demonstrate what they learned. There were no informal assessment techniques used by the instructor during this class period. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding various ways to informally assess student work by having them demonstrate what they have learned during the class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have students evaluate their own and/or each other's performance. She did not request that learner's work together on checking each other's work or that pupils check their own responses against answers in the book or on the chalkboard. There was no assessment of student learning and progress made during this lesson. PRESCRIPTION PLAN ACTIVITIES The instructor will discuss with Ms. Ann Howard, Language Arts Chairperson, the advantages of having students grade their own work or each other's assignments during a class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION An examination of student folders revealed no evidence that more than one kind of assessment was made during the second quarter. Formative assessments such as a library classwork assignment and one quiz were found in some folders but there was no indication that any summative assessment was made during the second nine week grading period. PRESCRIPTION PLAN ACTIVITIES The instructor will read an article from an educational textbook or journal regarding formative and summative assessments. She will type a summary of this article and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Harrell were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Student folders did not indicate that adequate and sufficient summative assessments were made by the instructor during the second nine week grading period. There was no evidence of a summative assessment that included essay questions or performance tasks which are required of students to pass the FCAT examination. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Julie Fehr regarding types of essay questions and performance tasks that should be included in ninth grade English assessments. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. On January 27, 2000, Ms. Henry held a conference- for-the-record with Respondent to discuss Respondent's failure to complete the "prescription plan activities" set forth in the First and Second Reports. Also present were Craig Speziale, an assistant principal at Carol City, and United Teachers of Dade representatives. At the conference, Ms. Henry reviewed the First and Second Reports with Respondent and admonished her for not completing the "prescription plan activities" set forth in these reports, which, she informed Respondent, she considered to constitute insubordination for which Respondent would receive an unsatisfactory rating in the seventh TADS category, professional responsibility. Ms. Henry subsequently completed a "record of observed deficiencies/prescription for performance improvement" (Fourth Report), in which she rated Respondent deficient in Category VII.B. based upon her "fail[ure] to comply with prescriptive activities and timeliness as outlined in the [First and Second Reports]" and directed her to complete all of these "prescriptive activities" no later than February 16, 2000. A copy of the Fourth Report was provided to Respondent on January 31, 2000. On that same day, January 31, 2000, Mr. Meehan directed Respondent to report for a "post-observation conference" to discuss the Third Report. Respondent refused to go. Respondent was formally observed in her classroom for a final time on February 18, 2000. This observation was conducted by Ms. Henry. Ms. Henry justifiably found Respondent to be deficient in "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," and "assessment techniques." Because Respondent's 90-day "performance probation period" had expired without Respondent having corrected her performance deficiencies, and Ms. Henry therefore intended to recommend Respondent's termination, the report that Ms. Henry completed following the observation (Final Report) did not contain any additional "prescription plan activities" for Respondent to complete. The "prescription plan activities" described in the First, Second, and Third Reports were not completed by Respondent. On February 19, 2000, the day following Ms. Henry's formal observation of Respondent, Respondent was absent from school. Respondent telephoned the school to notify the administration of her absence, stating that she had injured her ankle and foot on February 17, 2000, and that she did not intend to return to work until after she had been seen by a doctor. Respondent never returned to work. (She did go to Carol City, however, on February 25, 2000, to pick up her pay check. During this visit, Respondent was asked to sign the Final Report, as well as a written recommendation for her termination that Ms. Henry had prepared and sent to the regional and district offices on or about February 22, 2000. Respondent refused to sign these documents.) By letter dated February 24, 2000, the Superintendent of Schools advised Petitioner that, pursuant to Section 231.29, Florida Statutes, he was recommending that the School Board, at its March 15, 2000, meeting "terminate her employment contract as a teacher, effective at the close of the workday, March 15, 2000 . . . because [she had] failed to satisfactorily correct identified performance deficiencies during [her] 90-Calendar Day Performance Probation and [because of her] gross insubordination." In his letter, the Superintendent further informed Respondent that she could contest his recommendation by requesting, within 15 days of her receipt of the notice, a hearing on the matter. Respondent requested such a hearing. Respondent was suspended without pay pending the outcome of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the ground set forth in Count I of the Notice of Specific Charges ("Unsatisfactory Performance"). DONE AND ENTERED this 8th day of September, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 8th day of September, 2000.
Findings Of Fact Prior to his dismissal in December, 1983, respondent had worked as a custodian for the School Board for over eight years. Since 1976, he had been a custodian at Gulfview Junior High School. At Gulfview Junior High, he worked the 2:00 p.m. - 10:00 p.m. shift, except for summer vacation periods, when he worked the 7:30 a.m. - 4:00 p.m. shift. During the 1981-82 and 1982-83 school years, respondent's work record for attendance and punctuality was less than satisfactory. The principal of Gulfview Junior High, Arthur J. Palin, noted on respondent's 1981-82 performance evaluation that improvement was needed in job attendance and punctuality. The principal noted that, in case of absence, phoning the school prior to report-in time would enable a substitute to be found. On many occasions, respondent had failed to comply with this requirement. Respondent, despite prior warnings not to leave work early without permission, repeatedly did so. Finally, on February 11, 1983, Principal Palin notified him, in writing, of various deficiencies in his job performance and the need for dramatic improvement. Specifically, respondent was notified that since September, 1982, he had left his job early on 18 different occasions without excuse or explanation; that he had been seen (and spoken to about) watching television, reading newspapers, and spending long periods of time on the telephone and engaging in personal activities during working hours; and that the area of the school which he was responsible for cleaning was the only one which had received negative comments during the last plant inspection. The Principal ended the memorandum by advising respondent that "Unless all actions on your part dealing with the above cease immediately, I will not recommend you for continued employment for the 83/84 school year." (petitioner's Exhibit 1) Respondent signed the memorandum, acknowledging receipt. The principal reinforced this warning with several verbal warnings that respondent needed to improve his work performance. The written warning notice resulted in a marked, though short-lived, improvement in respondent's work performance. Between February 11, 1983 and May, 1983, respondent reported to work on time, did not leave early, and received no unsatisfactory reports. (Deposition of Palin, p. 33) On May 5, 1983, Mr. Hogan, respondent's immediate supervisor, inspected C-Wing of Gulfview Junior High (respondent's area of responsibility) and found discrepancies such as dirty floors, lack of dusting and dirty window sills. On May 5, 1983, respondent failed to report to school and failed to timely report his absence. On May 10, 1983, Principal Palin gave respondent his 1932-83 school year performance evaluation, which was accompanied by another written notice. The evaluation graded him less than satisfactory in categories of Utilizes Time Efficiently ("does not follow regular routine; spends time on task(s) of personal nature and not on assigned job. . ."); Attendance ("absent far too often"); Punctuality ("arrives late or leaves early on many occasions.") Other areas of needed improvement were also identified. Respondent signed the evaluation, indicating it had been discussed with him, but expressed--by check mark--his disagreement with its content. The warning notice of the same date advised that he had been absent on March 5, 1983 without informing the school and that, because of that and numerous other similar incidents, "I must inform you that if you fail to notify us of your absence in the future, I will not recommend you for reemployment or will ask for your resignation." (petitioner's Exhibit 3) Despite respondent's assertion to the contrary, the evidence convincingly demonstrates that he was repeatedly warned, both verbally and in writing, of deficiencies in his attendance, punctuality and quality of work; that he knew the correct procedure for reporting absences; and that he knew that, absent dramatic improvement, his continued employment with the school system was in jeopardy. In September, 1983, Principal Palin met with his custodians, including respondent, and specifically warned them that they were not to leave work early without permission. On November 23, 1983, respondent requested permission to leave work early; but when Principal Palin denied his request, respondent left work early anyway. The quality of respondent's work and his responsiveness to his supervisor's requests, continued to deteriorate. On September 30, 1983, an inspection of his work area revealed dirty walls, dirty fixtures, dirty windows, and bugs in light fixtures. On October 20, 1983, Mr. Hogan asked him to change the light fixtures in a classroom; when he did not do so, Mr. Hogan changed them himself. In November, 1983, respondent ignored his supervisor's request to clean bugs from light fixtures prior to an inspection. On each of these occasions, respondent was warned verbally if not in writing, of his work deficiencies. These deficiencies--together with further observations of respondent reading newspapers and watching television during working hours, complaints by teachers about the condition of their rooms; and continued reports by supervisors of respondent's deteriorating work--led Principal Palin to recommend to the Superintendent of Schools that respondent be dismissed. These grounds have been substantiated by the evidence and provide a sufficient basis for respondent's dismissal. On November 30, 1983, after being informed of the charges against him and of the principal's recommendation that he be dismissed, respondent threatened Mr. Hogan, his supervisor: "If anything happens and I lose my job, you are going to pay." (petitioner's Exhibit 21, testimony of Hogan)
Recommendation Based on the foregoing, it is, RECOMMENDED: That respondent be DISMISSED from his employment, effective January 4, 1984, on grounds of neglect of duty, excessive absenteeism, misconduct, and insubordination, and that the charge of immorality be dismissed. DONE and RECOMMENDED this 2nd day of November, 1984, in Tallahassee, Florida. R. L. CALEEN, JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1984. COPIES FURNISHED: Abbey G. Hairston, Esquire 3323 Belvedere Road West Palm Beach, Florida 33402 Hyman Borax Dawn P. Bonard Post Office Box 449 Boynton Beach, Florida 33435 Thomas J. Mills, Superintendent School Board of Palm Beach County 3323 Belvedere Road West Palm Beach, Florida 33402
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 The issue presented is whether Respondent is guilty of the allegations in the Complaint and Notice of Hearing filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent began his employment with Petitioner on October 25, 1977. For the last 13-14 years, he has been employed as a head custodian. On August 24, 1994, he was demoted from his position as the head custodian at Fulford Elementary School to the rank of custodian. Several days later, he was assigned to a high school where he has been employed as the acting lead custodian, a rank between custodian and head custodian. During the 1993-94 school year while Respondent was employed as the head custodian at Fulford Elementary School, a conference for the record was held on November 30, 1993, to discuss Respondent's work performance, his alleged gross insubordination, and his future employment with Petitioner. At that conference, Principal Pope and Assistant Principal Galgano discussed specific instances of their dissatisfaction with the manner in which Respondent maintained the yard at Fulford Elementary. Respondent was specifically advised that further deficiencies in his performance and further acts of gross insubordination would not be tolerated and could lead to further disciplinary action, including non-reappointment. On December 15, 1993, Respondent was issued a written reprimand for the reasons discussed during the November 30 conference for the record. That document entitled "Reprimand for the Record" states, in part, as follows: You are hereby officially recommended [sic] for gross insubordination and your inadequate work performance as a head custodian that refuses to perform his job description and job assignment. On that same date Principal Pope gave Respondent eleven written directives regarding his job duties in maintaining the yard, attending training, and using his walkie-talkie. On February 23, 1994, Principal Pope issued a memorandum to Respondent complaining that Respondent had arrived at work late on January 31 without giving her an explanation. On March 2, 1994, Principal Pope issued a memorandum to Respondent noting that on Saturday February 26, when the teachers and staff and their families worked in the school yard weeding and planting, the "yard had not been picked up nor had the lawn been mowed". That memorandum contained 9 directives. On March 24, 1994, the Director of Petitioner's Department of Plant Operations issued a memorandum to Principal Pope questioning the leadership of Respondent as head custodian and noting that Fulford Elementary School could be kept cleaner. On April 15 Assistant Principal Galgano and Respondent performed a quality assurance audit at Fulford, noting that some of the classrooms, corridors, and grounds were not maintained properly. By memorandum dated April 18 Respondent was directed to better supervise the other custodians and improve the appearance of the courtyard. By memorandum dated May 13, 1994, Assistant Principal Galgano directed Respondent to perform specific tasks in the school yard. By memorandum dated June 7, 1994, Assistant Principal Galgano wrote to Principal Pope, noting her May 13 memo to Respondent, noting that Respondent had to work overtime to prepare the grounds for visitors on May 25, and noting that Respondent had "shedded [sic] paper" while mowing the lawn in preparation for visitors to the school on June 3. On June 29, 1994, a conference for the record was conducted to address Principal Pope's recommendation that Respondent be demoted from head custodian to custodian. During the 1993-94 school year Fulford Elementary School was allocated 4.5 custodians according to Petitioner's formula. Yet, Fulford Elementary only employed 3 full-time custodians, including Respondent. A part-time person helped in the cafeteria for some undisclosed portion of that school year. Principal Pope determined which custodians worked which shift and the specific duties assigned to each. During the 1993- 94 school year Respondent was the only custodian at Fulford assigned to the 7:00 a.m. shift which ended at 3:30 p.m. The other 2 custodians, whom Respondent was responsible for supervising, worked the night shift which began at 3:00 p.m. They were responsible for cleaning the classrooms, offices, bathrooms, corridors, and the remainder of the school facility. As the only custodian on the day shift at Fulford, Respondent was responsible for disarming the alarm, unlocking the building in the morning, and "policing" the grounds. He also unlocked specific classrooms for substitute teachers. He also set up the cafeteria and worked in the cafeteria during breakfast removing trash, wiping tables, and washing the floor. After the cafeteria was clean, he was free to do his yard work until lunch time when he returned to the cafeteria to work there, removing trash and washing the floor and tables. In addition to his cafeteria and yard duties, however, Respondent was responsible for emergency clean-ups whenever a child became sick or was incontinent. He helped unload delivery trucks. He moved furniture and cabinets for teachers and office staff. He performed any other tasks requested by the principal. Respondent carried a walkie-talkie in order that the principal and assistant principal could reach him whenever they wished. The principal paged him to perform special assignments once or twice a day as did the assistant principal. The assistant principal had no problem reaching Respondent on his walkie-talkie. The principal complained that Respondent ignored her when she summoned him on the walkie- talkie. On one such occasion, one of Petitioner's master custodians who was on site looked for Respondent and discovered that Respondent was riding a tractor at the other end of the school site and simply could not hear the principal paging him. Principal Pope asked Assistant Principal Galgano to assist her in supervising the custodians. Galgano discussed with Respondent his work performance on different occasions during the 1993-94 school year. Respondent maintained that he was doing the best he could in view of the fact that he had no one to help him. During the previous school year Respondent had also requested that someone else work with him during the day. Having only one custodian during the day shift is a deviation from the standard recommended by Petitioner's Department of Plant Operations. An employee of that Department specifically advised Principal Pope that Respondent needed help since he was the only custodial worker on the day shift. A principal can request that one of Petitioner's master custodians be sent to the school site to train that school's custodial staff. During the 1993-94 school year a master custodian was sent to Fulford on one occasion at Principal Pope's request to provide additional training for one of the custodians who worked on the night shift. On that occasion and the other time that master custodian was at Fulford he observed the yard and determined that it was "not bad." Principal Pope never requested a master custodian to assist Respondent with additional training. A different master custodian employed by Petitioner's Department of Plant Operations was present at Fulford Elementary on two occasions during the 1993-94 school year and observed the yard. On both of those days the maintenance of the yard met Petitioner's standards. Similarly, the other custodians who worked at Fulford that year observed the yard when they came to work and rated its maintenance as an "8" or a "9" on a scale with "10" being the highest score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Complaint filed against Respondent in this cause and reinstating Respondent to the position of head custodian with full back pay and benefits. DONE AND ENTERED this 31st day of December, 1996, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1996. COPIES FURNISHED: J. Michael Haygood, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite No. 562 Miami, Florida 33132-1308 Ben R. Patterson, Esquire Patterson and Traynham Post Office Box 4289 Tallahassee, Florida 32315-4289 Mr. Octavio J. Visiedo Superintendent of Dade County Schools 1450 Northeast Second Avenue, Suite No. 403 Miami, Florida 33132-1308
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 14th day of August, 2002.
The Issue The issue is whether Respondent should be suspended from employment for twenty days without pay for misconduct and unprofessional conduct in violation of School District Policies 1.013 and 1.014, Florida Administrative Code Rules 6B-1.001(3) and 6B-1.006(4)(b), (5)(a) and (5)(h), and School Board Bulletins #P-12542-CAO/COO-Count Day and Class Size Reduction Review, and #P-12519-CAO/COO-Florida Department of Education Student Enrollment Procedures.
Findings Of Fact Petitioner, Palm Beach County School Board (the Board or Petitioner), operates, controls, and supervises all public schools within the Palm Beach County School District (the District), as authorized by Subsection 1001.32(2), Florida Statutes (2008). The District School Superintendent, Dr. Arthur C. Johnson (Superintendent Johnson) is responsible for the administration, management, and supervision of instruction in the District, as provided in Subsection 1001.32(3), Florida Statutes (2008). Respondent, Dr. Gwendolyn Johnson (Dr. Johnson or Respondent) was the principal at Independence Middle School (Independence) during the 2007 to 2008 school year. In her thirty-five years with the District, Dr. Johnson was a principal for eight years, an assistant principal for eleven and a half years, a guidance counselor for approximately nine years, and, before that, an elementary and high school occupational specialist. At Independence, Respondent's assistant principals were Kathleen Carden, Martest Sheffield, and Scott Duhy. Although the projected enrollment was 1174, not the minimum number of 1201 required to justify having a third assistant principal, Dr. Johnson requested and, on May 15, 2007, received approval to keep the third assistant principal, Mr. Duhy, subject to reaching or exceeding the required enrollment by the time the count of students was taken on or about the eleventh day of school in the fall. The increase over the projection was possible because Independence was the 2007 receiving school for students whose parents transferred them from D- or F-rated schools under No Child Left Behind Act. For the 2007-2008 school year, Dr. Johnson assigned primary responsibility for maintaining a count of the student population to another one of the assistant principals, Dr. Carden. In addition to determining the number of assistant principals, the enrollment count is used by the District to determine other staffing, including the number of teachers, and guidance counselors assigned to each school. Attendance at Independence was reported by teachers each school day on bubbled attendance sheets. The sheets were scanned each day and the data stored in a computer program called the Total Education or Resource Management System (TERMS). The sheets were returned to the teachers who used them to record attendance for a two-week period before signing and submitting them, and receiving new computer-generated biweekly attendance scan sheets. On August 23, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12519-CAO/COO/FO/FTE), that any student who had never attended any period since the first day of school must have a withdrawn code entered into the TERMS program by August 27, 2007. Dr. Johnson e-mailed the Bulletin to her administrative staff and convened a meeting of that group to review it. Her secretary also e-mailed a reminder of the requirements to the staff on August 27, 2007. Teachers reported students who never attended school from the beginning of the year, the so-called "no-shows," by making handwritten notes or by drawing lines through the student's name on the attendance sheets, expecting those names to be removed from their rosters. Students who never showed up were not bubbled absent on the attendance sheets. A student aide in the student services office scanned the sheets, so the school's data processor, Angela Jones, did not see the teacher's notes and make changes in the computer. Once teachers kept getting biweekly attendance sheets with the names of no-shows and transfers on them, they started e-mailing or otherwise notifying Ms. Jones who began to keep a running list of no shows and transfers. Ms. Jones was not allowed to enter the withdrawal code in TERMS until authorized to do so by either Dr. Johnson or Dr. Carden, as shown by their e-mails. Rather than following the instructions in Bulletin # P-12519 to withdraw all no-shows by August 27, 2007, no-shows were treated like transfers and were not withdrawn until the student's new school requested their records. Dr. Johnson's claim that she was not aware that procedures outlined in the District's Bulletin of August 23, 2007, were not being followed by Ms. Jones and Dr. Carden, is not credible. She was present at the meetings in her office and her conference room, well after the August deadline, during which Ms. Jones continued to receive instructions to wait for approval to make withdrawals. On August 31, 2007, the District notified all principals, including Dr. Johnson, by memorandum (Bulletin # P- 12542-CAO/COO) that the District's enrollment count day was September 7, 2007, and that the count would be taken from TERMS. Dr. Johnson sent an e-mail to all teachers to count students, as directed in the Bulletin of August 23, by only including students who had been in attendance at least one period since school began on August 22, thereby excluding no-shows from the count. Prior to 2007, this would have been the enrollment number that the school faxed or e-mailed to the District. For the first time in 2007, the number used by the District was the number taken from TERMS summary enrollment screen that included no-shows at Independence. The District also relied on that data for its Full Time Equivalent (FTE) survey and report to the State Department of Education (DOE). The FTE count is used to determine per pupil funding by the State. The actual number of students at Independence on September 7, 2007, was 1188 but the number taken from the TERMS database and reported was 1214, a twenty-six student discrepancy that was later, after an audit, reduced to twenty-four. In October 2007, Dr. Johnson falsely verified the accuracy of the FTE survey that was, subsequent to the audit, determined to be an over-count of 23 students. Dr. Johnson testified that she verified the accuracy of the count relying on the work of Dr. Carden, Ms. Jones, Exceptional Student Education Coordinator Carol Lee, and ESOL Coordinator Ann Costillo. She denied attempting to fraudulently inflate the number to gain or maintain resources allocated by the District, but she knew there was a difference in the numbers based on a September report from Dr. Carden. She also knew that, if the teachers followed her instructions regarding how to count students, the "actual" number of 1214 from TERMS, written in by Dr. Carden, had to be incorrect. TERMS data also was uploaded to another program called Grade-Quick. When it was time to give grades at the end of nine weeks, Ms. Jones no longer had the ability to alter the rosters and teachers were required to give a grade to each student on their roster. David Shore was the Grade-Quick technical support person at Independence. At the suggestion of Dr. Johnson, he sought advice from the District's technical support person, Bruce Roland, who told him to have teachers give each no-show student a grade of "F" to avoid an error code. The uploaded grades for students who did not attend Independence, according to Mr. Roland, would be deleted from the District's mainframe. Fearing other consequences of giving "Fs," including the possibility of generating letters to parents whose children did not attend Independence, and doubting Mr. Shore's advice because he was relatively new in his position, some teachers refused to give "Fs" to no-shows. After discussions with Dr. Johnson, Mr. Shore instructed teachers to give a grade of "C" instead and to be sure also to give a conduct grade. One teacher apparently found a way to give a conduct grade, but no letter grade, to students who were not enrolled in her class and to somehow avoid a computer error code. Some time during the fall semester, anonymous complaints concerning the enrollment at Independence were made to the State Auditor General's Office, who referred the matter to an auditor in the District's office. In December 2007, the audit confirmed that the count at Independence was incorrect largely because no-shows and withdrawals were not withdrawn timely from the computer in TERMS before the District's initial count on August 27, 2007; before the District's eleven-day count on September 7, 2007; nor before Dr. Johnson twice verified the accuracy of the FTE count in October 2007. Dr. Johnson made no effort to make corrections, after she admittedly was aware of the errors in October, November, and December. Dr. Johnson blamed teachers who were unprofessional, racist, and disgruntled over her more strict adherence to the attendance rules for teacher planning and professional development days, and over proposed spending of A-plus money. She testified that they deliberately failed to bubble no-shows as absentees. That assertion contradicts the testimony of her witness that the proper procedure was followed by teachers who drew lines through the names of no-shows rather than bubbling them as absent. It also contradicts the instructions she gave in a memorandum to teachers, on October 5, 2007, telling them to write codes next to students' names on their rosters, NS for no- show, WD for withdrawn - If a student was present at least one day..., T for transfer, and A for add. Her memorandum instructs teachers to give the information to Ms. Jones on October 11, 2007. Ms. Jones said she did look at rosters for FTE reporting and she did make corrections. She too says her count was accurate at the time unless teachers withheld information. The teachers' rosters were maintained and, from a review of the class rosters, the auditor concluded that the error was made in not correcting TERMS to comply with teachers' reports. Dr. Johnson also blamed her supervisor, Marisol Ferrer, for sending a less experienced manager, Joe Patton, to attend a meeting, on October 11, 2007, with her of the Employee Building Council, a group that included some teachers who were antagonistic towards Dr. Johnson. It is true that only later did Mr. Patton recall that, after the meeting and after Dr. Johnson left, some of teachers told him there were problems with the student count at Independence. At the time, however, Mr. Patton did not tell Ms. Ferrer or Dr. Johnson about the comments. Dr. Johnson testified that, had she been told after that meeting on October 11th about the problems, she could have corrected the numbers before she submitted her verification of accuracy. She did know that Dr. Carden showed her two sets of numbers on September 7, 2007. Although she testified that she believed the fluctuations were normal because students come and go during the day for doctor's appointments or for other reasons, Dr. Johnson took no further steps to determine if that was in fact the cause of the discrepancy. After Dr. Johnson and Dr. Carden instructed Ms. Jones to begin making withdrawals after the October FTE report, some of the withdrawals were backdated showing the no-show students' withdrawal dates as the first day of school, August 22, 2007. The District submitted corrections to DOE before the deadline for incurring penalties, ultimately reducing the FTE count at Independence by 23 students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Palm Beach County, Florida, enter a final order suspending Respondent for twenty days without pay. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 16th day of April, 2009. COPIES FURNISHED: Frederick W. Ford, Esquire 2801 PGA Boulevard, Suite 110 Palm Beach Gardens, Florida 33410 Sonia Elizabeth Hill-Howard, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, C-302 Post Office Box 19239 West Palm Beach, Florida 33416-9239 Dr. Arthur C. Johnson, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, C-302 West Palm Beach, Florida 33416-9239 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-2500
The Issue The issue presented is whether Respondent Shedeidra Edge should be suspended without pay and dismissed from her employment with Petitioner School Board of Palm Beach County, Florida, for the reasons set forth in the Petition filed in this cause.
Findings Of Fact Respondent Shedeidra Edge has been employed by Petitioner School Board of Palm Beach County, Florida, since 1999. Prior to August 2006 Respondent interviewed for an opening as a secretary in the student services office at Jupiter High School. During her interview she was advised that the busiest time of the day in that office was when the students arrived at 7:00 a.m. until the first class began at around 7:30. She was advised that there would be two secretaries in that office, each of whom would be responsible for certain of the duties required in that office. Since there were four assistant principals working in that office, each of the secretaries was informally assigned to two of them to prevent all four from assigning all of their work to only one secretary. She understood that one of the secretaries would begin work at 6:45 a.m. and the other at 7:00 a.m. Respondent was offered the 7:00 a.m. starting time since she would be the first of the two secretaries for that office to be hired. Respondent advised the principal and head secretary during the interview that she did not know if she could accept a job starting at 7:00 a.m. She subsequently telephoned the head secretary and advised her that she could accept the job and that she had worked out her transportation and daycare concerns. Respondent began working as a secretary at Jupiter High School in the student services office in August 2006. From the beginning she was late arriving at work almost daily. In an effort to assist Respondent and since Respondent was only a few minutes late, the principal adjusted Respondent's start time to 7:10 a.m. Respondent started arriving even later, and the principal, thinking that a slightly-later start time would solve the problem, adjusted Respondent's start time to 7:20 a.m., starting September 11, 2006. With that adjustment, Respondent began arriving even later most mornings. By January 2007 she was arriving an hour late regularly. Although Respondent sometimes called to say she would be late, sometimes she did not. She simply came in, carrying her breakfast which she had stopped to pick up on her way to work even though she was late. The impact of Respondent's regular tardiness on the operation of Jupiter High School was negative and significant. The before-school rush of business in the student services office could not be handled by one secretary. Accordingly, when Respondent was late, an employee from another office was taken away from that employee's duties to cover for Respondent. Those employees were unhappy about having to cover for Respondent, who appeared to them to be permitted to arrive at work whenever she felt like it with impunity. One of the responsibilities of the student services office involved retrieving textbooks from students withdrawing from school and accounting for lost or missing textbooks. Since Jupiter High School had to reimburse the school district for textbooks not returned, which would, in turn, impact the School's operating budget, Kent Heitman, one of the assistant principals to whom Respondent was informally assigned, was in charge of making sure that textbooks were returned to the school before approving a student's withdrawal and release of that student's records. It was Respondent's job, assigned to her by Assistant Principal Heitman, to make the initial contact with a student's parents when a student failed to return a textbook. She was to provide the parents with the information on the unreturned textbook, including the price for the parent to replace it. She was to record the information regarding her contact in a log set up for that purpose. She was responsible for keeping that log current, along with the student obligation list of students who owed money to the school for missing or lost textbooks, utilizing information obtained from teachers and the school's cashier. Heitman told Respondent that if she had a problem with any parent as a result of the initial contact she made, she was to turn that particular matter over to him, and he would handle it. Respondent refused to make the phone calls and refused to make the required entries on the log. She took the position that it was Heitman's job to do these things and not hers. Although Respondent was counseled regularly about the need to arrive at work on time, she failed to do so. Therefore, on November 10, 2006, Dr. Paula Nessmith, the Principal of Jupiter High School, issued to Respondent a Memorandum of Specific Incident regarding her continuing late arrivals at work. That Memorandum pointed out that from Friday, October 20, 2006, through Wednesday, November 8, 2006, Respondent had arrived at work on time only once. The Memorandum further advised Respondent that her failure to comply with the directives to arrive at work on time might result in further disciplinary action. On December 4, 2006, Principal Nessmith issued a Written Directive to Respondent, advising her that she had been late all but two days from November 13 through December 1, 2006. That Written Directive further advised Respondent that her continued late arrival would constitute insubordination and result in disciplinary action up to and including termination. On December 14, 2006, Assistant Principal Heitman again directed Respondent to call parents of withdrawing students to retrieve unreturned textbooks. He sent her three e- mail directives with the same instruction on December 15, 18, and 19, 2006. On December 22, 2006, Principal Nessmith gave Respondent a Written Directive as a result of Respondent's continued failure to call parents of withdrawing students who had not returned textbooks in accordance with Assistant Principal Heitman's directives of December 14, 15, 18, and 19 and Principal Nessmith's verbal directive of December 19. The Written Directive detailed the procedures that Respondent was to follow in performing that duty. It also advised Respondent that her continued refusal to comply would be considered insubordination and could result in disciplinary action up to and including termination. On January 16, 2007, Principal Nessmith gave Respondent a Verbal Reprimand with Written Notation for failing to follow the directives given Respondent on December 4 and 22, 2006. That Verbal Reprimand advised Respondent that her continued refusal to comply would result in further disciplinary action up to and including termination. On January 17, 2007, Principal Nessmith gave Respondent a Written Directive: Textbook and Student Obligation List Procedures and Responsibilities, detailing the procedure for Respondent to follow regarding textbooks and student obligations. The Written Directive again advised Respondent that her continued refusal to perform her job duties would be viewed as insubordination and would result in discipline up to and including termination. On January 25, 2007, Principal Nessmith gave Respondent a Written Reprimand for not complying with the January 17, 2007, Verbal Reprimand with Written Notation. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since she had received the verbal reprimand and had failed to place and log telephone calls to the parents of withdrawing students who had not returned textbooks. It further advised Respondent that her continued refusal to comply with directives constituted gross insubordination and her continued failure would result in further disciplinary action up to and including termination. On February 2, 2007, Principal Nessmith issued to Respondent another Written Reprimand for not complying with the directives of January 17 and 25. The Written Reprimand noted that Respondent had arrived at work at least 40 minutes late every day since the January 25 Written Reprimand. It noted that Respondent still refused to follow the required procedures regarding unreturned textbooks as contained in the previous directives and reprimands. It noted that Respondent's continuing late arrivals and refusal to follow required procedures constituted gross insubordination, and that Respondent's failure to comply would subject her to further disciplinary action up to and including termination. Respondent continued to fail to comply. By correspondence dated March 7, 2007, Respondent was advised that a pre-disciplinary meeting to address her insubordination was scheduled. Respondent attended the meeting on March 12, 2007. At the conclusion of the meeting, the matter was referred to the Superintendent. By letter dated July 16, 2007, the Superintendent of Schools issued his Notice of Suspension and Recommendation for Termination from Employment advising Respondent that at the August 1, 2007, School Board meeting he would recommend that she be suspended without pay as of July 31, 2007, and terminated from employment as of August 15, 2007, for insubordination, subject to her timely request for an administrative hearing before the Division of Administrative Hearings. Upon the School Board's approval of the Superintendent's recommendation and upon Respondent's timely request for a hearing, this matter was referred to the Division of Administrative Hearings and the hearing was conducted as set forth above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered suspending Respondent without pay as of July 31, 2007, and terminating her employment as of August 15, 2007, for insubordination. DONE AND ENTERED this 7th day of January, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2008. COPIES FURNISHED: Arthur C. Johnson, Ph.D. Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Esquire Commissioner of Education Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Shedeidra Edge 1460 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
