The Issue The issues in this case are whether and how the Education Practices Commission (EPC) should discipline the Respondent on charges that she submitted another teacher’s work to earn an endorsement to her teacher certificate for English for Speakers of Other Languages (ESOL).
Findings Of Fact The Respondent, Kimberly Bank, holds Florida educator certificate 993098, which expires on June 30, 2018. She is certified in English and reading. During the 2012-2013 school year, she was employed by the OCPS as a reading teacher at Oakridge High School. In January 2013, the Respondent and a fellow Oakridge reading teacher named Charnetta Starr enrolled in an online course through CaseNEX to earn credit towards an ESOL endorsement to their teaching credentials. ESOL endorsements were required for their jobs. Ms. Starr completed all required course work, including participation in online discussions, journal entries, and workbook submissions, and earned credit for the course. The Respondent began the CaseNEX class, but stopped participating after a few weeks and was told by the course facilitator that she was being withdrawn from the class. The course ended on April 24, 2013. On May 2, 2013, the Respondent emailed Ms. Starr to ask her to provide the Respondent with Ms. Starr’s course work, which Ms. Starr emailed to her. The Respondent enrolled to take the CaseNEX class again during the summer of 2013. She copied Ms. Starr’s journal entries and workbook submissions from the January course and submitted them verbatim as her own work for course credit during the summer course. The submissions struck the course facilitator as being very familiar, and her investigation revealed that they were exact copies of Ms. Starr’s submissions. The facilitator reported this to her supervisor. The Respondent was again withdrawn from the class, this time for violating course prohibitions against plagiarism. The Respondent and Ms. Starr were reported to OCPS, which reprimanded them and suspended them for three days. The Petitioner initiated separate, but virtually identical administrative cases to discipline the educator certificates of both the Respondent and Ms. Starr. The Petitioner agreed to settle Ms. Starr’s case for a reprimand and $750 fine, and the EPC accepted the settlement, because Ms. Starr was not perceived to have used the Respondent’s work product, but only to have allowed her work product to be used by the Respondent. Ms. Starr testified that she agreed to the settlement but actually does not believe her actions were wrong or violations because she did not know the Respondent was going to plagiarize her work and submit it for credit. Because the Respondent was perceived to have used Ms. Starr’s work product and submitted it as her own for CaseNEX course credit, the Respondent’s administrative case proceeded, with the Petitioner seeking to fine her, suspend her educator certificate, and place her on probation. The Respondent contends that she and Ms. Starr collaborated on all of Ms. Starr’s journal entry and workbook submissions with the intention that each would submit the identical work as their own. Initially, the Respondent contended that this was permissible “collaboration” under the CaseNEX honor code and course requirements. Later in the hearing, the Respondent seemed to concede that it was against the honor code and the course’s requirement that each teacher taking the course had to submit his or her own original work. At that point in the proceeding, she seemed to be taking the position that her conduct mirrored Ms. Starr’s and that her discipline should be the same (i.e., that she should not be suspended). In her proposed recommended order, the Respondent again took the position that her conduct was permissible collaboration under the CaseNEX honor code and the course’s requirements and that no discipline should be imposed. The evidence was clear and convincing that the work submitted by the Respondent for credit in the summer 2013 CaseNEX course was not the product of collaboration between her and Ms. Starr. The Respondent testified that she and Ms. Starr collaborated by jointly doing work for the course from the very beginning of the January 2013 course with the intention of each submitting their joint work product for credit. Yet, it is obvious that the Respondent’s work submissions prior to her withdrawal from the January 2013 course were not the same as Ms. Starr’s. The Respondent testified that she collaborated with Ms. Starr throughout the January 2013 CaseNEX course. She testified that they produced joint work for them both to submit for credit in the course. She testified that after she was withdrawn from the January course, she continued to collaborate and produce joint work product with Ms. Starr, and that it was understood that the Respondent would submit the work as her own when she retook the course. The Respondent testified that she misplaced and lost her thumb-drive with a digital copy of the joint work product and asked Ms. Starr to send her a copy as an attachment to an email, which Ms. Starr did on May 2, 2013. Ms. Starr testified that the Respondent emailed her to ask for a copy of Ms. Starr’s work product from the January CaseNEX course and that Ms. Starr complied on May 2, 2013. Ms. Starr testified that this was her own personal work product, not joint work product. She denied knowing that the Respondent intended to plagiarize and submit it as her own. She testified persuasively that there were other legitimate uses the Respondent could have made of the work besides plagiarizing it. Where there is conflict between the Respondent’s testimony and Ms. Starr’s testimony, the Respondent’s is rejected as being false, and Ms. Starr’s is credited as being the truth. The evidence was clear and convincing that Ms. Starr did her own work throughout the January 2013 course. None of the work submitted by Ms. Starr for credit in the January 2013 course was produced jointly with the Respondent. If the Respondent were telling the truth, and she and Ms. Starr collaborated on their work submissions, her early submissions for the January CaseNEX course would have been identical to Ms. Starr’s. They were not. On the other hand, some of her submissions during the course she took during the summer of 2013 were identical to Ms. Starr’s submissions. For this and other reasons, Ms. Starr’s testimony was more credible than the Respondent’s when their testimony was in conflict. The Respondent attempted to attack Ms. Starr’s credibility by use of a screen shot of an incomplete and out-of- context cell phone text message exchange between them on June 13, 2013. At 11:25 a.m. on that date, Ms. Starr texted the Respondent: “OK. Did you sign up for the online modules for the $1000? Let’s start working on them so we can get paid on 7/31.” The Respondent answered: “Girl I have started. The kids do 2 hrs in the computer lab and I do the modules. They are easy but looooooong!” Ms. Starr replied: “OK. Send me any info you have for it please.” The Respondent texted: “You just watch a video and answer 2 multiple choice questions. Skip through the video and go to the questions. You can try as much as you want. There”. There was no evidence as to what preceded or followed the exchange. When Ms. Starr was confronted with the text exchange on cross-examination, she understood that it was being presented to impeach her testimony that the Respondent contacted her about providing the Respondent with their supposedly joint work product from the January CaseNEX course. In her haste to vehemently defend herself, Ms. Starr failed to realize that the text message exchange actually had nothing to do with her providing the Respondent with her work product from the January course, but was about a different course they were taking to earn bonus pay, and she testified incorrectly that it was the Respondent who initiated the text message exchange that was in evidence. The cross-examination failed to impeach the essence of Ms. Starr’s testimony. The evidence was that the Respondent is a good teacher. She performed satisfactorily both at Oakridge before the CaseNEX cheating incident and at Conway Middle School after it. Nonetheless, it is clear that her effectiveness as an employee of the school district was seriously impaired by her plagiarism and cheating on the June 2013 CaseNEX course. For one thing, she was reprimanded and suspended for three days. For another, she did not get the ESOL endorsement that was required for the job she held at Oakridge. Since the Respondent was guilty of plagiarism, and Ms. Starr was less culpable, it is reasonable for the Respondent’s discipline to be harsher than Ms. Starr’s. A period of suspension is reasonable. Based on the EPC records of discipline imposed in similar cases that were officially recognized in this case, it appears that it has been the practice of the EPC to impose a one-year suspension, in addition to a fine, probation, and a requirement to take a college-level course in ethics, for a teacher who admits to plagiarism and cheating in a CaseNEX ESOL endorsement course. In the Respondent’s case, a longer period of suspension is warranted due to the Respondent’s dispute of the charges and her false testimony.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order finding the Respondent guilty as charged, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the EPC, requiring her to take a college-level course in ethics under terms and conditions determined by the EPC, and imposing a fine in the amount of $750. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 8th day of June, 2016.
The Issue The issues for determination in this proceeding are whether Respondent fraudulently or dishonestly completed the professional orientation program required for teachers holding two year temporary certificates and, if so, what, if any, disciplinary action should be taken against Respondent's teaching certificate.
Findings Of Fact Respondent was employed as a teacher at Hickory Tree Elementary School ("Hickory Tree") in the Osceola County School District during the 1990-1991 and 1991-1992 school years. Respondent holds Florida Teaching Certificate 684324 in psychology. Respondent's teaching certificate is a two year nonrenewable certificate. All teachers certified in Florida must complete a professional orientation program before receiving a five year professional educator certificate. Teachers who do not complete the program the first year are not entitled by right to a second year to complete the program. However, they may be granted an additional year to complete the program at the discretion of the assistant principal. Credit received by a teacher in the first year is not cumulative. A teacher who does not complete the professional orientation program in the first year must satisfy all of the requirements in the program during the second year. Respondent failed to complete the professional orientation program during the 1990-1991 school year. Respondent was granted an additional year to complete the program. There are 27 Florida Essential Generic Competencies which must be satisfied in order to complete the professional orientation program. A teacher complies with each item by submitting a written document which is kept in a portfolio during the school year and evaluated by a supervisor and the assistant principal. Item 24 requires a teacher to construct or assemble classroom tests to measure student achievement of objectives. A teacher must create his or her own test to evaluate what students learned from a lesson given by the teacher in the classroom. A teacher is not permitted to use form tests or tests prepared by other teachers to satisfy this requirement. The test must be the teacher's original work. During his first year of teaching, Respondent satisfied item 24 in the professional orientation program by submitting a test that demonstrated his competency to construct or assemble classroom tests. During the second year, however, Respondent submitted a different test. Respondent submitted a test on simple machines during his second year in the professional orientation program. The test was substantially identical to a test written by Ms. Margaret Ann Walek, another teacher at Hickory Tree at the time. Ms. Walek wrote the simple machines test in a previous year to satisfy her own professional orientation program requirement. The simple machines test was written by Ms. Walek to evaluate third grade students on concepts such as pulleys, levers, and basic functions of machines. It was created solely by Ms. Walek in her handwriting and transcribed by her mentor-teacher for the ditto master before being submitted to Ms. Walek's students. Ms. Walek used the simple machines test the following year in typed form. Respondent used a copy of the same test to satisfy item 24 in his professional orientation program. The similarity in the two tests was not detected by Respondent's supervisor or the assistant principal at the time Respondent submitted the simple machines test. Respondent received a satisfactory score for successfully completing the professional orientation program during the 1991-1992 school year. In December, 1992, the assistant principal was reviewing all of Respondent's records as a result of a charge of discrimination filed by Respondent against the assistant principal after his employment was terminated for reasons not at issue in this proceeding. The assistant principal called Ms. Walek to the office. Without knowing the purpose of the inquiry, Ms. Walek identified a copy of both the ditto version of the simple machines test and the typed version as her original work. Respondent submitted evidence during the formal hearing that the allegations against him were made in retaliation for his charge of discrimination. However, Ms. Walek is no longer employed as a teacher in the Osceola County School District. She is employed in the private sector and has no discernible secondary gain for testifying on behalf of Petitioner. Her testimony on behalf of Petitioner during the formal hearing was credible and persuasive and was corroborated by competent and substantial evidence. Respondent completed the professional orientation program and obtained his teaching certificate by fraudulent means. He converted the work of another teacher and submitted it as his own in order to complete the professional orientation program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of obtaining his teaching certificate by fraudulent and dishonest means, within the meaning of Section 231.28(1)(a) and Florida Administrative Code Rule 6B- 1.006(5)(a) and (h), and suspending Respondent's teaching certificate for two years from the date of Respondent's termination of employment. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Leon County, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact All of Petitioner's proposed findings of fact are accepted in substance. Respondent's Proposed Findings of Fact Respondent did not submit proposed findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire 411 East College Avenue Tallahassee, Florida 32301 Joseph Egan, Jr., Esquire P.O. Box 2231 Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The ultimate issue to be resolved in this proceeding is whether the Petitioner should be awarded a doctor of education degree by Florida State University. Petitioner contends that he properly completed the requirements for the degree, that a valid offer of the degree was made to him, that he accepted the offer, and that the degree was then wrongfully withheld. The university contends that Petitioner did not meet the requirements for the degree and that no valid, enforceable offer of it was made to Petitioner.
Findings Of Fact In 1976, Petitioner was admitted into the doctoral program in biology at Florida State University. He applied to transfer to the science education program and was admitted to the doctoral program in science education within the College of Education at Florida State University on June 24, 1977. He was pursuing a doctor of philosophy (Ph.D.) degree. Among the requirements that Petitioner needed to meet in order to receive the degree were successful completion of a diagnostic examination, completion of thirty-six resident hours of course work, course work in the field of statistics, a preliminary examination, approval of a prospectus for a doctoral dissertation, and presentation of an acceptable dissertation and a successful dissertation defense. Following his admission into the Ph.D. program in science education, a supervisory committee was established for the Petitioner, and a major professor was appointed. It was the major professor's and supervisory committee's function to monitor Petitioner's progress and ultimately to make a recommendation as to whether petitioner should be awarded a degree. By November 7, 1980, Petitioner had completed all of the requirements for a Ph.D. degree except for the presentation of his dissertation and the dissertation defense. These were scheduled to be conducted by the supervisory committee on November 7, 1980. Petitioner had been advised by at least two members of the committee that he might not be ready to present and defend his dissertation. Petitioner felt that he was. On November 7, 1980, Petitioner met with his supervisory committee and presented and defended his dissertation. After his presentation, Petitioner left the room, and the committee evaluated the dissertation and defense. The committee unanimously concluded that the dissertation and defense were inadequate. The dissertation was not marginally inadequate. It was grossly below standards. The committee unanimously and appropriately concluded that the dissertation and defense were not acceptable, and that Petitioner had not met the requirements for a Ph.D. degree. Petitioner's major professor felt that the Petitioner had devoted considerable time, energy, and hard work to the degree program. He was concerned that the effort not be totally wasted. He requested that the committee consider accepting the dissertation as adequate for the award of a doctor of education (Ed.D.) degree or a "master's specialist" degree, and that the committee recommend that Petitioner be awarded one of those degrees or that he be allowed to continue working toward a Ph.D. degree. None of the members of the supervisory committee had had experience with the Ed.D. degree. They all considered it an inferior degree and felt that awarding it to Petitioner would constitute something of a "consolation prize." In fact, an Ed.D. degree from Florida State University is not intended to be an inferior degree. Its focus is somewhat different, but the requirements for obtaining the degree are basically the same. The committee was mistaken in considering the offer of such a degree to Petitioner. Indeed, the requirements for an Ed.D. degree being similar, and in some cases identical to those for the Ph.D. degree, Petitioner had not qualified for the award of an Ed.D. degree. After the committee adjourned its proceedings on November 7, Petitioner's major professor discussed the committee's actions with Petitioner. He told Petitioner that pending proper approval, Petitioner would have the options of continuing to work toward a Ph.D. degree, or receiving an Ed.D. or master's specialist degree. It appears that the major professor was overly sensitive about the Petitioner's feelings, and he may not have bluntly advised Petitioner that he failed his dissertation, presentation, and defense. Petitioner considered his options and told his major professor that if it was possible, he would be amenable to accepting an Ed.D. degree. The major professor contacted administrative officials and was advised that the award of an Ed.D. degree would be possible. The major professor advised the Petitioner of that and told him that pending approval from the department chairman who had charge of the science education program, Petitioner could receive the Ed.D. degree. The major professor also advised Petitioner that some revisions would need to be made in the dissertation and that the title page would need to be retyped in order to reflect that it was being submitted in support of an Ed.D. degree. Petitioner complied with the direction to retype the first page, but made only minor revisions in the dissertation. Members of the supervisory committee signed off on the dissertation as being acceptable in support of an Ed.D. degree. The matter was submitted to the department chairman. The department chairman read the dissertation and concluded that it was grossly inadequate. He determined that he would not authorize the award of an Ed.D. degree because Petitioner would need to be properly accepted into an Ed.D. program before he could be awarded such a degree, and additionally because he considered the dissertation inadequate to support an Ed.D. degree. This action was communicated to the supervisory committee. The committee met again and determined that since the Ed.D. degree could not be awarded, that Petitioner should be given failing grades for the dissertation, presentation, and defense. Prior to the department chairman's review of the dissertation, Petitioner had paid his fees and was anticipating being awarded an Ed.D. degree. Since it was not approved by the department chairman, the degree was not awarded. Thereafter, the Petitioner opted not to apply to have his work considered in support of an Ed.D. degree or master's specialist degree. He continued working toward a Ph.D. degree for approximately six months. Ultimately, he decided to drop out of the program, and he initiated this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered by Florida State University denying Petitioner's application for award of an Ed.D. degree and dismissing the Petition for Administrative Hearing. RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983. COPIES FURNISHED: John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Patricia A. Draper, Esquire Charles S. Ruberg, Esquire Florida State University Suite 311, Hecht House Tallahassee, Florida 32306 Dr. Bernard F. Sliger President Florida State University 211 Westcott Tallahassee, Florida 32306
The Issue The issues to be determined are whether Respondent, Dennis Michael Hester (Respondent or Mr. Hester), violated section 1012.795(1)(g) and (j), Florida Statutes (2011), and Florida Administrative Code Rule 6A-10.081(3)(a), (4)(b), (4)(c), (5)(a), (5)(d), and/or (5)(f), as alleged in the Administrative Complaint, with respect to his role as a Professional Development Facilitator (PDF) and English for Speakers of Other Languages (ESOL) trainer, and, if so, what penalty should be imposed.
Findings Of Fact Dennis Hester was employed by the School District as a teacher from 1994 until his termination in 2015. He was covered by the Collective Bargaining Agreement between the Duval Teachers United and the School Board for the period from 2008-2011. At the time of the events giving rise to both this case and the School Board case, Mr. Hester was assigned to Fletcher High School in Duval County as an instructional coach and a PDF. Although no direct evidence was presented on this point, Respondent admits in his Proposed Recommended Order that he holds a Florida Educator’s Certificate. Respondent’s substantial interests are affected by this proceeding. ESOL Certification Requirements The allegations against Respondent include allegations of unprofessional behavior toward colleagues and an allegation that Respondent repeatedly gave District employees credit for ESOL courses that they did not attend and/or for which they performed no work. While both claims, if proven, would warrant discipline, the more serious claim in both cases is the allegation that Respondent gave credit for ESOL courses which employees did not attend and performed no work. In August 1990, Judge James Lawrence King of the United States District Court for the Southern District of Florida entered a consent decree to oversee the implementation of a settlement agreement between the Florida State Board of Education and a coalition of plaintiff organizations that included the League of United Latin American Citizens, ASPIRA of Florida, the Farmworkers’ Association of Central Florida, the Florida State Conference of NAACP Branches, the Haitian Refugee Center, the Spanish American League Against Discrimination, the American Hispanic Educators’ Association of Dade, and the Haitian Educators’ Association. The text of the consent decree and settlement agreement is found at www.fldoe.org/aala/lulac.asp. Section IV of the settlement agreement requires teachers of “English language learners” or “ELL Students”3/ to obtain an ESOL endorsement and complete between 60 and 300 hours4/ of in-service training in each of the five subject matter areas: methods of teaching English to speakers of other languages, ESOL curriculum and materials development, c) cross-cultural communication and understanding, d) applied linguistics, and e) testing and evaluation of ESOL. See Fla. Admin. Code R. 6A-4.0244 (specialization requirements for the ESOL endorsement) and 6A-6.907 (in-service requirements). Not every teacher is required to obtain the ESOL certification. The requirement is triggered once an ELL student is assigned to a teacher’s class. Karen Patterson, the School Board’s ESOL specialist at the time period relevant to this proceeding, testified that she knew of one teacher who taught for nearly 40 years before being flagged as out-of-field for having an ELL student in her class and no ESOL course credits on her record. The School Board policy is to terminate the employment of teachers who are flagged for ESOL and who do not timely obtain the required ESOL in-service training. Approximately 750 to 800 teachers are flagged as out-of-field for ESOL each school year and must come into compliance with ESOL requirements by June 30 of the school year in which they were flagged. A teacher must obtain between 60 and 300 in-service credits, depending on the subject matter the teacher teaches. Reading and language arts teachers are required to complete 300 credits, while math and science teachers need only 60 credits. The Department of Education allows teachers to “bank” their ESOL credits and apply them toward the requirements for recertifying their Florida Educator’s Certificate. Section 1003.56(3)(a), Florida Statutes, requires each district school board to submit to the Department of Education for review and approval a plan for providing ESOL instruction to ELL students. Section 1003.56(3)(f) also requires the district school board to provide qualified teachers for ESOL instruction. The School Board’s approved District Plan identifies the standards for obtaining the ESOL endorsement, stating that the “expectation is that any teacher who obtains the ESOL Endorsement will acquire the appropriate strategies to teach English language learners.” The District Plan refers to the ESOL endorsement as an “add-on program,” because the endorsement can be added to any Florida Educator’s Certificate requiring a bachelor’s degree or higher. The District Plan provides in pertinent part: The standards to be addressed in each course will be stated and updated in the district’s master in-service plan for the Add-on- Certification Program for ESOL. Each component has been developed in accordance with the requirements for the Master Plan for In-Service Education components. Participants must complete and demonstrate competency of 80% of the course objectives in order to receive credit for the component. Participants must participate in the following clinical activities in the ESOL Add-on-Program for the ESOL endorsement: Submit a portfolio of ELL student work with analysis of student growth Develop appropriate formal and alternative methods of assessment for ELLs Develop lesson plans using effective teaching methodologies in planning and delivering instruction to meet the needs of ELLs Complete a culture sketch and mini- ethnography on an ELL to identify language proficiency and cultural influences on learning Use knowledge of culture and learning styles to plan and evaluate instructional outcomes Evaluate, modify, and employ appropriate instructional materials for ELLS at all proficiency levels Evaluate instructional programs in ESOL based on current standards Reflect on and analyze current trends in ESOL Select and develop appropriate ESOL content according to ELL students’ level of proficiency Identify and implement strategies for using school, community and home resources Analyze ELL Case Studies View and discuss pd360.com segments for each course[5/] The District Plan also sets forth the following “Completion Requirements”: The participant will satisfactorily complete all the appropriate courses needed for the endorsement. The successful completion of each required course will document that the participant has attained the competencies and skills addressed in and specific to the course. In order to complete a course successfully, a participant must: Complete a Pre/Post test or other valid measure to show at least 80% competency of the course objectives Complete all individual and group activities at a professional level of quality that demonstrates knowledge of the Florida Teacher Standards for ESOL Endorsement Complete all written assignments at a level that demonstrates competency of Domains 1-5 of the Florida Teacher Standards for ESOL endorsement[6/] Program Completion The participant must master 80% of the course objectives in order to complete the in-service component satisfactorily. In order to add the ESOL endorsement the participant must complete all five state- approved ESOL in-services courses or the equivalent. The participant must complete all individual projects and assignments at the level of quality as stated in the objectives. The instructor will follow the criteria established for satisfactory completion. Upon completion of the required course work, the Professional Development Director will certify the program completion. Competency Demonstration The participant must demonstrate successful completions of all competencies as outlined in the district master in-service components for each ESOL class included in the add-on endorsement program for the Florida Teacher Standards for ESOL Endorsement. The “Management” section of the District Plan states: Attendance Requirement for in-service points Attendance is mandatory. All of the classes have a specific number of hours and participants must attend the required number of hours. Absences must be made up with the instructor or the ESOL Specialist. Excessive absences will result in the participant not satisfactorily completing the class. The Director and ESOL Specialist for Professional Development will determine what will happen with a participant in the event of an extreme emergency or serious illness causing excessive absentees [sic]. During the period relevant to this case, Brenda Wims was the director of professional development for the School District. She was responsible for all in-service programs in the School District, including the ESOL program. Karen Patterson, the ESOL specialist, worked directly beneath Ms. Wims in the hierarchy. There were 20 to 35 ESOL facilitators, such as Mr. Hester, who delivered the in-service training for ESOL development.7/ Ms. Patterson testified that there was always a crunch at the end of the school year to obtain ESOL credits and that the bulk of the training pushed up against the June 30 deadline. Teachers came to her office as late as June 27 desperately seeking ESOL credits. Some teachers had not realized that they were out-of-field for ESOL until near the deadline, and they would approach Ms. Patterson in a panic. Ms. Patterson also testified that the professional development staff did whatever they legitimately could to ensure that teachers flagged for ESOL obtained the credits that they needed to keep their jobs. Given the number of teachers caught by the ESOL requirement each year, Ms. Patterson had an enormous task to schedule sufficient ESOL courses for them. As the end of the school year approached and the desperate push for ESOL classes began, the professional development staff would schedule additional courses and would shorten courses. The standard ESOL training program consisted of five separate courses, each covering one of the “domains” identified in paragraph four. Each course was worth 60 points. Those teachers needing 300 points were required to take all five classes. In recognition that there is some subject matter overlap among the ESOL courses, the District decided to implement a “hybrid” ESOL course as part of its effort to quickly move more teachers through the training. The facilitator of this course would offer all five class titles, and the teachers taking the course would choose the title they needed. During the first half of each class session, the facilitator would teach the entire class the materials common to all ESOL courses. During the second half, the facilitator would offer differentiated instruction for each course title. Ms. Patterson testified that the typical ESOL class took ten to 12 weeks, but that the hybrid class was shortened to six weeks. Ms. Patterson also testified that other “emergency” courses were shortened to six weeks. When asked what “emergency” meant, she responded, “[t]hat means that we needed to offer more courses, so we added more that were not hybrid as well.” Section 1012.56(8) provides for a “cohesive competency- based professional preparation alternative certification program” through which persons with bachelor’s degrees in majors other than education may become certified teachers. This program is popularly referenced as “alternative education,” or “alt. cert.” Ms. Patterson testified that the alternative certification coordinator approached Ms. Wims about adding an ESOL component so that new teachers entering the profession through the alternative certification program would satisfy the ESOL requirement without adding to the backlog of teachers needing separate ESOL certification. The District added an ESOL component to the alternative certification program. Another way to obtain ESOL credit was through independent study. Foreign travel by a teacher could be counted as independent study if certain criteria were met, including a certification that the teacher had been out of the country for five or more days and the completion of an independent study form.8/ Teachers who were unable to attend ESOL classes due to professional or familial conflicts also could seek permission to complete independent studies by performing the course work on their own time. When Ms. Patterson was a PDF teaching ESOL, she conducted between 20 and 40 independent studies per year. After becoming the District’s ESOL specialist, she oversaw roughly 20 independent studies per year conducted by the ESOL trainers. Ms. Patterson also testified that when she conducted an independent study for a teacher, she would record the teacher’s participation in the independent study by marking the teacher present in an ESOL course being taught at the time, either by her or by another trainer. This method was used in order to be able to track the credits, not to indicate that the teacher was actually in that particular class. She testified credibly that this method was in place when she started training and that she continued to use it when she became the ESOL specialist. However, on those class rosters identified at hearing by Ms. Patterson as being records of independent studies that she conducted, the students were not actually added to an already existing attendance roster for the class. Instead, they were added by use of an additional form that identified the trainer for the course at the top, as well as what component was being taught, and that was signed by Ms. Patterson at the bottom. Teachers also could obtain ESOL credit for ESOL courses they took in college. Credit was not automatic, however. To receive credit this way, the teacher had to submit a written request and a copy of his or her transcript. A similar credit was available to teachers who received in-service ESOL credit during employment with another Florida school district. Finally, teachers also could obtain ESOL certification by passing an examination. At hearing, Mr. Hester contended that there was an alternative method for receiving ESOL credits at the discretion of the PDF, by the teacher in question demonstrating his or her ESOL knowledge and skills. The School Board denied that there was such an option, and the District Plan makes no allowance for such an alternative method. Mr. Hester’s Qualifications and Experience After four years as a classroom teacher in Duval County, Mr. Hester became a PDF in 1998, working with the District’s Professional Development Cadre (Cadre), which mentored novice and “needs assistance” teachers, and implemented the School District’s master plan for in-service education. Until 2002, Mr. Hester continued to teach in the classroom in addition to his PDF duties. During his time in the Cadre, Mr. Hester estimated that he trained between 3,000 and 4,000 new teachers through the District’s Mentoring and Induction for Novice Teachers (MINT) program. He trained teachers who majored in education, as well as alternative certification teachers. Mr. Hester was chosen to redesign the alternative certification to include the ESOL requirement. After Mr. Hester completed the redesign in 2010, teachers finishing the alternative certification program would receive 120 master plan points for ESOL in the areas of testing and evaluation and cross-cultural communication. In addition to training teachers in the alternative certification program, Mr. Hester became a trainer of trainers in the program. In 1998, Mr. Hester became state certified in the Florida Performance Measurement System, which qualified him to train administrators on how to observe and evaluate teachers. In 1999, he also became state certified in Clinical Educator Training, which further refined his training in the observation and evaluation of classroom teachers and helped him to develop strategies to improve the teachers’ performance. Mr. Hester was also a trainer in Clinical Educator Training, another observational tool used informally to coach teachers. In 2003, Mr. Hester was chosen to receive two weeks of intensive training in the America’s Choice program, a method for implementing standards-based education. Mr. Hester described the standards-based program as founded on the principle that all students can learn the same information and reach a uniform standard of achievement, but that some students take longer and need more assistance to reach the goal. The “critical attribute” of standards-based education is differentiated instruction, whereby faster learners may move at their own pace while the lower achieving students receive remedial support from the teacher. Mr. Hester’s specialized training led to his appointment as a District standards coach from 2003-2007. As a standards coach, Mr. Hester held workshops, coordinated breakout sessions on early release days, and created pamphlets setting forth pre-planning activities, among other duties. Former Fletcher High School principal Dane Gilbert described the standards coach position as an especially tough one in terms of “ruffling feathers” among the teaching staff. From 1998 through 2009, Mr. Hester served as an adjunct professor in the College of Education and Human Services at the University of North Florida. He taught several courses that included ESOL instruction. Mr. Hester testified that this college-level teaching experience was one reason the District brought him into the ESOL program as a trainer. In addition to his redesign of the alternative certification program, Mr. Hester also was the author of the hybrid ESOL course. For a time he was the only PDF teaching the hybrid course because he was one of the few trainers in the District qualified to train teachers in all five ESOL subject areas. Mr. Hester testified that his development and teaching of the ESOL course gave him a reputation as the “trainer of last resort” for the School District. This reputation was enhanced by his willingness to work through holidays to assist desperate teachers in completing their ESOL requirements. He was paid for ESOL classes through the Shultz Center for Teaching and Leadership, which is part of the School District. Contracts appear to be on a per-class component basis, and performance was approved through Ms. Wims. For those contracts provided, Mr. Hester generally received up to $2,100 per class. From 2007 until his termination, Mr. Hester served as Fletcher High School’s PDF and instructional coach. As such, he helped generate the school improvement plan, part of which involved coordination of Professional Learning Communities (PLCs). PLCs are a facilitated collaborative effort among teachers to improve instruction, including the preparation of lesson plans and development of teaching strategies. The 28 or so PLCs at Fletcher High School were organized according to academic subjects or administrative duties, such as “guidance” or “leadership.” As Fletcher High School’s PDF, Mr. Hester also was involved in the adoption of the requirement that teachers develop “lesson design notebooks.” These notebooks were more complex than simple lesson plans in order to enable the teacher to document everything happening in the classroom in terms of standards-based education and the “Florida Educator Accomplished Practices” found in Florida Administrative Code Rule 6A-5.065. The lesson design notebooks were used for evaluative purposes by the school administration. Mr. Hester attended the various PLC meetings and assisted them with teaching issues. Each PLC at Fletcher had a PLC binder placed in the front office. The documents generated at PLC meetings would be routed to Mr. Hester for his review and for retention in the binders. As the PDF, Mr. Hester also was assigned to work with low-performing “needs assistance” teachers to improve their performance. In addition, Mr. Hester was the Advanced International Certificate of Education (AICE) program coordinator. AICE is a diploma program created by Cambridge University. As program coordinator, Mr. Hester worked closely with top students and their teachers. Mr. Hester also was Fletcher High School’s main data analyst with respect to student and teacher performance. ESOL Endorsements The Administrative Complaint charges in part that “[d]uring the 2011/2012 school year, Respondent repeatedly provided English for Speakers of Other Languages (ESOL) endorsements to employees without requiring that they complete the course requirements, including submission of work or attendance in classes.” The testimony related to this allegation involves the ESOL credits awarded to teachers Christine Anderson, Julie Durden, Sherry Murrell, Heather Kopp, Catherine Johnson, Josh Corey, Andrew Davis, Suzanne Harman, and Susan Podzamsky, and former principal Dane Gilbert. With respect to some of the teachers, Mr. Hester claimed that he allowed them to do independent studies because of conflicts that prevented them from attending scheduled ESOL classes. Mr. Hester believed that he had the authority to provide independent studies to teachers who could not attend classes, and marked those students as present in classes he taught, similar to Ms. Patterson’s testimony as to how she kept track of independent studies. Respondent contended that these teachers earned their credits through the use of independent studies within the scope of discretion he believed that he had until January 23, 2013. On that date, he received an e-mail entitled “ESOL Independent Study other than ESOL Foreign Travel.” The e-mail had no text, but included an attachment that stated the following: ESOL Independent Study other than ESOL Foreign Travel This is decided on a case by case basis and must be approved by Brenda A. Wims Director [sic] of Certificated/Non-certificated personnel for Professional Development and Kella Grant, Supervisor of Certification. All assignments must be submitted to the trainer who will then submit the completed work to Karen L. Patterson, ESOL Specialist for Professional Development. The request must meet the following criteria: Classes are not open for Registration and termination is within a short period of time Death/illness of family member Illness that requires treatment or hospitalization of participant Cross content conflicts (reading/ESOL) Participant assigned Summer School during the Summer course offerings and realizes after the fact that they have not satisfied their out of field status and a replacement is not available and this situation is verified by a Human Resource Administrator/ Principal You must be able to complete the assigned task and meet with the ESOL Specialist for Professional Development, Diversity Specialist or Brenda A. Wims. Brenda A. Wims, Director Karen L. Patterson, ESOL Specialist It appears that Mr. Hester is the only recipient of the e-mail, and he understood it as a directive to change how independent studies are handled. Ms. Patterson testified that the e-mail was generated to clarify the policy because some of the trainers may have had a different understanding. She testified that she probably handed the document out at a meeting, as opposed to e-mailing to everyone, but that it was provided to other trainers in addition to Mr. Hester. Mr. Hester testified that he would go to Ms. Patterson for approval of independent study projects, and that Ms. Patterson told him, as well as other trainers, that they were aware of the criteria for independent study established by Ms. Wims: that a teacher must have extraordinary family obligations or school duties that prevented him or her from taking the classes offered by the District. Mr. Hester also testified that Ms. Patterson said she trusted him to make the call on the independent student study project (required for the curriculum), and that teachers must meet the expectations of the course. By contrast, Ms. Patterson testified that Ms. Wims had to approve independent studies and that Ms. Patterson did not have the authority to do so alone. She would relay requests to Ms. Wims and act as a conduit for the trainers, but would not actually approve or deny requests for independent study. She also testified that the criteria listed in the January 23, 2013, e-mail was consistent with the existing policy for independent studies. Her testimony is credited. A comparison of the e-mail to the District Plan reveals that the documents are relatively consistent. The District Plan allows the Director and ESOL Specialist to determine what will happen with a participant “in the event of an extreme emergency or serious illness causing excessive absentees [sic].” The e-mail clarifies what is meant by “extreme emergency or serious illness,” and also clarifies that Ms. Wims must actually approve the independent study. While the District Plan could have been read as allowing Ms. Patterson to act unilaterally, clearly neither Ms. Wims nor Ms. Patterson interpreted “and” in that fashion. Further, nothing in either the District Plan or the e-mail came close to allowing Respondent the freedom to expand the parameters for allowing independent study or to change the scope of the classes for which credit would be given. However, the allegation in the Administrative Complaint does not charge Respondent with providing independent studies that were not authorized. It charges him with awarding credit where work was not performed. Nevertheless, there were clearly incidents where, according to Ms. Patterson, Mr. Hester received approval for and conducted independent studies for teachers with whom he worked. By the same token, there were teachers for whom he granted ESOL credits and required no work at all. Christine Andrews is a teacher at Fletcher High School. During the time related to this case, she taught AP statistics and calculus. Mr. Hester described her as a phenomenal teacher. On March 16, 2012, Ms. Andrews and several other teachers received an e-mail from Respondent requesting they see him regarding their out-of-field status. Ms. Andrews was confused by this e-mail, because she believed that her undergraduate program at the University of North Florida (UNF) included an ESOL component that satisfied the 60-hour requirement for a high school math teacher. She had not, however, taken her college transcripts to the District ESOL office to obtain approval for the ESOL credit. On March 16, 2012, Ms. Andrews sent Respondent an e-mail stating that she had spoken to Natosha Earst-Bailey in the District’s certification department, who had told her that the computer reflected that she had her 60 hours of ESOL credit, and that she should not have been flagged as out-of-field. While Ms. Earst-Bailey suggested to Ms. Andrews that she provide her transcript to Mr. Hester and to Ms. Patterson at the District Professional Development Office, so that the records would be consistent, she did not do so. In May of 2012, Mr. Hester sent both Ms. Patterson and Ms. Earst-Bailey e-mails requesting a review of Ms. Andrews’ credits at UNF for possible ESOL credits. In the e-mail to Ms. Earst-Bailey, Respondent stated, “[a]lso, I attached her points and she has 60 for cross-cultural and has the paperwork for 60 hours earned at UNF.” There is no issue with respect to the credits earned through coursework at UNF. However, the credits for cross- cultural communications are based upon her purported attendance in a cross-cultural ESOL class taught by Mr. Hester commencing on July 11, 2011. Respondent signed the attendance sheet, which reflects that Ms. Andrews was present for all 12 class sessions, as well as the completion report for her ESOL course; however, Ms. Andrews testified that she never attended this class, never performed any work for it, and never completed an independent study in order to obtain ESOL credits. She was unaware that she had been awarded these points for the July 2011 class until she was contacted by School District personnel in connection with the School District investigation concerning Mr. Hester. Respondent initially claimed that he completed an independent study with Ms. Andrews, but admitted that he did not require her to do any work in order to receive the credits. Instead, he stated: MR. HESTER: . . . So with her being as good of a teacher as she is, knowing her PLC work, knowing what’s in her lesson design notebook, observing her and sitting down and talking with her, I was able to determine that she met the competencies of the course she was given. Q: Well, did you also know what was in the course content she took out at UNF? A: Yeah, because I taught it. And the fact that she was at the – the fact that she took that course at UNF, I also took that into consideration in making that determination. Q: Okay. Well, what did you specifically do to make sure that Christine Andrews possessed all the skills and knowledge and abilities to be able to communicate and properly teach any ESOL student she had? A. Again, I looked at her lesson design notebook, which had all of the information and everything in it, also with her PLC work. I’ve been in several of the PLC meetings. I don’t remember if I observed her or not, but – and also in talking with some of the ESOL students and being able to make the determination that, you know, they would be able to say, oh, that she’s communicating with me, these are the strategies we’re using, so on and so forth. In short, Ms. Andrews performed no classwork or dedicated work of any kind to obtain the cross-cultural communication ESOL points that Respondent submitted on her behalf. His belief that he had the authority to award ESOL credits based on a teacher’s competence and the quality of her “phenomenal” teaching directly conflicts with the express requirements in the District Plan for ESOL certification, which requires that a teacher complete all individual projects and assignments; attend all class sessions; and complete all written assignments. Respondent’s stated belief that he had the authority to award points for something that does not meet these requirements is simply not reasonable. Julie Durden is a teacher at Fletcher High School. She began teaching there in 2004, teaching American Sign Language. Although the timing is unclear in the record, at some point within the last few school years, she began teaching English, and was flagged as out-of-field for ESOL. Ms. Durden, like Ms. Andrews, received an e-mail from Mr. Hester concerning her out-of-field status. When she went to see Mr. Hester about it, he told her not to worry; he would take care of it and she would not have to attend class. Ms. Durden’s name is listed on the same class roster as Ms. Andrews, beginning in July 2011 and ending in September 2011. She did not sign up, attend, complete course work, or perform an independent study for this course. Ms. Durden was not aware that she had received credit for this class until approached during the School Board investigation. Ms. Durden was instrumental in bringing a program called “Challenge Day” to Fletcher High School and, ultimately, to the entire District. Challenge Day is a program geared to creating a safe environment for children where they feel loved, safe, and celebrated, and is designed to break down barriers and eliminate cliques and bullying. Preparation for Challenge Day is a work- intensive undertaking. Mr. Hester determined that the work Ms. Durden performed in preparing for Challenge Day, along with her assistance with preplanning training, equated to the expectations of the ESOL cross-cultural course. Mr. Hester had no authority to make this determination, which is totally inconsistent with the requirements delineated in the District Plan. Ms. Durden acknowledged that she performed a lot of work for the Challenge Day program, and that there might be some content overlap. However, she could not see how these activities could substitute for attending an ESOL class, because the Challenge Day activities are not related to teaching strategies for ELL students. Mr. Hester claimed that he discussed the possibility of granting cross-cultural ESOL points for Challenge Day preparations with Ms. Patterson by telephone. However, he could produce no documentation regarding such a conversation, and Ms. Patterson could not recall any such conversation ever taking place. Moreover, she denied having any conversation with Mr. Hester that could be interpreted as giving Mr. Hester permission to award ESOL credit via his “alternative delivery” method. Ms. Patterson’s testimony is consistent with the parameters of the District Plan she assisted with implementing, and is credited. To the extent that Mr. Hester truly believed that he had the authority to award ESOL credit in this fashion, his belief was unreasonable. Sherry Murrell is a geometry and intensive math teacher at Fletcher High School. She completed all of her ESOL requirements in June of 2005, and was not out-of-field. While she had expressed an interest in being able to “bank” ESOL credits for recertification, she did not sign up for any classes because she had children at home that she had to care for at the time the classes were taught. Mr. Hester asked her to attend one of his classes, but she declined to so because she could not be at two places at one time, and thought nothing more about the issue. Mr. Hester later brought up the subject of the class with her, and she reminded him that she never signed up for the class. Mr. Hester told her not to worry, that he could make it an independent study because “you’ve gone above and beyond . . . you’ve met all the criteria.” She asked him what work she needed to complete, and he told her not to worry about it. Ms. Murrell did not sign up for, attend, or perform any work for any ESOL classes taught by Mr. Hester. However, her name appears on the attendance roster for the cross-cultural ESOL class taught from July through September 2011, and she is listed as being in attendance for all 12 classes. Her name also appears on the attendance roster for the curriculum and materials for the ESOL class beginning January 10, 2012, and is listed as attending 11 out of 12 classes. Approximately a week and a half prior to the School Board investigator coming to the school, Ms. Murrell received an envelope containing completed “course activities checklists” for the curriculum and materials class taught in the Spring of 2012, and for a hybrid class taught during that same period. Both lists were signed by Mr. Hester and dated April 3, 2012. The checklists are the documents an instructor uses to verify completion of the required activities in an ESOL course. Mr. Hester asked Ms. Murrell if she had received the envelope, and she indicated she had, but Ms. Murrell did not really examine the documents until she met with the investigator. She provided the documents to the investigator. Respondent testified that he gave Ms. Murrell credit because she is a phenomenal teacher. As with Ms. Andrews, Respondent did not have the authority to award ESOL credits based on the quality of Ms. Murrell’s teaching when she performed no work for the ESOL courses. Heather Kopp taught at Fletcher High School for two years after her graduation from UNF, transferred to Mandarin High School, and then after two years returned to Fletcher High School. Ms. Kopp testified that she took ESOL courses as an undergraduate at UNF and was told that she needed no further ESOL courses. She has her ESOL endorsement. There was evidence presented indicating that Ms. Kopp’s name was on class rosters for ESOL classes taking place in January 2009 and January 2010 taught by Mr. Hester. Mr. Hester claimed that he oversaw an independent study for her because she had to care for her children at night and was unable to take ESOL classes. While the charges against Mr. Hester brought by the School District could be interpreted as including conduct related to Ms. Kopp, the Administrative Complaint in this proceeding limits the allegations regarding ESOL classes to the 2011/2012 year. Therefore, no findings will be made with respect to Ms. Kopp’s participation, or lack thereof, in ESOL classes. Catherine Johnson is an English teacher at Fletcher High School, and started teaching there in 1998. She took a two-year leave of absence and returned in December 2008. In December 2010, she received an out-of-field notice for ESOL. She talked to Mr. Hester about the notice, who asked Ms. Patterson what classes Ms. Johnson would need to complete her ESOL endorsement. Ms. Patterson indicated that Ms. Johnson needed part 2 of the cross-cultural communications course, and Mr. Hester passed along the information to Ms. Johnson. Ms. Johnson asked Respondent what she needed to do to complete the ESOL endorsement. He told her to consider it an independent study. Ms. Johnson stated that Respondent gave her two discs to load onto her computer, which she was unable to do. When she returned the discs to Respondent, he took them and said that he knew her reputation as a classroom teacher, that she was a quality instructor, and that she had fulfilled the requirements of part 2 of the cross-cultural ESOL course. She accepted that Respondent had the authority to make this determination and did not question it. Respondent, on the other hand, claims he never gave Ms. Johnson any discs because the curriculum was available on the District website. He claims that he gave her the course syllabus for cross-cultural ESOL and told her she could use that as documentation if she needed it. Whether Respondent gave Ms. Johnson discs or merely gave her a syllabus is irrelevant. Respondent admits that he did not give her any work to do in order to fulfill the requirements of the course. He claims that he was not “giving” Ms. Johnson anything: that she earned the ESOL credit because of the extra work she did with PLC groups, her status as an AICE, her lesson design notebook, and his observations with her in the classroom and in PLCs. Respondent signed completion reports for a cross- cultural ESOL course taught by Mr. Hester from January to April 2011. Ms. Johnson did nothing to earn credit for this class.9/ Josh Corey is a teacher at Fletcher High School. At the time of the hearing, he had been teaching at Fletcher High School for 12 years. He teaches physical education and serves as the school’s head football coach, assistant athletic director, and student activities director. Mr. Corey looked at his records in 2013, and saw that he had credit for 300 ESOL hours. He believed that he had only completed the work for 180 of those hours. He had attended one class and completed two other domains through independent studies under Mr. Hester’s direction. There is no allegation of impropriety regarding the points awarded for these independent studies. Mr. Corey’s name was on attendance sheets for two courses conducted from January to April 2011, offered on different days. Mr. Corey did not attend these classes. Mr. Corey’s wife’s name also appeared on these attendance sheets. Mr. Corey could not have attended these classes because he was coaching softball during this time, and his coaching duties would have conflicted with the class schedule. He could not recall any discussions with Mr. Hester about the classes. Mr. Hester, on the other hand, testified that Mr. Corey wanted ESOL credits for banking purposes, and that his wife needed the ESOL credits, having returned to teaching after having a child. She could not attend because her husband was coaching when the classes were offered, and they had two small children. Mr. Hester testified that he allowed them to do independent studies together, and the work was turned in with both of their names on it. In his view, collaboration between teachers for an independent study was acceptable because it mimics the sharing of activities and experience that goes on in class. The undersigned notes that Mr. Corey only testified in the School Board case, and no additional testimony from him was elicited in the hearing conducted March 29. Therefore, Judge Stevenson was in a better position to assess the credibility of both Mr. Corey and Mr. Hester. Judge Stevenson favored Mr. Hester’s version of the events, and believed that it is more likely that Mr. Corey’s wife completed and turned in the coursework in “collaboration” with Mr. Corey than that Mr. Hester invented the scenario of having received the work for which he credited both teachers. Given Judge Stevenson’s superior position to assess both witnesses’ credibility, and the higher burden of proof applicable to this proceeding, the undersigned defers to his assessment. Andrew Davis is a physical education teacher and football coach at Fletcher High School. He went through the alternative certification program and finished it during his third year of teaching. Mr. Hester was his instructor for the program. Mr. Davis’s ESOL credits were obtained through independent study under Mr. Hester’s direction. Only one of the independent studies was conducted during the 2011/2012 school year, and therefore within the period of time encompassed by the allegations in the Administrative Complaint. Mr. Davis is listed on a class roster for the curriculum and materials ESOL course given from January 10, 2012, through April 13, 2012. Mr. Davis testified that he did not attend these classes, but performed an independent study with Mr. Hester. He could not recall what tasks he was required to perform other than reading articles that Mr. Hester directed him to read. He stated, “I did whatever Mr. Hester asked me to do regarding these courses.” The evidence is not clear and convincing that, as alleged in the Administrative Complaint, Mr. Hester gave Mr. Davis an endorsement without requiring him to complete the course requirements. Suzanne Harman is a teacher at Fletcher High School. She has been teaching since 1974, and has taught English at Fletcher High School since 1996. She did not teach from 1986 to 1996 because of her husband’s naval career. Ms. Harman was notified on March 25, 2011, that she was out-of-field for ESOL credits and needed to complete her ESOL credits by December 31, 2011. Ms. Harman was unfamiliar with the ESOL requirements because of her absence from the teaching field when the program was first implemented. Although the timing of her actions is unclear, she consulted with Mr. Hester to find out what she needed to do. Ms. Harman testified that Mr. Hester took out a checklist of course artifacts for the cross-cultural ESOL class, and went down the list, identifying things that he had seen her do in her classroom. Mr. Hester denied telling Ms. Harman that she could get credit for the things she had done in her classroom. He said that he agreed to work with her through an independent study, because she was dealing with significant issues in her personal life. He claimed that he did go over the items on the list with her, but only when she came in with her completed portfolio at the end of the 2011 independent study. Ms. Harman’s name appears on the class roll for an ESOL class beginning in July and ending in September 2011. The more plausible explanation with respect to this class is the one given by Mr. Hester. Ms. Harman also was on the out-of-field list issued on March 16, 2012, that Ms. Andrews and Ms. Durden received. Upon receiving this notice, Ms. Harman approached Mr. Hester and asked if it was time for her to take another class from him. Mr. Hester told her that he was teaching a hybrid ESOL class on Tuesday nights. Ms. Harman attended the curriculum and materials portion of this class for seven of the sessions conducted from April 24 to June 5, 2012. However, her ability to complete the assignments for the class was severely impaired by demands on her time due to her mother’s serious illness. As a result, she was unable to turn in her work folder on the final day of class. Mr. Hester told her to get the work to him when she could, but no deadline for doing so is apparent from her testimony. Mr. Hester gave Ms. Harman credit for the class and notified her of the credit via an e-mail dated June 26, 2012. Once she received the e-mail, Ms. Harman made no further effort to finish the materials for the course, and, from her testimony, apparently made no contact with Mr. Hester to ask whether she needed to do so. On January 22, 2013, an anonymous letter accusing Mr. Hester of giving ESOL credits without requiring work for the courses became public. The following day, Mr. Hester sent Ms. Harman an e-mail asking about her unfinished portfolio for the ESOL class. Ms. Harman provided some, but not all, of the work she was supposed to complete, and said it was all she could find. Mr. Hester did not ask her for anything else. In May 2013, Mr. Hester notified Ms. Patterson that Ms. Harman had not completed the agreed-upon work assigned to her in the ESOL class for which she was enrolled from April to June 2012. The e-mail stated: It was agreed upon that she would be given more time to complete the required work and have it ready by September 2012 due to her extreme family situation. I gave her another extension to the holidays to complete the work (I know I am not allowed to give that amount of time). However, I did not get the information needed. I asked for her work and finally received an incomplete packet (see attached) April 1, 2013. I still waited to see if she would come to me and complete the necessary work— she did not. I am asking that she not be awarded the 60 points for ESOL: Curriculum and Materials. Please have these points removed from her Master Plan Points. Mr. Hester explained that the e-mail Ms. Harman received in June 2012 was a mass e-mail sent to all participants of the class. He claims that he had spoken to Ms. Harman multiple times following the class about her need to provide the materials to complete her class obligations. He met with her again at the beginning of the school year about the outstanding course work. Mr. Hester’s version of the events is more credible than Ms. Harman’s. His rationale for giving credit to teachers, such as Ms. Andrews and Ms. Johnson, was that they were what he considered to be “phenomenal” teachers. By contrast, he characterized Ms. Harman as a “needs assistance” teacher. While she strenuously resisted that label, Ms. Harman acknowledged that she had multiple observations in her classroom; that she had experienced some issues with administration about items that should have been posted in her classroom; and that she was a very messy person. Mr. Hester clearly should have waited until he received all of the documentation that Ms. Harman had completed the requirements of the class before awarding her credit. Regardless of his motives for doing so, he did make an attempt to correct the record in light of her continued failure to provide the work he requested of her. Susan Podzamsky was a special education teacher at Fletcher High School. She received credit for four ESOL courses taught by Respondent. Mr. Hester admitted that Ms. Podzamsky never attended an ESOL class or completed any ESOL course work for an ESOL class taught by him. She is listed on class rosters and Respondent signed completion reports for her for cross- cultural communications and understanding, beginning July 14, 2011; ESOL curriculum and materials development, beginning January 10, 2012; ESOL hybrid, beginning February 2, 2012; and methods of teaching ESOL, beginning May 1, 2012. Mr. Hester considered her to be a good teacher, and admitted giving her ESOL credit not for course work, but for her participation in non- ESOL-related PLCs, preparation of Individualized Education Plans, and reading competencies. Dane Gilbert was the principal at Fletcher High School until his retirement at the end of the 2011/2012 school year. Mr. Gilbert also served, during his career, on the Education Practices Commission for eight years, and as Chair of the Commission his final year of service. Mr. Gilbert is listed on an attendance sheet for an ESOL hybrid class component, testing and evaluation, beginning May 2, 2012, and signed by Respondent. The attendance sheet lists him as having attended six of seven class sessions. Mr. Gilbert did not attend this class and did not work for it. He saw it on his record when he was checking his hours after he retired. Mr. Gilbert acknowledged a discussion with Mr. Hester about an independent study, but did not follow up on it because he was planning to retire and was not planning on renewing his certification. Mr. Hester, on the other hand, claimed that Mr. Gilbert was interested in banking the hours and that the credit was based upon Mr. Gilbert’s involvement in Challenge Day, as well as the principal evaluation binder he prepared, which required a case study. Mr. Gilbert’s version of the events is more credible than Mr. Hester’s. Under either version, however, the facts establish that Mr. Gilbert did not take the ESOL class for which he was given credit, and did not perform an independent study in lieu of attending class. Unprofessional Behavior The Administrative Complaint also alleges that Respondent behaved in an unprofessional manner with respect to Christine Reed, Andrew Davis, and Nicole Conrad. Mr. Hester came to Fletcher High School as a standards coach during Mr. Gilbert’s second year as principal. Mr. Hester’s position evolved into his becoming the PDF and the AICE coordinator for the high school. Mr. Gilbert believed that Mr. Hester was very good at his job and very good for the high school. Mr. Hester was in a teaching position not an administrative position, but appeared to have a position of authority over the faculty. Mr. Hester’s position included quasi-administrative duties, including work with need-assistance teachers, modeling appropriate teaching methods, assistance with preparation of and access to teachers’ lesson design notebooks, and professional development for teachers. His office was two doors down from the principal’s office, with whom he often worked closely. Right or wrong, Respondent was perceived as being Mr. Gilbert’s “right- hand man.” He was present at and involved in meetings related to building the class schedules. Although he often gave input at those meetings, the ultimate schedule was created by the assistant principal for curriculum and approved by the principal. Mr. Hester had no power or authority other than providing suggestions. While Mr. Hester did not have the authority of an administrator, the evidence clearly indicates that some teachers believed that he had that authority, and Respondent apparently did little to dispel this belief. A significant segment of teachers were irritated by or dissatisfied with Mr. Hester’s actions at Fletcher High School, and at least a part of the teachers’ discomfort was due to Mr. Hester’s sometimes high- handed behavior. Several teachers testified about personal conflicts with Mr. Hester. However, the concerns of only three of those teachers are alleged in the Administrative Complaint and only those three will be addressed in this Recommended Order. At least one teacher testified that it was well known around school that if a teacher got on the “wrong side” of Mr. Hester, he could make the teacher’s life miserable. Mr. Hester believed that at least part of the animosity directed toward him was because of his homosexuality. No credible evidence was presented that would support this assertion. For several years, Mr. Hester organized what was known as FCAT Boot Camp. The event occurred on a Saturday, and he would recruit teachers to help him run it. Christine Reed was chairman of the reading department at Fletcher High School, and has taught in Duval County for 24 years. At some time during either the 2011/2012 or the 2012/2013 school year, Mr. Hester approached Ms. Reed about helping with the FCAT Boot Camp. Ms. Reed had assisted with the program for the two previous years, and did not want to do it again. When she refused, Mr. Hester told her he “really needed help with this,” and “you know that I can get you moved.” Ms. Reed believed that he was threatening to get her teaching assignment within the school changed. She believed that he had this authority because of meetings she had attended as a department head where schedules were discussed. While Mr. Hester had no actual authority to change a teacher’s schedule, he did have input into the process. However, she also testified that “I felt like he could, but I wasn’t concerned because it wasn’t happening at the time. And I had heard him say that to other people or about other people, so I just kind of ignored that.” Given that Ms. Reed was a department head, any belief that Mr. Hester could get her teaching assignment changed is not very reasonable. However, there was a general belief that because of Mr. Hester’s close work with the principal of the school, he could influence Mr. Gilbert’s decision-making. Whether he could make good on his threat is not the point. Any behavior indicating that he would use his position, or any perceptions regarding the reach of his authority to attempt to force people to do what he wanted, is not appropriate. Respondent attempted to impeach Ms. Reed’s credibility by soliciting testimony that she enlisted people to complain about him, and that she benefited from his termination by getting a position as testing coordinator that Mr. Gilbert was considering giving to Mr. Hester. She acknowledged that she did receive the testing coordinator position, and that she once thought of Mr. Hester as her colleague and friend. She testified, however, “in all honesty Dennis, I have great respect for some of the things that you can do educationally, but I steered away from being a close friend of yours when I saw some of the negativity and just the attitude at school and how some people were fearful, and I didn’t want to be associated with that.” Ms. Reed’s testimony was consistent and credible, and is accepted. Testimony was presented regarding the interaction between Mr. Hester and Nicole Conrad. Ms. Conrad was a teacher at Fletcher High School, beginning in 2007. Although testimony was presented regarding three incidents that made Ms. Conrad uncomfortable, none of those alleged incidents occurred during the 2011/2012 or 2012/2013 school years. Ms. Conrad stated that they occurred very early in her tenure at Fletcher High School, in either 2007 or 2008. Given that this alleged conduct is well outside the period of time alleged in the Administrative Complaint, it cannot be considered. In January 2013, an anonymous letter regarding Mr. Hester was sent to the School Board Superintendent Nikolai Vitti, School Board Chairman Fred “Fel” Lee, Human Relations Director Sonia Young, and Fletcher High School Principal Donald Nelson. Mr. Nelson succeeded Mr. Gilbert as principal of Fletcher High School in July of 2012. The letter complained about his unprofessional, bullying behavior toward teachers at Fletcher High School; the failure of administration to address complaints about his behavior; and his award of ESOL credits where no work was done. Mr. Nelson met with Mr. Hester to address the concerns expressed in the letter, and believed at the time that it was the result of a personal conflict between Mr. Hester and the anonymous writer, along the lines of a cat fight. He did nothing else locally, but contacted Sonia Young from human resources (HR), who confirmed her office had received the letter and someone would be in touch with the school. Shortly thereafter, Mr. Nelson was contacted by Mary Mickel, an employee of the professional standards office of the HR department. Mr. Nelson advised Ms. Mickel that he believed the matter was a vendetta by the anonymous author. Eventually the matter was investigated at the School District level, and led to the School Board charges against Mr. Hester and his eventual termination. Mr. Hester was required to meet with an investigator at the District office as part of the investigation. He was anxious to learn who wrote the anonymous letter, and understandably agitated about the allegations against him. In May of 2013, Mr. Hester spoke to Andrew Davis in the parking lot of the high school. Mr. Hester was quite heated about the situation in which he found himself, and told Mr. Davis he believed the anonymous letter was written by Mses. Snell, Reed, and Chalker,10/ that he was going to go after these women, and that he would not feel bad about anyone who got caught in the collateral damage. Mr. Hester stated, “[y]ou never want to piss off a gay man,” and warned Mr. Davis to distance himself from the three woman Mr. Hester was blaming for the anonymous letter.11/ Mr. Davis was a reading teacher whose department head was Ms. Reed. He reported the conversation to her, as well as reporting the conversation to Mr. Nelson, and wrote a statement about the incident on May 23, 2013. Respondent admits making this statement to Mr. Andrews, and regrets it. There was no testimony by Mr. Davis that he felt harassed or threatened personally. However, the statement on its face was one that clearly indicates the intention to harm colleagues professionally, with no regard as to who might be harmed in the process. As noted in the Preliminary Statement, the School Board suspended Respondent’s employment without pay and brought an action against Respondent to terminate his employment. After an evidentiary hearing, Judge Lawrence Stevenson found that Respondent had committed some, but not all of the charges alleged in the Notice of Termination. Judge Stevenson recommended that Respondent’s suspension without pay from July 3, 2013, through the date of the Final Order be upheld, and that a reprimand be issued. The School Board adopted the Findings of Fact and Conclusions of Law, but rejected the recommendation regarding the penalty to be imposed, choosing instead to terminate Respondent’s employment. The School Board stated: It was only after careful deliberation that this Board decided to terminate Respondent’s employment at the outset of these proceedings. Thereafter, as a result of this administrative proceeding, the ALJ’s recommended discipline appears to be based on his impression of what he considers to be fair and his impressions of the specialized skills of Mr. Hester. Regardless of Mr. Hester’s expertise, his actions are inexcusable and potentially damaging to those colleagues who placed their trust in him, potentially damaging to the students these teachers serve. After careful deliberations before entering this Final Order for this administrative proceeding, the Board could not ignore its constitutional obligations and overarching duty to protect students and ensure that teachers are properly trained under the law, . . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(g) and (j), and rule 6B-1.006(4)(b), (5)(a), and (5)(d), as alleged in Counts 1, 2, 4, 6, and 7 of the Administrative Complaint. It is further recommended that Respondent’s license as an educator be revoked, with the right to reapply to be determined by the Commission. DONE AND ENTERED this 3rd day of August, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2016.
Findings Of Fact Joshua A. Freedman was issued a certificate in accounting from Temple University in 1945 (Exhibit 3). He attended evening classes at Temple during the periods 1937-1940 and 1944-1946. Transcript of Freedman's scholastic record at Temple University (Exhibit 1) shows he completed 56 semester hours during this period. The testimony of Dr. Laibstain (Exhibit 15) is that he completed 58 hours, includes 2 hours earned in 1965. Of the courses completed 26 semester hours were in accounting and 24 semester hours were classified as business courses. Requirements for a certificate in accounting are shown in Exhibit 23 to be completion of 12 one-year courses, or a total of 48 credits. The courses so outlined meet three evenings a week for four years but the time period may be altered if the student attends more or less classes than three evenings a week. A total of 124 semester hours is required by Temple University for a baccalaureate degree in accounting and the requirement has not been less than 120 semester hours since prior to Petitioner's matriculation. Petitioner was issued CPA Certificate Number 2872 on 4-26-50 after having successfully passed the AICPA examination in Pennsylvania with grades of 75 in Law (1947) and 69 in Practice (1949) Respondent stipulated that the only grounds for denying Petitioner's application for a reciprocal CPA certificate was his failure to complete the requirements for a baccalaureate degree and his failure to make a grade of at least 75 on the AI CPA examination- he took in 1949. With this stipulation the evidence regarding Petitioner's experience, professional qualifications and moral character become irrelevant to these proceedings. In 1949-1950 Florida required its applicants for CPA certification to pass examinations in subjects including Auditing, Commercial Law, Theory of Accounts and Accounting Practices with a minimum grade of 75 in each subject. Florida has always required a passing grade of not less than 75 on CPA examinations given. As a result of difficulties in obtaining information from certain states regarding the examinations and grades obtained for those seeking reciprocal CPA certificates in Florida, the Florida Board of Accountancy stopped accepting applications from applicants from these states for reciprocal CPA certification. This led to a meeting between the Pennsylvania Board and the Florida Board in 1974 at which the former agreed to provide all requested information to Florida and Florida agreed to accept the examination grades in which a mark of at least 75 was received as equivalent to the Florida examination even though the same subjects were not covered by the examination. Prior to 1969 the Florida Board of Accountancy had certain discretions in granting reciprocal CPA certificates. The statute was amended in 1969 by what is now Section 473.201 F.S.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Eric R. Hartman has been licensed by the State of Florida as a real estate salesperson, having been issued license number 0455304. Mr. Hartman was originally licensed on August 12, 1985. The last status of Mr. Hartman's license was involuntarily inactive. On or about June 26, 1995, Mr. Hartman forwarded his real estate salesperson license renewal notice to the Department of Business and Professional Regulation, Division of Real Estate (Division of Real Estate). His license had expired on March 31, 1995. Mr. Hartman submitted the license renewal notice to the Division of Real Estate for the purpose of renewing his real estate salesperson license. On the license renewal notice, Mr. Hartman signed an affirmation that he had completed all of the requirements for renewal of his license. As a prerequisite for the renewal of his license, Mr. Hartman was required to successfully complete a minimum of 14 hours of real estate continuing education. At all times material hereto, Mr. Hartman knew of this requirement. Prior to submitting his signed license renewal notice, in order to comply with the required continuing education, Mr. Hartman had obtained a correspondence course for 14 hours of continuing education from the Bert Rodgers Schools of Real Estate, Incorporated (Bert Rodgers). The correspondence course included a course book and test booklet. At the end of each chapter in the course book was a progressive quiz, and the answers for the quiz were provided at the end of the course book. Mr. Hartman took the progressive quiz after completing each chapter and, for the total book, had only two incorrect answers. The test for the continuing education course was open book. After completing the test, Mr. Hartman forwarded the test booklet to Bert Rodgers for grading. Based upon his performance on the progressive quiz after each chapter, there was no reason for Mr. Hartman to believe that he had not passed the test and, therefore, successfully completed the course. Confident that he had passed the continuing education course, Mr. Hartman submitted his license renewal notice to the Division of Real Estate. At all times material hereto, Mr. Hartman knew that he was required to maintain and submit to the Division of Real Estate, upon request, a course report certificate for the continuing education. The certificate indicates that he had timely and successfully completed the continuing education course. At the time that Mr. Hartman submitted his signed license renewal notice, he had not received a course report certificate from Bert Rodgers. On July 10, 1995, relying upon Mr. Hartman's representation that he had successfully completed the requirements for renewal of his license, the Division of Real Estate renewed Mr. Hartman's license and issued him a real estate salesperson license. His license had an effective date of June 23, 1995, and an expiration date of March 31, 1997. Subsequently, Mr. Hartman received notification from Bert Rodgers that the course material, including the test booklet, had expired and was no longer valid. Simultaneously, Bert Rodgers provided Mr. Hartman with a new and valid course book and test booklet. He completed the new test booklet and forwarded it to Bert Rodgers for grading. At the time that Mr. Hartman signed his license renewal notice and forwarded it to the Division of Real Estate, he had no intent to deceive or mislead or to make a material misrepresentation for the purpose of inducing the Division of Real Estate to renew his license. On his own initiative, by letter dated August 28, 1995, Mr. Hartman notified the Division of Real Estate of the situation regarding the Bert Rodgers continuing education course. After having forwarded the new and valid test booklet to Bert Rodgers, Mr. Hartman, subsequently, received a course report certificate from Bert Rodgers. The certificate indicated, among other things, that Mr. Hartman had taken a 14-hour continuing education correspondence course, which was completed on August 25, 1995, and that he had received a grade of 93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate enter a final order imposing a $1,000.00 administrative fine against Eric R. Hartman. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 28th day of August, 1997.
The Issue Whether respondent, an assistant professor at Miami-Dade Community College, should be dismissed on grounds of willful neglect of duty, gross insubordination, and incompetency as alleged.
Findings Of Fact Respondent, Joan Humphries, earned a bachelor's degree from the University of Miami, a master's degree in counseling and guidance from Florida State University, and a Doctorate of Philosophy in experimental psychology from Louisiana State University. (Testimony of Humphries.) Before coming to Miami-Dade Community College, she worked as a psychological consultant at Louisiana State Hospital and taught at the University of Miami. She has been employed by the College for approximately 15 years--since October, 1966. (Testimony of Humphries.) First employed by the College as a part-time instructor, she soon became a full-time instructor of introductory psychology courses. She is now a tenured assistant professor and was granted a continuing teaching contract by the College. (Testimony of Humphries.) During her years at the College, she received annual performance evaluations from the chairperson of her department--now named the Department of Behavioral Studies. Until 1978, she was evaluated as a competent instructor. Her 1970 evaluation stated: Dr. Humphries continues to do an excellent job of teaching PSY 207. She has been most helpful in orienting new faculty members [and] is a most dependable and valuable member of the psychology faculty. (P-75.) In 1971, David Powers, her new department chairperson, recommended her for promotion and gave her this evaluation: Joan Humphries possesses excellent knowledge of her subject field. Her course is extremely well planned out and organized. She is quite fair in her grading techniques, . . . (P-78.) In 1972, she was rated as "outstanding" in professional status, growth, and development; "competent" in her performance as a faculty member; and as giving "more than most" in ancillary services to the College. In 1973, Dr. Powers again rated her as competent and described her professional strengths and goals: Professional Strengths: Joan displays an in-depth knowledge of behavioristic psychology. Joan is competent in utilization of audiovisual materials and psychological equipment. She is conscientious in meeting her office hours. She has originated several ideas for obtaining both community involvement and enrollment in future psychological courses. Joan involves her students in community activities by requiring a ten hour out-of-class service project. Professional Goals: In order to maintain larger retention rate, Joan should develop a diversity of instructional strategies including greater enthusiasm in teacher presentation. She should place less emphasis on objective testing and involve more subjective methods for student evaluations, [i]ncluding student feedback on course activities and evaluative tools should be meaningful for her students. This summer she will be acting chairman of a committee for a parental education course to be offered in the fall. (P-82.) In 1974, Dr. Powers again rated her as a "competent" faculty member and "outstanding" in professional status, growth, and development. He recommended her for promotion and described her professional strengths: Professional Strengths: Joan is showing even more enthusiasm [sic] toward the college this year than last year. She has developed many innovative ideas including a proposed psychology laboratory, courses associated with the county judges and for the education of elderly citizens within the community, and a rationale for a four day college work week. Joan helped increase the fall term departmental productivity figure by conducting a large section of 100 Psychology 211 students. She has incorporated a formal student evaluation system into her course. She not only participates in community betterment but requires her students to spend at least 15 hours working on a community project. In determining the student's grade, this year, she has placed greater emphasis upon student involvement in projects, experiments, and oral presentations. In her classes Joan includes recent relevant research findings in order to clarify psychological concepts. She has devoted many hours toward coordinating the senior citizens program and the parent education course. She is an active sponsor of Phi Lambda Pi and continually invites guest speakers into her classes. Joan actively engages in scientific research and she has recently written an article for the Journal of Parapsychology. Joan is recommended for promotion to Associate Professor, Senior. Professional Goals: Joan should be a good resource coordinator for utilization of the new Alpha Theta Cyborg. This coming year the department could use her for teaching a couple sections of Psychology 212. Her ideas for meeting the community's needs are practical and worth implementing. Joan should perhaps develop a written syllabus in outline form to give to all of her students at the beginning of the course. Joan would like to initiate and teach a course in recent psychological developments, i.e., biofeedback, hypnosis, and brain research. (P-89.) She was not promoted, however, because she had not yet completed the required three years in grade. She appealed the College's failure to promote her. Although she subsequently satisfied the three-year requirement, she has not been promoted. She attributes this to discrimination by the College because of her earlier appeal. In 1975 and 1976, she was rated "competent" but given specific suggestions for improved performance (P-119.) In 1977, she was rated as a "competent" faculty member who contributed "more than most" in ancillary services to the College, and recommended for promotion. But, "some reservation" was indicated concerning her professional status, growth, and development. (P- 235.) In 1978, her new department chairperson, Gerald L. Sicard, rated her as "competent;" described her as a dedicated psychologist who gave enthusiastic lectures; and noted that evaluations by her students were generally positive. (P-315.) She was rated "unsatisfactory" by the evaluations completed in 1979, 1980, and 1981. The Charges: Eleven Specific Allegations of Misconduct The College's charges against respondent--willful neglect of duty, gross insubordination, and incompetency--rest on eleven specific allegations of misconduct. The findings of fact which follow are organized under the pertinent allegation. Alleged: Over a period of years, the respondent has demonstrated belligerence toward those in authority. Respondent has not demonstrated a pattern of belligerence or hostility toward her College superiors. Her supervising department chairperson, Mr. Sicard, had difficulty defining the term at hearing. When pressed, he gave as examples her desire to tape record conversations when meeting with a supervisor, her writing of memoranda when an issue could be easily resolved by an office conference, and her refusal to sign a performance evaluation form because she did not agree with it. Such conduct illustrates her distrust of her supervisors and the persistence with which she advocated her views; they do not demonstrate belligerence. Neither, according to her students, did she exhibit belligerence toward her supervisors in the classroom environment. 7 College administrators became irritated with her obvious distrust, her persistence, and her unwillingness to compromise; two examples: (1) When her fellow faculty members selected a common course textbook for use in introductory psychology, she resisted and stubbornly advocated another choice. (2) During 1978, Mr. Sicard learned that respondent was offering extra grade points to students who campaigned for enactment of the Equal Rights Amendment ("ERA") to the U.S. Constitution. Students who desired to campaign against the ERA were not, however, equally rewarded. Mr. Sicard questioned her about the fairness of this practice and its relevance to introductory psychology. She explained that prejudice against women was a disease, that to give students points for campaigning against the ERA would be supporting a disease. Mr. Sicard, still unconvinced, instructed her by memorandum on November 6, 1978, to discontinue the awarding of points to students for pro-ERA or any other political activity. (P-359.) One week later she explained, in writing, that she had been promoting good mental health, not partisan politics, and cited various publications by psychologists in support of her view that discrimination against women was detrimental to human welfare; and that, in the past, her students had worked for legislation benefiting autistic children and migrant workers and the College had supported such action. She ended by asking Mr. Sicard if advocacy of human rights and legislation supporting human rights would be considered engaging in partisan politics. But, although she disagreed with her supervisor, she complied with his directive and discontinued the practice. (Testimony of Sicard, Tikofsky, Hansen, Signorelli, Humphries.) Alleged: On numerous occasions, the respondent willfully and deliberately failed to comply with directives from College administrators relative to her classes of instructions. In connection with respondent's 1978 performance evaluation, Mr. Sicard and respondent negotiated and agreed upon goals and objectives for the coming year. The College contends that several of the goals were not met. Some of these items were tasks which Mr. Sicard thought were important at the time, others originated with the respondent. The effect to be given these goals is ambiguous. Mr. Sicard now considers some of them to be mandatory or directory in nature; others not. In any case, during the ensuing year, respondent satisfied most of the goals and objectives specified in the 1978 evaluation. In 1978, as already mentioned, respondent's department decided to select a common text for introductory psychology courses. Respondent resisted the consensus selection; she advocated an alternative and wrote memoranda to Mr. Sicard expressing her views. He responded with this memorandum: Instead of replying to the above-memos, it would probably be mutually beneficial to discuss your problems during my office hours. This way we can move from adversary roles to the cooperative model existing with the other departmental faculty. In doing this, I hope we can work together to achieve your and the department's goals. Please advise me in this matter. (P-334.) Thereafter, respondent did not go to Mr. Sicard's office to discuss the issue further. But the nature of his memorandum is, by its terms, non-directory, even conciliatory in nature. Respondent's failure to accept the invitation cannot fairly be translated into willful failure to comply with an administrator's directive. On December 4, 1978, Mr. Sicard recommended that respondent's employment be terminated for various "acts of insubordination." (P-368, P-369.) He asserted that she violated regulations by utilizing the psychology laboratory for hypnosis and biofeedback treatment for students with smoking and overweight problems; that her earlier awarding of grade points to students who worked for ERA violated a 1976 directive of David Powers, the previous department chairperson; and that she continued to refer students to Robert Courier, an alleged psychic and hypnosis counselor, despite the fact that Mr. Courier had been prohibited from instructing students in her classes. Her alleged failure to comply with laboratory regulations, even if true, does not constitute willful violation of an administrator's directive relative to her classroom instruction; and Mr. Sicard acknowledges that her referral of students to Mr. Courier "do[es] not violate previous directives" to respondent. (P-368.) This leaves only the alleged violation of Mr. Powers' 1976 directive. In that directive, Mr. Powers directed Respondent to obtain prior clearance from the departmental chairperson for "[a] 11 off-campus activities which affect the student's grade[s]." (P-147.) In 1977, however, Mr. Power's successor chairperson, Bess Fleckman, effectively countermanded or negated the effect of Mr. Powers' directive. By a memorandum dated March 21, 1977, she asked respondent to take full responsibility for assignments to students, stating that this should not "be a concern of a chairperson." (P-261, P-262, P- 263.) Thus, respondent's subsequent assignments concerning off-campus ERA activities did not violate a directive from her supervising administrator. By memorandum dated April 3, 1979, Mr. Sicard suggested that respondent improve her teaching techniques by accepting the assistance of Ms. Fleckman--a qualified and experienced classroom instructional specialist. (P- 388.) Respondent replied with a memorandum stating that she did not wish to work with Ms. Fleckman because she did not feel Ms. Fleckman "would be objective in evaluating my performance. (P-391.) Mr. Sicard replied on April 17, 1979, converting his suggestion into a clear directive that respondent work with and accept the assistance of Ms. Fleckman. Although clearly unhappy with the arrangement, respondent complied. (P-404.) The College has not shown that respondent ever refused or willfully and deliberately failed to comply with an administrator's directive which was phrased in clear and mandatory terms. Administrators, understandably, preferred to give suggestions to respondent, not orders or directives. But, failure to agree with or follow a suggestion does not amount to willful violation of a directive. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent . . . repeatedly refused to follow directives from college administrators, which has distracted from the objectives of her department, division, and campus. This charge is similar to the preceding allegation; no additional evidence was offered to substantiate it. Consequently, it is similarly concluded that no showing has been made that respondent repeatedly refused to follow directives from college administrators. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent deliberately failed or refused to perform assigned duties within the parameters established by her department chairperson. This charge may overlap with charges contained in paragraphs B and C above. The only additional incident of any significance offered by the College in substantiation involves respondent's purported attempt to use the psychology laboratory for therapy purposes. In June, 1978, respondent served as coordinator of the department's psychology laboratory with the assignment to expand its uses. On June 22, 1978, she circulated a memorandum to faculty members announcing a new laboratory program called "Positive Personal Programming," which would be carried out by Kenneth Forrest; she believed he was a student in an honors-level psychology course taught by Dr. Cecil B. Nichols. The program involved treating subjects with weight control or smoking habits by means of hypnosis and biofeedback techniques. Since regulations allegedly precluded use of the laboratory for therapy purposes, Mr. Sicard instructed respondent that this proposed program could not be implemented. Although she protested that the proposed program would be beneficial and should be allowed, she complied with his directive and immediately cancelled the program. The program was never implemented. Mr. Sicard testified that he did not know whether the program described in respondent's memorandum to faculty was ever implemented, but he "assumed" it was. (Tr.160.) He considered respondent's memorandum as an act of insubordination justifying her termination. (P-368.) The evidence does not establish that the proposed use would violate applicable regulations. 2/ In any case, it has not been shown how a program which was never instituted could violate any limitations on use of the psychology laboratory. The College has not shown any deliberate failure or refusal by respondent to perform her duties within the parameters established by her department chairperson. (Testimony of Sicard, Humphries.) Alleged: Respondent failed to satisfy established criteria for the performance of assigned duties. No objective criteria have been promulgated to assess the performance of College faculty members. In the absence of such criteria announced prospectively, the College seeks to establish by expert testing that respondent did not cover the material required in an introductory psychology course; that she placed undue emphasis on biofeedback techniques; and that the grading system she used was inadequate. Although there is conflicting testimony on these matters, the testimony of Ronald F. Tikofsky is accepted as persuasive. Now a departmental chairperson at the University of Wisconsin, he obtained a master's degree in psychology, and took a minor in psychology for his doctorate. He taught in the Department of Psychology at the University of Michigan, where he became a full professor, and later served as chairperson of the Department of Psychology at Florida International University from 1971 through 1979. He has participated in the development of college curriculum, helped college instructors develop teaching techniques, and evaluated the performance of faculty members. His academic credentials are impressive, his testimony was objective, forthright, and credible. (Tr. 967-1017; R-48.) His opinions are accorded great weight. He opined that, in his profession, there is no consensus on any set number of concepts which should be taught in college level introductory psychology courses, that this properly follows within the discretion of the individual instructor. His review of the topics respondent covered during the fall and winter semesters of 1980 led him to conclude that she covered the basic materials of an introductory psychology course, and that the time she devoted to biofeedback theory and demonstrations was appropriate. After reviewing respondent's grading records, he concluded that her grading method was not unusual or unacceptable. Development of grading curves is an art, not a science; it involves the interplay of several variables and the subjective judgment of the instructor. Generally, respondent would take the class average, note the distribution, establish cutoff points for various grade levels, apply them to the data, and then apply a subjective factor. Mr. Tikofsky testified that the number of credit points assigned for completing outside projects was neither excessive nor inappropriate. These opinions of Mr. Tikofsky are expressly adopted. The College has not shown that respondent failed to satisfy any meaningful performance standard, announced either prospectively or retroactively. (Testimony of Tikofsky, Sicard, Humphries.) Alleged:. Respondent failed to comply with directives for required improvements that were set forth in her yearly personnel evaluations. As already mentioned above, the yearly personnel evaluations contained "goals and objectives," not "directives." These goals and objectives were the product of discussion and negotiation between the department chairperson and instructor; some were considered mandatory, others not. Those that originated with the instructor lacked mandatory effect. The three goals and objectives concerning biofeedback--contained on respondent's 1979 personnel evaluation form--originated with the respondent. She made a good faith effort to complete or completed each of those biofeedback goals. The remaining six goals and objectives were satisfied by respondent. As to the 1978 personnel evaluation, most, if not all, of the listed goals and objectives were satisfied. Her next evaluation--where she was rated unsatisfactory--does not fault her for failing to meet any 1978 goal or objective. The evidence does not show that respondent failed to satisfy any goal or objective which was listed on her evaluation and clearly understood--at the time--to be a directive, rather than an end toward which effort should be directed. (Testimony of Sicard, Humphries; P-315, P-474.) Alleged: The level of instruction in respondent's classes was below reasonable minimum standards. This charge overlaps with paragraph E above, and H below. The College has not established or published any objective minimum standards to measure an instructor's performance. Respondent used a standard approach to teaching introductory psychology: she used a vocabulary or concept list for each chapter of the textbook and gave frequent objective tests. Her classes were structured and well-disciplined. Her students were generally satisfied with her performance and compared her favorably to other instructors at the College. Those who went on to take more advanced psychology courses made grades similar to or better than those they received from respondent. Ms. Fleckman helped her to improve her teaching techniques. When Ms. Fleckman observed her teaching in 1979, she could offer only a few suggestions and rated her 8 on a 10-point performance scale. Videotapes of respondent teaching her classes were viewed at hearing. After reviewing the tapes, Mr. Tikofsky opined that respondent was an adequate and competent classroom instructor. His opinion is accepted as persuasive. The videotapes demonstrate convincingly that respondent delivers lectures in an organized, methodical fashion and that she has the attention of her students. The tapes further show that she takes her teaching responsibilities seriously, is genuinely interested in the subject matter, and that she tries to relate and respond to her students. In light of the above, and the findings contained in paragraph E above, it is concluded that respondent's level of instruction in her classes did not fall below reasonable minimum standards, either announced prospectively or applied retroactively. (Testimony of Humphries, Tikofsky, Fleckman, Signorelli.) Alleged: Students in respondent's classes were deprived of required course material. This charge overlaps charges contained in paragraphs E and G above, and the findings relating to those charges also apply here. During the fall and winter of 1980, Mr. Tikofsky opined that respondent covered the topics appropriate to a college level introductory psychology course. His opinion is accepted as persuasive. The topics which should be covered are left up to the individual psychology instructor. The College does not specify the topics and materials that must be covered. When respondent was suspended near the end of the 1980 winter quarter, she had covered the material which--according to her own class syllabus-- should have been covered at that time. The charge that her students were deprived of required course material is unsubstantiated by the evidence. (Testimony of Humphries, Tikofsky; P-2.) Alleged: Respondent's classes were unstructured. As already mentioned, respondent's classes were structured and well disciplined. Ms. Fleckman conceded that her classes were structured. Students took copious notes and were able to organize her lectures into outline form (see paragraph G above). This charge is unsubstantiated by the evidence. (Testimony of Humphries, Signorelli, Stipulated testimony of Students.) Alleged: Respondent maintained little control over students. Respondent conducted her classes in a no-nonsense, businesslike manner. She welcomed questions from students, but she did not tolerate disruption. She was a disciplinarian and was respected by her students. This charge is unsupported by the evidence. (Testimony of Humphries, Classroom Videotapes, Signorelli, Stipulated testimony of Students.) Alleged: Respondent failed to maintain enrollment and completion rates at acceptable levels. The College has not established, prospectively, criteria to determine acceptable student attrition rates. Never before has a College instructor been recommended for termination because of an unacceptable attrition rate. Respondent's 1979, 1980, and 1981 evaluations--where she was rated unsatisfactory--concluded that she failed to "maintain enrollment and course completion at acceptable levels." (P-380, P-474.) Although she repeatedly asked Mr. Sicard for a specific attrition figure which she should meet, no figure was ever supplied. Mr. Sicard concluded that her attrition rate was "too high in relation to her peers." That conclusion is unsubstantiated. Her completion rate, over the years, was 51.7 percent, a figure which compares favorably with her fellow instructors: Alan Winet (56.3); James Killride (50.6); Margaret Casey (54.3); Dorothy O'Conner (44.4); Peter Diehl (44.4); Royal Grumbach (51.5); Lawrence Chernoff (45.2); Ronnie Fisher (42.5); and Harold Andrews (47). Moreover, between 1978 and 1980, her attrition rate was improving, sometimes exceeding 60 percent. It is concluded that, when compared with her peers, respondent maintained an acceptable student course-completion rate. (Testimony of Hansen, McCabe.) Respondent's Relationship with College Administrators Respondent was frequently at odds with College administrators. She petitioned the College for a four-day work week and a female professor's bill of rights. She appealed the College's failure to promote her and repeatedly accused the College of sexual discrimination. She was an outspoken critic, questioning and challenging the actions of College administrators. (Testimony of Sicard, Humphries.) Her relationship with administrators was marked by mutual distrust and became adversarial in nature. To avoid misunderstandings, she resorted to tape- recording her meetings with supervisors; her communications with administrators were increasingly reduced to writing. (Testimony of Sicard, Humphries.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be reinstated as a continuing contract employee at Miami- Dade Community College with full back pay for the period of time of her suspension. DONE AND RECOMMENDED this 1st day of June, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1982.
Findings Of Fact The parties stipulated that for Fiscal Year 1987-1988, the vocational- technical-adult education division of the Pinellas County Schools suffered a $7,000,000.00 budget deficit. The parties further agreed that if Dr. Cecil Boris, Executive Assistant Superintendent for Curriculum and Instruction were present, she would testify that she determined that as a result of the budget deficit, it would be necessary to eliminate $1,000,000.00 from the budget for the 1988-1989 fiscal year. She instructed her staff to implement that reduction based on two considerations. The first involved the cost effectiveness of individual programs and the second related to the need for the school system to service the community. The parties further agreed that in their respective departments, Mr. Poole and Mr. Muckle were the least senior instructors. Mr. Poole and Mr. Muckle both were continuing contract teachers at PVTI. Mr. Poole taught welding and Mr. Muckle taught heating, ventilation, and air conditioning. The terms of their employment are governed by the Agreement between The School Board of Pinellas County and the Pinellas Classroom Teachers Association, (Union), for 1985-1988. Other than the slots occupied by both Respondents as described above, and with the exception that as to Mr. Poole, a possible slot for him existed at SPVTI, there were and are no other open slots within the school system for which either Respondent is certified to teach. The parties agreed that the use of the term "open" means unoccupied by a continuing contract teacher or a teacher serving under a professional service contract. The parties further agreed that negotiations were conducted by the School Board with each Respondent in an effort to place him in other positions subsequent to his termination but the negotiations were unsuccessful. Pertinent Florida statutes relative to the issue here indicate that unless a teacher's contract is terminated for cause, it must be terminated at the end of the school year. Though the contracts of Mr. Poole and Mr. Muckle were not so terminated at the end of a school year, the parties agreed that failure was not and would not be raised as a defense to their termination. In November or December of each year, the various county school boards, including Petitioner, receive from the State the number of full time equivalents, (FTEs) they will be authorized for the following school year. A FTE equates to 900 hours of instruction per pupil and is authorized in various categories, including secondary education, post-secondary education, adult education, etc. If the Board feels the authorization allotted to it is inadequate or erroneous, it can appeal that allotment. Ordinarily, however, once the number of FTEs is received, the Board then examines the various programs it proposes to offer and establishes the number of units which it can employ for the coming school year. A unit equates to one full-time teacher. In addition, on the basis of the FTE authorization, the Board can figure what part time hour programs it can offer by the number of hours available to it. The post-secondary vocational-technical-adult education area is divided into several basic curriculum areas including, but not limited to, business education, distributive education, agricultural education, building trades, and health occupation education. The areas are not all funded equally but are weighted on the basis of projected student population relating to FTEs. The weights change year by year and the effect of weighting creates, in some cases, an opportunity to have a lower teacher/pupil ratio, (TPR). Some areas, by law, require lower TPRs. As a result, the weight for these programs is higher. Conversely, if the requirement is not as high, then the weighting given to the FTE is lower. When the Pinellas County School Board received its authorization for FTEs, a staff model implementing these authorizations was prepared by Dr. Herbert Ross, Assistant Superintendent for Vocational-Technical-Adult Education, under Dr. Boris' direction. This staff model, which defines where the FTEs are to be assigned, is prepared by the staff which, in doing so, evaluates the prior years programs, the TPR, the placement of students, and the future of the various authorized programs based on input from the various school advisory committees. This staffing model, when promulgated, is not fixed. If additional economies can be generated as a result of factors which occur later on in the school year, these economies will be implemented. By the same token, if a vacancy occurs subsequent to the preparation of the staffing model which does not warrant replacement based on projections of student population, the Board will not hire a replacement. The staff model pertinent to this case, prepared by the Division of Curriculum and Instruction, as it related to vocational teachers, reflects that SPVTI's staffing level for vocational teachers was to be reduced from 109 to 102 (7 teachers), and PVTI's teacher staffing was to be reduced from 120 to 111, (9 teachers). Elimination of these 16 teacher positions would result in a savings of $518,400.00. The entire reduction generated by staff reductions throughout the Division of Curriculum and Instruction totaled $1,085,612.00. The reductions identified in the staffing summary were based on the 1988 student load reports and the registrar's reports of enrollment in the various schools. Student load reports were not the sole factor considered. TPR's were also considered as were the number of sections in a program, (a program with one section only, involving one instructor, would not likely be cut as to do so would result in the loss of the entire expertise in that area), the various course placement records, the need for the course within the community, and other factors of a similar nature. When the evaluations were made, individual instructors were considered. The determination as to which programs required cuts generally resulted in identification of those programs with the lowest TPR being singled out for reduction. In this regard, Counsel for Respondent strongly contested Mr. Wagner's analysis of which programs were cut and why. Documentation prepared by her from records furnished by the Board in response to discovery would tend to indicate that many programs with a much lower TPR than either that of Mr. Muckle or Mr. Poole's classes were spared reduction while Poole's and Muckle's programs were cut. Mr. Wagner logically and reasonably justified each one of the judgement calls he made in determining whether a particular program should or should not be cut and no evidence was presented by Respondents to indicate that his judgement was incorrect or unsupported. Neither Mr. Wagner nor Dr. Ross played any part in the identification of the individuals who were to be terminated. Once the programs to be reduced were identified, they were forwarded to the school district personnel officer where identification of individual instructors was made on the basis of number of students, number of teachers, and projections for the future. Both the welding program, in which Mr. Poole teaches, and the heating, ventilating and air conditioning program, in which Mr. Muckle teaches, are in the same weighted category of courses, (trade and industrial). Based on the weight factors for trade and industrial courses, a unit, (teacher), needs a 12 to 14 TPR of full time students or part time equivalents. In making his identification of programs to be reduced, Mr. Wagner relied on several documents produced within his facility. The first is the registrar produced enrollment documents reflecting each course's student enrollment by nine week period, (quintmester or quint), for the prior two years. These quint rolls are prepared at the opening of each quint by the registrar from registration forms submitted by students for each class in session. As students come and go during the quint, adjustments are made as required. These forms, however, give the student enrollment only at the beginning of the term, and in order to get an accurate figure of class enrollment at any given time, Mr. Wagner periodically requests his instructors to prepare student load reports which list, by class period, the number of students each instructor has enrolled in his class and present on the day the report is submitted. Since some students are full time and some only part time, in determining the TPR, 3 part time students equal 1 full time student. This is a reasonable method of analysis. After making his study, Mr. Wagner identified the heating, ventilation, and air conditioning courses and the welding courses for reduction because these two technologies had been suffering a decline over several years. In fact, Mr. Muckle was warned that his job might be in jeopardy the prior year. In addition, whereas the institute had been previously getting central office support for various programs during a period of decline, this support was no longer forthcoming. When Wagner recommended cuts to the district personnel office, his recommendation was to cut a unit in the department. The choice of instructor was based upon seniority. The TPR in the heating, ventilating and air conditioning program had shown a pattern of continuous decline and enrollment at the time of identification was even lower than in previous years. Major appliances, a part of that program, had suffered a reduction through retirement of an instructor during the past year and this year, with the number of students enrolled being even smaller, it was necessary to cut an additional instructor. This same situation applied to the welding technology where though there was higher fluctuations than in heating, ventilating and air conditioning, the pattern of decline was consistent. Because of the impact that reduction has on the instructors within the system, the administration attempts, wherever possible, to do away first with vacancies. When those are gone, the remaining necessary cuts are attempted through attrition. In the instant case, Mr. Wagner cut two open units and got three more by not replacing retirements. Once these five units were cut, he was forced to look to annual contract teachers. A teacher who resigned was not replaced. Finally, when cuts were still required, it became necessary to look to continuing contract teachers to make up the difference between the six spaces mentioned above and the sixteen needed. Night course programs cannot be considered in the same category with day programs as they are "supplemental" programs. Teachers within these programs are usually part time teachers hired at an hourly rate. Mr. Wagner did not consider placing those teachers identified for cutting into the night program as teachers. Generally an instructor under continuing contract which calls for 25 hours of instruction per week cannot get enough teaching hours in a night program, (four nights per week, at four hours per night), to make absorption of the remaining nine hours cost efficient. Mr. Poole was not the only instructor identified for cut in the welding program. At the beginning of the identification process, four teachers were in the program, but Mr. Poole, the most junior, was identified and his position cut. That left three instructors. By May, 1988, Mr. Wagner had to recommend another reduction in that program, reducing the number to two and the prognosis was for even further decline. Even with the reductions imposed and identified for future imposition, it would appear that the welding program was not cost effective, notwithstanding Mr. Poole's testimony, uncontroverted, that it was well received in the community and the placement record for students coming out of the program was good. The May/June 1988 enrollment figures showed 25 students in the programs. This is just enough for two instructor positions. Consequently, when Mr. Wagner identified the third unit, rather than cut it, he transferred it to SPVTI along with the incumbent instructor effective July 1, 1988, the start of the 1988/1989 fiscal year. Mr. Poole was junior to that instructor. Quint reports for the HVAC program showed for the January - March 1988 period 49 students in the program with 7 teachers, generating a TPR of 7. In the previous year, there were 69 students at the beginning of the school year and during the same months of that year, the count was 75 students. Mr. Wagner projected that the student population would go down even further in the future. As for the welding program, during the January - March 1988 period, the program served 28 students with 4 teachers. At the beginning of the school year, the student population was 29 and during the same period for the previous year, it was 33. Heating, ventilation, and air conditioning and welding were not the only programs identified for reduction during this round of budget cuts. Several others, including electromechanical studies and practical nursing were also reduced as were the architecture/civil program. All of these had TPRs of 10 or less. No program with a TPR of over 10 was affected by the cuts. Once Mr. Muckle and Mr. Poole were identified by the district personnel office for cut, Mr. Wagner looked to see if, consistent with their certification, they could be moved into another department. Mr. Poole is certified in welding and Mr. Muckle is certified in heating and air conditioning. Both are certified in related technology. However, both instructors are continuing contract teachers and changing to a related technology is not normally done for continuing contract instructors. Several departments at PVTI which have a lower TPR than welding and HVAC were not affected. In one case, Mr. Wagner reduced a teacher to a 10 month contract from a 12 month contract status and also generated 39 more part time students in an effort to raise the TPR and keep the course. One-teacher departments, even with a lower TPR, were kept open in order not to lose the expertise. In other cases, the nature of the student population involved might have justified keeping a course open even with a low TPR, (handicap). The determination as to where to impose cuts was, in most cases, a question of judgement wherein Mr. Wagner, as Director of the school, had to consider other factors in addition to the TPR in deciding where to recommend the cuts. Mr. Poole had previously taught at night and was willing to again teach at night on a part time basis. However, he had chosen to withdraw from teaching night classes in the past and notwithstanding he stated he had offered to teach them again, he did not communicate this to Wagner. As to whether Poole could be reassigned to the welding program at SPVTI, there are currently two instructors, (including a transfer in from PVTI), on board and at the close of July, 1988, there were only 9 or 10 students for both teachers. This does not justify a third teaching position for Mr. Poole to fill. Respondents, offered several statistical surveys of teacher/pupil ratios which indicate there are numerous programs within the school system which appear to have lower TPRs than either the welding or HVAC programs. However, numerous factors other than TPR were considered in determining and identifying various programs for reduction. There has been no evidence whatever to indicate that Mr. Wagner's judgement was inaccurate, incorrect, or flawed. There was no evidence that his decisions were either arbitrary or capricious or based on an improper attempt to impose an adverse action on either Respondent or to improperly give benefit to others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the termination of employment of Respondents Jeffrey Muckle and Thomas Poole be upheld and their employment contracts with the School Board of Pinellas County be cancelled. RECOMMENDED this 29th day of September, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2005, 88-2008 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 4. Accepted and incorporated herein. 5 - 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8 - 9. Accepted and incorporated herein. 10 - 11. Accepted and incorporated herein. 12 - 13. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 16 - 23. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. For the Respondents: 1 - 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Sentence one is rejected as contra to the weight of the evidence. The remainder is accepted. 7 - 8. Accepted and incorporated herein. 9 - 10. Accepted. 11 - 12. Accepted. Rejected. Information is available. The issue is one of credibility and weight. Rejected and irrelevant. Rejected. Petitioner admits some records are not complete. The issue, however, is not one of statistics but of concept and the evidence is clear that Mr. Wagner's decision was based on reliable evidence which fairly presented the overall picture. Rejected and irrelevant. Conclusion in last sentence is rejected. 18 - 19. Accepted but irrelevant. Accepted but not controlling. Accepted and incorporated herein. Explained. Accepted. Accepted and incorporated herein. Accepted but not controlling. Accepted. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688 Charleen C. Ramus, Esquire Kelly and McKee, P.A. 1724 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638
The Issue The issue in this case is whether Respondent wrongfully terminated Petitioner's continuing contract of employment.
Findings Of Fact Petitioner is currently a doctoral level graduate student. At all times relevant hereto, she held a continuing contract as a professor at SCC in the Networking and Electronics Program (the "Networking Program"). Respondent is a community college within the state community college system. It is governed by its Board of Trustees. Dr. Ann McGee is president of SCC; vice president of Educational Services is Dr. Carol Hawkins. Angela Kersenbrock is the dean of Career Programs, including the Networking Program. Department chair in that program is Leon Portelli. Beginning in calendar year 2003, SCC began to experience decreased student enrollment, especially in the area of the Networking Program. SCC instituted a program review under Dean Kersenbrock's tutelage. A program review provides for the collection of relevant data to ascertain the continued viability of programs within the college. The program review of the Networking Program found low and declining enrollment and retention, a perceived job market decrease, difficulty in recruiting industry partners, and limited internships for students. Based on those findings, a series of recommendations were made to improve the Networking Program. Included in the recommendations were the following: increase class size, reduce faculty (Reduction in Force (RIF)), cross-teaching in other areas, cut back on adjuncts, reduce contract length, consolidate courses and sections, and work closely with industry partners to locate jobs for graduates of the program. Many of the recommendations were implemented even before finalization of the program review. However, in February 2007, Dean Kersenbrock decided the measures being taken were not alleviating the problem. She then submitted her formal recommendations to the Board of Trustees. A formal presentation was made to the Board of Trustees on April 17, 2007. After much discussion and debate, the Board of Trustees approved the recommendation from Dean Kersenbrock's review committee to implement a RIF in the Networking Department. At that time, there were five faculty members in the department, including Petitioner. The other faculty members were: John DelGado, Ben Taylor, Bill Irwin, and Gary Belcher. The proposed RIF intended to reduce the faculty from five to two. Irwin and Belcher were immediately selected for termination due to the fact that they could teach fewer topics within the department than could the other three staff. After they were terminated, SCC had to select one of the three remaining staff (DelGado, Taylor, and Petitioner) to be the final cut for the RIF. Each of the three had identified strengths and weaknesses; so, the selection was a difficult one to make. In order to make the decision, the following factors were considered: (1) the essentiality of the position, (2) work performance, (3) attendance record, and (4) supervisory recommendations. If all those factors are equal between the faculty members being considered, then length of service to the college would be the determining factor.1 SCC evaluated DelGado, Taylor, and Petitioner and found them, on aggregate, to be equal as far as the four factors were concerned. Each faculty member had strengths and weaknesses within the four categories, but were essentially "tied" when it came down to making a decision.2 Petitioner correctly pointed out that of the three faculty members, she was the only one who had experience making presentations at national level conferences. This fact weighed in her favor, but it was not enough to outweigh the strengths of the other faculty members. Likewise, Petitioner has the ability to teach a number of different classes, a positive in her favor. But, again, her abilities did not make her more essential than the other two. Some questions were raised about Petitioner's work performance, attendance record, and poor supervisory recommendations. However, none of those questions indicated that Petitioner was inferior to her fellow professors. Neither of the parties offered into evidence a true comparison of the three faculty members. There was some indication that each had strengths and weaknesses, but each person's individual assets or liabilities weren't described with any particularity. Thus, a substantive de novo review of that part of Respondent's decision making process is not possible. When all was said and done, Petitioner's length of service at SCC was shorter than the other two, and, thus, she was selected for the final RIF cut. Pursuant to SCC policies and procedures, an employee affected by a RIF must be given at least two weeks notice prior to the reduction taking effect. Petitioner was advised twice concerning her termination: once in a letter from the director of Human Resources Development--letter dated April 26, 2007--and once in a letter from SCC's president, E. Ann McGee--letter dated May 17, 2007. The latter correspondence provided Petitioner her appeal rights. Petitioner was provided her severance package in accordance with SCC policies. President McGee's letter to Petitioner stated in part, "You have the right to appeal the Board's decision pursuant to Chapter 120, Florida Statutes." However, the letter did not address Petitioner's right to appeal directly to the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be given an opportunity to select a direct appeal to the Board of Seminole Community College. As far as the instant case is concerned, Petitioner failed to meet her burden of proof and the termination of her contract would be upheld. DONE AND ENTERED this 16th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 16th day of November, 2007.
