The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6A-10.081(3)(a) and 6A-10.081(5)(d), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke, suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes. § 1012.79(7), Fla. Stat. (2016). Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2016). Respondent holds Florida Educator's Certificate 829054, covering the areas of Education, Leadership, Physical Education, Social Science, and Exceptional Student Education, which is valid through June 30, 2018. At all times pertinent hereto, Respondent was employed as an Exceptional Student Education Teacher at Holly Hill School in the Volusia County School District. Holly Hill School is a combined K-8 school. During the time in question, Respondent shared a small office with Ms. Pollok and Mr. Edwards. The office was formerly a teachers’ lounge/lunchroom. It still had a counter, sink, and refrigerator, and had bathrooms that continued to be used on occasion by other teachers. Each of the three teachers who shared the office had their own desk. The office also included two smaller tables at which the teachers could provide service to their ESE students when necessary. At the start of the 2013-2014 school year, Ms. Pollok knew Mr. Edwards, who had been in the ESE program, but did not know Respondent. The incidents described herein occurred between the start of the 2013-2014 school year on August 13, 2013, through late November, 2013, when Respondent was removed from the classroom. Racial Comments Over the period of time in question, Respondent made numerous statements of a racial nature. While on hall duty between classes, Respondent would occasionally call African-American children “Bebe’s kids.” The reference was to an animated television show in which “Bebe’s kids” were unruly and ill-mannered African-American children. Mr. Edwards understood the comment to be derogatory, and noted that the children hearing the comment would occasionally react, even to the point of commenting that they did not want to be referred to as such. Respondent’s statements were also heard by Ms. Burnam-Hoyt, who likewise understood the term to be derogatory, and observed that the children at the receiving end of the comment looked shocked. She advised Respondent that he should not call them that name. Ms. Pollok testified that Respondent routinely called children “nappy” during hall duty when students transition from one period to the next. The comments were directed to middle school students, whose reactions were perceived by her as being ones of humiliation or embarrassment.1/ Mr. Edwards testified that he heard Respondent refer to African-American children as “nappy,” though not with the frequency with which he called them “Bebe’s kids.” Respondent testified that he only called one child “nappy” at the request of the child, an ESE student -- though not one of his students -- who wanted to be called “napster” or “nappy.” There was no competent, substantial evidence to support that claim. No other teacher substantiated such a request, and Mr. Edwards and Ms. Burnam-Hoyt testified credibly that the term was used more broadly. In any event, as stated by Ms. Fisher, there would be no reason to address any student by that type of obviously inappropriate term, even if requested. Mr. Edwards perceived Respondent’s comments as inappropriate, and they made him uncomfortable. He believed, rightfully, that the comments made Ms. Pollok uncomfortable as well. There was no evidence that any student’s learning ability or mental health was actually adversely affected by Respondent’s racially-demeaning statements. Nonetheless, under the circumstances described herein, Petitioner proved that Respondent failed to make reasonable effort to protect students at Holly Hill School from humiliation and embarrassment, conditions reasonably understood to be harmful to their learning environment and their mental health. Sexual Comments Over the period of time in question, Respondent repeatedly made statements of a sexual nature. On occasion, when Ms. Pollok arrived to work in less than a cheerful mood, Respondent would state to the effect of “What's the matter, Pollo[]k, why are you grumpy? Am I going to have to go downstairs and talk to your husband about how to wake you up properly?” The first time he made the comment, he accompanied it with hip thrusts and grunts, i.e., sounds that people make when they're having sex, thus accentuating the sexual nature of the comment. The first time Respondent made the statement, Ms. Pollok felt awkward, left the office, and went to her husband’s classroom (he was also a teacher at Holly Hill School) where she stayed until the school day started. When he continued to make such statements on a more regular basis, it made her uncomfortable. Mr. Edwards heard Respondent make the statement to Ms. Pollok on one or two occasions. Respondent denied having ever made the comments, attributing them to Mr. Anderson, who laughingly took credit. Regardless of whether Mr. Anderson may have also made comparable statements, the testimony of Ms. Pollok and Mr. Edwards that Respondent made the statements at issue is more credible, and is accepted. Ms. Burnam-Hoyt, who enjoys a well-known and long-term relationship with her wife, would occasionally visit the office. On one occasion, while in the presence of Mr. Edwards, Respondent told Ms. Burnam-Hoyt that she looked nice that day and said “I wish you would switch teams.” Though she gave an off-hand reply, Ms. Burnam-Hoyt did not discuss her sexuality, especially in the workplace, and was offended by the comment. On several other occasions, when Ms. Burnam-Hoyt was not in the room, Respondent commented in the presence of both Ms. Pollok and Mr. Edwards that he wished “she didn’t bat for the other team.” On one occasion, when Ms. Pollok had returned from ESE training and asked Respondent about his day, he replied that “it was pretty boring until your old boss, what's her name, Mandy [Elzy], bent over and showed me her boobs.” Respondent commented, with regard to Anna Garces, that “she was spicy and he'd like to make her his consuela.” When Donna Mounts, a P.E. instructor, would come to the office, Respondent’s favorite phrase was that he “would like to mount Coach Mounts.” Respondent did not make the statement directly to Ms. Mounts, but he made it in the office on a routine basis. Respondent commented regarding Marcie Lockamy, an African-American assistant principal, that “I don’t normally do black ladies, but she’s pretty hot . . . I’d get at that.” Respondent’s denial that he made the statement, or that he even knew who Ms. Lockamy was, was not convincing. Respondent’s comments were repetitive, and he would make some statement every day. Ms. Pollok and Mr. Edwards told Respondent that he should “tone it down.” In particular, Mr. Edwards testified credibly that he advised Respondent “at different points” that his comments about women were not appropriate, not only because of his own view of the matter, but because he believed them to be disturbing to Ms. Pollok. The requests and recommendations had no identifiable effect. Mr. Anderson’s testimony in this case, apparently designed to exonerate Respondent and transfer responsibility for many of the statements to himself, was not persuasive, and in several instances, conflicted with the more credible testimony of other witnesses.2/ Respondent’s general defense to his sexual comments was that he was just “joking around,” that they occurred when he and the target of his comments “were talking and laughing and having a good time in between classes,” that they were a “jovial gesture,” and the like. He denied that they were perceived as offensive by any the persons within earshot, a statement denied by the persons exposed to his comments. Individually, Respondent’s comments could be categorized as puerile. Collectively, and over time, they rose to the degree that they created a hostile, abusive, offensive, and oppressive environment in the small office that constituted the workplace for the three teachers. Threatening Comments The Administrative Complaint alleges that, over the period of time in question, Respondent made “threatening comments to or around [Ms. Pollok].” As to comments regarding Respondent’s prior work- history as a police officer, Mr. Edwards testified credibly that they were nothing more than “experiences that people have or wanted to share.” Mr. Edwards did not take those statements as threatening. When Respondent discovered that he was being investigated by Holly Hill School, he was understandably upset. He made some comments that expressed his frustration. However, Mr. Edwards testified that Respondent did not threaten him or Ms. Pollok. Respondent admitted to being upset and frustrated, but denied either expressing, or having the intent to harm anyone. The comments, under the circumstances, were not so out of line as to objectively constitute a threat to one’s safety or welfare. Under the circumstances described herein, Petitioner did not prove that Respondent’s allegedly threatening statements created a hostile, intimidating, abusive, offensive, or oppressive environment in violation of rule 6A-10.081(5)(d). Holly Hill School’s Response Ms. Pollok complained of Respondent’s behavior to various administrators at Holly Hill School, including Mr. Strother, and went so far as to request a reassignment of her duties so as to avoid Respondent. On November 1, 2013, Mr. Strother spoke with Respondent. The conversation was “short and brief,” and non-specific, with Mr. Strother generally advising Respondent to “be cognizant of conversations you're having and what you're saying around other people.” On or about November 4, 2013, Ms. Pollok renewed her complaint to Mr. Strother about Respondent’s comments about “the ladies,” and their looks and sexual preferences. Mr. Strother could tell that the comments made Ms. Pollok uncomfortable. Mr. Edwards had also spoken to Mr. Strother regarding Respondent’s comments. As a result of those complaints, Mr. Strother sent out an email directing all teachers to have “professional conversations,” and to lead “by example with appropriate conversation.” Though the email was not specific, included other topics, and was sent to a number of Holly Hill School employees, it nonetheless should have placed Respondent on notice to heed not only Mr. Strother’s earlier advice, but also the earlier admonitions from Mr. Edwards and Ms. Pollok to “tone it down.” It did not have the intended effect. On November 20, 2013, Ms. Pollok reported Respondent’s unabated comments about women and those made towards students to Ms. Fisher. Ms. Pollok was upset and crying during their discussion. Ms. Fisher then spoke with Mr. Strother to confirm Ms. Pollok’s earlier complaints. Ms. Fisher reported the allegations to the school district, and on November 21, 2013, an investigation of Respondent’s conduct was initiated. The investigation delved into the sexually-inappropriate comments, and extended into areas that are not the subject of this proceeding, for which Respondent received a reprimand. As to the comments directed to students, which were determined to be violative of principles of professional conduct and school board policy for failing to protect students or exposing them to excessive embarrassment or disparagement, Respondent was suspended without pay for five days, and transferred from Holly Hill School.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(j) and rules 6A-10.081(3)(a) and 6A-10.081(5)(d). It is further recommended that the Education Practices Commission impose a suspension of the Respondent's educator certificate for a period of one year, and a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case. DONE AND ENTERED this 23rd day of January, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2017.
The Issue The issues in this case are whether Respondent committed the offenses charged in the Amended Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting complaints against individuals who hold a Florida educator’s certificate and who are alleged to have violated one or more provisions in section 1012.795 and implementing rules. Respondent holds Florida educator’s certificate 777352, covering the area of social science, which is valid through June 30, 2020. Prior to becoming a teacher, Respondent was in the military for 21 years, serving as a soldier and non-commissioned officer in the U.S. Army. Respondent describes himself as a “great leader,” a skill he believes he developed in the Army. Respondent was employed as a teacher for the Lee County School District (School District) beginning in 1998 or 1999.6/ He taught social science classes at Bonita Springs Middle School until 2009. A former student who attended that school between 2002 and 2004 spoke highly of Respondent as her teacher. That student has not been in a classroom with Respondent since 2004. Beginning in early 2005, Respondent’s record as a teacher at Bonita Springs Middle School became spotted with disciplinary measures being regularly taken against him. The matters for which Respondent was disciplined were similar, evidencing a pattern of inappropriate physical contact with students, angry outbursts, conflicts with principals, and inappropriate classroom conduct, including ridiculing, embarrassing, and yelling at students. In February 2005, at the request of the Bonita Springs Middle School principal, Respondent attended an in-service training on Anger Management and De-Escalation Training. Despite that training, between 2005 and 2009, Respondent received six letters of reprimand from three different principals and two different directors of the School District’s Department of Professional Standards and Equity (DPSE). The letters of reprimand were for incidents described as: pushing a student (letter of reprimand, March 2, 2005); inappropriate physical contact--putting his hands in the pants of a female student (letter of reprimand, September 27, 2005); shoving two students out of the classroom (letter of reprimand, March 2, 2006); shouting at students in the hallway in a very harsh and loud tone (letter of reprimand, September 22, 2006); exposing students to unnecessary embarrassment or disparagement (letter of reprimand, August 6, 2009); and kicking three students out of class, and yelling at the remaining students in the classroom, “You all are a bunch of idiots” (letter of reprimand, October 26, 2009). On December 8, 2009, Respondent was involved in another incident with a student, E.C., who was a seventh-grade female. Respondent had sent E.C. to a neighboring classroom, connected to his classroom by a vacant office. When E.C. tried to return to Respondent’s classroom through the vacant office to retrieve her things, Respondent stopped her and told her to return to the other classroom. E.C. was determined to get her things and disobeyed Respondent. When she tried to go around him to go back into his classroom, Respondent put his hand on her shoulder in an attempt to stop her. E.C. told him: “Don’t touch me.” She retrieved her things from Respondent’s classroom and then returned to the other classroom where Respondent had sent her. At that point, Respondent called the office for assistance. The District’s DPSE immediately began an investigation. Respondent was suspended from teaching with pay and benefits as of December 9, 2009, pending completion of the investigation. Following the investigation and a predetermination conference, the School District’s superintendent filed a Petition for Termination, alleging that Respondent was guilty of misconduct and other violations in connection with the incident on December 8, 2009. Respondent, represented by counsel, requested an administrative hearing to contest the proposed termination. Beginning March 9, 2010, the terms of Respondent’s suspension were changed to without pay pending resolution of the administrative proceeding. A DOAH evidentiary hearing was held on July 14, 2010. The resulting Recommended Order found Respondent guilty of misconduct and some of the other charged violations. The recommended penalty was suspension without pay from March 9, 2010, through January 1, 2011. The Recommended Order’s findings of facts, conclusions of law, and recommended penalty were adopted in a Lee County School Board Final Order rendered November 2, 2010. Lee County School Board v. Joseph Cofield, Case No. 10-1654 (Fla. DOAH Sept. 24, 2010; Lee Cnty. Sch. Bd. Nov. 2, 2010) (2010 Suspension Order). Detailed findings of fact were made in the 2010 Suspension Order regarding the history of disciplinary action taken against Respondent from 2005 through 2009, which went uncontested by Respondent through the grievance process available to dispute disciplinary action. See 2010 Suspension Order, RO at 3-7. The findings also describe the repeated warnings given to Respondent in the numerous letters of reprimand, which went unheeded; Respondent continued to engage in the same types of inappropriate behavior, despite the discipline and the warnings. Findings were also made in the 2010 Suspension Order regarding Respondent’s positive contributions as a teacher during the same time span as his patterned inappropriate behavior. These included: being honored in 2005 as Wal-Mart Teacher of the Year; being honored by Florida Gulf Coast University as College Reachout Program Coordinator of the Year; participating in a conference in January 2009 to discuss the Troops to Teachers Program; coordinating a computer give-away program in conjunction with a community organization that presented computers to Bonita Spring Middle School; and achieving success in Cadet and College Reachout Programs. See 2010 Suspension Order, RO at 11-12. The 2010 Suspension Order concluded as follows: The School Board did establish that Mr. Cofield placed his hand on a student’s shoulder without the permission of the student. Mr. Cofield has been warned and disciplined in the past for placing his hands on students without the student’s permission. Mr. Cofield chose not to heed those warnings. Mr. Cofield argues that placing his hand on E.C. was reasonable force needed to control his classroom. This argument is without merit. Mr. Cofield did not need to put his hand on E.C.; he could call the office for assistance. The School Board has established that Mr. Cofield’s conduct constitutes misconduct[.] * * * Mr. Cofield has performed outstanding work with the various programs designed to assist students, such as the computer give-away program, the Cadet program, and the College Reachout Program. This work mitigates against termination. However, placing a hand on a student without justification warrants a serious disciplinary action. 2010 Suspension Order, RO at 14-15. Respondent did not appeal the 2010 Suspension Order. Its findings, officially recognized herein, establish the backdrop of Respondent’s significant track record of discipline, and of the repeated warnings given in connection with disciplinary measures, from 2005 through 2009. No contrary evidence was offered. In October 2010, just before the School Board rendered the 2010 Suspension Order, Petitioner issued an Administrative Complaint against Respondent (2010 Complaint), seeking to take disciplinary action against Respondent’s educator’s certificate. The 2010 Complaint set forth Respondent’s “history of discipline related to conduct with students,” listing in summary fashion much of the same disciplinary history detailed in the 2010 Suspension Order. Respondent’s disciplinary history set forth in the 2010 Complaint was as follows: On or about March 2, 2005, Respondent received a Letter of Reprimand from [the] principal related to pushing [a] student. On or about September 27, 2005, Respondent received a Letter of Reprimand from [the] principal resulting from allegations that Respondent put [his] hand into [a] student’s front pocket. On or about September 25, 2006, Respondent received a Letter of Reprimand from [the] principal for yelling at Cadets in a loud and harsh manner. On or about October 9, 2009, Respondent received a Letter of Reprimand from [the] principal for, among other things, Respondent’s confrontational behavior towards [the] principal. On or about October 28, 2009, Respondent received a Letter of Reprimand from [the] principal relating to conduct with students. On or about December 9, 2009, Respondent received a Letter of Suspension from [the] principal related to allegations of [a] physical assault on a student. 2010 Complaint at 1-2 (Pet. Exh. 1). The 2010 Complaint added allegations of other incidents of inappropriate conduct by Respondent during the 2008-2009 school year, including the following: Respondent called students embarrassing names such as “knucklehead” and “fruitcake.” Respondent looked at female students in a manner that made the students feel uncomfortable and self conscious. Respondent threatened students telling them, “I will cut your fingers off,” or “I’ll smash your head into a wall,” or words to that effect. 2010 Complaint at 2 (Pet. Exh. 1). Respondent, represented by counsel, entered into a settlement agreement to resolve the charges in the 2010 Complaint, rather than contest them in an administrative hearing. Respondent signed the agreement on April 28, 2011. Pertinent terms of the settlement agreement were: Respondent neither admits nor denies, but elects not to contest the allegations set forth in Petitioner’s Administrative Complaint, which are incorporated herein by reference. Respondent agrees to accept a letter of reprimand, a copy of which shall be placed in his certificate file with the Department of Education and a copy of which shall be placed in his personnel file with the employing school district. Respondent agrees that he shall be placed on probation for a period of two (2) employment years. . . . As conditions of probation, Respondent: * * * shall, within the first year of probation, take a 3-credit hour college level course in the area of Classroom Management. . . . shall violate no law and fully comply with all district school board regulations, school rules, and State Board of Education Rule 6B-1.006 [transferred to rule 10A-1.081 in January 2013; see endnote 2]; and shall satisfactorily perform his duties in a competent, professional manner. * * * In the event Respondent fails to comply with each condition set forth herein, he agrees that the Petitioner shall be authorized to file an Administrative Complaint based upon the violation of the terms of this Settlement Agreement. Settlement Agreement at 1-2 (Pet. Exh. 1). By Final Order rendered on August 9, 2011, attaching and incorporating the 2010 Complaint and settlement agreement, the EPC accepted the settlement agreement and ordered Respondent to comply with its terms. Respondent did not appeal. Respondent was on probation, and subject to the specific probation conditions imposed by the EPC Final Order, for the 2011-2012 and 2012-2013 school years. Meanwhile, Respondent completed the term of his suspension from teaching without pay imposed by the School Board’s 2010 Suspension Order on January 1, 2011; he was allowed to return to work on January 3, 2011. Respondent was not asked to return to teach at his former school, Bonita Springs Middle School. Instead, he was offered a teaching position at the Alternative Learning Center (ALC). The ALC principal, Ken Burns, was told to make a spot for Respondent to teach there, and he did. Respondent accepted the teaching position at ALC. He taught eighth grade social studies. ALC is an alternative school. Students are sent to ALC because they are having problems at other schools. Principal Burns describes the ALC students as kids who made bad decisions, but who are not bad kids. These students can present challenges for teachers and administrators. In classrooms, sometimes these students do not act properly. They can be disruptive. The teachers are responsible for managing their classrooms properly, in accordance with standards set by Florida law and regulations, and School District policies. Principal Burns described some of the methods used at ALC to deal with problems in the classroom. One tool in place is called Team Time Out. Specific teachers are scheduled to be in charge of Team Time Out for a period of time. If a student is getting unruly in a classroom, the teacher can send the student to the designated teacher in charge of Team Time Out. The student is allowed to cool down before returning to class. Another tool used is a regular Time-Out Room. If a student is disrupting a class, the teacher might send the student to the Time-Out Room, where the student can work on assignments. Regardless of the student problem being confronted, each teacher is expected to abide by the code of conduct established for the education profession. Rather than violate those conduct standards, if the teacher cannot otherwise handle a student problem, the teacher is expected to call administration or security for assistance. On November 30, 2012, while on his EPC-imposed probation, Respondent received a letter of warning, which is a form of disciplinary action, from the ALC principal. As described in the warning letter, a student reported that Respondent pushed the student out the door during a fire drill, and that the push nearly caused the student to fall. The incident described in the letter of warning is similar to the long list of prior incidents for which Respondent was disciplined and about which Respondent was repeatedly warned, including the incident for which Respondent had recently served a suspension without pay for nearly ten months. The November 30, 2012, letter of warning ended with a yet another reminder “to assist in correcting this conduct,” providing as follows: “From this point forward, please remember at no point should a student be physically touched. If you are having an issue with a student please notify the administration or security for immediate assistance.” Very shortly after that incident, the ALC principal received other complaints about Respondent’s behavior with students and his classroom temperament. The complaints came not just from students, but also from a paraprofessional (teacher’s aide) who was concerned about Respondent’s behavior that she had observed when she was in his classroom. The ALC principal consulted with the School District’s DPSE, collected statements from the paraprofessional and students, and passed on the information to the DPSE. By letter dated January 11, 2013, Respondent was informed that the DPSE was conducting an investigation into allegations of misconduct. Because the allegations involved issues of student safety, the notification letter informed Respondent that he was suspended from teaching with pay during the investigation. Andrew Brown, then-investigator for the DPSE, conducted the investigation of alleged incidents involving Respondent in December 2012 and January 2013, and prepared an investigative report. The complaints that were investigated were summarized in the report as follows: On or about December 20, 2012 (just before Winter Break), Mr. Cofield allegedly slammed a student’s fingers between the student’s desk and a binder the student was holding. In a separate incident [on] December 19, 2012, Mr. Cofield allegedly threatened a student by grabbing and holding a keyboard in a threatening manner. He allegedly slammed a door behind the same student as the student was leaving the room, making contact with the student’s arm. In a third incident [on] 1/8/12 [sic: 2013], Mr. Cofield allegedly embarrassed students by asking each one to sit separately on a stool at the front of the room and answer the question, “Do you have a teacher’s license?” before sending the same students out of the class. The investigative report noted that Respondent was “on probation” with the EPC “for similar allegations and conduct.” A predetermination conference was held on January 30, 2013, to allow Respondent to respond to the investigation findings and add any information he would want considered. Respondent was represented by union counsel at that conference. By letter dated February 5, 2013, Respondent was informed that the School District found probable cause for disciplinary action based on the allegations of misconduct investigated, and would be recommending termination of his employment.7/ As was done in 2009, the terms of Respondent’s suspension were changed to without pay, as of February 6, 2013. Before the School District could proceed with a Petition for Termination, Respondent submitted a letter of resignation on March 12, 2013. Respondent has disputed Petitioner’s contention that the resignation was in lieu of termination. When Respondent was deposed, he testified that he wrote his resignation letter to explain that this was a stressful situation for him. However, the letter makes no mention of a stressful situation. It simply reports that Respondent was taking the time for pursuit of higher education, to complete a master of arts degree and then seek a doctorate degree, and that Respondent had concluded: “I feel that it is time to resign in my career as a classroom teacher. I will peruse other opportunities that will be open to me as a result of obtaining my new graduate education.” Respondent testified that he did not think he had already been suspended from teaching when he resigned, and he thought he was still being paid. Contrary to Respondent’s recollection, he had not been teaching for nearly two months, having been suspended on January 14, 2013. He resigned six weeks after being confronted with the details of the DPSE’s investigation in a predetermination conference, and five weeks after he received a letter informing him that probable cause had been found and the recommendation would be made to terminate his employment. He had not been paid for five weeks when he submitted his letter of resignation. A fair inference from the timing is that he chose to resign when he did to avoid being terminated from employment and/or having to contest the charges in another administrative hearing. Pursuant to section 1012.796(1)(d), Florida Statutes, even though Respondent had resigned, the School District was required to report the alleged misconduct to the Department of Education, which then conducted its own investigation. Petitioner issued an Administrative Complaint against Respondent on March 9, 2015, and an Amended Administrative Complaint on December 3, 2015. The specific incidents alleged in both versions of the complaint, are as follows: On or about December 19, 2012, Respondent grabbed a keyboard from a computer being used by R.T., a fourteen year old, male student. Respondent held the keyboard over the head while glaring at R.T. and in a manner that made the student believe Respondent was about to hit him with the keyboard. On or about December 20, 2012, Respondent became angered when C.G., a thirteen year old, male student, tapped on his binder repeatedly. Respondent slammed C.G.’s binder with force, bringing the binder down on C.G.’s fingers causing pain to C.G. Respondent then threw C.G.’s binder in the trash. On or about January 7, 2013, Respondent called students in his class to the front of the room and individually asked them, in front of the class, if they had a license to teach. Respondent disputed the first allegation of a keyboard incident; Respondent admitted parts of the second allegation of a binder incident, while denying part of the allegation; and Respondent admitted the third allegation. No non-hearsay evidence was presented to prove the allegations regarding a computer keyboard incident on December 19, 2012. The student, R.T., did not testify; no other students or other eyewitnesses testified; and Respondent denied the allegations. R.T. provided a written statement about the incident, which is in evidence, but that statement is hearsay and cannot be used as the sole basis for a finding of fact. Petitioner did not argue that R.T.’s statement would be admissible over objection in a civil action, and the statement does not supplement or explain any non-hearsay evidence. Respondent admitted parts of the allegations regarding a binder incident on December 20, 2012. Respondent acknowledged that a student in his classroom, C.G., was tapping on, flipping, or otherwise playing with a notebook or binder when the class was supposed to be taking a test. Respondent admitted that he took the binder out of the student’s hands, and threw the binder across the room into the garbage can. As he testified: A: If there is a kid sitting in my classroom after I’ve given instructions of what to do and they still banging on a desk, yes, I have the right to go remove this noise away from these students that are trying to get ahead. If there is something wrong with that I don’t need to be in a classroom. Q: And throw this in the trash can? A: Sir, when I took -- as my statement says, I took the binder away from the child and I threw it across the classroom. If it went in the garbage can, sir, it went in the garbage can. I don’t -- I didn’t pay attention to where it went at. I stopped the negative behavior going on in my classroom. Q: So now your testimony is you took it and threw it across the classroom? A: Sir, I took the instrument away from the student and it went in the garbage can. Q: . . . [T]ell us what you told them at your predetermination conference. Didn’t you say you put it in the garbage? A: No, I put the binder in the garbage, that’s what it states. But we clearly know that that’s not . . . [t]here’s nothing false about that. What it means is the binder left the student’s desk and wound up in the garbage can. Q: It didn’t wind up there, you put it there, right? A: Yes sir, I put it there. (Tr. 131-132). In his deposition testimony, Respondent more clearly acknowledged that he intended to throw the student’s binder in the garbage can; he did not equivocate as he did at hearing: Q: Then you didn’t walk over to the trash can and, in a Frisbee-type manner, throw the binder into the trash can? A: Oh, I most definitely put it in the garbage can, sir. Q: You did? A: Yes sir, I did. Q: All right. Why did you do that? A: Because the student was disrupting – or, I mean, was interrupting a test environment. Q: Okay. A: and that – and that instrument was the thing that was causing all of that disturbment [sic]. (Pet. Exh. 11 at 39-40). The facts regarding this binder incident that were admitted by Respondent were supplemented and explained by a number of written witness statements by students who were present, including C.G. These statements confirm that Respondent got angry because of C.G.’s toying with his binder, and that Respondent snatched the binder out of C.G.’s hands, and then either went across the room and then tossed it Frisbee-style into the garbage can or tossed the binder Frisbee-style across the room where it landed in the garbage can. While Respondent may have had good reason to stop C.G. from disrupting the classroom, the manner in which he went about it was inappropriate and contrary to the repeated warnings he had been given over the prior seven years by no less than four different principals (including, most recently, the ALC principal) to avoid any physical contact with students. See 2010 Suspension Order (detailing past disciplinary warnings and identifying principals issuing them). Respondent did not admit to having smashed the binder down on C.G.’s hand before snatching it away from C.G., and there was no independent non-hearsay evidence to prove that aspect of the allegation. Nonetheless, Respondent’s admissions establish that he took C.G.’s binder away while C.G. was tapping on it, flipping the cover, or otherwise playing with it, as the means Respondent chose to stop C.G. from playing with his binder. The only reasonable inference is that Respondent forcibly removed the binder while at least one of C.G.’s hands was on, in, or under the binder--an inappropriate physical contact. Respondent’s explanation that he did this because the binder was the instrument being used to cause disruption is insufficient to justify the inappropriate physical contact that had to occur to remove the binder from C.G. while he was playing with it. Respondent’s additional acts of tossing C.G.’s binder like it was a Frisbee and throwing the binder in the garbage can were inappropriate responses that went well beyond the claimed objective of stopping the disturbance. These actions can only be explained as displays of anger, presumably because C.G. did not listen to Respondent’s instructions to stop playing with the binder. If Respondent were genuinely concerned only with stopping the disruptive behavior, he would not have reacted by causing an even greater disturbance by tossing the binder like a Frisbee into the garbage can. Instead, he would have, and should have, dealt appropriately with C.G. Moreover, it was irresponsible for Respondent to throw the binder in the garbage can, after he had wrested the binder away from C.G. The binder could have contained important schoolwork for Respondent’s class or another class. Despite being on probation for a string of similar incidents, despite having been suspended from teaching for nearly ten months for a similar incident, and despite having just received a letter of warning three weeks earlier, Respondent failed to heed the repeated warnings that if he had an issue with a student, he should contact security or administration for immediate assistance rather than inappropriately attempting to “control” the situation by making contact with the student. The evidence was clear and convincing that in this binder incident, Respondent did not act with the calm, professional demeanor expected of a teacher who is able to deal appropriately with a student disrupting the classroom by playing with a binder. Instead, Respondent acted inappropriately with a temper that made an all-too-regular appearance in the classroom. The ALC principal described Respondent as having a temper that would turn on and off like a switch. His testimony was credible and is credited. Ms. Lewis, the paraprofessional who spent time working in Respondent’s classroom during the 2012-2013 school year, observed the same thing: Respondent had a temper that greatly affected his classroom conduct. Set off by minor incidents of students talking or not listening, Respondent would get angry, yell at the students, use profanity (not the “f” word, but somewhat milder words),8/ and act in volatile ways, such as tossing text books so that they would slide on a table and stop just before they hit students. Respondent’s unpredictable outbursts caused concern for the students’ safety; sometimes when Respondent got angry, he would clench and shake his fists, trembling as if he was about to strike out. Respondent’s classroom temperament was unlike anything the paraprofessional observed from any other teacher in the other ALC classrooms where she also worked. While Respondent’s temper and classroom temperament, as described by the ALC principal and paraprofessional, were not set forth as the subjects of separate charges in the Amended Administrative Complaint, they tend to support the findings above that Respondent’s admitted conduct on December 20, 2012, was inappropriate, just as they undermine Respondent’s claimed justification. Respondent’s temper and lack of control also were on display on several occasions during the course of the hearing, adding even more credence to the findings. He raised his voice and got agitated while giving his sworn statement. He also accused the undersigned of having “belittled” him, without explanation as to why he said that. (Tr. 105). Respondent also admitted the third allegation describing his classroom conduct on January 7, 2013: Q: Did you do that on January -- on or about January 7, 2013, did you bring students up to the front of the class and ask them, “Do you have a license to teach?” A: I most – yes I did, sir. Q: All right. Good. So that, you admit? A: I clearly admit that, yes. Q: All right, good. A: And I –- and I will challenge anybody that -- that's in my classroom that’s trying to disrupt the class that don’t have a teaching license. (Pet. Exh. 11, p. 46). Respondent acknowledged to having engaged in that conduct on other occasions--indeed, as a matter of course: “I can guarantee you that I have asked all of my students over many periods of time do they have a license, because I’m the only person in that classroom with a teacher’s license.” (Pet. Exh. 11, p. 45). The paraprofessional working in Respondent’s classroom was an eyewitness to this conduct, which she described as very demeaning and embarrassing for the students. Respondent’s admissions and the paraprofessional’s eyewitness observations are corroborated by numerous written statements by students subjected to this conduct. Respondent sought to justify his conduct as legitimate teaching strategy. As he tried to explain it: It’s effective classroom management. If you have a bunch of students that do not have the ability to stop stopping their behavior, you have to ask them before you take them away from the classroom do they know what they’re doing. If the answer is yes, I know what I’m doing, then you need to send them out. If the person says no, I have no idea what I’m doing you need to work with that student until that student understands what is wrong with that behavior that you want to correct. (Tr. 129-130). Respondent’s explanation for his conduct does not square with his actual conduct. He is not being accused of asking unruly students whether they know what they are doing and then working with those students to correct their misbehavior. Instead, he is accused of demeaning these young teenaged students by isolating them one at a time at the front of the room, and requiring them to face their peers and announce that they are not licensed to teach, so that Respondent can remind them that he is superior. This has nothing to do with addressing unruly or disruptive behavior, questioning that behavior, or attempting to correct that behavior. Instead, Respondent dealt with disruptive students by belittling them, embarrassing them, and reminding them that he is better than them. As the ALC principal confirmed, there is no reasonable explanation for Respondent’s conduct as any form of legitimate teaching strategy. Instead, this is inappropriate conduct for a teacher. Respondent offered little by way of specific evidence in his defense. Instead, at times he claimed to not recall anything about his disciplinary track record, or about the incidents alleged in the Amended Administrative Complaint.9/ He repeatedly challenged Petitioner to produce video evidence of the incidents, but never proved that any video evidence existed. If there had been video evidence, it would have been in the possession of the School District, but no video is identified in the investigative report as would be expected if it existed. Respondent could have taken steps to compel the production of any such evidence by the School District, but he did not. Respondent’s other defense was to attempt to challenge the credibility of Petitioner’s witnesses. These efforts were ineffective. Respondent made general sweeping statements that he was “shocked” by the testimony of Petitioner’s witnesses, which he repeatedly characterized as filled with lies, without proof of that characterization. Other than those broad generalizations, no specifics came to light as to why the testimony of Petitioner’s witnesses should not be believed. Respondent argued in his opening statement that the ALC principal “has seemed to have an axe to grind and has been on the greatest witch hunt to railroad a great educator.” (Tr. 17). That charge was wholly unsubstantiated. Instead, the ALC principal recognized the same pattern of behavior evident since 2005 when Respondent was first required to take anger management training by a former Bonita Springs Middle School principal. Respondent proclaimed himself a great leader while offering his view that with one exception, none of the principals he worked for in Lee County were good leaders. It is worth noting that according to the 2010 Suspension Order, the “one great principal” Respondent identified (Tr. 113) was the principal who had Respondent undergo anger management training in early 2005, and who issued Respondent’s first letter of reprimand for pushing a student. To the extent Respondent attempted to blame his disciplinary history and the allegations he is now facing on his principals, rather than excusing or explaining the conduct for which he was disciplined and for which he is subject to discipline in this proceeding, the impression given is that Respondent has had difficulty accepting the subordinate role of teacher vis-à-vis principal. Indeed, Respondent admitted that he “did tell the principal the one that write down these false things against me, I could do your job just as well as you can do it. And maybe that offend some people. . . .” (Tr. 115). Respondent also attempted to discount the significance of the EPC Final Order by alluding to various medical problems he was experiencing that caused him to enter into a settlement agreement, even though he claimed the charges were not true. Respondent offered no evidence to substantiate his claims, but stated generally that he “had just got over having a kidney removed” and that he “had prostate cancer.” He also said that he had taken his wife’s money to fight the allegations, and agreed to the settlement so he could get back to work. (Tr. 111). Notwithstanding Respondent’s testimony, the EPC Final Order cannot be collaterally attacked in this proceeding. Respondent accepted the terms of that Final Order, and knew full well that he was required to comply with the probation conditions or face more discipline for violating the terms of his probation. Respondent also claimed that he was set up for failure by being assigned to ALC, which was more than one hour away from his home instead of the ten-minute commute he enjoyed when teaching at the school where he earned a lengthy suspension, after a string of six letters of reprimand. Respondent did not contest the assignment, but accepted the teaching position at ALC. Respondent’s school assignment may have been a matter he could have raised in a grievance proceeding, but it is not a matter that explains his inappropriate conduct while teaching there, especially knowing he was on probation. Finally, in a seeming admission that his temper was erratic and his behavior volatile while he was teaching at ALC, Respondent testified that he was undergoing radiation treatment for prostate cancer, and that anybody undergoing that treatment “would have such mood swings some times.” Yet in the next breath, he said: “But it never affected my effectiveness in my classroom.” (Tr. 112). In his predetermination conference in which Respondent was informed of the investigation findings and allowed to respond to the allegations of misconduct, Respondent did not mention that he had been undergoing treatment that may have affected his behavior or his classroom conduct. If this was a legitimate reason that might explain or excuse, even in part, Respondent’s conduct in December 2012 and January 2013 that was the subject of the School District’s investigation, surely Respondent would have shared information about his treatment and how it might have affected him in a conference to determine if there was probable cause to proceed to terminate his employment. Without more to substantiate the relevance of any medical conditions, treatment, or other external factors alluded to by Respondent, including specifics as to the timing of such matters, they cannot excuse or explain Respondent’s improper conduct as found above. As in the administrative hearing that resulted in the 2010 Suspension Order, Respondent offered evidence of his positive contributions as a teacher, as mitigating evidence to consider in imposing discipline. However, most of Respondent’s evidence is old, pre-dating Respondent’s suspension, and in fact, duplicating the evidence of Respondent’s contributions, honors, and achievements considered and addressed in the 2010 Suspension Order. Respondent’s contributions and achievements in 2009 and earlier years were expressly credited as mitigating against a harsher result in the 2010 Suspension Order for his misconduct committed during the same timeframe as the contributions. Having already enjoyed the mitigating benefit of his pre-2010 achievements, honors, and contributions to lessen the consequences of his pre-2010 misconduct, Respondent’s older achievements are not considered again in this proceeding in mitigation of the appropriate penalty for Respondent’s post- suspension improper conduct. Respondent presented evidence that after he returned to teaching when his suspension was completed, he continued his participation in the computer give-away program, working with a community computer club sponsoring free laptop computers for selected students who wrote an essay explaining how they would benefit from a laptop. Respondent provided one such essay submitted by an ALC student. Respondent’s continued involvement in the computer give-away program while at ALC was a positive contribution for at least one ALC student who participated. The other post-suspension evidence offered by Respondent shows that he is bettering himself by pursuing higher education, obtaining an additional degree and a certificate, as he stated he would do in his March 2013 resignation letter when he stopped teaching. These are positive contributions by Respondent, but cannot be considered contributions by Respondent as an educator to mitigate the penalty imposed for Respondent’s improper conduct as an educator. Respondent has not worked as a teacher since he submitted his resignation letter to the School District in March 2013, but he has been pursuing the higher education described in that letter. It is unclear whether Respondent would otherwise be seeking work as a classroom teacher pursuant to his educator’s certificate. Petitioner’s witness for the School District testified that he could not imagine that the School District would consider hiring Respondent back to teach there. The ALC principal echoed that sentiment. The principal would be concerned because it is his job to make sure the school is safe for all students. He would not want Respondent back in a teaching role at his school because of his track record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: Finding Respondent guilty of violating section 1012.795(1)(j) and (1)(l), Florida Statutes, and Florida Administrative Code Rule 10A-1.081(3)(a), (3)(e), and (5)(p); Finding Respondent not guilty of violating section 1012.795(1)(g); and Revoking Respondent’s educator’s certificate no. 777352 for a period of three years. DONE AND ENTERED this 1st day of August, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 1st day of August, 2016.
Findings Of Fact The Respondent Carr has been employed as an art teacher for the School Board of Dade County, Florida, since approximately 1972. He has taught at the senior high, middle school, and elementary school levels. He obtained tenure during 1976 or 1977. He has had varying levels of success according to his official performance evaluation ratings that are contained in his personnel file. In all but three years of his service, his annual evaluations have contained at least one category that was at or below an acceptable level of teaching in the Dade County Schools. Since the 1979-80 school year, the Respondent has received unacceptable ratings in three out of eight evaluative criteria on his annual evaluations. Respondent Carr has been the subject of personnel investigations on five different occasions, each involving the alleged use of physical contact beyond what is normally acceptable with students. Three instances of misuse of physical contact/corporal punishment were tried at the November 14, 1983, hearing. In the first incident which occurred in September, 1978, the Respondent came up behind a student and placed his hand in the student's hair in order to remove him from a classroom. From that point forward, it is unclear exactly what occurred since the incident which happened five years prior to the hearing could not be specifically recalled by the student. The student did, however, swing his arms at the Respondent in order to release the Respondent's grasp on the back of his head. In the second incident which also occurred in September, 1978, Respondent reached across student Byron Martin's desk with a pole or a stick and tapped the student on the head. The Respondent did not hurt the student who testified at the final hearing that other people made a bigger issue out of the incident than he did. In the final incident, during October or November, 1982, the Respondent turned the head of student Karen Bass, a nine-year-old girl, in order to get her attention. Karen became scared and began to cry. The Respondent did not intend to strike or frighten Karen, but turned her head to try and prevent her from being distracted by another student. Respondent was formally observed by the assistant principal of Edison Park Elementary School, Jill Witlin, on May 15, 1980. He was found to be overall unacceptable and specifically unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships. The Respondent was marked unacceptable in classroom management because he was not able to manage the classroom. The students did not respond to him. They did not follow his directions or do what he asked them to do. As he became frustrated with the class, he would use sarcasm and cynicism. The Respondent addressed the students in an angry manner and did not seem to know their names. At times he would bring students to the office, pushing them toward the assistant principal saying that he could not deal with them. This is an inappropriate way to handle students because it lets students know that a teacher cannot deal with them, lets them see the teacher's frustrations, and is a misuse of physical force. A teacher is required to have the skills and techniques for dealing with students calmly, despite emotions. Mrs. Witlin rated Respondent unacceptable in techniques of instruction because Respondent dealt with very technical kinds of instruction without following conventional, developmental learning modes of children. The lesson was too heavily teacher-directed and Respondent was very concerned with the ultimate art product. His instruction was very technical without giving the children any sense of where they were headed. This is not an appropriate way to teach elementary school children. Such children learn best when they have some sense of what they are doing and why they are doing it, rather than just following instructions. Respondent taught above the level of the children and used vocabulary and instructions that were too difficult for them to understand. There were times when Respondent did not use CurriculArt. There were other times when he did use CurriculArt but he did not fulfill many of the aspects of what the CurriculArt manual suggested. Respondent was marked unacceptable in teacher-student relationships because he talked to the students in a harsh manner. He did not know the names of his students so he called them "Boy" or "Girl." He referred to the students in a negative manner and did not have a good opinion of what they could accomplish or learn. He was negative toward what they knew and what they could produce. He was also negative about their behavior. There was screaming coming from his room that could be heard in the hallways. Respondent could be heard saying "shut up" to his students. Respondent would make negative comments about students in front of other students. This is inappropriate because it can damage a child's self- concept, does not provide a proper role model for a child, and makes the teacher immediately lose his position as an authority figure. As a result, some of the Respondent's art students did not want to go to his class at all. On Respondents's annual evaluation, although he received three unacceptable categories, he was recommended for employment the following year. His classroom management was unacceptable because he spent a great deal of time at the outset of classroom time lecturing students about their behavior from the previous week's class. He took up 10 or 15 minutes of instruction time doing this. Once he got the class started, the students lacked direction and walked around the room not knowing what their particular task was. Respondent had great difficulty in keeping their interest and keeping everyone on task. At times the room became so noisy that Respondent had to scream and yell in an attempt to get the class under control. The class got progressively worse as the classroom time extended. The Respondent was marked unacceptable in teacher-student relationships because he had difficulty in working with students in a positive manner. He name-called and belittled students in front of other students. He said such things as "stupid" and "you are stupid" and "you really don't know what you are talking about; you are no good." These statements are demoralizing and ridiculing to students in front of other students. His instructional techniques did not motivate and enable students to learn. Respondent was next formally evaluated by his principal, Della Zaher, on June 16, 1981. He was found to be overall unacceptable and was rated unacceptable in the categories of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was marked unacceptable in preparation and planning because he did not have his materials ready for this particular class. He began the class by talking about the children's negative behavior from the week before. Then he spent a good portion of the class time trying to retrieve the materials and getting them ready for the classroom instruction. In the meantime, the children became disruptive because of the time that Respondent had taken for this preparation. Respondent was marked unacceptable in knowledge of the subject matter because his vocabulary was overly advanced for elementary-age children and they had no idea what he was saying. The students did not understand the intent of the lesson. Most of the time, they were sitting idle, not comprehending the lesson. This led to unacceptable classroom management. Respondent was marked unacceptable in classroom management because of his negative and sarcastic comments to the children. There was no mutual respect on the part of the children or the teacher. If the children did not follow exactly what was presented to them, he would tear up their papers and throw them in the waste basket. When the children did their tasks incorrectly, Respondent could be heard outside of his classroom scolding his students even with the door closed. The children were not in their seats and were not working on the lesson. The entire classroom period was devoted to this type of disruptive behavior. Respondent could not correct the children by calling their names because he apparently did not know their names although he could have learned their names through the use of a seating chart or name tags. Other teachers who taught special classes, and who had as many students as Respondent, did not have the same difficulty ascertaining the names of the children. Respondent did not improve in his knowledge of the children's names by the end of the school term or from year to year when he had many of the same children again. Respondent was marked unacceptable in techniques of instruction because he did not have a way of explaining the assignments and giving clear instructions to his students. He never completed a task on time because he took too much classroom time disciplining the students and telling them about their behavior from the previous week. Because of this, he did not finish his lessons. The endings of his class periods were chaotic. Respondent was marked unacceptable in assessment techniques because of the manner in which he graded students' papers. He used a random assessment technique. There was no consistency in grading procedures. He would have the students stand up and show their papers and he would try to grade them. This technique can be ridiculing to students. There was very little meaning in the lesson for the children because he did not explain to them why they got the grades they got. He never completed an entire class and he spent a great deal of the class time at the end of the period trying to record grades. The students who were not being graded were disruptive. The Respondent kept no individual folders on the students where a student's progress could be monitored; instead, the papers were placed in a stack of papers in a closet. With Respondent's lack of a paper filing system, it would be impossible to explain to a parent why a child got a particular grade on his report card. His grade book was not up-to-date and he did not have sufficient grades for each child. Respondent was also marked unacceptable in student-teacher relationships because of his continual negative approach. Respondent did not indicate any real respect for each individual child in his classroom. There were some students who did not want to go to art class. In every conference that Respondent had with the principal, Respondent reminded her that black children could not learn. He also stated this belief to Ms. Witlin in that he felt the schools were spinning their wheels and wasting their time working in a low income, black area. Respondent was marked unsatisfactory in professional responsibility because he had difficulty turning his grades in on time so that the classroom teachers could record the students' art grades on their report cards. Respondent was again recommended for employment on his annual evaluation for the 1980-81 school year, although he was rated unacceptable in the categories of classroom management, techniques of instruction, and teacher- student relationships. He was recommended for reemployment because he had shown some improvement and the principal was interested in trying to improve his instructional techniques and his classroom instruction. Respondent was next formally observed by his principal, Mrs. Zaher, on September 25, 1981. While Respondent was marked overall acceptable, he was still unacceptable in classroom management, teacher-student relationships, and in one subcategory of preparation and planning. Respondent was unacceptable in classroom management because his voice was still very loud. He would almost lose complete control when he could not get the students' attention. He still began the class by lecturing to them about their behavior from the previous week. He did not have the materials ready to begin the lesson which added to the poor classroom management and resulted in more disruption. The children became disruptive each time Respondent had to retrieve supplies. Respondent was marked unacceptable in teacher-student relationships because he was unaware of the lack of student interest and other individual differences which caused students to be disruptive. Respondent was next formally observed by Ms. Witlin on October 23, 1981. Although he was found to be overall acceptable, this observation was a result of priming by Ms. Witlin. She met with Respondent early in the year to go over the observation form in great detail prior to the actual observation in an attempt to show him exactly what she would be looking for. He followed through on many of the things she had suggested. As a result, the lesson was acceptable. The next formal observation was performed by Jacqueline Hinchey, Art Supervisor for the Dade County Public Schools. Ms. Hinchey was called in to give advice to Respondent. She attempted to be as positive as possible. She rated the Respondent acceptable even in borderline areas in her attempt to be helpful and positive. Ms. Hinchey rated the Respondent overall acceptable. She felt that while he had made strides in improving his instructional techniques and public relations strategies, his knowledge of child development was still very limited. The major shortcoming of his teaching was that because he did not understand how children grew, he was unable to level his knowledge in a manner so that the children could understand and be able to succeed. Because of his lack of understanding how children grew, he had unreal expectations of them. This resulted in his will being pitted against the children's will. As a result, Respondent became angry. The children were not doing what he expected them to do or what he wanted them to do or they could not do it, and he, therefore, became angry. He was not using CurriculArt. CurriculArt is a School Board-approved program which incorporates the School Board's balanced curriculum. A teacher is required to use CurriculArt unless he has submitted a different, but acceptable, program to Ms. Hinchey. Since no school in the county has submitted an alternate curriculum, it would be expected that all art teachers, including Respondent, would be using CurriculArt. Respondent was still assessing the children's work by having them hold up their work, and he would say that one child's work was the best. This is not an appropriate assessment technique because he did not explain why a work was the best and also makes the other children feel inadequate. The Respondent tended to talk too long and his demonstrations were too technical and detailed for the age group with which he was working. Since not all the children could see his demonstration, they would begin to get fidgety. Respondent was recommended for reemployment at the end of the 1981-82 school year. Although Respondent needed to improve his techniques of instruction, he was showing some improvement. Respondent was next formally observed by Ms. Witlin on November 15, 1982. He was found to be overall unacceptable and was rated unacceptable in one subcategory of preparation and planning and in the areas of techniques of instruction, assessment techniques, and professional responsibility. Respondent was marked unacceptable in Part A of preparation and planning because while his planning was done, the lesson was not an effective one. He needed to plan his lesson in much greater detail in terms of what he wanted to accomplish, what time frames he would use, and what specific actions he would take. Respondent was still not using CurriculArt. Respondent was marked unacceptable in techniques of instruction because he did not accept student responses and utilize students' ideas, and he did not vary instructional strategies or adapt his methodology to different students. Respondent was marked unacceptable in assessment techniques because art projects were not graded and were not organized into portfolios. There were insufficient grades in the grade book. There was no ongoing regular assessment week after week and the assessment was irregular. Respondent was marked unacceptable in professional responsibility because there were consistent delays in getting his art grades to the home room teachers. If Respondent would have kept up with his grades on a weekly basis and had averaged them, he would not have had a problem getting his grades to the home room teachers. He had to rush to get the grades in to the teachers at the last minute and as a result, the other teachers bothered the assistant principal for them all day long on the teacher workday. This was not a professional way to operate. Further, Respondent's room was very disorganized, messy, and uninviting. The next formal observation was performed by Ms. Witlin approximately a week and a half after her last observation. This observation took place on November 24, 1982. "While his progress was not fully acceptable, there was propress over the prior observations. Ms. Witlin wanted to encourage Respondent's use of CurriculArt which she had prescribed in the prior observation. His classroom management was unacceptable because he spent an inordinate amount of time introducing the lesson, preparing the materials for it and following the CurriculArt card to the letter. He began to lose track of time. He was not able to pace the lesson properly and when he told the children to stop doing their work they did not listen to him. As time ran out and things started to unravel, the Respondent became frustrated. Classroom discipline broke down badly. He was not able to grade the children's work or give them a conduct grade. He was marked unacceptable in a subcategory D of techniques of instruction because he did not give ample time for cleanup, or organization of materials, and for putting away art products. The next formal observation was performed by Ms. Zaher on December 14, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in classroom management, techniques of instruction, and in one subcategory of preparation and planning. He was found unacceptable in category C of preparation and planning because he did not arrange for the distribution of materials in an effective manner, and he did not begin his lesson on time. He would begin his lesson by spending time talking about the children's behavior from the prior weeks. He was never able to complete a lesson because of the time taken to discipline the children and to give instructions as to how they should behave. Respondent was marked unacceptable in classroom management because he never got the class under control. He ran out of time and did not complete grading. He did not close his lesson. He spent too much time trying to get the classroom under control. Students were out of their seats running around the room and exhibiting disruptive behavior. Respondent was marked unacceptable in techniques of instruction because the children had no time to finish their lesson and clean up. Respondent lost instructional time because of disruptiveness. Although Respondent was rated acceptable in assessment techniques, he was still shouting out grades in front of the whole class, and taking up a great deal of time trying to grade the children. The next formal observation was performed by Ms. Hinchey on January 10, 1983. He was rated overall unacceptable and was unacceptable in the areas of classroom management, techniques of instruction, and teacher-student relationships. Respondent deteriorated in his teacher-student relationships and in his teaching techniques since Ms. Hinchey's prior observations. Teacher-student relationships was marked unsatisfactory, because Respondent frequently appeared and sounded angry with his students. He still did not know the names of the students and pointed or gestured at the students when he wanted them. The students became fidgety and began to nudge each other and whisper. The more this happened, the more upset Respondent became. He gave the students angry looks and raised his voice. Techniques of instruction was marked unsatisfactory because one-third of the class could not see a demonstration rubbing. As a result, the children did not get the idea of what a rubbing is. They did not get the idea of repeating the shapes on the page and there was no planned critique at the end of the lesson so that the children could see if they understood the goals of the lesson. Respondent was still assessing the students' work by choosing the best one at the table. Respondent was using the Curricul Art card but the lesson was misleveled and the lesson was very minimal. During the many informal observations of Respondent, he fared no better. He had the same kinds of problems that he had on the formal observations. He was having trouble in all of his classes and he was frustrated and angry with his students. The administration has attempted to help Respondent improve his teaching. Since Respondent had been having difficulties in his prior school assignment, Ms. Hinchey recommended that he be placed in the elementary level where there was more structure and a curriculum that could easily be followed. She recommended that he be put with an administrator who was known to be a helping person and someone who would patiently work with him. Her recommendation was that Respondent be placed with Della Zaher at Edison Park Elementary. Ms. Zaher had a reputation of being an administrator who could get along with individuals and would try to work with them closely to get the best out of them. After various classroom observations, the administrator prescribed various means of help for the Respondent. It was recommended that Respondent observe two good art teachers in other inner-city elementary schools in order to see that it was possible to get good control from these students. An assertive discipline workshop was also prescribed for the Respondent. It was recommended to Respondent that he take the time to learn the students' names. The administration ordered any supplies that Respondent wanted in order to provide him adequate materials with which to work. The administrators recommended that Respondent establish classroom rules, enforce them, and use behavior modification techniques. Conferences were held with Respondent in order to help him improve. It was suggested that Respondent meet with the counselor of the school in order to learn positive techniques for motivating student interest and for learning techniques to control student behavior in a positive way. It was recommended that Respondent attend workshops. It was recommended that he tape his own lessons to hear how he addresses students so that he would be aware that he was not getting the response that he wanted. Ms. Witlin asked Respondent to discuss his feelings about the students and to take a humanistic attitude toward the children and to observe a variety of teachers at Edison Park, teachers of the young, and teachers of old, and teachers of ethnic groups to see how pleasantly and positively they got along with the students. In early October, 1981, as discussed above, Ms. Witlin gave Respondent extra help prior to his November 15, 1982 observation in order to help him reach an acceptable observation. After the November 15, 1982 observation it was prescribed that Respondent begin to use CurriculArt. Ms. Witlin developed an elaborate procedure in order to help the special teachers get their grades to the home room teachers on workdays. Ms. Zaher brought in the art supervisor, Jacqueline Hinchey, to give advice to Respondent. Ms. Hinchey recommended the CurriculArt workshops for Respondent. She also recommended that the area art consultant and the assistant principal work with Respondent. The area art consultant worked specifically with Respondent in the areas of classroom management and planning five or six times during the 1982-83 school year. He assisted Respondent with planning and did a demonstration lesson for Respondent. The art consultant recommended the two teachers whom Respondent was to visit in the other schools. None of these prescriptions seemed to improve Respondent's performance. As a final attempt to offer Respondent an opportunity to improve his teaching, Ms. Zaher recommended a reduction from continuing contract to annual contract status. She felt that if he would understand that the school system meant serious business, Respondent would do something about his teaching. This was the last remedial action, a final opportunity for Respondent to improve his teaching while on a probationary status and placing the burden of competent performance on him. On December 17, 1982, Ms. Zaher put Respondent on notice that he had not sufficiently improved in the areas of planning, classroom management, and techniques of instruction and assessment. At that time, she could not recommend him for continuing contract status. She indicated that in order to be recommended for continuing contract by February 25, 1983, there must be improvement as indicated in her memo. On February 9, 1983, Ms. Zaher notified Respondent that she would be recommending that he be returned to annual contract status for the 1983-84 school year since the standard of performance indicated on her memo of December 17 had not been achieved. At a conference-for-the- record with the Executive Director, Division of Personnel Control of the Dade County Public Schools, on March 14, 1983, the charges were made known to the Respondent, and his prior investigative reports were reviewed. It is the consensus of opinion of the administrators who observed Respondent that the students in Respondent's class did not receive the minimal amount of educational experience to which they were entitled. There was a repeated failure on the part of Respondent to communicate with and relate to the children in his art room to such an extent that they were deprived a minimum educational experience. The art experience was a very negative experience for his students. Although Respondent is intelligent and knows his subject matter, he is a poor teacher. On March 23, 1983, the Superintendent of Schools notified Respondent that he would recommend to the School Board at its next regularly scheduled meeting on March 30, 1983, that Respondent's continuing contract be removed and that he be returned to annual contract status for the 1983-84 school year. The Superintendent's letter indicated a right to a hearing and a time frame within which to exercise that right. It also contained a copy of the charges, to wit: . . . for just cause including, but not limited to, incompetency . . . . On March 30, 1983, the Superintendent filed his written recommendation with the School Board, and the School Board acted to remove the continuing contract of Respondent and to return him to annual contract status effective for the 1983-84 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: That a final order be entered by the Petitioner, Dade County School Board, affirming the reduction of contractual status of the Respondent Richard Carr from continuing contract to annual contract status. DONE and ENTERED this 11th day of October, 1984 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1984. COPIES FURNISHED: Ellen L. Leesfield, Esquire Jesse J. McCrary, Esquire DuFresne and Bradley 3050 Biscayne Boulevard 2929 S. W. Third Avenue Suite 800 Fifth Floor 3050 Miami, Florida 33137 Miami, Florida 33129 William DuFresne, Esquire Dr. Leonard Britton 1782 One Biscayne Tower Superintendent of Schools 2 South Biscayne Boulevard Dade County Public Schools Miami, Florida 33131 1410 Northeast Second Avenue Madelyn P. Schere, Esquire Suite 200 1410 N. Second Avenue Miami, Florida 33132
Findings Of Fact Respondent, Gloria E. Walker, holds Teaching Certificate No. 294140, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of music education. Respondent has been employed as a Music Teacher by Petitioner, School Board of Dade County since 1970. From 1973 until 1986, Respondent taught music at Dunbar Elementary School in the Dade County School District. During the 1970-71 through 1977-78 school years, Respondent received either unacceptable or marginally acceptable scores for five of the seven years on her annual evaluations. (Petitioner's Exhibits 29). During the 1973-79 school year, the School Board altered its evaluations System for instructional Personnel. During the 78-79 through 83-84 school years, Respondent's annual evaluations were rated as acceptable. However, during the school years 1981- 82 through 83-84, school and district Personnel made comments concerning Respondent's need to improve her performance and development in certain areas. (TR 298). Commencing with the 1973 school year, Respondent received assistance from Charles Buckwalter, music specialist for elementary schools for the Dade County School District. Respondent was initially contacted by Mr. Buckwalter that year because of concerns the school's Principal expressed regarding Respondent's lack of classroom management. During that year, Mr. Buckwalter visited and provided assistance to Respondent approximately seven (7) times. Mr. Buckwalter's assistance to Respondent continued during the following three (3) years. During the 1981-82 school year, Mr. Buckwalter assisted Respondent on more than four occasions during which time he attempted to demonstrate lessons concerning management techniques and the use of new materials; objectives of instruction and on January 26, 1982, Buckwalter, along with Dr. Howard Doolin supervisor of music for Dade County, visited Respondent so that Dr. Doolin could observe Buckwalter's assistance to Respondent. On April 26, 1982, Respondent and Mr. Buckwalter met for approximately three and one half hours. Buckwalter visited several of Respondent classes and demonstrated the use of certain new materials. As a part of that visit, he observed Respondent's teaching and noted that Respondent abandoned the new materials and returned to teaching the old curriculum. On November 11, 1982, Mr. Buckwalter spent approximately three hours with Respondent in which time he visited two classes and had a conference with Respondent concerning the new curriculum for level 1 students. On November 18, 1982, Mr. Buckwalter made a follow-up visit concerning Respondent's lesson plans and objectives. Additionally, he demonstrated a lesson to one of Respondent's classes. On or about November 29, 1982, Respondent was formally observed by assistant principal, H. Elizabeth Tynes. Ms. Tynes has a wealth of experience lasting more than thirty years in both Hillsborough and Dade Counties. Respondent was rated unacceptable in the areas of classroom management, teacher/student relationship and in a subcategory of assessment techniques. (Petitioner's Exhibit 7). Respondent was rated unacceptable in the area of classroom management based on a large number of disruptive students in her music class and Respondent's inability to control the students' behavior through either verbal or nonverbal strategies. Respondent was rated unsatisfactory in the area of teacher/student relationship based on her failure to demonstrate consistency as concerns student behavior, failing to praise good behavior and reprimand students for disruptive conduct. On another occasion, assistant principal Tynes listened to a musical program Respondent's students were giving over the intercom system. Ms. Tynes rated the program a "total disaster". Ms. Tynes and the principal were "ashamed" of what they heard from Respondent's music class. Respondent demonstrated skills preparation for the program as observed by Ms. Tynes. On May 19, 1983, Respondent was formally observed in the classroom by Katherine Dinkin, who was then principal of Dunbar Elementary School. Following the observation, Respondent was evaluated unacceptable in areas of classroom management, teacher/student relationship, and techniques of instruction. (Petitioner's Exhibit 17). Principal Dinkins observed that Respondent's students were not on task, the classroom was chaotic and the students only responded to directives of the Principal, as a Person of authority. Respondent was rated unacceptable in techniques of instructions based on Ms. Dinkin's observation that students were being taught at levels beyond their ability; class openings and closings were not done appropriately and Respondent failed to develop a plan for the individual needs, interests and abilities of students. Respondent was rated unacceptable in the category of teacher/student relationships based on her failure to demonstrate warmth toward the students and her inability to command respect. During this period in 1983, principal Dinkins prescribed help for Respondent as concerns observing and working with other teachers for guidance. On April 12, 1984, Respondent was again formally observed by principal Dinkins and rated unacceptable in classroom management and techniques of instructions. (Petitioner's Exhibit 21). Respondent was rated unacceptable in the area of classroom management based on her demonstrated inability to keep students on task or to develop strategies to control their behavior. Respondent was rated unacceptable in the area of techniques of instructions based on an inadequately prepared lesson plan and an inability to deliver the instructional components to students. Principal Dinkins observed that the material Respondent attempted to teach was too complicated for the students and she failed to Properly sequence her instructions. Principal Dinkins, who was tendered and received as an expert in the areas of teacher observation and assessment, was unable to observe any continuum of improvement by Respondent over the extended period of Principal Dinkins' supervision. Principal Dinkins opined that Respondent deprived her students of the minimal educational experience in music. During the 1983-84 school year, Respondent again received help from Mr. Buckwalter. As part of this help, Mr. Buckwalter organized small study groups in order to improve instructions throughout the music education department. These groups met on September 28, October 19, November 9 and 30, 1983. Respondent was asked to become part of the study group. The study group was Particularly concerned with focusing on the scope and sequence of curriculum, students' achievement and implementation of certain aspects of the curriculum, particularly as concern level 1 and 2 students. On or about August 30, 1983, Mr. Buckwalter spent the day with Respondent and a new music teacher, Ronald Gold. On or about September 27, 1983, Mr. Buckwalter visited Respondent for approximately 3 and 1/2 hours in which time he visited three of her classes and again attempted to discuss some work with Respondent concerning student management techniques including the use of a seating chart. On or about October 18, 1983, Mr. Buckwalter visited Respondent approximately four hours during which time he visited several classes and observed her using ideas gleaned from the study group. On or about November 7, 1983, Mr. Buckwalter again visited with Respondent for approximately four hours. After the conference, he taught classes with her and implemented the use of instruments to enrich the class lesson as well as the implementation and use of progress charts. On or about December 9, 1983, Mr. Buckwalter visited with Respondent for approximately 3 hours. At this time, Mr. Buckwalter expressed concern in that Respondent was not clearly understanding the intent of the school board curriculum. Respondent was rated unacceptable in the areas of classroom management, techniques of instructions, teacher/students relationships, assessment techniques and professional responsibility during her annual evaluation for the 1984-85 school year. On or about October 29, 1984, Respondent was formally observed in the classroom by assistant principal, Edwardo Martinez. Although Respondent was rated acceptable, this class was not a typical situation but rather a rehearsal of a specific program. On other occasions, assistant principal Martinez had opportunities to walk by Respondent's classroom. He often noted loud noises emanating from her classroom. During these instances, he would enter the room and immediately settle the students down. On March 26, 1985, Respondent was formally observed in the classroom by Maybelline Truesdell, Principal of Dunbar Elementary. Based on this formal observation, Respondent was rated unacceptable in the areas of classroom management, instructional techniques and teacher/student relationships. (Petitioner's Exhibit 2). As a result of the unacceptable evaluation, Respondent was given a prescription form suggesting methods in which she could improve areas in which she was rated unacceptable. (Petitioner's Exhibit 2). Respondent was rated unacceptable in the category of classroom management based on her inability to retain the students attention; her failure to open and close classes appropriately and her general observation of students being off task. Respondent was rated unacceptable in the area of instructional techniques based on the observation that she did not interact verbally with students; students were inappropriately excluded from participating in discussions of the lesson and Respondent did not use instructional methods/materials which were appropriate for the students' learning levels. (TR pages 30-35). Respondent was rated unacceptable in the area of student/teacher relationships based on her improper focusing on a small number of students; inappropriately criticizing a student assistant in the presence of other students, and a failure to use sufficient positive interaction to maintain class control. On may 3, 1985, Respondent was again formally observed by Maybelline Truesdell and rated unacceptable in the areas of classroom management; instructional techniques; student/teacher relationships and assessment techniques. (Petitioner's Exhibit 3). Respondent was rated unacceptable in the area of classroom management as she failed to properly discipline students; failed to maintain classroom control and students were off task. In the area of techniques of instruction, Respondent received an unacceptable rating in one category which remained unremediated pursuant to a prior prescription issued by Ms. Truesdell. Respondent was again rated unacceptable in the area of teacher/student relationship based on her inability to display any of the indicators considered necessary to become acceptable and her continued rejection of students who volunteered or attempted to participate; her failure to involve the entire class by focusing her attention on a small number of students to the exclusion of others and her failure to appropriately address students by their name rather than "you." (TR 39-41). Respondent was rated unacceptable in the area of assessment techniques based on her failure to follow county and state guidelines for assessing students. Specifically, Respondent failed to provide substantial evidence of (documentation) to justify grades assigned to students and her grade books did not indicate if or when she was giving formal quizzes or tests. In addition, there was no letter grade or numerical indication in Respondent's grade books to gauge academic progress. Additionally, there was insufficient documentation in the student folders to back-up student progress or to otherwise substantiate the grades assigned to students. During the 1984-85 school year, Mr. Buckwalter returned to Dunbar Elementary to again assist Respondent. On September 6, 1984, Mr. Buckwalter visited Respondent for approximately three hours during which time he visited a class; co-taught a class and attempted to assist Respondent concerning improvement in areas of student behavior and management. On November 2, 1984, Mr. Buckwalter visited one of Respondent's classes. He thereafter visited Respondent on March 22, 1985 at which time he spent approximately two hours in her classroom. He taught five classes to demonstrate strategies of progressing students from one level to another. He thereafter conferred with Respondent concerning the need to reflect a positive attitude toward students.. On March 29, 1985, Mr. Buckwalter again visited Respondent. Respondent was then using materials suggested by Mr. Buckwalter although she utilized them in a "rote" manner and included too many concepts within a single lesson. On April 18, 1985, Mr. Buckwalter returned to observe Respondent. The students were going over materials that had been taught in past years and the new curriculum was not being taught. On May 23, 1985, Mr. Buckwalter spent four hours with Respondent. They concentrated on the development of lesson plans; planned activities concerning class objectives and stressed the need to remain-on one concept until it was understood by a majority of the class. Respondent's evaluation for the 1985-86 school year was unacceptable in the areas of subject matter knowledge instructional techniques; teacher/student relationships; assessment techniques and Professional responsibility. On October 10, 1985, Respondent was formally observed by assistant principal William J. Kinney. Respondent was rated acceptable in the area of assessment techniques. Mr. Kinney offered certain suggestions to Respondent including the fact that the lesson taught would be more beneficial by more student participation. Respondent was advised of a need to immediately cure problems respecting students who were observed hitting bells with pencils and pens and the need to immediately address problems when students were observed off task. During the school year, Mr. Kinney made numerous informal visits to Respondent's classroom at which times he observed loud noises coming from Respondent's classes, chanting, fighting, furniture pushed into the walls, student misbehavior and other indications that Respondent's classroom management was ineffective. On December 3, 1985, Respondent was officially observed by principal Truesdell and was rated unacceptable in the areas of instructional and assessment techniques. (Petitioner's Exhibit 6). Respondent was made aware of her continuing problems and was provided with an acknowledged receipt of a summary of the conference-for-the-record dated Thursday, December 12, 1985. (Petitioner's Exhibit 7). Additionally, Respondent was given specific instructions in the form of a prescription concerning her grade book and instructed to strictly follow the conduct prescribed. (Petitioner's Exhibit 7). In the opinion of principal Truesdell (received as an expert in the area of teacher assessment teacher evaluation, teacher observation in the role of school principal) Respondent was unacceptable for further employment by the school district, was continuing to demonstrate ineffective classroom management, instructional techniques, assessment techniques and had done so for such an extended period of time that improvement appeared unlikely. Additionally, Ms. Truesdell considered that Respondent was unable to make sufficient competent analysis of students' individual needs and potential in the classroom; failed to ensure and promote the accomplishment of tasks to the proper selection and use of appropriate techniques; failed to establish routine and procedures for the use of materials and physical movements of students in her class; failed to employ the appropriate techniques to correct inappropriate student behavior; failed to demonstrate competence in evaluating learning and goal achievement by her students and failed to demonstrate appropriate interpersonal skills required of a teacher to maintain discipline and effectively teach in a classroom environment. On February 7, 1986, Respondent was officially observed in her class by Marilyn Von Seggern, music supervisor for Dade County and by Ms. McCalla, assistant principal at Dunbar, under the provision of the TADS program. (Petitioner's Exhibit 23). Following that observation, Respondent was rated unacceptable in the areas of subject matter knowledge, instructional techniques, assessment techniques and teacher/student relationships. In the Professional opinion of Marilyn Von Seggern, received herein as an expert in the areas of music education, teacher observation and assessment, Respondent was depriving students of the minimum educational experience and had serious problems concerning her ability to communicate and relate to students respecting the music curriculum. On January 16, 1986, Respondent was formally observed in her classroom by Dunbar's assistant principal Carolyn Louise McCalla, and was rated unacceptable in the areas of classroom management, techniques of instruction and assessment techniques. (Petitioner's Exhibit 24). Based on Mr. Buckwalter's repeated observation of Respondent's classroom and teaching techniques, Mr. Buckwalter opined that Respondent's students were not receiving the minimum education required by the Dade County School System as concerns the curriculum for music. As example, on one occasion Mr. Buckwalter observed Respondent presenting an organized lesson to students which was quite successful and upon his return approximately five minutes later, Mr. Buckwalter observed that Respondent was not teaching the new successful lesson but had instead reverted back to an old lesson and her students were observed inattentive and generally off task. (TR pages 250-254). On March 26, 1986, Respondent was having difficulty maintaining her students' attention to the point that the students were out of control. While Respondent was attempting to stop a certain student from chanting and beating on the desk, Respondent tried to restrain the student and in so doing, Respondent broke her watch band and scratched the student on her face. The student required hospitalization and although the injury was deemed an accident, Respondent's lack of classroom control and management played a major part in causing the incident. Pursuant to a request by the School Board, Respondent, on April 30, 1986, was evaluated by psychiatrist, Gail D. Wainger. Dr. Wainger took a medical history from Respondent which included Respondent's revelation of previous psychiatrist treatment. Dr. Wainger observed that Respondent had a very flattened, blunted affect with little emotional expression. She related that this was a sign of a patient who was recovering from a major psychiatric episode. Additionally, Respondent showed difficulty recalling recent events. Dr. Wainger diagnosed Respondent as having chronic residual schizophrenia with a possible personality disorder including impulsive and avoidance features. Dr. Wainger opined that a person with such diagnosis would have difficulty being an authority figure and that this would be especially Problematic for students who needed positive reinforcement. On April 28, 1986, Respondent attended a conference-for-the-record with the school board's administrative staff. A past history of performance and evaluations was reviewed. Additionally, the investigative report concerning the injury of the student which occurred March 26, 1986 was also reviewed. Respondent was informed that the matter would be referred to the School Board for possible disciplinary action. (Petitioner's Exhibit 31). On May 21, 1986, the School Board took action to suspend Respondent's employment and initiated the instant dismissal proceeding against her. (Petitioner's Exhibit 32). For the 1985-86 school year, Respondent's annual evaluation indicated that she was rated unacceptable in five of seven categories and was not recommended for re-employment. (Petitioner's Exhibit 13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, School Board of Dade County, enter a Final Order sustaining the suspension, without pay, of Respondent, Gloria E. Walker and dismissing Respondent, Gloria E. Walker as a teacher in the Dade County Public Schools. That the Petitioner, Ralph D. Turlington, as Commissioner of Education, entered a Final Order finding Respondent guilty of incompetency and incapacity. It is further Recommended that the Education Practices Commission enter a Final Order suspending Respondent's Florida Teacher's Certificate No. 294140, issued by the Department of Education, State of Florida, for a period of three years based on incompetence and incapacity. DONE and ENTERED this 2nd day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 2nd day of February, 1987.
The Issue Whether Respondent should be terminated from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a doctorate in American Civilization and Third World Literature. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France, and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students. Respondent began her career with Petitioner as a substitute teacher. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave Respondent numerous suggestions to help her keep students on task, to maintain control, and to promote interaction between teacher and students in the class. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By Mr. Scriven's count, ten students never participated. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS prescription manual. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task. As a result of the observation on March 25, 1998, Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1998. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade Legal Department 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
The Issue Whether Respondent should be subject to discipline as a result of the violations of section 1012.795(1)(j) and rule 6A-10.081(2)(c)4., as alleged in the Administrative Complaint and, if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2020). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. (2020). Stipulated Facts Respondent holds Florida Educator’s Certificate 766965, covering the areas of Educational Leadership, Elementary Education, and School Principal, which is valid through June 30, 2023. During the 2017-2018 school year, Respondent was employed as a Principal at GES in the LCSD, where he had been employed since 2008. During the 2017-2018 school year, Brooke Jahn (now Brooke Solz) was employed as a classroom teacher at GES, and, therefore, under the Respondent’s supervision. Ms. Jahn was married to a LCSD employee assigned to another school. Ms. Jahn was an adult during all times material to this complaint. On June 11 and 12, 2018, Respondent and Ms. Jahn attended the Instructional Leadership Team Summer Institute hosted by the Florida Department of Education at the Innisbrook Resort & Golf Club in Palm Harbor, Florida. On or about July 11, 2018, Ms. Jahn requested a transfer from GES to another school within the LCSD. On or about July 12, 2018, Mr. Solz reported to LCSD Superintendent Rocky Hanna that he was involved in a romantic relationship with Ms. Jahn. On July 18, 2018, Superintendent Hanna placed Respondent on administrative leave with pay pending the pending the outcome of an investigation. On August 31, 2018, Leon County Schools Superintendent Rocky Hanna issued Respondent a letter of reprimand. On August 31, 2018, Mr. Solz was reassigned to the LCSD Department of Teaching and Learning, effective September 4, 2018. On September 17, 2018, Professional Practices Chief John Hunkiar reported Mr. Solz to the Office of Professional Practices Services. On November 8, 2018, the Florida Department of Education, Office of Professional Practices Services, initiated an investigation into alleged misconduct by Respondent. On or about July 9, 2019, Mr. Solz was reassigned as the principal at Astoria Park Elementary School in Leon County.1 Evidentiary Findings The following findings of fact are supported by the record. Contrary testimony and evidence has been considered and rejected. David Solz Mr. Solz is, by all credible accounts, a “wonderful” principal and administrator, with a solid reputation as an LCSD administrator. Prior to this proceeding, he had not been the subject of any previous complaints or disciplinary actions during his 20-plus years in education. Testimony and recorded statements that Mr. Solz gave preferential treatment to others, including Ms. Jahn, that he targeted or “formally” wrote up teachers that were not on his preferential list, or that he “only hires young, attractive teachers,” were neither credible nor persuasive. The more credible testimony demonstrated that Mr. Solz was even-handed in his approach to the teachers at GES. If someone showed an interest in moving up in the academic system, he was willing to support them. If they wanted to 1 The Joint Pre-hearing Stipulation identified the date as July 9, 2018. The date was corrected to 2019 on the record at the hearing. stay in the classroom, he was accepting. If they felt they needed time away, even up to a year, he was accommodating. He did not show favoritism, and he did not “punish” those who disliked him. By the 2017-2018 school year, Mr. Solz had been divorced for several years. By April of 2018, he was apparently dating a woman who taught at either Ft. Braden Elementary School or Riley Elementary School. That person may have thought that she had some “power” because she was dating a principal, but there was no evidence that she did. More to the point, that person was not Ms. Jahn. Mr. Solz was an “open door” administrator. His office was in plain view, and he made it a practice to never be alone in his office with another teacher with the door closed. There was no evidence that he ever did so. The evidence unequivocally established that Mr. Solz was a good leader at GES, that he was purposefully respectful of his female colleagues, and avoided situations that could be misconstrued. Brooke Jahn Ms. Jahn was a teacher at GES starting in August 2013. By all credible accounts, Ms. Jahn was ambitious and a go-getter. She knew that she wanted to move from being a classroom teacher into administration. She set high goals, and was willing to take on the work necessary to advance in her career in education, work that others were not willing to do. During the 2017-2018 school year, in addition to her duties as a GES teacher, Ms. Jahn was taking classes to earn her Master’s Degree in Education Leadership. Holding a Master’s Degree in Education Leadership allows one to take a position as a dean, an assistant principal, a principal, or a leader at the school district in some capacity. As part of the curriculum for her degree, Ms. Jahn was required to serve an internship. Ms. Sumner supervised Ms. Jahn, which required Ms. Jahn to spend “lots of time” in the office, generally during her planning period or after school. Ms. Wyatt documented her progress. Mr. Solz was not overly involved with Ms. Jahn’s internship. Upon her completion of her Master’s program, Ms. Jahn became one of only three teachers or counselors at GES holding that degree, the others being Mr. McKhan and Ms. Wyatt. In addition to receiving her Master’s Degree in Education Leadership, Ms. Jahn took and passed the Florida Educational Leadership Exam (FELE) during the 2017-2018 school year, which qualified her to be considered for a position in education administration. During the period at issue, she had not yet applied to the administrator pool. During the 2017-2018 school year, Ms. Jahn taught third grade at GES. In previous years, Ms. Jahn taught kindergarten. Ms. Jahn wanted to move to the third-grade classroom for several reasons. She wanted experience in detecting early reading deficits. Her kindergarten students were “learning to read.” By third grade, students are “reading to learn.” Therefore, reading deficits by third grade can affect student achievement. In addition, third grade is a Florida Statewide Assessment (FSA) standardized test grade. Ms. Jahn recognized that experience in administering the FSA was almost a requirement for assignment as an assistant principal.2 During the 2016-2017 school year, Ms. Jahn was selected by her kindergarten teacher peers to be the team leader for the kindergarten section. Mr. Solz had no role in that process. Ms. Jahn’s selection as kindergarten team leader earned her a spot on the SITE Committee. The SITE Committee consists of grade-level team leaders, as well as persons representing paraprofessionals, custodians, cafeteria workers, ESE students, parents, and other school functions. As a SITE-based school, the SITE Committee serves to decentralize decision 2 Respondent suggested that Ms. Jahn’s transfer from kindergarten to third grade was evidence of favoritism. There was no evidence that the transfer was anything other than a normal and routine transfer, and showed no more favoritism than Ms. Vasquez teaching kindergarten and second grade at GES, Ms. Baggett being assigned to teach second, third, and fourth grades over the years at GES, or Ms. O’Brien teaching third and first grades at GES. making away from the Principal, and allows for a collaborative process by representatives of all segments of GES employees. Ms. Jahn was thereafter nominated and selected by the other members of the SITE Committee as the SITE Facilitator. That position required a great deal of work and effort, which Ms. Jahn gladly took on, realizing the career benefits derived from the experience. Mr. Solz had no role in that process. Ms. Jahn was also selected to serve on the Teacher Education Center (“TEC”) as a professional learning advocate. As a TEC representative, Ms. Jahn provided teachers with opportunities for training to maintain their teaching certifications and assisted them in making their way through the certification process. The TEC is also engaged in managing the professional development budget for the school. Ms. Jahn had to be involved in professional development as part of her Master’s Degree internship, and the TEC helped to fill that requirement. The TEC representative is open for any teacher who wants to apply. Other than complaints from several witnesses that they were not solicited by school-wide email, or by personal entreaty from Mr. Solz “and offered for nomination or from, you know, veteran teachers who have that experience,” there was no evidence that any teacher other than Ms. Jahn, including the complaining witnesses, had the interest, drive, or commitment to apply for the TEC. There was no evidence that the position was required to be advertised by email or subject to personal invitation. Ms. Jahn sought out the position, and applied. The process of appointment was somewhat vague, except that Mr. Solz did not unilaterally appoint Ms. Jahn to the position.3 3 Ms. Baggett, despite averring that Mr. Solz appointed Ms. Jahn to the TEC, admitted at the hearing that she had no information that Mr. Solz appointed Ms. Jahn to that position “[o]ther than it's just, I guess, common knowledge that the principal of the school would, you know, would approve these positions.” Supposition, speculation, and “common knowledge” are not substitutes for competent, substantial, and persuasive evidence. The team leader, SITE facilitator, and TEC representative positions were subject to a modest stipend, but the duties involved work that far exceeded the pay -- “probably cents on the hour” -- she received for serving. However, Ms. Jahn understood that having experience in various areas would benefit her in achieving her long term goals. Ms. Jahn was also selected to serve on the District Advisory Council (“DAC”), a group of teachers, parents, administrators, and school board members that meet to discuss issues that affect students and classrooms. It is an unpaid, volunteer position that meets after school hours. Dr. Smith asked Mr. McKhan, Ms. Wyatt and Ms. Jahn to share the role. Since Mr. McKhan and Ms. Wyatt had previously served, Ms. Jahn took on most of the duties. Mr. Solz had no role in that process. Ms. Jahn was part of a group of teachers invited by Dr. Smith to observe other schools in the District in order to implement the “Leader in Me” program at GES. Ms. Jahn was exposed to leadership techniques that she would not have been exposed to as a classroom teacher. Mr. Solz had no role in that process. Ms. Jahn routinely attended monthly faculty meetings, which were open to all faculty at GES. She was able to apply some of the faculty meetings into credit for her Master’s Degree. She was required to mark attendance and document credit for every faculty meeting. There was no evidence that Mr. Solz was involved in that process. Ms. Jahn was an active participant in the faculty meetings, which may have rubbed some less participatory teachers the wrong way, with witnesses complaining that Mr. Solz gave undue weight to Ms. Jahn’s contributions, but was dismissive of their comments, failing to take them “seriously.” The evidence, such as it was, that Ms. Jahn was given some sort of preferential treatment at the faculty meetings was not supported by a single specific instance, but was “supported” by the fall-back phrase that “it was, again, another one of the school-wide known fact.” Even if it was established that Mr. Solz valued Ms. Jahn’s input, such would not establish preferential treatment. It is just as easy to draw the inference that Ms. Jahn’s statements were more pertinent than others. The more credible testimony established that Mr. Solz was not dismissive or disrespectful to any of the staff at faculty meetings.4 The testimony that Mr. Solz afforded preferential treatment to Ms. Jahn at faculty meetings lacked even basic credibility, and is not accepted. Ms. Jahn also trained a teaching intern, Ms. Hobbs. Ms. Hobbs was effusive in her praise of Ms. Jahn, crediting her success and her teaching style to Ms. Jahn’s tutelage. Because of Ms. Jahn’s success in mentoring Ms. Hobbs, Ms. Hobbs was, by the end of the 2017-2018 school year, able to handle the class on her own, which is the goal of a successful internship. While the class was under Ms. Hobbs’ instruction, Ms. Jahn was able to leave the classroom -- though not the campus. The evidence firmly established that Ms. Jahn set her goals high, and took steps that were not easy to achieve those goals. There was no credible evidence to suggest that she expected to be given anything by Mr. Solz or anyone else. She was not, as intimated by others, appointed to her duties by Mr. Solz. By all credible accounts, she earned her accolades. Though others reacted negatively, there was nothing to suggest that others were willing to put in the effort, or that they had earned the respect necessary to be selected by their peers to one of the many available positions. Allegations in the Administrative Complaint During the 2017-2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent. 4 Mr. Solz was more forceful; stating that the allegation he was dismissive or rude during faculty meetings “is a lie, a purposeful lie.” As described, during the 2017-2018 school year, Ms. Jahn took on a steady stream of jobs designed to advance her career. As a result, she met often with members of the GES administration, including primarily Ms. Wyatt and Ms. Sumner. The previous year she met frequently with Dr. Smith. She also met with Mr. McKhan and Mr. Solz. There was nothing in any of those meetings that contained even a whiff of impropriety. The 2017-2018 school year ended for teachers the first week of June 2018. Teacher contracts end on the second day after the last day of school. If a teacher’s contract is renewed, the contract renewal becomes effective on the first day of school in August for teachers. Ms. Jahn was not under contract and did not work at GES over the summer.5 Ms. Jahn was not seeing Mr. Solz in anything other than a professional capacity during the 2017-2018 school year. Despite the rumors, gossip, and innuendo bandied about by several witnesses, there was absolutely no competent, substantial, and credible evidence to support that Mr. Solz and Ms. Jahn were engaged in any sort of romantic, much less sexual, relationship at any time prior to the last day of classes during the 2017-2018 school year. By the time the 2017-2018 school year ended, Ms. Jahn had received her Master’s Degree in Education Leadership and passed the FELE. She had been a classroom teacher for eight years, and was starting to look for other opportunities. However, for reasons related to the LCSD summer teacher transfer policy and postings, she had not yet done so. During this same period, difficulties in Ms. Jahn’s marriage began to come to a head. The reasons are unimportant, except for the fact that they had nothing to do with Mr. Solz. 5 Ms. Jahn had signed a contract for the coming school year, but it was pending board approval. She was not working as a teacher at GES, but was slated to teach private swimming lessons over the summer “to make extra summer money.” In late May 2018, Mr. Solz became aware that the 2018 Instructional Leadership Team Summer Institute was to be held over the weekend of June 11 and 12, 2018, in Tampa, Florida. The conference was limited to 25 principals from around the state. Mr. Solz applied, and was accepted. He then realized that he could bring a qualified teacher leader from his school. Since it was a leadership conference, leadership experience was a prerequisite. The only people at GES who were not already administrators and who were qualified were Ms. Wyatt and Ms. Jahn.6 Ms. Wyatt was already slated to attend the Superintendent’s Leadership Academy in Tallahassee. She did not want to pass it up because she had applied for the assistant principal pool that year. People who were interviewing applicants for the pool were leading that meeting, creating a good networking opportunity for Ms. Wyatt. Mr. Solz invited the other leadership candidate, Ms. Jahn. He extended the invitation for her family to attend as well, a common practice. Ms. Jahn accepted the invitation. She had to rearrange swimming lessons and child care in order to attend, but did so because it was important to her efforts to professionally advance. Her husband could not attend for professional reasons. Mr. Solz and Ms. Jahn travelled separately to Tampa. By the time of the conference, Ms. Jahn had come to the conclusion that her marriage was heading for divorce. She took the opportunity to visit her sister in the Tampa area. It was a stressful period. Mr. Solz and Ms. Jahn arrived separately at the convention hotel on Friday evening. Other than Mr. Solz assisting Ms. Jahn in getting checked in, they had no contact with one another that evening. After the conference sessions on Saturday, Mr. Solz and Ms. Jahn had dinner as part of a group. It was, according to both, the first time they had 6 By this time, Mr. McKhan had been appointed and was serving as an assistant principal at Pineview Elementary School. ever been alone with one another. There was no evidence to the contrary. During dinner, Ms. Jahn disclosed to Mr. Solz that she was having marital difficulties, but no more. The next morning, after a difficult conversation with her husband the night before, Ms. Jahn came down from her room in obvious distress. She indicated that she was having a “panic attack.” Mr. Solz walked with her to get coffee, talked with her, told her it would be OK, and gave her an “awkward side-ways hug.” He made sure she was engaged in the Sunday conference sessions, which eased her anxiety. After the Sunday session was over, Ms. Jahn went back to Tallahassee. Mr. Solz stayed for a while to meet with principals he knew who were coming in for a separate Florida school administrators conference. He had dinner with several of his colleagues, and drove home. Mr. Solz and Ms. Jahn did not see each other for several weeks after. Mr. Solz visited family in Savannah for a week and, upon his return, had his children for a week which entailed a trip to Disney World. Although Ms. Jahn’s divorce was moving forward, she took a pre-planned cruise with her then-husband and her children. However, during that period, Mr. Solz and Ms. Jahn had begun to text one another and spoke on the phone. They started to realize they had things in common, and might like to pursue a relationship. Before they did anything to advance any sort of sexual relationship, they mutually decided that Mr. Solz should self-report their interest to the Superintendent. At that time, the “relationship” was all verbal and through texts. Other than the “awkward side-ways hug,” there had been no physical component to the relationship. Mr. Solz testified credibly that when he met with Superintendent Hanna on July 12, 2018, “I felt like we [he and Ms. Jahn] had a friendship that was easily blossoming into a romantic relationship.”7 Prior to their decision to self-report, Ms. Jahn had already decided she needed to move from GES to diversify her experience to ultimately move out of the classroom into administration. For a person holding an Education Leadership degree, it is common knowledge that in order to advance, a teacher must move around to different schools. Ms. Jahn had been researching other opportunities with the LCSD, and had applied to be a reading coach at Griffin Middle School, as well as several other less desirable positions. On July 11, 2018, and again on July 12, 2018, Ms. Jahn requested, in writing, a transfer from GES. In describing her interview with Ms. Jahn on July 12, 2020, Ms. Kraul testified that: She indicated again that she wants an administrative experience. She used the figure 150 percent leaving Gilchrist of her own free will. That she wants a middle school experience and she was very aware that she would not be eligible for an assistant principal position straight out of the classroom. That this was her ticket to get more experience. Ms. Jahn also believed it would be easier for her to stand out professionally at Griffin Middle School. Ms. Kraul testified that Ms. Jahn was waiting out the LCSD teacher transfer period and “that's, I believe, where she was when I met with her in July.” There is not a shred of competent substantial evidence to suggest that Ms. Jahn’s desire to transfer from GES was based on anything other than her desire to pursue her long-held goal of moving from a classroom position into a position in administration. There is no evidence that Ms. Jahn was pressured 7 Though not relevant to the specific allegations of this proceeding, it merits acknowledgement that Mr. Solz and Ms. Jahn have since married, and were married as of the date of the final hearing. into seeking the transfer, or that her request had anything to do with Mr. Solz. On July 12, 2018, Mr. Solz reported to Superintendent Hanna that he and Ms. Jahn were involved in a relationship that was becoming romantic. They had not been “caught.” There was no evidence that they knew of the purported “anonymous emails.”8 Mr. Solz and Ms. Jahn were early in their “romance,” having not yet passed out of the talking and texting stage. The decision to report was a volitional act designed to avoid gossip and innuendo, and establish a path forward without “direct report” conflict. Mr. Solz was not even certain that he was required to report, since the LCSD fraternization policy prohibited contact between staff and students, and the sexual harassment policy dealt with “unwelcomed” conduct. Nonetheless, Mr. Solz decided to report their blossoming interest because it “just felt like it was the right thing to do.” The evidence conclusively established, despite the suppositions and gossip of others, that there was no sexual relationship between Mr. Solz and Ms. Jahn prior to the July 12, 2018, self-report. On July 18, 2018, Superintendent Hanna placed Mr. Solz on administrative leave with pay. There was no competent, substantial, or persuasive evidence to support a finding that, at the time of Mr. Solz’s suspension, he and Ms. Jahn had commenced a sexual relationship. 8 The first “anonymous email” was not received in evidence. The alleged recipient, Ms. Paul, had no recollection of it, other than she forwarded it to Ms. McAllister. Ms. McAllister had no recollection of receiving, reviewing, or forwarding the first email. Its contents are a mystery. That alleged email has no evidentiary value. The second “anonymous email” came to Ms. Paul on July 15, 2018, and she forwarded it to Ms. McAllister and Superintendent Hanna on July 16, 2018. The anonymous “former [formal?] complaint by teachers” could not have come from anyone with much knowledge of Ms. Jahn, since the “teachers” could not even manage to get her name right, calling her “Mrs. Garret.” Garrett is the first name of Ms. Jahn’s ex-husband. As with the illusory first email, the second “anonymous email” has no evidentiary value. On August 31, 2018, Superintendent Hanna issued Respondent a letter of reprimand which included reassignment of Mr. Solz as a Principal on alternative assignment in the Department of Teaching and Learning.”9 The allegation that “[d]uring the 2017/2018 school year, Respondent engaged in a sexual relationship with Brooke Jahn, a married teacher who was a direct report to Respondent,” was not proven. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3. of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included . . . training not offered or made available to other teachers. This allegation is predicated on there having been a “relationship.” Since there was no relationship, the allegation was not proven. However, in addition, there was no evidence that Respondent afforded Ms. Jahn preferential treatment as compared to similarly situated employees. There were only two other “similarly situated” employees who had the education and the ambition to be considered for leadership roles at GES, Mr. McKhan and Ms. Wyatt. By the time the more serious allegations in this case were alleged to have occurred, Mr. McKhan had been assigned as Assistant Principal at Pineview Elementary School. 9 Respondent appears to argue that a negative inference should be drawn from Mr. Solz’s failure to file a grievance regarding the reprimand. A review of the letter shows it to have involved an allegation of conduct in April 2018, which Ms. Kraul testified “was nobody’s business what he did in his personal time, after hours,” and an allegation of use of electronic media for non-educational purposes,” which was not an issue in this proceeding at all. Why Mr. Solz elected not to grieve the reprimand was not explained, but no inference of wrongdoing can be drawn. If anything, the decision not to grieve the letter could just as easily be explained by its giving notice of his transfer as Principal that he had already determined to be an acceptable alternative to allow his “blossoming interest” in Ms. Jahn to move forward. The testimony established that many of the opportunities provided to Ms. Jahn came from Ms. Wyatt, her mentor; Dr. Smith and Ms. Sumner, GES assistant principals; and from her peers, including her fellow grade-level teachers and those on the SITE committee. Except for the Instructional Leadership Team Summer Institute, which came after the close of the 2017- 2018 school year, and after Ms. Wyatt’s election to attend a different conference, Mr. Solz made no assignments or invitations to Ms. Jahn. Ms. Jahn earned the opportunities to advance her career. She was not “given” those opportunities by Mr. Solz or anyone else at GES. Much of the testimony critical of the “relationship” between Mr. Solz and Ms. Jahn came from employees who either could not or would not put in the work to qualify for leadership positions. They did not seek to earn degrees in Education Leadership, did not actively seek out extracurricular leadership positions, and were not elected by their peers to leadership positions, including SITE Facilitator. The evidence established that the witnesses who provided many of the statements that precipitated this proceeding were irritated by Mr. Solz for any number of reasons: that they were “angry” at Mr. Solz for being assigned to teach in a portable classroom; that Mr. Solz was monitoring their Facebook posts; that Mr. Solz used the iObservation system “against” them; that they were “formally written up” for infractions when other (non-comparable) teachers were not; or that they simply were not evaluated as highly as they believed they deserved.10 Much of the evidence provided in support of Petitioner’s case consisted of statements and testimony that were directed 10 It is not overlooked that the three primary witnesses offered by Petitioner to substantiate wrongdoing by Mr. Solz were clearly antagonistic towards him, which pre-dated anything alleged in this case. Ms. Vasquez testified that she and Mr. Solz “had a history of -- very, very hostile history,” and she “did not feel comfortable talking to Mr. Solz.” Ms. Baggett exhibited obvious animosity, feeling the Mr. Solz “was very dismissive,” and that “[p]rofessionally I don't respect his practice.” Ms. O’Brien testified that during the period from 2008 through May of 2018, “Mr. Solz and I did not see eye-to-eye most of the time.” The witnesses’s antipathy towards Mr. Solz is not a primary basis for assigning their testimony little weight. However, it does nothing to bolster their credibility. towards Mr. Solz’s previous relationships, that were imprecise and unsubstantiated gossip, or that were pure uncorroborated hearsay. The allegations that Mr. Solz “appointed” Ms. Jahn to “TEC Rep., SITE Facilitator, DAC, and Kdg. Team Leader” were either based on ignorance of the process or, more likely, a conscious misrepresentation of the criteria by which those positions are filled. As to the only allegation that had any basis in fact -- Ms. Jahn’s attendance at the Instructional Leadership Team Summer Institute -- the complaining teachers simply lacked the requisite leadership qualifications. That was not the fault of either Mr. Solz or Ms. Jahn. There was not a speck of competent, substantial evidence to establish that Mr. Solz afforded Ms. Jahn preferential treatment as compared to similarly situated employees, including training not offered or made available to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that training opportunities provided by GES administrators, including Mr. Solz, created a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.a) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [having] Jahn accompany him on at least one school related out of town trip without making the opportunity available to other teachers. This allegation has been addressed in detail herein. In addition to the fact that there was no “relationship” when Mr. Solz invited Ms. Jahn to attend the Instructional Leadership Team Summer Institute, the evidence in this case established, conclusively, that Mr. Solz did not afford Ms. Jahn preferential treatment as compared to similarly situated employees. Attendance at the conference was offered to Ms. Jahn as the only qualified attendee since Ms. Wyatt had a conflicting leadership-based conference that drew her attention, and was based on absolutely no improper motive. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz’s offer to Ms. Jahn to attend the conference (with her family) created a hostile work environment.11 Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.b) of the Administrative Complaint. During the course of their relationship, Respondent afforded Teacher Jahn preferential treatment as compared to similarly situated employees thereby creating a hostile work environment. Respondent’s preferential treatment of Teacher Jahn included ... [r]ules regarding supervision of students [being] relaxed for Jahn as compared to other teachers. In addition to the fact that there was no “relationship,” the evidence in this case established, conclusively, that rules for supervision of students were not relaxed for Ms. Jahn as compared to other teachers. The evidence demonstrates that Ms. Jahn went to various administrative offices -- primarily those of Ms. Wyatt (her mentor) and Ms. Sumner (her education leadership internship supervisor), as well as that of Dr. Smith the preceding year -- before school, at lunch, or during her planning period. It is common for intern/student teachers to earn the right to “solo” teach a class. As Ms. Jahn’s intern, Ms. Hobbs, gained in competency, she 11 On a practical note, the conference was held in June of 2018, after the conclusion of the 2017-2018 school year for teachers. By the time teachers returned to campus in the fall, Mr. Solz had been transferred from GES. If Mr. Solz was able to create a hostile work environment at GES from his post at the Department of Teaching and Learning, it would have been quite a trick. was allowed to take on more of the teaching responsibilities for Ms. Jahn’s class on her own, as was the goal. Finally, Ms. Jahn was able to leave the classroom for periods of time, which gave Ms. Hobbs valuable experience and confidence. However, the evidence establishes that Ms. Jahn did not abuse her time during those periods, but was working at necessary and requested school-related activities. The suggestion that there was some impropriety involved when Ms. Jahn left Ms. Hobbs in charge is simply not supported. Ms. Baggett complained that she was “formally written up” (by the Assistant Principal, not Mr. Solz) because she “left [her] students unsupervised.” Why she was disciplined is a matter between Ms. Baggett and the Assistant Principal. However, that disciplinary matter (which might also explain her complained-of, less-than-stellar evaluation) does not establish that Ms. Jahn violated any rules regarding supervision of students, does not establish any other teacher as a valid comparator, and does not lend support to the allegations in this case. Ms. Vasquez testified that Ms. Jahn left her class during the school day, and “made it known that she was getting her dog groomed” on one occasion, and on another occasion “she told me she was getting her hair done.” Ms. Hobbs openly scoffed at the idea, a rejection that is supported by the record. Despite the hearsay nature of Ms. Vasquez’s testimony, it might have retained some thin thread of credibility if it did not directly conflict with her written statement provided during the investigation, in which she stated: I had been made aware of, several years ago, a relationship with Jessica Scully. She was seen in [Mr. Solz’s] office quite frequently-and would talk openly about the special treatment she was getting from David. How David would allow her to leave school to run her errands. She left school to get her dog groomed and told several teachers that David knew where she was and approved it. (emphasis added). Either Mr. Solz is attracted to women with poorly-groomed dogs, or the testimony regarding Ms. Jahn’s personal off-campus errands, including dog- grooming, was a fabrication. The evidence supports the latter. There is no competent, substantial, and credible evidence to support a finding that Ms. Jahn ever left her students with inadequate supervision, that she ever left campus to perform personal errands, or that she violated any disciplinary standard regarding student supervision. There was not a shred of evidence that Mr. Solz relaxed or disregarded any rules regarding the supervision of students for Ms. Jahn as compared to other teachers. Given the facts of this case, it is found that no rational person could reasonably conclude that Mr. Solz relaxed any rules regarding supervision of students for Ms. Jahn so as to create a hostile work environment. Petitioner failed to establish that Respondent committed the acts alleged as a material allegation in paragraph 3.c) of the Administrative Complaint. Summary The tone of the Administrative Complaint gives the impression that Respondent and Ms. Jahn were carrying on a torrid sexual relationship from the confines of Respondent’s office, and that Mr. Solz was lavishing Ms. Jahn with perquisites as the 2017-2018 school year was ongoing. Nothing could be further from the truth. The facts show that Ms. Jahn had high professional goals, and worked hard -- on her own -- to achieve them. The suggestion that Respondent favored Ms. Jahn to advance his prurient interest in her, or that Ms. Jahn was using Respondent as a stepping stone to some higher goal are equally unsupported, and equally fallacious. The allegation that Mr. Solz engaged in harassment or discriminatory conduct which unreasonably interfered with any GES employee’s performance of their professional or work responsibilities, or with the orderly processes of education, or that he undertook any action vis-a-vis Ms. Jahn that created a hostile, intimidating, abusive, offensive, or oppressive environment is simply not supported by the facts of this case.12
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Administrative Complaint be dismissed in its entirety. DONE AND ENTERED this 21st day of September, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2020. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Stephen G. Webster, Esquire Law Office of Stephen G. Webster, LLC Suite 5 1615 Village Square Boulevard Tallahassee, Florida 32309 (eServed) Lisa M. Forbess, Program Specialist IV Education Practices Commission 325 West Gaines Street, Room 316 Tallahassee, Florida 32399 (eServed) Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue As stated in the prehearing stipulation, the issue is whether the school board should accept or reject the recommendation by the superintendent of schools to reduce Andrea Childs from continuing contract status to annual contract status for the 1989-90 school year.
Findings Of Fact Andrea Childs was employed by the School Board of Okeechobee County as a teacher in December, 1980. Ms. Childs is certified as a teacher in Social Science. She taught 9th grade Social Science at the Okeechobee Junior High School for the school years 1980-81, 81-82, 82-83, and 83-84. She transferred to Okeechobee High School after the school board moved the 9th grade from the Junior High School to the High School. She has taught continuously at the High School since her transfer. Prior Evaluations Ms. Childs' performance as a teacher was first evaluated on January 16, 1981. While her performance was found to be satisfactory, she had been on staff for such a brief period of time it was difficult to make a meaningful evaluation. She was next evaluated on March 16, 1981, and found satisfactory for all twenty characteristics contained on the school's evaluation form. On December 14, 1981, she was evaluated for the first semester of the 81-82 school years, and again rated satisfactory on all characteristics. Her evaluation at the end of the 1981-82 school year and the first semester of the 1982-83 school year found her satisfactory on all characteristics. Ms. Childs was recommended for continuing contract in April, 1983, at the close of 1982-83 school year, when her evaluation was satisfactory on all characteristics. She obtained a continuing contract on May 19, 1983. When her teaching at the Okeechobee High School was evaluated on February 20, 1984, she was rated satisfactory on all twenty characteristics. Ms. Childs was next evaluated at the end of the second semester of the 1984-85 school year by her new principal, Phoebe Raulerson. The evaluation forms used by the district then changed. The behaviors to be assessed were grouped into six categories, each having subdivisions denominated as indicators. Ms. Raulerson evaluated Ms. Childs' performance as meeting each of the 31 indicators. The new evaluation forms also included a separate assessment of additional factors called employability behaviors, and Ms. Childs was found acceptable on each of those behaviors. On April 1, 1986, Ms. Raulerson again evaluated Ms. Childs, and found that Ms. Childs' teaching performance met all 31 indicators, and that Ms. Childs' performance was acceptable on each of the employability behaviors during the 1985-86 school year. On April 13, 1987, Ms. Raulerson found that Ms. Childs' performance met all 31 indicators and found her service acceptable on all employability behaviors. On March 11, 1988, Ms. Raulerson evaluated Ms. Childs, finding that her performance met all 31 indicators and acceptable on all employability behaviors. At no time from her first employment with the school board in December, 1980 through her annual evaluation on March 11, 1988, was there any finding that Ms. Childs had failed to perform satisfactorily on any characteristic, indicator or employability behavior evaluated by the School Board of Okeechobee County. In February, 1988, as will be discussed in greater detail below, Ms. Raulerson observed Ms. Childs' teaching, determined that her performance was inadequate, and recommended to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status. When confronted at hearing with the uniformly positive evaluation Ms. Childs had received, including those from Ms. Raulerson herself for each of the school years from 1984-85 through 1987-88, Ms. Raulerson deprecated her own evaluations with the suggestion that Ms. Childs had been in poor health since the birth of her first child in approximately August, 1985, 1/ and explained that the positive evaluations should not be taken at face value. Ms. Raulerson contended that Ms. Childs' performance was evaluated leniently because of her health difficulties. There is no such indication on the evaluation. Ms. Raulerson is obviously a competent principal who does not confuse efforts with results. The evaluations were accurate as written, and there were no deficiencies in Ms. Childs' performance during any prior school year. The Oblique Warning During the teachers' work period before students returned to school in August 1988, Ms. Childs had an informal discussion with Ms. Raulerson, during which Ms. Raulerson told Ms. Childs "this has got to be a good year". Apparently Ms. Raulerson meant to tell Ms. Childs that her performance as a teacher needed to show improvement that year. If that was her intention, her choice of words was so oblique that the message was not conveyed. An ordinary listener would not have understood the comment as a criticism of past teaching performance. The comment was so general that it would not draw the attention of a teacher to any area of deficiency which a teacher could then attempt to correct. There was no criticism of Ms. Childs' performance on her last evaluation which could have served as a focus for any need for improvement. Ms. Raulerson is an experienced administrator, able to draw the attention of teachers, students or others at the school to inadequate performance or misconduct in a direct manner. In the Okeechobee High School, students are grouped for classes by broad ranges of ability. There are classes for slow learners, known as basic classes, as well as for regular students. In 1988-89 school year, Ms. Childs taught two basic classes, and other regular social studies classes. The classes which Ms. Childs taught during the sixth and seventh periods were basic classes. Ms. Childs had some difficulty with the behavior of two students in basic classes, and discussed the problem with an Assistant Principal, Barbara James, on September 15, 1988. One of the problems was tardiness by some of her students. Ms. James' written suggestions to Ms. Childs for dealing with the problem included: In the beginning, you might try some extra, positive reinforcement for the on-time rule until you get going, if tardies are a problem. Always be on time yourself. This advice was a common sense suggestion to a class management problem. It was not any sort of admonition to Ms. Childs that she herself was not arriving to teach her classes on time and that she should make a better effort to be punctual. Tardiness Unknown to Ms. Childs, Ms. James, the Assistant Principal, had mentioned to the Principal, Ms. Raulerson, that Ms. Childs was sometimes arriving late for her classes. Ms. Raulerson told Ms. James to keep track of the times Ms. Childs was late for a class. Ms. James noted 11 instances between September 19, 1988, and February 27, 1989, of apparent tardiness by Ms. Childs. Ms. Childs was not in her classroom at the beginning of first period on 5 of those occasions (all in September of 1988), but there was good reason for this. That class was made up of 11 Junior and Senior students during the first semester, and 9 Juniors and Senior students during the second semester. Ms. Childs taught in a small portable building, separated from the main building. It had no clock, nor a working intercom system with the main building. Ms. Childs left her first period class to go to the school office to listen to the daily school announcements which she could not hear in her classroom. This was important, because those announcement often contained relevant information about subjects such as class meeting and scholarships, and students were charged with notice of the information. This information was not always available from other sources. Ms. Childs ultimately avoided this problem by taking her students to the cafeteria at the opening of first period so they could hear the announcements. No one at the office had ever indicated that she should not be there. The School's Faculty Handbook does tell teachers to remain in their classroom during class periods. Ms. Childs had frequently asked to have the intercom line between her classroom and the main building fixed. There was no adequate explanation for why the intercom had not been fixed. Ms. Childs' actions were common sense accommodations to the problem which confronted her and her students. Other instances when Ms. Childs was seen out of her classroom when first period began occurred during the second semester, in February, 1989. At this time she was team teaching with another teacher, Ms. Audrey. That teacher was in the classroom, and Ms. Childs was using the time to prepare lessons for her sessions of that class on the Holocaust. Those students were not left unattended. Ms. Childs' lateness in arriving for class during the first semester is much less than it seems on its face. The charges with respect to lateness are mere makeweight arguments. The Teaching Evaluation The contract between the school board and the teachers union for Okeechobee County prescribes a procedure for teacher evaluation which is consistent with the Okeechobee County Teacher Assessment System adopted by the school board on June 28, 1988. According to the school board policy and the union contract, teachers are provided with copies of the forms and procedures that will be used in the evaluation process. The teaching performance of continuing contract teachers is assessed by the principal at least once annually. The assessment for Ms. Childs was made on February 27, 1989. She had received the evaluation forms at the beginning of the year, as did all other teachers. The assessment of a teacher is based on observations conducted and other information gathered during the year by the principal, supervisor or assistant principals. The evaluation of teaching is accomplished using the summative evaluation from the Florida Performance Measurement System, i.e., an evaluation used for personnel decisions about a teacher, rather than an evaluation done to assist the teacher in developing good teaching technique, which is know as a formative evaluation. Ms. Raulerson had been trained in the use of the Florida Performance Measurement System summative evaluations. Before February 27, 1989, Ms. Childs received no oral or written notice that she was not performing her duties as a teacher in a satisfactory manner, and had no conference with any school administrator about unsatisfactory performance. Of necessity, she had been given no recommendations about ways in which to remedy any specific areas of unsatisfactory performance. On February 27, 1989, Ms. Raulerson observed Ms. Childs' first period class. This single class period provides the sole basis for Ms. Raulerson's evaluation of Ms. Childs' teaching for the entire year. By its very nature, that sample of teaching is entirely too small to permit Ms. Raulerson validly to generalize a conclusion that Ms. Childs' teaching is inadequate. 2/ After observing Ms. Childs during the first period, Ms. Raulerson had a consultant who is a professor of education at Florida Atlantic University, Dr. Mary Gray, who was at the school that day, observe Ms. Childs during the class period which begins at about 10:50 a.m. Ms. Raulerson had a brief discussion with Dr. Gray following her observation. By the fifth period on February 27, Ms. Raulerson presented Ms. Childs with her evaluation report. Ms. Raulerson informed Ms. Childs that Ms. Raulerson would recommend to the superintendent of schools that Ms. Childs be reduced from continuing contract status to annual contract status for the 1989-90. The whole evaluation process was remarkably swift. Ms. Raulerson was obviously displeased by what she saw during Ms. Childs' first period class, but the summary fashion in which she completed the evaluation is more indicative of pique than of reasoned professional analysis and judgment. Ms. Raulerson became angry, and allowed that anger to guide her actions. During the first period on September 27, 1989, Ms. Childs taught American History. She showed the class a video that she had searched out prepared by the National Geographic Society. The video dealt with the conservation of tigers and other animals in India. It was a story of Jim Corbet, who formerly had been a big game hunter, but who later become a conservationist. At first blush this video seems to have little to do with an American History class, but upon analysis, this is not the case. Ms. Childs was teaching students about the presidency of Theodore Roosevelt, and his personal transformation from a game hunter to conservationist, including his significant role in the establishment of a national parks system in the United States. Drawing the analogy between a contemporary big game hunter who had become a conservationist with the conversion of Teddy Roosevelt was one reasonable way to relate current experience to history and assist the students in comparing and contrasting concepts using different people as examples. Since the student text devoted three of seven and one half pages on Teddy Roosevelt to conservation, Ms. Childs' use of the film is defensible. No doubt, different educators might have different views as to how to approach the subject. To conclude from this single event, however, that Ms. Childs was deficient in the categories of content coverage and utilization of instructional material cannot be sustained. Ms. Childs also used the same video in other classes she taught on February 27, 1989, including World History and four World Geography classes. The video was appropriate for those classes also. It is not unusual for a teacher to show the same video to all of her classes. It makes sense to concentrate the use of audiovisual materials across several classes to minimize the logistical problems inherent in having the equipment delivered on a number of days at different class periods. The use of the video in several classes cannot have been very important in Ms. Childs' evaluation, however, because the only class period which Ms. Raulerson observed was the first period. It is difficult to understand how Ms. Raulerson could criticize the use of the video in other classes which she had not observed. More importantly, the Florida Performance Measurement System is designed to evaluate traditional teaching performance. The materials which make up the performance system point out that the summative evaluation of teaching cannot be performed during a class period if a test is given to students of 20 minutes duration or longer. Similarly here, the attempt to perform a summative evaluation during a class period where the teacher was screening a video renders the teaching evaluation invalid. An administrator trained in the use of the system should have know this. In any case, the expert testimony offered by Dr. Heald on the inappropriateness of using the Florida Performance Measurement System during a class period in which the video was shown is persuasive; the evaluation made is invalid. Ms. Raulerson also criticized Ms. Childs in the evaluation because two students in the class watching the video were "off task". One student removed a compact from her purse and put power on her face while watching the video. She had put powder on her face in other classes without being criticized. The action distracted no one. One could easily put on makeup while still paying attention to the film. It is inappropriate to generalize from this event that Ms. Childs generally fails to "stop misconduct" in her classes. Another student had obtained Ms. Child's permission before class to wrap a box with construction paper which the student was going to use in a peer teaching class. The student was a good student who could easily watch the film while devoting some time to covering the box. Ms. Childs' decision to grant the student permission to cover the box while watching the film is an insufficient basis to determine that Ms. Childs generally fails to stop misconduct in her classes. No misconduct was involved. These same instances also were the basis for determining that Ms. Childs does not orient students to classwork and maintain academic focus. As with the criterion dealing with misconduct, these instances do not support the generalization Ms. Raulerson made from them. Spelling On the area of presentation of subject matter, Ms. Raulerson found Ms. Child deficient for the indicator "treats concept- definition/attributes/examples/non-examples", with the comment "many words incorrectly spelled". This is the result of trivial misspellings contained in forms Ms. Childs completed during the year. One form was a referral slip written by Ms. Childs when a student misbehaved and was being sent to the office; it contained the word "surprize". The other was a note sent in lieu of a referral slip resulting from a fight where the word "cussed" appeared as "cused" and "none" is written "non". Since the notes obviously were written in haste in an effort to correct discipline problems, the misspellings are of no consequence. The spelling Ms. Childs used is, however, one recognized spelling of the word "surprise". In another situation, she wrote in a note on a student progress report that the student was failing "royaly". This was also a handwritten note that was passed from teacher to teacher for comments about the student's performance. Given its nature, the misspelling in this internal memo is of little significance. The Gray Notes Shortly after Ms. Raulerson's first period evaluation, Ms. Childs was evaluated by Professor Mary Gray from Florida International University. Ms. Childs had not been told beforehand that Dr. Gray would be observing her teaching that day. Had she know this, she would have rearranged her lessons so that she would have been providing a more standard lecture format for her class in order to benefit from the observation. Dr. Gray made notes of her observation of Ms. Childs. These five pages of notes written on legal pad sheets were introduced at the hearing as corroboration of the testimony of Ms. Raulerson, who had spoken with Dr. Gray before the summative evaluation was completed and given to Ms. Childs during fifth period on February 27, 1989. While the notes may be technically admissible as corroboration, Ms. Gray did not testify at the final hearing, and review of those notes is unenlightening. Lesson Plans and Punctuality Ms. Raulerson rated Ms. Childs unsatisfactory for dependability and "following policies and procedures" because lesson plans had not been completed before the lesson was presented on February 27, and because of her lateness for classes. Ms. Childs had been specifically instructed by her department chairman that her lesson plans for the week could be completed during her free period on Monday. As a result, she did not have a lesson plan already written out during the first period on Monday, February 27. It is true that the Faculty Handbook distributed to teachers for the 1988-89 school year states, under the heading "Plan Book and Grade Books," the following: Friday afternoon each teacher must hand in a copy of his/her plans for the next week to the Department Chairman. The faculty handbook is a tool created by the school administration, it was not shown to be a rule of the school board, although the board has a similar "policy." Exhibit 15. Having first established the general requirement that lesson plans should be submitted on the Friday before the week of instruction, the school administration also could modify that requirement. The general practice at the school did modify it. Ms. Childs' compliance with her department chairman's instruction and the general practice of the school should not be held against her. Finding that Ms. Childs' punctuality was unacceptable because she was not in class on time has been discussed above. It would be one thing if Ms. Childs had been late in arriving at school, but that was not the case. Her absence from classes early in the year occurred because she was learning announcements which both she and her students were required to know. Her conduct was a reasonable means of dealing with a difficult situation created when the school administration failed to make the speaker in her portable classroom operational. It is also significant that there were no instances of misbehavior by her students while she was spending the first few minutes of her class period in learning the announcements. The class was made up of older students with good records, so that leaving them unattended was not fraught with the peril presented by leaving younger or less responsible students without supervision for a few minutes early in the first class period. Procedural Errors After receiving the evaluation report prepared by Ms. Raulerson, the superintendent of schools recommended to the school board that Ms. Childs be reduced to annual contract for unsatisfactory performance. This would have the effect of terminating her continuing contract status. He sent Ms. Childs' notice of his recommendation on March 6, 1989. The matter was considered by the school board at its meeting on March 14, 1989, despite the requirement in the contract with the teacher's union that: Any teacher terminated from his/her contract shall have an opportunity to be heard before public hearing after at least ten (10) days written notice of the charges against him/her and of the time and place of hearing. Exhibit 13 at page 67 lines 2-5. The recommendation of reduction to annual contract was placed on the consent agenda, which means that the matter was considered favorably but without discussion at the board meeting. As a result of the board's action, Ms. Childs filed an appeal with the District Court of Appeal, Fourth District challenging her reduction to annual contract. By agreement of the parties, the court relinquished jurisdiction to the school board to conduct a full Section 120.57(1) hearing on Ms. Childs' contract status, which lead to this hearing. The Board's Assessment Policies The Okeechobee County Teacher Assessment System During the summer of 1988, the School Board of Okeechobee County adopted a systematic procedure for the evaluation of teacher performance know as the Okeechobee County Teacher Assessment System. That program had been developed by a committee established by the school board; among the members of the committee were the principal of the Okeechobee High School, Ms. Phoebe Raulerson, and the Superintendent of Schools, Mr. Danny Mullins. Under the heading of "Philosophy", the procedure adopted by the school board states: Teachers who experience performance problems should be advised of specific problems and provided assistance. Also, teachers who demonstrate superior performance should be recognized for their talent and diligence. In the substantive portion describing the procedure for assessment of teaching, the school board policy states: In the event that an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and assistance in helping to correct such deficiencies with a reasonable, prescribed period of time. Exhibit 14 at I., General Procedure. The Union Contract The School Board of Okeechobee County had a collective bargaining agreement with the Okeechobee Federation of Teachers which was in effect during the 1988-89 school year. The contract contains provisions governing personnel rights, which give every teacher the right to due process and grievance procedures. The contract also has a provision regarding teacher evaluation, which provides: . . . in the event an employee is not performing his duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination and describe such unsatisfactory performance. The evaluator shall thereafter confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct such deficiencies within a reasonable, prescribed period of time. Exhibit 13 at 43. The provisions on teacher assessment in the County's Teacher Assessment System and the union contract are essentially identical. The question arises whether the employee is entitled to a written description of unsatisfactory performance and the opportunity to correct performance deficiencies within a reasonable, prescribed period of time before the conduct may be embodied in an evaluation having adverse consequences on the teacher's employment status, or whether the adverse evaluation can itself be the written statement of unsatisfactory performance and result in reduction from continuing contract to annual contract status before the teacher has been offered assistance from the school board in correcting deficiencies. Viewed together, both the County Teacher Assessment System, and the Teacher Evaluation portions of the union contract indicate that a teacher will receive written notice of unsatisfactory performance and assistance in correcting deficiencies before adverse employment action is taken by the school board. It would be unreasonable to interpret the provisions of the Assessment System and the union contract quoted above to allow the school board to terminate an employee by following the procedure the board and its administration used here. The action the board has attempted to take with respect to Ms. Childs is less severe than termination, but it is adverse employment action. It was not preceded by delivery of any written statement of unsatisfactory performance to Ms. Childs. No administrator made any recommendations to Ms. Childs about how to improve her performance or established a period of time in which to correct deficiencies before her continuing contract status was threatened with termination. Ms. Raulerson's brief conversation with Ms. Childs at the opening of the year does not suffice, because it was not a written statement of unsatisfactory performance, and was not sufficiently specific to advise Ms. Childs of any failings. The written suggestions given to Ms. Childs by the Assistant Principal, Ms. James, were not criticisms of Ms. Childs putting her on notice that the administration found her performance inadequate. As discussed above, the general admonition in the second paragraph of Exhibit 1, "Always be on time yourself", was not an effort by the administration to put Ms. Childs on notice that her practice of going to the office to learn announcements which could not be heard in her classroom, in order to pass them on to her students, was unacceptable. The proposed reduction in contract status is inconsistent both with the Okeechobee County Teacher Assessment System and the provision of the union contract on teacher evaluation. Summary The basic problem in this case arose from Ms. Raulerson's dissatisfaction with the instruction she observed in Ms. Child's first period class on February 27, 1989. Ms. Raulerson attempted to apply the Okeechobee Teacher Assessment System in her observation, even though that system, and the state system on which it is based, is structured so that it cannot validly be applied when the lesson observed is an audiovisual presentation. Educators may differ over whether the National Geographic film shown in the American History class was appropriate, but Ms. Childs' explanation is cogent, and supported by the expert testimony of Dr. Heald. The use of the film was not improper. Ms. Raulerson completed the teaching evaluation of Ms. Childs based on the single, unrepresentative and invalid observation, and a brief discussion with Dr. Gray, who had observed the third period class. This resulted in a disciplinary recommendation which was unduly severe, and inconsistent with the procedures set out in the Okeechobee County Teacher Assessment System and the Board's contract with the Okeechobee Federation of Teachers.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered by the School Board of Okeechobee County instructing the superintendent to prepare a contract for Andrea Childs for the 1989-90 school year in the usual form for continuing contract teachers. DONE and ORDERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1989. WILLIAM R. DORSEY, JR. 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 3rd day of November, 1989.
The Issue Whether Respondent should be transferred to Jan Mann Opportunity School.
Findings Of Fact Respondent, Antwan Clark (Antwan), attended the sixth and seventh grades at Carol City Middle School during the academic years 1991-1992, and 1992-1993, respectively. On October 10, 1991, Antwan was suspended outdoors for three days for fighting. On October 22, 1991, Antwan was caught running in the school hallways by the assistant principal Don DeLucas. When Antwan was told to stop, he ignored the verbal request. Antwan was given a detention for his behavior. On November 5, 1991, Antwan was referred by his sixth period teacher to Assistant Principal DeLucas for being tardy to class, refusing to sign for detention, and walking out of class without a pass. Antwan was issued a reprimand/warning for his behavior and a conference was held with school administrators and his parents. After school was dismissed on March 10, 1992, the school principal Mary Henry walked toward the Carol City Elementary School while watching the students leave the middle school grounds. Antwan, across the street in a gas station parking lot, threw rocks across the street in the direction of Ms. Henry. Police Officer Christopher Burgain observed Antwan tossing the rocks. When Antwan saw the police officer, he moved to another group of students in the parking lot. Officer Burgain got Antwan and took him to Ms. Henry who told him to take Antwan back to the school. Ms. Henry called Antwan's parents. Antwan was suspended outdoors for two days for this incident. On March 16, 1992, Antwan's teacher, Ms. Viamonte, referred him to Assistant Principal DeLucas for getting out of his seat, coming to class unprepared, responding to the teacher when she asked for his daily progress report that she "was wasting his time" and threatening to tear up the daily progress report. Antwan was given a reprimand/warning and a conference was held with his parents. On April 16, 1992, Antwan cut his sixth period and was given a three- day indoor suspension. Another conference was held with his parents. On May 11, 1992, Antwan was caught gambling at a nearby senior high school. The assistant principal for the senior high school returned Antwan to Ms. Henry at the middle school. Antwan was suspended outdoors for three days. On July 22, 1992, Antwan was referred to Assistant Principal John Strachan for disciplinary action for telling a teacher that he didn't have to do what the teacher told him to do. Antwan was suspended outdoors for one day. During the 1992-1993 school year, Antwan was placed in the Student At Risk Program (SARP), which is a program designed for students who are at risk of dropping out of school. Students participating in SARP are given more attention than the students in the mainstream population. A counselor is assigned to the SARP program. On September 21, 1992, Ms. McGraw, Antwan's fifth period teacher referred Antwan to Assistant Principal Strachan for refusing to do his work, yelling at her about a pass to the office after she told him he could not have a pass, and refusing to give her a working telephone number for his parents so that she could call them. Antwan was given an indoor suspension until school administrators could meet with his parents. Antwan failed to stay in his class area during physical education class. His teacher, Janet Evans, would have to stop her class and call Antwan back into the class area. On September 24, 1992, Antwan left class without permission, and Ms. Evans found him and some other students outside the girls' locker room gambling by flipping coins. For these actions he was given a one- day indoor suspension. On October 29, 1992, Antwan was referred to Assistant Principal Strachan for excessive tardiness to school. Antwan refused direction by Mr. Strachan and was verbal and disruptive about being given a suspension. Antwan's mother was called to come and pick up him. Antwan was given a three-day outdoor suspension. On November 20, 1992, Teacher Golditch referred Antwan to the principal for shouting across the room to the extent that the teacher had to stop the class lesson and change what the class was doing. When Antwan got to the principal's office he got out of his seat, made noises, and went to the staff's counter when he was not supposed to do so. Antwan was given a one-day outdoor suspension for these actions. On January 6, 1993, Antwan and four other students were horseplaying in the cafeteria, resulting in the breaking of a window. He received a three- day indoor suspension for this behavior. On February 11, 1993, Antwan was walking around in Ms. Schrager's class and would not take his seat even though Ms. Schrager repeatedly asked him to do so. Antwan was distracting other students in the class, and Ms. Schrager had to stop the class to correct Antwan. Ms. Schrager referred the matter to Assistant Principal Strachan. A security officer was required to remove Antwan from the classroom. When asked by Mr. Strachan why he would not take his seat when asked by Ms. Schrager, Antwan responded that he wanted to sit where he wanted to sit. For this incident, Antwan received a five-day indoor suspension. Cheryl Johnson, Antwan's math teacher, had witnessed incidents in Ms. Schrager's class when Antwan would get out of his seat, walk around the classroom, and talk to other students, thereby disrupting Ms. Schrager's class. Ms. Johnson also had problems with Antwan in her classroom. Antwan would bring his drumsticks to class and tap on his desk. He was tardy to class, failed to do his homework assignments and participated very little in class. On March 8, 1993, Antwan and other students were throwing books at each other in Ms. Schrager's classroom during class. Ms. Schrager referred the incident to Mr. Strachan, who talked with Antwan. Antwan told Mr. Strachan that a student had hit him so he threw several books in retaliation. Other students were also written up for this incident by Ms. Schrager. Antwan received a five- day outdoor suspension for this episode. On March 23, 1993, Ms. Kramer, Antwan's language arts teacher, referred him to Mr. Strachan for disciplinary action for the following behavior: walking around the classroom, talking to other students, refusing to take his seat when asked to do so by his teacher, telling his teacher he didn't have to do what she was telling him to do, and rolling his eyes while continuing to move around. He received a detention. On April 21, 1993, Ms. Schrager observed Antwan showing his friend an object which resembled the outline of a gun. She asked Antwan to come talk to her. He began to walk toward her and then walked to the other side of the room. She called a security guard to come into the classroom but they were unable to find the object. Antwan was given a ten-day outdoor suspension which was reduced to a six-day suspension after school administrators talked with Antwan's parents. On May 7, 1993, Antwan was in the hallway and was fifteen minutes late for class. Mr. Strachan saw him and told Antwan to come to him. Antwan ran away from Mr. Strachan. When Mr. Strachan caught up with him, Antwan wanted to know what he had done wrong. Antwan received two detentions for the incident. On May 13, 1993, Antwan chased a female student into Ms. Arlene Shapiro's classroom. He grabbed the front of the girl's blouse trying to get a beeper which she had underneath her blouse. The girl called for help. Antwan was not Ms. Shapiro's student and was not supposed to be in her classroom. Ms. Shapiro told Antwan to let the girl go and he replied, "No. Make me." She put her hand on his back to guide him out of the classroom, and he told her not to touch him or he would hit her. She took her hand away. He punched her on her arm and then ran down the hall. Ms. Shapiro referred the matter to Assistant Principal DeLucas. Mr. DeLucas questioned Antwan about the incident and Antwan admitted hitting the teacher. Antwan received a ten-day outdoor suspension. Antwan was not doing well academically at Carol City Middle School. His report card for the school year ending June, 1993, showed final grades of four "F's" and three "D's." While at Carol City Middle School, Antwan received numerous group and individual counseling sessions with guidance counselors. Additionally, Ms. Henry, the principal, took Antwan "under her wing" and tried to counsel him. School administrators met with Antwan and his parents to discuss the problems that Antwan was having at school. However, these efforts to correct Antwan's disruptive behavior were unsuccessful. Additionally, as Antwan's disruptive behavior continued to escalate, resulting in more frequent conferences with his parents, Mr. and Mrs. Clark's attitude seemed to change from conciliatory to hostile and defensive. Antwan was reassigned to Jan Mann Opportunity School during the summer of 1993. The classes are smaller than the traditional school class. There are counselors and a full-time psychologist on staff. The focus at Jan Mann is to try build self-esteem, teach conflict resolution, develop social skills, and correct past behavior problems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered affirming the assignment of Antwan J. Clark to the Jan Mann Opportunity School. DONE AND ENTERED this 18th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5483 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 3: The first two sentences are accepted in substance. The first part of the third sentence stating that Mr. Strachan personally removed Antwan from the classroom from five to ten times is rejected as not supported by the greater weight of the evidence. The remainder of the sentence is accepted in substance. Paragraph 4: Accepted in substance. Paragraph 5: Accepted in substance. Paragraph 6: The first three sentences and the first half of the fourth sentence are rejected as subordinate to the facts actually found. The second half of the fourth sentence and the last two sentences are accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: The first sentence is rejected as not supported by the greater weight of the evidence. Ms. Schrager saw an object which resembled a cap gun. The second sentence is rejected as not supported by the greater weight of the evidence. The first part of the third sentence is accepted in substance. The second part of the third sentence is rejected as constituting argument. The last sentence is accepted. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary and subordinate to the facts actually found. Paragraph 12: The first sentence is rejected as constituting argument. The remainder of the paragraph is accepted in substance. Paragraph 13: The first sentence is rejected as constituting argument except the fact that Antwan threw rocks at Ms. Henry is accepted. The remainder of the paragraph is accepted in substance. Paragraphs 14-15: Accepted in substance. Paragraph 16: The first three sentences are accepted in substance. The last sentence is rejected as unnecessary. Paragraphs 17-19: Accepted in substance. Paragraph 18: Accepted in substance. Paragraph 20: Rejected as subordinate to the facts actually found. Paragraph 21: The two sentences are accepted in substance. The remainder of the paragraph is rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting argument. Paragraph 5: Accepted in substance except to the extent that gambling occurred on only one occasion. Paragraph 6: The first two sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 7: The first two sentences are accepted in substance. The second sentence is rejected as not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 8: Rejected as constituting argument. Paragraph 9: Rejected as not supported by the greater weight of the evidence. Respondent's Exhibit 1 shows numerous counseling sessions between Antwan and his counselor and at least one conference between Antwan's parents and a counselor. Paragraph 10: Rejected as not supported by the greater weight of the evidence. Paragraph 11: Rejected as not supported by competent substantial evidence. Paragraphs 12-14: Rejected as subordinate to the facts actually found. Paragraph 15: The first sentence is rejected as not supported by the greater weight of the evidence. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the greater weight of the evidence. I find that the parents' testimony is not credible. Paragraph 16: Rejected as not supported by the greater weight of the evidence. Paragraphs 17-19: Rejected as constituting argument. Paragraph 20: Rejected as irrelevant to this proceeding. Paragraph 21: Rejected as not supported by the greater weight of the evidence. Paragraph 22: Rejected as constituting argument. Paragraph 23: The first sentence is accepted in substance as it relates to early conferences with the parents and school officials. The remainder of the paragraph is rejected as constituting argument. COPIES FURNISHED: Anne G. Telasco, Esquire First Nationwide Building 633 NE 167th Street, Suite 304 North Miami Beach, Florida 33162 Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 3211 Ponce De Leon Blvd., Suite 210 Miami, Florida 33134 Mr. Octavio J. Visiedo 1450 Northeast 2nd Avenue, #403 Miami, Florida 33312-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent holds Florida Teaching Certificate 297447 covering the area of elementary education. At all times pertinent hereto, the Respondent was employed as an elementary school teacher in the Dade County School District. During the 1983-84 school year, the Respondent was employed as a second grade teacher of Chapter I students at Lillie C. Evans Elementary School. During the 1984-85 school year, the Respondent was again employed at Lillie C. Evans Elementary School as a second grade teacher. In March 1985, Respondent was transferred to Miami Springs Elementary School for the remainder of the school year as a result of an altercation involving an irate parent. During her tenure at Lillie C. Evans Elementary School, Respondent was assigned approximately 16 students in her second grade classes each year. Respondent was assigned a fourth grade class at Miami Springs Elementary School from March through June 1985. The Respondent's class contained approximately 30 students. Respondent was a first year annual contract employee of the Dade County Public Schools during the 1983-84 school year and a second year annual contract employee of the Dade County Public Schools during the 1984-85 school year. Respondent was not reappointed for the 1985-86 school year as an employee of the Dade County Public Schools because she failed to perform at an acceptable level of professional performance at two different schools, under two different administrations, with two different sets of students. The principal of Lillie C. Evans Elementary School, Willie Mae Brown, is a thirty-six year employee of the Dade County School System. Ms. Brown was Respondent's principal during Respondent's employment at Lillie C. Evans Elementary School. Ms. Brown has been trained to observe and evaluate the professional performance of classroom teachers and has observed and evaluated hundreds of teachers in her position as principal. On May 31, 1984, Brown prepared the Respondent's annual evaluation for the 1983-84 school year. She rated Respondent as unacceptable in the category of classroom management and noted in the remarks section of the evaluation that Respondent "should continue participating in workshops that will enable her to acquire techniques in instruction and classroom management." Brown requested that Respondent attend workshops on techniques of instruction and classroom management during the 1983-84 school year and that she observe fellow teachers in the school in order to improve Respondent's performance in the classroom. During the 1984-85 school year, Brown continued to observe serious problems with Respondent's control of student conduct and classroom management. On October 1, 1984, Brown overheard a child screaming loudly in the Respondent's classroom as if the child was in pain. When Brown observed Respondent on October 5, 1984, she noted that Respondent was unable to manage the class, failed to use non-verbal techniques and few verbal techniques to deal with students who were off-task. Brown observed that pupils were moving about and making noise in the classroom. Respondent's lesson plans did not appear to have enough activities to occupy the students' attention. Respondent was provided with "prescription plan" activities and recommended resources for implementation of the prescriptions. Brown provided a time line for improvement of October 29, 1984. On October 24,1984, Brown prepared a log of assistance which had been provided to Respondent. Brown's log noted that on October 1, 1984, Mrs. Mayme Moore, North Central Area Chapter I Resource Teacher, provided special assistance to Respondent concerning control of student conduct. In addition, Brown documented assistance provided to Respondent by Teacher Lena Hoskins; Teacher Sharon Sbrissa; Mr. Mitchell, School Guidance Counselor; Walter Foden, Assistant Principal; and others. As a follow-up to the October 5, 1984 observation, Brown again observed Respondent's classroom performance on October 29, 1984. Brown observed that the Respondent's performance was deficient in preparation and planning and classroom management. Brown observed a large number of children off-task. Respondent still appeared to be unable to manage her students. Again, Respondent failed to provide enough activities to occupy the students for the full class period. Brown noted that two pupils fell asleep during the class. Once again, Brown prescribed plan activities and recommended resources to Respondent with a time line of November 15, 1984. Brown continued to provide Respondent with assistance through the Teacher Education Center and through fellow teachers. On November 21, 1984, Brown found four of Respondent's students creating a disturbance in a bathroom. Upon returning these students to Respondent's classroom, she observed eight or nine of the twelve students in the classroom running around making noise. During the course of the 1984-85 school year, Ms. Brown received three or four written complaints and several additional telephone calls from parents complaining about Respondent's class. The nature of the parental complaints concerned Respondent's lack of control of student conduct in the classroom. On December 10, 1984, a conference for the record was held by Brown with Respondent and her union representative to address parent complaints, the complaint of the primary helping teacher for Respondent, Respondent's performance assessment to date and her employment status. At the conference, Respondent was advised of letters of complaints from parents and peers regarding her classroom management. Respondent was afforded the opportunity to identify a fellow teacher with whom she could confer and observe. Respondent did not indicate a preference for peer assistance. As primary helping teacher, Ms. Scurry complained that Respondent's inability to control students in her classroom was requiring Ms. Scurry's assistance almost every day. Scurry expressed concern to Brown about Respondent's continuous need for assistance with her students which was interfering with Scurry's instruction of her own class. In addition to Scurry, two other teachers, Ms. Drawley and Ms. Bell, made written complaints to Brown concerning the disruption of their respective classes due to excessive noise emanating from Respondent's classroom. At the request of Principal Brown, on November 1, 1984, Respondent prepared a summary of assistance which the Respondent received during the year. Respondent's handwritten narrative discloses that she received assistance from Mrs. Sbrissa, Mrs. Hoskins, Mrs. Moore, Mrs. Knight, Ms. Johnson, Ms. Brown, and Mr. Foden. Brown continued to require that Respondent attend prescriptive in- service courses through the Teacher Education Center in the latter half of the 1984-85 school year. Specifically, Brown requested that Respondent attend courses concerning classroom management and preparation and planning. On February 15, 1985, a joint observation of Respondent's professional classroom performance was conducted by Brown and Mrs. Eneida Hartner, the Area Director for the North Central Area of the Dade County Public Schools. Each observer evaluated Respondent's performance separately. Respondent received advance notice of the observation. The combined evaluations of Brown and Hartner resulted in an overall rating of unacceptable, with specific ratings of unacceptable in the areas of preparation and planning and classroom management. Respondent was once again provided with prescription plan activities, recommended resources with which to implement the activities and a time line for improvement. Both observers noted that Respondent failed to provide sufficient activities for the class period to occupy the students' time for the entire period and, as a result, students were off-task. Respondent failed to motivate her students to be interested in the task at hand and failed to provide appropriate feedback concerning the students' behavior. In March, 1985, Brown again received a memorandum from the Teacher Education Center regarding prescriptive in-service courses for the Respondent. Brown requested that Respondent attend the course on classroom management. Subsequently, on April 15, 1985, Ms. Brown was notified by memorandum that the Respondent had failed to attend the classroom management course prescribed for her. During the 1984-85 school year, many educators from Lillie C. Evans Elementary School and from the school district provided Respondent with assistance at the request of Brown in an effort to remediate Respondent's observed deficiencies. In addition to Principal Brown, Assistant Principal Walter Foden observed and evaluated Respondent's performance. On November 19, 1984, Foden conducted an observation of Respondent's classroom and found her to be deficient in the area of classroom management. In the TADS observation form, Foden identified the areas of deficiency, prescribed plan activities for improvement, indicated recommended resources, and provided a time line for Respondent's improvement. Foden observed that Respondent was unaware of childrens' off-task behavior in the classroom despite the fact that there were only 12 to 13 children in her classroom at the time. Foden recommended six individuals to provide Respondent with assistance, and each of the six did provide assistance to her. Foden also observed Respondent on September 12, 1984. Based upon this observation, Foden concluded that Respondent was deficient in classroom management and in the teacher-student relationship. The students ignored Respondent, would not listen to her and appeared to lack respect for her. In addition, Respondent's instructions were unclear. Foden recommended four resource persons to Respondent. These individuals provided Respondent with the assistance requested. Gwendolyn Bryant, Primary Education Coordinator for the Dade County School System, provided assistance to Respondent at the request of Principal Brown. Bryant met with Respondent in her classroom on December 12, 1984, and on January 9, 1985. Bryant observed that Respondent needed assistance with classroom management and with the implementation of the primary education program. Bryant returned on January 9, 1985, and reviewed the procedures for implementing PREP, RSVP (Reading Systems Very Plain) and TMP (Total Math Program). During her January visit, Bryant found that Respondent had not yet evaluated her students to determine their needs under these programs. The evaluations of the students' individual needs should have been completed at the beginning of the school year. Bryant concluded that Respondent was in need of continuing assistance with classroom organization and management. Margaret Rogers, teacher on special assignment to the Reading Department, provided assistance to Respondent in April 1985 at Miami Springs Elementary School. Rogers reviewed RSVP with Respondent, reviewed the Respondent's grouping of students for reading, provided the Respondent with handouts on teaching a directed reading lesson and classroom management, rearranged the students' desks to comply with fire code and to provide access to the blackboard, and provided Respondent with numerous suggestions on control of student conduct. On the following day, April 2, 1985, Rogers demonstrated a writing lesson for Respondent and provided Respondent with information on RSVP and teaching a directed reading lesson. During her tenure at Miami Springs Elementary School, Respondent received assistance from Helen B. Francis, Assistant Principal. It was Ms. Francis who requested that Mrs. Rogers provide assistance to Respondent. On April 15, 1985, Ms. Francis conducted a formal observation and evaluation of Respondent's classroom performance. Ms. Francis rated Respondent deficient in the categories of preparation and planning, classroom management and techniques of instruction. Francis observed that Respondent failed to control student conduct, resulting in constant disruptions and interference in the reading lesson which she was attempting to conduct at the time. Ms. Francis was in the Respondent's classroom almost on a daily basis because of constant complaints from parents and other teachers. Francis concluded that Respondent was unable to provide her students with appropriate instruction because she could not maintain control of the children's behavior. On March 29, 1985, Principal Margot J. Silverman observed and evaluated Respondent's teaching performance. Based upon that observation, Dr. Silverman rated Respondent deficient in the areas of preparation and planning, classroom management and techniques of instruction. Dr. Silverman provided an intensive description of the observed deficiencies and numerous specific suggestions for improvement. Silverman observed Respondent's performance again on May 13, 1985. Based upon the observation, Dr. Silverman evaluated Respondent's performance to be unacceptable in the categories of preparation and planning, classroom management, techniques of instruction and teacher-student relationships. Again, Dr. Silverman provided a detailed description of the observed deficiencies as well as specific suggestions for improvement. On May 30, 1985, Dr. Silverman prepared Respondent's annual evaluation for the 1984-85 school year. On the evaluation, Silverman rated Respondent's performance as unacceptable in the categories of preparation and planning, classroom management, techniques of instruction and teacher-student relationships. Silverman rated Respondent's overall performance as unacceptable and recommended that she not be re- employed for the following school year. Dr. Patrick Gray, Executive Assistant Superintendent in the Office of Professional Standards for the Dade County Public Schools, testified at formal hearing that in his professional opinion, Respondent has proven to be incompetent as a classroom teacher, by the standards of both the County School System and the Florida Department of Education. In Dr. Gray's expert opinion, Respondent's personal performance in the classroom has seriously reduced her effectiveness as an employee of the Dade County School Board. Dr. Gray determined from a review of all of the observations, both internal and external, that Respondent's professional performance was worsening, rather than improving, despite extensive assistance to help her remediate her deficiencies. Gray's review of Respondent's personnel file discloses that the Respondent did not achieve an acceptable level of performance in any of the nine classroom observations conducted of her during the 1984-85 school year. Gray is unaware of any additional assistance which the Dade County School System could provide to Respondent to assist her in remediating perceived deficiencies beyond the assistance which has been previously provided to her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained within the Administrative Complaint and permanently revoking Respondent's Florida Teaching Certificate. DONE and RECOMMENDED this 11th day of December, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 11th day of December, 1987. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-46 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 47 has been rejected as being unnecessary, and Petitioner's proposed finding of fact numbered 48 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or conclusions of law. Respondent filed posthearing correspondence which contains ten unnumbered paragraphs. The eighth unnumbered paragraph is the only one which constitutes a proposed finding of fact, and it is rejected since it is not supported by the evidence in this cause. The remainder of the unnumbered paragraphs in Respondent's correspondence have been rejected as not constituting findings of fact. COPIES FURNISHED: J. DAVID HOLDER, ESQUIRE POST OFFICE BOX 1694 TALLAHASSEE, FLORIDA 32302 JOYCE L. PENCHANSKY 610 N.E. 177TH STREET NORTH MIAMI BEACH, FLORIDA 33162 KAREN B. WILDE, EXECUTIVE DIRECTOR EDUCATION PRACTICES COMMISSION 125 KNOTT BUILDING TALLAHASSEE, FLORIDA 32399 MARTIN B. SCHAPP, ADMINISTRATOR PROFESSIONAL PRACTICES SERVICES 319 WEST MADISON STREET, ROOM 3 TALLAHASSEE, FLORIDA 32399
