Findings Of Fact On April 23, 1980, Petitioner applied for a teaching certificate in the areas of biology, chemistry, and general science. Petitioner had been certified by the State of Florida from August 20, 1974, through 1979 in these subjects. Petitioner allowed his prior certificate to lapse in 1979 as he was not sure he wanted to continue to be a teacher. At the time he allowed his certificate to lapse, he was involved in a drug problem, which drug problem resulted in the three arrests at issue herein. Petitioner was arrested in 1977, in 1978, and in 1979 for possession of controlled substances. Each of the arrests resulted in the withholding of adjudication. None of the arrests involved the sale of drugs, and Petitioner has never sold drugs. Petitioner has not used drugs since January of 1979, the date of his last arrest, and the drug used that date was a drug prescribed for him by a doctor. Prior to this application, Petitioner had reapplied for his teaching certificate. That application was denied since Petitioner was on probation from his arrests. Petitioner has completed all of his probationary periods. During the last year and a half, Petitioner has been teaching at the Miami Shores Preparatory School. He was hired to start a science department and has been teaching seventh and eighth grade life science, ninth and tenth grade biology, eleventh and twelfth grade honors biology, and eleventh and twelfth grade honors chemistry. He is also the swimming coach and serves as a counselor for seventh and eighth graders. Since he has been teaching at Miami Shores Preparatory School, a student has written an essay about him in describing the characteristics of an ideal teacher for a literary contest. The students at Miami Shores have dedicated the school yearbook to him. He has started a program at that school for students with drug problems by enlisting the aid of persons in the drug program which he himself successfully completed. Petitioner has had no difficulty in his present teaching position. However, in order for him to continue teaching at Miami Shores Preparatory School, a Florida teaching certificate is required. He is supported in his application for a teaching certificate by the principal of that school as well as by some of the other teachers, students, and parents of students at that school. Petitioner meets all requirements for issuance of a Florida teaching certificate, and the only basis for Respondent's denial of his application involves his three arrests.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered approving Petitioner's application for a Florida Teacher's Certificate, providing that Petitioner be issued a Teacher's Certificate on a probationary basis for a period of five years, and further providing that such certificate be automatically revoked if Petitioner be arrested for possession of any controlled substance during his five-year probationary period. RECOMMENDED this 24th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of September, 1981. COPIES FURNISHED: Ronald C. LaFace, Esquire Roberts, Miller, Baggett, LaFace, Richard & Wiser Post Office Drawer 1838 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2015.
The Issue Whether Respondent violated section 1012.795(1)(d) or (1)(f), Florida Statutes (2019), and, if so, what penalty should be imposed.1 1 Unless otherwise noted, all references to the Florida Statutes herein are to the 2019 version, which was in effect when the actions alleged in the Administrative Complaint took place.
Findings Of Fact Petitioner is the chief educational officer of the state, who recommends members for appointment to the Education Practices Commission—the statewide commission with the authority to discipline Florida educators. See §§ 1001.10(1), 1012.79(1), and 1012.795(1), Fla. Stat. (2021). Respondent, Calvin Chin, holds State of Florida Educator’s Certificate 737639, covering the areas of Educational Leadership and Mathematics, which is valid through June 30, 2026. Respondent has served as an educator for 27 years, primarily with the Marion County School District (“District”). He was first employed by the District as a math teacher at Dunnellon High School (“Dunnellon”) in 1994, where he continued for 12 years. Respondent was promoted to dean of students at Dunnellon in 2002 and served in that capacity through 2012. During that time-frame, Respondent was also a part-time math instructor at a local community college. Respondent served as dean of students for College Park Elementary School from 2012 through 2016, when he returned to Dunnellon to continue teaching math for college readiness and dual enrollment math for students enrolled for college-level credit math instruction. Respondent also had a 19-year career with the U.S. Marine Corps. He originally enlisted in 1978 after graduating from high school, then joined the Marine Reserves while he pursued his college education. Respondent graduated from the University of Florida in 1983 and became a commissioned officer through the Reserve Officer Training Corps (“ROTC”) program in December of that year. Respondent served in the Marine Corps through 1994. In 1996, Respondent established the Young Marines at Dunnellon, a program similar to ROTC that teaches discipline and military structure to youth. Respondent is passionate about teaching and shaping the lives of young people. Respondent has never had any disciplinary action taken against his license or against him by either the District or any school at which he has taught. Relationship with Joanne Mandic Respondent and Joanne Mandic are not married, but have been in a relationship for 19 years. Respondent and Ms. Mandic have lived together as a couple for over 18 years. The couple has one child together, C.C., who lives with her parents. C.C. was 13 years old and home-schooled by Ms. Mandic at all times relevant hereto. Ms. Mandic has another child, Nyasha Mandic-Mandaza, from a prior relationship. Ms. Mandic-Mandaza was 22 years old at all times relevant hereto. She does not live with her mother and Respondent; however, on the date of the incident, Ms. Mandic-Mandaza was staying at their home. October 25, 2019, Incident On Friday, October 25, 2019, Respondent came home from Dunnellon and prepared himself an alcoholic drink. At some point during the evening, he asked Ms. Mandic what she was preparing for dinner and she responded that she was too tired to cook. Respondent became upset that Ms. Mandic was not preparing dinner. By this time, Respondent had consumed several alcoholic drinks, and he and Ms. Mandic got into a verbal altercation about dinner. During the verbal altercation, Respondent came out of his bedroom holding his handgun. He said to Ms. Mandic, “Don’t piss me off. I am a Marine and I know how to shoot,” or similar words. Respondent “racked” the gun, which made a distinctive sound audible to Ms. Mandic. Afterward, Respondent returned to his bedroom. Ms. Mandic is familiar with the gun and familiar with Respondent’s habit of storing the gun and ammunition separately. According to Ms. Mandic, the gun was unloaded when Respondent brought it out of the bedroom. Ms. Mandic testified that she knew the gun was unloaded and that she was not in fear of Respondent. Ms. Mandic testified that this incident was not indicative of her relationship with Respondent and that he has never been violent toward either her or the children. She further testified that there has been no similar incident since that date. C.C. was home in her bedroom and heard, but did not see, the altercation between her parents. No evidence was introduced regarding C.C.’s reaction to the incident or its effect on her. Ms. Mandic-Mandaza both heard and saw the altercation between Respondent and her mother. Ms. Mandic-Mandaza had come to the house after work and was preparing to leave for the evening, when she stepped into the hallway in response to the verbal altercation. She saw Respondent walking down the hallway with his handgun. Ms. Mandic-Mandaza was in fear as Respondent appeared to be approaching her in the hallway; however, Respondent passed by her and moved towards her mother, who was in the kitchen. Ms. Mandic-Mandaza retreated to a bedroom where she called the police to report the incident, then left the house shortly thereafter. Respondent’s Arrest In response to the 911 call, Marion County Deputy Sheriffs Joseph Diaz and Christopher White, as well as Sergeant Moore, were dispatched to the Chin home. Both Respondent and Ms. Mandic were interviewed by the officers. During his interview with the officers, Respondent was forthcoming about his actions. He demonstrated to the officers how he held and racked the gun, and repeated the statements he made as he held the gun. Ms. Mandic downplayed the incident when she was interviewed, describing Respondent’s actions as simply “showing us his handgun.” Deputy White also contacted Ms. Mandic-Mandaza via telephone and interviewed her, as well as meeting with her to take her statement. She was reticent to discuss the incident with Deputy White and expressed that she did not want to get Respondent in trouble. Respondent was arrested for Aggravated Assault with a Deadly Weapon Without the Intent to Kill and Possession of a Firearm During the Commission of a Felony, and was incarcerated from October 25 to November 2, 2019. On November 21, 2019, the State Attorney for the Fifth Judicial Circuit filed an “Announcement of No Information” on the allegation of Use of a Firearm During the Commission of a Felony and charged Respondent solely with Aggravated Assault with a Deadly Weapon (without Intent to Kill). On March 11, 2020, Respondent plead nolo contendere to the lesser charge of Improper Exhibition of a Firearm, which is a misdemeanor defined in section 790.10, Florida Statutes, and adjudication was withheld. Respondent received credit for eight days served, was placed on a year of probation, assessed court and prosecution costs of $350, and was required to submit to random alcohol screens at least two times per month during probation. Subsequent Events Following his incarceration, Respondent voluntarily participated in mental health counseling and alcohol evaluation. Respondent testified that he “talked about drinking” with the counselor. Respondent further testified that, since the incident, he has “not been drunk like that.” The District placed Respondent on administrative leave with pay through December 2020. Respondent was placed on administrative leave without pay in December 2020, but returned to teach at Dunnellon in March 2021 just before spring break. Following spring break, due to the COVID-19 pandemic, the school moved classes to an online format and Respondent continued teaching in that format throughout the remainder of the 2020-2021 school year. Respondent remains employed by the District and is currently teaching at Dunnellon. Neither Dunnellon nor the District imposed any disciplinary action against Respondent due to the incident and his subsequent arrest. Respondent testified that neither any student nor any fellow teacher has questioned him or made any remark about the incident or his arrest. Petitioner introduced no evidence of any press coverage or community concern regarding the incident. Character Witnesses Stephen Ayers is the director of student assignment and school choice for the District. Mr. Ayers has worked in various educational capacities with the District for 27 years, including as a math teacher, dean, assistant principal, principal, and coordinator for the District. Mr. Ayers met Respondent in 1994 when they were both pursuing their graduate degrees. Mr. Ayers later worked at Dunnellon as assistant principal, then principal, while Respondent served as dean of students. In those capacities, Mr. Ayers was Respondent’s supervisor at Dunnellon. Mr. Ayers described Respondent as “an exemplary dean” and “a mentor with … youngsters.” Mr. Ayers was aware of Respondent’s October 25, 2019 arrest and “the basis and reason for that arrest.” Mr. Ayers testified that he has no doubt Respondent can continue to perform his duties effectively and does not consider Respondent’s effectiveness in the community to be diminished by that arrest. Bobby James retired from the District in 2018 after serving the District for 47 years as a teacher, coach, principal, school board member, and school board chairman for three terms. Mr. James was the principal at Dunnellon in 1994 and hired Respondent as a math teacher. Mr. James remained principal for 12 years and moved Respondent into the dean of student’s position. Mr. James initiated the Young Marines program at Dunnellon and chose Respondent as the first instructor in the program. After leaving Dunnellon for a position with the school board, Dunnellon remained a school in which Mr. James, as a school board member, exercised oversight authority. Mr. James frequently visited Dunnellon and met Respondent and administrative leaders there. Mr. James described Respondent’s performance as an educator and leader of young people as “exceptional,” especially in working with youth who have difficult life challenges. Mr. James was familiar with Respondent’s arrest and “had heard” that a firearm was involved in the October 25, 2019 incident. He was not aware of the specific statements alleged to have been made by Respondent to Ms. Mandic. During cross-examination, Mr. James admitted that, if Respondent had said, “Don’t piss me off, I have a gun and I know how to use it,” that would not be appropriate conduct for an educator, or for that matter, “for any person.” However, Mr. James testified that, given his 25 years of experience with Respondent in service to the District, even knowing the specifics of the incident, he believes Respondent can remain an effective educator. Mr. James testified that Respondent’s character with students and District employees is proven, and indicated that, if he were in a position to do so, Mr. James would rehire Respondent. Ryan Malloy met Respondent through the Young Marines program in middle school when Respondent was the commanding officer of the program (for both high school and middle school). Mr. Malloy left the Young Marines program before high school but has maintained a mentoring relationship with Respondent through his recent graduation from the University of Florida. Respondent taught Mr. Malloy the game of golf and the two play golf regularly. Mr. Malloy testified that Respondent has served as a constant mentor in his life; that when he is really struggling with something, he talks to Respondent. He related that Respondent encourages him to consider both sides of a situation and avoid quick judgments. Mr. Malloy was generally familiar with Respondent’s arrest and the circumstances surrounding the arrest. Mr. Malloy testified that Respondent’s effectiveness as a mentor has not been diminished by the incident. He testified that Respondent has helped him acknowledge his own mistakes and learn from them. Mr. Malloy stated that Respondent taught Mr. Malloy that true character is built by taking ownership of one’s mistakes and using them for self-improvement. Mr. Malloy believes that is an important trait for all teachers to be effective role models. Linda Malloy, Mr. Malloy’s mother, retired from the District in May 2019, was a fellow teacher with Respondent at Dunnellon for 24 years, and second in command of the Young Marines with Respondent for 10 years. She described Respondent as strict, honest, and fair. She admired his ability to reach students through Young Marines and help them turn their lives around when they were headed “down the wrong path.” Ms. Malloy was familiar with Respondent’s arrest and the fact that a gun was involved in the October 25, 2019 incident. Ms. Malloy testified that Respondent can remain an effective educator because she “believe[s] in his core values.” She trusted him with her own child and still would to this day. Ms. Malloy has not heard anyone in the education community suggest that Respondent should not continue to teach. Sharon Lambert has taught at Dunnellon for 22 years and currently teaches business technology and serves as the teachers’ union representative. Respondent was in charge of the Young Marines when Ms. Lambert began teaching at Dunnellon. Her impressions of Respondent as an educator are that he cares about his students, wants to help them succeed, and “would do anything to help them learn what he’s supposed to teach.” Ms. Lambert was familiar with Respondent’s arrest. She testified that the incident has not had any negative affect on his ability to teach his students. To her knowledge, since Respondent returned to the classroom, there has been “no talk amongst the students or the teachers” concerning the incident or Respondent’s ability to teach. Respondent also introduced a letter from Jay Easom, who served as president of the Dunnellon School Advisory Council (“SAC”) from 2007-2010 and is familiar with Respondent in that capacity, as well personal conversations with him. The letter relates as follows: I am writing on behalf of “Captain Chin.” I am acquainted with him for more than ten (10) years. I’ve had the opportunity to know him in his capacity of leadership at our local high school as well as our personal conversations detailing his desire to be responsible to his family. He always plans well and stands firmly in his commitment to reach his personal goals for the benefit of his family. I can’t tell you how surprised I was when [Respondent] shared with me the events of October 25, 2019 that resulted in him being charged. I instantly detected his regret and disappointment. The idea of [Respondent] bringing harm to anyone escapes my consideration especially in the handling of a firearm. My children attended and graduated from [Dunnellon]. I know [Respondent] in this period during my participation as president of the [SAC] from 2007-10. I learned more about [Respondent] when as a part of our meetings, he introduced proud young men and women to share their outlook for the future that had joined Young Marines. He provided a path of personal development for them and I am sure that his peers will tell you that his hard work, dedication, and friends in the community supported the program because of his commitment. I expect that [Respondent] has a plan to be sure that there will never again be such an event in his life as this. I hope that you may have the opportunity to give him further consideration as his employer, students, peers, and friends have over a very difficult year and a half. Thank you. Respondent also introduced the following letter from Jeffery Daniel Ratliff: To whom it may concern, Captain Calvin Chin has been, and still is, one of my largest influences throughout my life. I still remember the very first time I met him, and that was over 20 years ago. It was my first day in a new school, an entirely new state, at [Dunnellon]. While waiting with my parents in the front office to get registered for classes, in walks this Marine wearing freshly starched cammies with flickering silver and gold on his uniform, and it was at that moment that I decided to become a Marine. Over my high school career Captain Chin shaped and guided me in a way that only a true leader can. When my temper or overzealousness got the best of me, he did not hesitate to punish me but always ensured that a lesson was learned. When I was unable to understand the mathematic teachings of Mr. Gaitanis’ overeducated ramblings, Captain Chin would break it down simply for me and insist that I already knew how to do it. And he was right! When I left for Marine Corps bootcamp, he gave me some last-minute advice, but insisted that I would do fine … as long as I didn’t ask too many questions. He was right about that too. When I got back from Iraq and needed another Marine to vent to about what I saw, he was there for me. He wasn’t judgmental at all. After the Young Marines program was removed from the high school, he chose to keep it active and open it up for all ages from 8 to eighteen. He even encouraged me to come volunteer after I had gotten out of the Marines. I did not have the patience or understanding to deal with such young children at the time, but Captain Chin did. Even though I have two loving parents who are still together, and love me very much, I still refer to Captain Chin as my Adopted Asian Dad. I have seen this man motivate, influence and inspire so many young minds over the years that I lose count. As Dean at the high school, the kids who he had to punish still respected him and find him years later to tell him that they are doing so much better now, because he showed them respect first. It is impossible to fit everything that Captain Chin has done to help me, influence me on one page. Just know that this is one of the most selfless human beings I have ever met, that has committed his entire life to serving and helping others, and will continue to do so until he is no longer physically able. Respondent also introduced his final evaluation from the District for the 2020-2021 school year on which he received the rating of “Effective” on all four instructional practice domains in which he was assessed. Respondent became emotional during his testimony at the final hearing. Petitioner introduced, and played for the undersigned, body-camera footage from the responding officers on October 25, 2019. Respondent was ashamed and remorseful of his behavior on the night of the incident. Respondent was dismayed by his own behavior and it obviously pained him to watch the video footage.
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(f), but, based on the Findings of Fact herein, including substantial factors in mitigation, take no action against Respondent’s certificate. DONE AND ENTERED this 29th day of September, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2021. Lisa M. Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 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
The Issue Whether the Respondent should be terminated from her employment with Petitioner as a result of her teaching performance.
Findings Of Fact Respondent, Margaret Irvin (Irvin) has been employed as a classroom teacher with the Palm Beach County School District (School District) since the 1965-66 school year, with a break in service between 1967 through 1978 and again from 1979 through 1982. Irvin received a continuing contract for the 1985-1986 school year and has remained on continuing contract with the School District through the 1994-1995 school year. Irvin is employed pursuant to a Professional Service Contract from which she may be discharged only in accordance with the terms of Sections 231.36, 231.28 and 231.29, Florida Statutes. From 1982 through June 1993, Irvin taught pre-kindergarten at Belle Glade Elementary School (Belle Glade) and received satisfactory evaluations. The use of certified classroom teachers in the School District's pre- kindergarten program was discontinued at the end of the 1992-1993 school year. Irvin is certified by the State of Florida to teach all early childhood grade levels, which would include pre-kindergarten through sixth grade. For the 1993-1994 school year Irvin was assigned to teach a first grade class of fifteen students at Belle Glade. During the 1993-1994 school year, Lynn McGee (McGee) was the principal at Belle Glade. As part of her duties, McGee was responsible for evaluating Irvin's work performance. A Classroom Teacher's Assessment Evaluation Form is used in evaluating a teacher's performance in the classroom. This form is used for mid-year evaluations and for annual evaluations. Specific areas are marked on the form as being either satisfactory or unsatisfactory. If a teacher receives unsatisfactory in fewer than five areas, the teacher is given an overall rating of satisfactory. If a teacher receives unsatisfactory in more than four areas, the teacher is deemed to have an overall unsatisfactory rating. In December 1993, McGee presented Irvin with a mid-year evaluation of her performance as a classroom teacher. The overall evaluation was unsatisfactory and identified the following areas in which Irvin needed to improve her teaching performance: Management of Student Conduct. Instructional Organization and Development. Presentation of Subject Matter. Establishes an Appropriate Classroom Climate. Demonstrates Ability to Plan Effectively. Develops and Maintains an Accurate Record Keeping System. In the area of Management of Student Conduct, the teacher is evaluated on whether she keeps the students under control at all times. This area also covers teacher "withitness", which means the ability to know what the students are doing at all times. During her observations for the mid-year evaluation, McGee saw students talking and walking around and not being on task. Irvin had a chart on the wall for a behavior plan but she was not implementing the plan in the classroom. Irvin demonstrated a lack of "withitness." The area of Instructional Organization and Development covers lesson delivery, whether a teacher uses a variety of techniques, whether she teaches a complete lesson, and the actual presentation of the lesson itself. During McGee's observations, Irvin relied heavily on the use of dittos and did not use a variety of teaching techniques. Although all first grade teachers were using the same dittos, Irvin could have refrained from using one ditto sheet after another and varied the activities. Irvin did not follow the steps which are used to teach a lesson: orientation to the students, beginning review, teaching the concept, and an ending review or closure. Irvin asked questions which called for a unison response, which is usually not appropriate. A unison response does not allow the teacher to determine if all the students are giving the correct response to the question. Irvin did not ask a lot of "higher order questions", which are questions requiring the student to analyze and apply the information given. The area of Presentation of Subject Matter is specifically directed to the question of whether the teacher teaches concepts. A concept is taught by giving a definition and providing examples and nonexamples. McGee did not observe Irvin teaching any concepts. The area of Establishes An Appropriate Classroom Climate looks at the environment of the classroom, including the physical environment and whether the classroom is warm, caring and conducive to learning. When McGee observed the classroom, it did not have an environment which was conducive to learning. The room was not "print rich", which means that the classroom did not have a lot of written materials on the wall, labels on objects, and pictures on the walls. McGee's opinion was that the classroom did not present a warm and caring environment. The area of Demonstrates Ability to Plan Effectively is directed to the teacher's ability to put a plan together and whether the teacher is executing the plan when observed. Irvin did not have written lesson plans. The area of Develops and Maintains an Accurate Record Keeping System deals with properly recording the students' grades. During the first nine weeks of school, Irvin failed to maintain a grade book. In an effort to assist Irvin to improve, McGee sent Irvin to a workshop, provided demonstration lessons, and told Irvin to observe some of the other first grade classrooms. Additionally, Irvin was provided with sample lesson plans and was told to attend the weekly meetings of the first grade teachers where they did their lesson plans. Irvin sometimes did not go to the meetings or was late. Irvin was also provided with a sample grade book. Irvin disgreed with the content of the December 1994 evaluation. In March 1994, Irvin received from McGee an annual evaluation of her performance as a classroom teacher rating her overall performance as unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Establishes Appropriate Classroom Climate Demonstrates Ability to Plan Effectively In the area of Management of Student Conduct, Irvin still had students who were not on task. There was down time in the class because of student misbehavior and failure to follow instructions, resulting in very little teaching time. In the area of Instructional Organization and Development, Irvin continued to rely heavily on dittos and did not vary her teaching techniques. The activities were disjointed rather than flowing and interrelated. Irvin did not teach a complete lesson which included the necessary elements for a lesson. In the area of Presentation of Subject Matter, Irvin again failed to teach concepts. In the area of Establishes an Appropriate Classroom Climate, McGee observed that Irvin did not smile or express enthusiasm. Her classroom did not provide a happy environment which was conducive to learning. Irvin was still not preparing lesson plans. McGee observed that for the week of February 7-11, 1994, there was almost no planning. By the time of the annual evaluation, Irvin had begun to keep a grade book. She was evaluated satisfactory in the area of Develops and Maintains an Accurate Record Keeping System. Irvin disagreed with the content of the March 1994 Evaluation. After the 1993-1994 annual evaluation, McGee notified the superintendent of schools that Irvin's annual evaluation was unsatisfactory. The superintendent sent a letter to Irvin advising her that she would have the following school year to remediate her teaching deficiencies. On May 4, 1994, Dr. Christina Diaz, a board certified neurologist, diagnosed Irvin as having Attention Deficit Disorder (ADD). Irving advised McGee a few days later that she had been diagnosed with ADD. On June 9, 1994, Irvin was placed on a Professional Development Plan (PDP) by the administration of Belle Glade to aid Irvin in remediating each area of concern contained in the March 1994 evaluation. The PDP also contained materials regarding deficiencies in the area of Develops and Maintains Accurate Record Keeping System, which was not included on the March 1994 evaluation as an area of concern. The PDP provided that a team of educators, including someone employed outside the School District, observe Irvin's performance and provide her with feedback and improvement strategies. The PDP also provided for Irvin to attend workshops, to review teacher effectiveness manuals, and to observe the performance of other teachers. Irvin was assigned as a kindergarten teacher in the 1994-1995 school year. The principal at Belle Glade for the 1994-1995 school year was Glenda Garrett (Garrett). Like McGee, Garrett's duties included evaluating Irvin. In September, 1994, Irvin attended an assistance review meeting, where she received the list of observers and the approximate dates that they would be observing her classroom performance. Through out the implementation of the PDP, Irvin was kept advised of the times when she would be observed. On September 29, 1994, Melvis Pender (Pender), an Area IV Instructional Support Team member in math and science, observed Irvin. The students were noisy. Irvin asked questions that called for unison responses, which made it difficult for the teacher to detect students who were giving incorrect responses. The discipline plan that Irvin was using was not effective and emphasized the bad behavior. Mr. Pender made recommendations on ways to improve in the areas that needed improving and provided them to Irvin. On September 30, 1994, Juanita Malone, assistant principal at Belle Glade, observed Irvin. The students were very noisy and Irvin kept turning the lights on and off to get their attention. Irvin was teaching the children about patterns during the observation. She started using links of four different colors to illustrate the lesson, but when she saw that a four color pattern was too difficult for the children to understand she switched to a simpler two color pattern. The students had not used the links before and many of the students spent time during the lesson playing with the links. Ms. Malone shared her observation with Irvin. On October 21, 1994, Irvin was observed by Jeanne Burdsall ("Burdsall"), the Manager of Professional Standards for the Palm Beach County School System. During the observation, Irvin did not teach a lesson. She did not have any lesson plans. Irvin did not smile or show any enthusiasm during the observation. She did not teach any concepts. Irvin lost valuable teaching time while she was looking for a misplaced "birthday box." She gave birthday cake to the children just prior to lunch. Again she lost teaching time while she had each child individually take his placemat to the sink, resulting in the children becoming disruptive while they were waiting for all the children to clean up. Burdsall put her observations and suggestions for remediation in writing and gave it to Irvin. On October 26, 1994, Irvin met with Burdsall, Garrett, and Clarence Gunn, her union representative to review the progress of the PDP. During the meeting, Irvin advised everyone that she had ADD and was taking medication for the condition. Burdsall said that she would provide Irvin with a copy of the American's with Disability Act (ADA) policy and request for information. Burdsall stated that she would see if someone from the School District could locate a local neurologist who could treat Irvin. At the October 26 meeting, Irvin stated that she plans by putting ideas and themes down as she goes along. Sometimes she writes them down before the activity and sometimes it is afterward. Garrett gave Irvin a set of model lesson plans. Irvin was instructed to prepare two days of lesson plans which could be used by a substitute teacher if necessary. It was agreed that Irvin would be allowed to shadow another kindergarten teacher. In the fall of 1994, Irvin attended workshops on intergrated curriculum, language arts and math manipulatives. On October 27, 1994, Mary Gray (Gray), a professor of Education Leadership at Florida Atlantic University, observed Irvin. Gray noted that the students were too noisy and could not hear directions that were being given by the teacher. Irvin did not have any lesson plans. Irvin asked the children multiple questions which resulted in confusion. Irvin told the class about a student's father who had been shot. Other children began to talk about unhappy incidents in their lives such as a brother who had gotten stuck in the eye with a knife. Gray felt that such discussion was inappropriate for kindergarten students. Gray shared her observation comments and suggestions on ways to improve with Irvin. On November 17, 1994, another meeting was held to review the progress of the PDP. Irvin was given the ADA policy with the medical request for information and was told to take it to the neurologist of her choice as soon as possible. Irvin had failed to turn in the two days of lesson plans as requested in the October meeting. She was again instructed to prepare the plans. Irvin was going to be released for two days to shadow a kindergarten teacher, who would demonstrate the whole language approach to teaching. Irvin asked for the materials that were handed out in a October 28 workshop and Ms. Burdsall agreed to provide her with those materials. On November 18, 1994, Gale Fulford (Fulford), who was the Area IV support team member for language arts, observed Irvin's classroom performance. Irvin did not have any lesson plans. Fulford did not see a lot of teacher created materials in the classroom, and the classroom lacked a print rich environment. Irvin's questions to the students did not include enough "high order" questions. The class was too noisy. On December 2, 1994, Dorothy Kelsey (Kelsey), a specialist in Pre- K/early intervention observed Irvin. Ms. Kelsey noted inappropriate activities being offered to the students such as dittos, rote memorization in the math lesson with no hands on activity, and reading and showing a small book in a group setting so that some of the children were unable to see the book. The classroom lacked well organized learning centers and did not have a print rich environment. On December 9, 1994, Garrett observed Irvin teach a concept. Irvin continued to ask for unison responses and posed multiple questions. Based on the codes on the evaluation form used by Garrett, Irvin's teaching performance was not satisfactory during the observation. On December 9, 1994, Irvin received a midyear evaluation of her performance as a classroom teacher identifying the following areas which needed to be improved and rating her overall performance as unsatisfactory: Management of Student Control Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs Irvin was still unable to manage the students' conduct. She failed to make lesson plans, resulting in her not being prepared to teach lessons. She was not following the kindergarten checklist, which is a list of objectives that the students should be able to meet at the end of the school year. Based on testing, it was determined that a large number of the students in Irvin's class were not working on the level that they should have been. It appeared to Garrett that some of the students in Irvin's class were "falling through the crack" and would not meet the objectives on the kindergarten checklist. Irvin had made improvement in the area of classroom climate. However, for this evaluation Irvin was rated unsatisfactory in the area of Demonstrates Ability to Evaluate Instructional Needs because she was not able to incorporate the kindergarten checklist in her lesson planning. The area of Demonstrates Ability to Evaluate Instructional Needs deals with the ability to tailor the instruction to meet the needs of the students. Thus, Irvin ended up with five areas of concern for her mid-year evaluation. Garrett recommended that Irvin remain on the PDP. Irvin disagreed with the December 1994 evaluation. Irvin was placed on her second PDP in January, 1995 for the purpose of providing her assistance in correcting the deficiencies listed on mid-year evaluation. The dates listed for the timeline for the PDP were from January through March, 1995. Irvin was observed during the time frames set forth in the second PDP. The School District received a letter dated January 12, 1995, from Dr. Diaz, informing the School District that Irvin had ADD and was successfully taking medication. The doctor stated: This disability will continue and is chronic. Disabilities will be noted in terms of ability to concentrate, organize and respond to change. Working in a quiet environment undistracted is helpful. Functioning in the school district with an aide is helpful as well as understanding the disorder in terms of response to changes in curriculum or responsibilities. On January 20, 1995, Pender observed Irvin. The students were divided into three groups. One of the groups was working at a table with manipulatives, was very noisy and was not directly supervised. Irvin asked her daughter who was helping her that day to sit with the noisy group. The group continued to be noisy and distracting to the other students. It was chaotic when the groups switched from one station to another. There was no connection of skills or concepts among the three stations during the class period. Irvin was reading the students Mother Goose Rhymes, which was appropriate for that grade level, but the noise level was so high that very little learning was going on. In comparing his first observation with his second observation, Pender opined that Irvin's ability to manage the classroom had not improved but was worse. On February 1, 1995, an assistance review meeting was held. The letter from Dr. Diaz had been given to Louis Haddad, the School District's Coordinator of Employee Relations and Services. Irvin was told that Mr. Haddad needed to have a list of the specific accommodations that were being requested. Irvin indicated that she was going to another doctor to get the list. Irvin had rearranged her room and modified her lesson plans. She had been working with Fulford. Irvin was scheduled to attend three workshops: Management of Student Conduct, Presentation of Subject Matter/Planning, and an inservice session on whole language. Irvin advised the members of the meeting that she was pleased with the assistance and the progress being made. On February 10, 1995, Gray observed Irvin in the classroom. Irvin spent ten minutes taking up money for various activities and collecting valentines. There was a show and tell with all the students. Irvin went to the calendar and indicated that the day was Friday. Nine students were taken to a table to work with the aide. The remaining nineteen students were talking and rolling on the floor. Instead of supervising the noisy children, Irvin helped the aide set up the work station for the nine students. The class became so noisy at one point that when Irvin was asked by the aide how many cards each child was to have, Irvin replied, "Sorry, I can't hear you." Irvin put eleven children at a table by themselves to draw a picture about weather, while Irvin began to teach the eight remaining children. During the 30 minute observation period, no teaching occurred for the first 26 minutes. During the observation, from 7 to 19 students were off task at various times. On February 14, 1995, Garrett observed Irvin's classroom. She went to the classroom early in the morning but the class was having a valentine party. She returned around 10:00 a.m. and observed Irvin and the students singing songs. Irvin did use her behavior management plan during the observation. The determination of whether a particular teacher should be recommended for termination based on incompetency is the responsibility of the principal of the school at which the teacher works. At the end of the day on February 14, 1995, Garrett met with Irvin and advised Irvin that she was going to recommend that Irvin not be reappointed. By letter dated February 14, 1995, Garrett advised the superintendent of schools that Irvin had not corrected her performance deficiencies and recommended that Irvin not be reappointed for the 1996 school year. The letter was sent according to a School District requirement that principals send notice regarding teacher termination to the superintendent sometime during February. During the 1994-1995 school year, the School District established February 14 as the date by which the School District needed to receive notice regarding teachers possibly not being reappointed for the next school year. The other observers on the PDP team agreed with Garrett's assessment that Irvin was not competent. On February 20, 1995, Irvin made an office visit to see Dr. Helen Baker (Baker), a licensed mental health counselor. Diaz had referred Irvin to Baker for counseling. Irvin requested assistance from Baker in coming up with specific accommodations relating to her ADD which she could request from the School District. On March 1, 1995, Burdsall observed Irvin. Burdsall noted that the classroom environment had improved. Irvin had some lesson plans but was not following the format that Gray had given her. Irvin did not completely follow her lesson plan during the observation period. Irvin was still not using all the elements that are necessary in teaching a lesson and was not teaching concepts by giving definitions, examples and nonexamples. Burdsall suggested that Irvin interact more with the students by asking comprehensive questions, both high and low order. On March 2, 1995, Irvin received an annual evaluation rating her classroom performance unsatisfactory and identifying the following areas which needed improvement: Management of Student Conduct Instructional Organization and Development Presentation of Subject Matter Demonstrates Ability to Plan Effectively Demonstrates Ability to Evaluate Instruc- tional Needs In developing the evaluation, Garrett factored in her formal and informal observations of Irvin as well as the observations of the members of the Professional Development Plan's assistance team. Irvin disagreed with the content of the March 2, 1995, evaluation. By letter dated March 10, 1995, the superintendent of schools notified Irvin that she had failed to correct the deficiencies noted by the principal and that her current classroom performance was unsatisfactory. Irvin was informed that her employment would end on June 16, 1995, and that she would not be reappointed for the 1996 school year. On March 19, 1995, Garrett received a letter from Helen Baker of Cape Counseling Services of Southwest Florida. After having seen Irvin two times Baker suggested the following accommodations for Irvin: Allow for changes to occur at a slower pace and when change is indicated be precise as to what is needed in the new situation. Have a clear workable curriculum. Have only one or two persons involved in giving guidance to Irvin and preferably a person with experience with the dynamics of ADD. Do not send conflicting messages in assisting Irvin. Place carpets or other materials to soften the sound in the classroom. Do not allow public announcements through electronic devices to interrupt during class. Leave Irvin messages in her mailbox for her to focus on when she has time to orient to them. Present written material on student behavior to Irvin one item at a time in a different manner. Allow Irvin timeout from her classroom so that she can extract herself from the over stimulation of the classroom. Provide Irvin with a full time aide who is aware of ADD behavior. The School District had made accommodations to Irvin prior to the letter from Dr. Baker. Irvin was allotted more aide time than any other kindergarten teacher. Usually different teacher assistants came to the teachers at different times of the week. Irvin requested that she keep the same teacher assistant. Garrett accommodated Irvin by allowing her to have the same assistant for the rest of the day and for the rest of the week. Belle Glade had a kindergarten extension room where kindergarten teachers are allowed to take their students twice a week, allowing the children to work with hands-on skills and activities. Two different groups would come into the extension room two different times of the day. Irvin felt that was too much movement for her and requested that she be allowed to go to the extension room only once with the same students at the same time. Garrett made the accommodation for Irvin. Irvin indicated that the format of the lesson plans for the extension schedule was difficult to follow and suggested that she be allowed to color code her lesson plans. Garrett allowed the accommodation. Irvin was provided the Florida Performance Measurement System otherwise known as the blue book. The purpose of the book is to provide assistance for effective teaching. Additionally, in September, 1994, Garrett provided Irvin with mini packets which broke the material down to a smaller scale so that Irvin would not have to try to digest the blue book at one time. A month later, Garrett supplied Irvin with additional reference materials. Irvin was provided training in formats other than written material. She attended workshops and observed other kindergarten teachers. In the area of lesson planning, Irvin met with the kindergarten chairperson one-on-one for assistance with the lesson plans. Garret also met with Irvin and the kindergarten chairperson to provide assistance to Irvin on the lesson planning. Irvin was provided with copies of lesson plans that Garrett deemed to be sufficient. Irvin had been provided with the kindergarten checklist. Based on the checklist Irvin should have been able to determine what things that the kindergarten students should be taught during the school year. Thus, Irvin was provided with a clear workable curriculum. There were seven kindergarten teachers at Belle Glade during the 1994- 1995 school year. The kindergarten supplies for the 1994-1995 had been ordered based on number of kindergarten teachers the previous year, six. Thus, the supplies which were ordered for six teachers had to be divided among seven teachers. Irvin did not receive a math kit which Pender had suggested using until almost the end of the 1994-1995 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Margaret Irvin's employment with the Palm Beach School District. DONE AND ENTERED this 19th day of April, 1996, 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 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2073 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted. Paragraphs 5-16: Accepted in substance. Paragraph 17: Accepted. Paragraphs 18-23: Accepted in substance. Paragraph 24: Accepted. Paragraphs 25-26: Accepted in substance. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. 9 Paragraphs 29-30: Rejected as subordinate to the facts found. Paragraph 31: Accepted. Paragraph 32: Accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Paragraphs 1-18: Accepted. Paragraphs 19-29: Accepted in substance. Paragraphs 30-36: Accepted. Paragraphs 37-39: Accepted in substance. Paragraph 40: The first two sentences are accepted. The last sentence is rejected to the extent that it implies that the timeline was not followed. Irvin was observed during the times set forth in the PDP with the exception of the evaluation by Kelsey which took place on March 9. Paragraph 41: Accepted in substance. Paragraph 42: The first two sentences are accepted in substance. The last sentence is accepted to the extent that the workshop dealt with planning but rejected to the extent that it implies that if Irvin had had the workshop earlier it would have helped her. When Burdsall observed Irvin on March 1, 1995, Irvin was not using the lesson planning format that Gray had recommended. Paragraph 43: Accepted in substance. Paragraph 44: Rejected as irrelevant. Paragraph 45: The first sentence is accepted. The second sentence is subordinate to the facts found because Irvin was given the kindergarten checklist and she knew that she was to incorporate those objectives in her lessons. Paragraph 46: Rejected as subordinate to the facts found. Irvin had not remediated her deficiencies by March 10. Paragraph 47: The first sentence is rejected as irrelevant. Irvin had taught kindergarten in summer school. (TR 622) The last sentence is rejected as not supported by the record as it deals with the use of the term "colored." The gist of Garrett's testimony was that she considered not only her observations in recommending termination but all the information from the observers and the assistance that had been provided to Irvin. Paragraphs 48-49: Accepted in substance. Paragraphs 50-51: Accepted in substance to the extent that Irvin had made some improvement during the 1994-1995 school year but rejected to the extent that it implies that she had remediated her deficiencies. Paragraph 52: Accepted in substance that the material was appropriate but rejected to the extent that it implies that Pender thought Irvin's performance was satisfactory. Paragraphs 53: Accepted in substance that singing songs is an appropriate activity for kindergarten children, but not necessarily that the activities that the students were engaged in constituted the teaching of a lesson. The last sentence is accepted. Paragraph 54: Rejected as not supported by the greater weight of the evidence. Paragraph 55: The first sentence is accepted. The second sentence is rejected as not supported by the record. Irvin presented a concept but whether she was teaching it could not be determined because of the unison responses and the failure of the students to line up appropriately in making the parade pattern. The third sentence is accepted in substance as to presenting a concept but rejected to the extent that it could be determined that the students actually learned a concept. The last sentence is accepted. Paragraph 56: The first sentence is accepted in substance. The first half of the second sentence is accepted to the extent that Irvin went from having no lesson plans to having some lesson plans that were acceptable some of the time. The last sentence is rejected as not supported by the record. According to Burdsall's last observation, Irvin was not following the format set up by Gray. Paragraph 57: Accepted. Paragraph 58: Accepted in substance. Paragraph 59: The first sentence is accepted to the extent that Irvin received the same amount of supplies as did the other kindergarten teachers and that she was impacted to the same extent as the other teachers but rejected to the extent that it implies the shortage of supplies caused Irvin to be incompetent. The remainder is accepted in substance. Paragraph 60: Accepted in substance. Paragraph 61: The first two sentences are rejected as not supported by the greater weight of the evidence. The last sentence is rejected to the extent that although the advice appeared to be conflicting, it was not because the problem was that Irvin could not control her classroom behavior with the techniques that had been suggested. It was not that the techniques were all inappropriate but that Irvin just could not seem to implement them. Paragraph 62: Rejected as not supported by the record. The observers were focusing on having Irvin make lesson plans, follow the lesson plans, and teach concepts. Irvin had been doing none of these things. Paragraph 63: Rejected as subordinate to the facts found. Apparently it was normal to have a housekeeping center in the classroom and Irvin had asked Fulford if it was okay to remove it. Kelsey did not see a housekeeping center which is normally a part of the classroom and commented on it. Irvin could have very easily explained to Kelsey that she had permission to remove the housekeeping center but Irvin chose not to tell Kelsey. Paragraph 64: Accepted that classroom climate was dropped but rejected that that was the only area in which Burdsall gave specific things to do. Paragraphs 65-67: Accepted to the extent that Irvin, like the other kindergarten teachers, was given a draft language arts curriculum which would be used in the upcoming year. Rejected to the extent that it implies Irvin was not given a clear idea of what the curriculum should be for the kindergarten because she was given the kindergarten checklist which spelled out what the children should learn in kindergarten. Paragraph 68: Accepted in substance but not incorporated in the findings of fact. However, this does not mean that Burdsall was against praising good behavior as well. Paragraph 69: The first two and the last sentences are accepted in substance but not incorporated. The third sentence is accepted in substance but not incorporated. However, it should be noted that Kelsey also concluded that a formal behavior management system would not be necessary if there was proper planning and organizing. Paragraphs 70-71: Accepted in substance but not incorporated. Paragraph 72: Accepted in substance to the extent that the management system that Irvin was using did not accentuate the positive behavior because there were only two categories, a happy face and a sad face. By adding a neutral category, Irvin could reward the student by moving his name to the happy category from the neutral category. Paragraph 73: Accepted in substance. Paragraph 74: The first sentence is accepted to the extent that in Malone's testimony she was emphasizing that Irvin had a management behavior system posted on the wall but she was not using it and was turning the lights on and off, which was not working, as a method of controlling the behavior of the children. The second sentence is accepted in substance but not incorporated. Paragraphs 75-76: Accepted in substance but not incorporated. The context of the statements is that Irvin was not in control of her classroom which resulted in the students being very noisy and off-task. Paragraph 77: Accepted in substance. Paragraph 78: Rejected as unnecessary. Paragraph 79: Accepted in substance. Paragraph 80: The first sentence is accepted in substance. The remainder is rejected as not supported by the evidence. The assistance provided to Irvin included accommodations which were requested by Irvin prior to the notification of her termination. Paragraph 81: Accepted in substance. Paragraph 82: The first and second sentences are accepted in substance. The third sentence is rejected as subordinate to the facts found because even with the accommodations that Irvin had requested and those listed by Diaz, Irvin was not able to satisfactorily perform her job. The fourth sentence is rejected as subordinate to the facts found. Paragraphs 83-84: Accepted in substance. Paragraph 85: Rejected as unnecessary. Paragraph 86: Accepted in substance that Irvin had ADD and that her behavior was symptomatic of ADD. Paragraph 87: The first sentence is accepted to the extent that Diaz believed it but rejected to the extent that the evidence demonstrated that with accommodations such as an aide Irvin still could not perform satisfactorily. The second and third sentences are rejected as subordinate to the facts found. Paragraphs 88-89: Accepted in substance. Paragraphs 90-91: Rejected that there was not a clear workable curriculum in place. Although SADI, was being phased out and whole language was being phased in, there did exist a kindergarten checklist which essentially provided what skills had to be taught during the kindergarten year. Paragraph 92: Accepted. Paragraph 93: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the School District did not accommodate Irvin in this area. Paragraph 94: Accepted. Paragraphs 95-96: Rejected to the extent that the information was in conflict. It was apparent that to a great extent Irvin was unable to use the behavior management system effectively whether she was emphasizing the negative or the positive. Paragraph 97: Rejected as subordinate to the facts found. The point to be learned from the observations was that Irvin did not have control of her classroom or her aide. Irvin should not have had to go to help the aide but the control of the classroom was the ultimate responsibility of Irvin so the misconduct had to be stopped at some point whether it was by Irvin or by the aide. Paragraphs 98-116: Rejected as subordinate to the facts found that accommodations were made for Irvin. Paragraph 117: Accepted. Paragraph 118: Rejected as subordinate to the facts found. COPIES FURNISHED: Darren K. Edwards, Esquire Palm Beach County School Board 3318 Forest Hill, Boulevard West Palm Beach, Florida 33406-5813 Thomas L. Johnson, Esquire 202 West Cardy Street Tampa, Florida 33606 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Bernard Shulman, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
