The Issue The issues concern the claim by the Petitioner to relief for alleged age discrimination. See Section 760.10, Florida Statutes. In particular, it is alleged that the Respondent dismissed the Petitioner from employment with the Duval County School Board based solely upon his age, in violation of the aforementioned statute. There is presented the collateral issue, which is the claim by the Respondent that this dismissal based upon age was authorized by Section 231.031, Florida Statutes.
Findings Of Fact This cause is presented through the petition for relief from an alleged unlawful employment practice which the Petitioner filed with the Florida Human Relations Commission. The service date of that petition was May 9, 1984. Duval County School Board, Duval County, Florida, was the named respondent. Through the petition document Petitioner claims that the Respondent committed an unlawful employment practice by forcing the Petitioner to take an involuntary retirement due to his age. There being no successful informal resolution of this dispute, the matter was referred to the Division of Administrative Hearings for a formal Section 120.57(1), Florida Statutes, hearing, which was held on August 20, 1984. The petition is brought under the authority of Chapter 760, Florida Statutes, formerly Chapter 23, Florida Statutes. Petitioner is an individual within the meaning of Section 760.02(5) and .10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner, Robert P. Morrow, was continuously employed as a teacher by Respondent, Duval County School Board, from September, 1962, through June, 1983. During his employment he held tenured status or continuing contract status through the close of the 1981-1982 school year. The balance of the time in which he served as a teacher in the system was in the capacity of an employee on an annual contract basis. This latter arrangement pertains to the school year 1982-1983. Petitioner celebrated his seventieth birthday on September 26, 1981, which was shortly after the beginning of the 1981-1982 school year. In early 1982 Petitioner received a memorandum from Dalton D. Epting, Director of Certificated Personnel of the Duval County Schools, indicating that in view of the fact that the Petitioner would reach 70 years of age within the school year, and in keeping with Section 231.031, Florida Statutes, Petitioner should request an appointment with his principal, one Ronel J. Poppell. Epting had prepared the memorandum based upon information he had been given indicating that the Petitioner would reach 70 years of age within the 1981-1982 school year. In keeping with the suggestion of the memorandum from Epting, Petitioner spoke with Principal Poppell and in that conversation indicated a desire to teach for another year or two beyond the 1981-1982 school year. Poppell spoke to Epting and was reminded of the existence of Section 231.031, Florida Statutes, pertaining to teachers who have obtained 70 years of age. Epting did not advise Poppell on the question of whether to retain the Petitioner as a teacher in the Duval County high school where Poppell served as principal and Petitioner acted as a teacher. Out of the conversation between the Petitioner and Poppell, Poppell determined to allow the Petitioner to remain as a teacher at the subject school for one more year, i.e., the school year 1982-1983. As alluded to before, this arrangement was consummated and Petitioner served as a teacher at Nathan Bedford Forrest Senior High School in the school year 1982-1983 based upon an annual contract arrangement, as opposed to continuing contract. While Section 231.031, Florida Statutes, refers to the superintendent making the decision for retention, in fact Poppel caused the retention of Petitioner in the school year 1982-1983. The effects of such retention were to cause another teacher to be "surplused" who had been involved in the overall program at the school. This arrangement lasted for the 1982-1983 school year. Generally speaking Herb A. Sang, Superintendent of Schools in Duval County, Florida, makes the decision on the question of retention of 70year-old teachers based upon the recommendation of the principal and other school board staff members. Normally, according to Sang, a teacher who has reached 70 years of age would be retired as provided by Section 231.031, Florida Statute. If retained, per Sang, that retention is based upon the needs of the school system and not the record of achievement of the individual teacher in question. In application, teachers who are 70 years old will not be retained unless there is a specific need within the school system for services which they can provide, i.e., a specialty which cannot be filled by teachers under 70 years of age or for reasons of continuity of student projects in which the teacher is involved over more than one school year. On March 3, 1983, Principal Poppell completed an annual evaluation of the Petitioner's performance and on that occasion, as had been the case in all evaluations made of the Petitioner as an employee of the Duval County School System, Petitioner was found to be a satisfactory teacher, the highest possible rating that could have been given. Nonetheless, Poppell noted in the evaluation form that the Petitioner would not be recommended for an extension of his annual contract based upon Section 231.031, Florida Statutes. This opinion was expressed in a March 4, 1983, letter from Poppell to the Petitioner in which it was indicated that Poppell would not recommend that Superintendent Sang renew the annual contract of the Petitioner. In that correspondence Poppell indicated that he felt no further obligation to the Petitioner reference extension of his contract beyond 1982-1983, which extension was based upon Poppell's understanding of the discussion with the Petitioner in 1981-1982 in which the Petitioner had indicated that he would wish to teach for another year or two. In furtherance of Poppell's suggestion, Petitioner was not renewed as a teacher in Duval County and that decision was reached based upon the fact that the Petitioner was over 70 years old. No attempt was made to compare the relative merits of the Petitioner's performance with that of persons younger than 70 years of age, in deciding who to employ on annual employment as teachers for the school year 1983-1984.
The Issue Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
Findings Of Fact At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School. During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a 25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later. Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening. Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer. The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School. The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education. Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3. In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner. In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows: The testimony offered by the Superintendent of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board. This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972, and that incident alone is the basis for the Board's action. On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school. The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he also offered the use of his telephone so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow- ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22) None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part as follows: (P-1) The State moved under Rule 3:74 to amend the third count of the indictment to read `did contribute to the delinquency of a minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment). * * * In the hearing examiner's judgment, it would be wrong to speculate why Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself. Respondent entered a plea of guilty (P-1) which the Commissioner must con- sider in making his determination. N.J.S.A. 2A:96-4 reads as follows: A parent, legal guardian or person having the legal custody or control of a child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes or contributes to a child's delinquency, is guilty of a misdemeanor. The hearing examiner found that the unrefuted testimony of respondent, and the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents. Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record. Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School. While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children. When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989. Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration. Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
Recommendation Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Post Office Box 391 Bartow, FL 33830 Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806 John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, FL 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
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Dillard High School, Thurgood Marshall Elementary School, and Deerfield Park Elementary School) and for otherwise providing public instruction to school-aged children in the county. Respondent is employed by the School Board as a professional service contract teacher. He has worked as a teacher for the School Board since 1982 (except for a year's leave of absence following the 1994- 1995 school year). He has an unblemished disciplinary record as a School Board employee. Respondent taught music at Dillard High School (Dillard) from 1982 until the end of the 1994-1995 school year, at Thurgood Marshall Elementary School for the 1995-1996 school year, and at Parkview Elementary School from the beginning of the 1996-1997 school year until early 2005, when he was placed on administrative reassignment pending the outcome of an investigation of an allegation of sexual misconduct made against him by a former student, T. H. At Dillard, Respondent was the director of the school band and a popular teacher. Allegations of Sexual Misconduct T. H. graduated from Dillard in 1989. In her ninth, tenth, eleventh and twelfth grade years at Dillard, she was in the school band and a student of Respondent's. T. H., who lived in a fatherless household, looked up to Respondent and considered him to be a "father figure" and "role model." A personal relationship developed between the two. They began conversing with one another on a daily basis, talking "about people and about the world and different things like that." Respondent did most of the talking, with T. H. "listen[ing] to [the] the things he had to say." During "summer band," before the beginning of T. H.'s tenth grade year, the conversations between T. H. and Respondent became more intimate in nature and their relationship evolved into a physical one. The first physical contact they had that summer was in the music library adjacent to Respondent's office, when Respondent walked up to T. H., "embraced" her, and gave her an "[i]ntimate, on-the-mouth kiss." Later that summer, Respondent started driving T. H. home (but not always straight home) in his Toyota Camry after band practice. In the car, there was intimate touching between the two, including Respondent's penetrating T' H.'s vagina with his hand. Thus began the sexual relationship between T. H. and Respondent, which lasted until after she had graduated from Dillard. "[N]umerous times," after school and on weekends, Respondent drove T. H. in his car to various hotels, where they had sexual relations. They also had "dozens" of sexual encounters on school grounds, usually after school hours, in a "little back room," near the school auditorium, that was used as a dressing area. As a result of her having been intimate with Respondent, T. H. was able to observe that Respondent's penis was uncircumcised and that he had a "branded tattoo on his chest." Respondent sometimes set up a video camera to tape his sexual liaisons with T. H. He would also "send [T. H.] home with the camera" on weekends, requesting that she tape herself fondling herself and "and then bring the camera back to him on Monday" (which T. H. did). One day while T. H. was in Respondent's office, Respondent handed her a piece of "notebook paper" on which he had written the following poem: How then, can I tell you of my love? Strong as the eagle, soft as the dove, Patient as the pine tree that stands in the sun and whispers to the wind you are the one!!!![2] On another occasion when T. H. was in Respondent's office, she had a tape recorder with her and asked Respondent to "say something" that she could record. What Respondent said in response to this request was: "I love you baby, suck my dick," and "I love you baby, sit on my face."3 T. H. ended her relationship with Respondent during her first year as a student at the International Fine Arts College in Miami. It was not until 2003, approximately 14 years after she had graduated from Dillard, that T. H. decided to come forward and tell authorities about the sexual relationship she had had with Respondent when she was a student at the school. She had not come forward sooner because she did not have the courage to do so. Only after receiving "church counseling" was she able overcome her fear and become sufficiently emboldened to report what had occurred years earlier between her and Respondent. T. H. first went to the Fort Lauderdale Police Department, but was told that Respondent could not be criminally prosecuted because the limitations period had expired. In January 2005, the School Board's police unit was advised of the allegation that T. H. had made against Respondent and commenced an investigation into the matter, which included interviews with both T. H. and Respondent. On January 28, 2005, Respondent was placed on administrative reassignment with pay pending the outcome of the investigation. T. H. has "hired an attorney to pursue a civil claim against the School Board" for damages she allegedly suffered as a result of her relationship with Respondent when she was a student at Dillard. Allegations of Residing with Students From 1985 to 1987, Respondent resided in Dade County, Florida, with his wife4 and two minor daughters. For at least a portion of that time, two Dillard students stayed with Respondent and his family. One of these students was P. R., who was in the school band. When Respondent learned that P. R. was living in a residence with "no running water [and] no mom or dad," he invited P. R. to move in with him, an invitation that P. R. accepted. "Eventually," Respondent was able to make contact with P. R.'s mother and obtain her approval to "keep" P. R. P. R. lived with Respondent and his family for a year and a half. He moved out after he graduated and joined the military. The other student that stayed with Respondent and his family was C. M. Respondent's oldest daughter and C. M. both played flute in the school band and were close friends. C. M. stayed at Respondent's house on weekends and when school was not in session. C. M.'s mother never had any problem with these living arrangements. Respondent did not notify the School Board that P. R. and C. M. were staying with him inasmuch as he did not know that he was required to do so. Allegations of Corporal Punishment From 1982 to 1985, Respondent administered corporal punishment to students contrary to School Board policy (hitting female students on the hand with a ruler and male students on the buttocks with a paddle). He did not "seek permission from anyone in the [school] administration before administering [this] corporal punishment," nor did he administer this corporal punishment in the presence of another School Board employee, as required by School Board policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for having had a sexual relationship with T. H. when she was a student of his at Dillard. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2006.
The Issue The issue is whether Petitioners are entitled to the Best and Brightest Scholarship as established and defined by section 1012.731(3)(c), Florida Statutes (2017).
Findings Of Fact In 2015, the Legislature enacted, by way of a line item in the annual appropriations bill, the Best and Brightest Program to award cash scholarships to Florida teachers who have been evaluated as “highly effective” by their school districts and who scored at or above the 80th percentile (top 20%) on the SAT or ACT when they took the test. Ch. 2015-232, § 2, line item 99A, Laws of Fla.1/ In 2016, the Legislature enacted a stand-alone statute for the Best and Brightest Program, codifying the appropriations bill language and providing that the program is to be administered by the Department of Education (the “Department”). Ch. 2016-62, § 25, Laws of Fla., codified at § 1012.731, Fla. Stat. (2016). Rather than enacting a statutory scholarship amount, subsection (5) of the 2016 version of section 1012.731 provided that the scholarships would be awarded to every eligible classroom teacher “in the amount provided in the General Appropriations Act.”2/ The 2016 statute also explained that the Best and Brightest Program was intended to provide “categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic achievement.” § 1012.731(2), Fla. Stat. (2016). Section 1012.01(2) defines “instructional personnel,” including “classroom teachers,” as follows: INSTRUCTIONAL PERSONNEL.— “Instructional personnel” means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel: Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists. Librarians/media specialists.-- Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. Other instructional staff.--Other instructional staff are staff members who are part of the instructional staff but are not classified in one of the categories specified in paragraphs (a)-(c). Included in this classification are primary specialists, learning resource specialists, instructional trainers, adjunct educators certified pursuant to s. 1012.57, and similar positions. Education paraprofessionals.--Education paraprofessionals are individuals who are under the direct supervision of an instructional staff member, aiding the instructional process. Included in this classification are classroom paraprofessionals in regular instruction, exceptional education paraprofessionals, career education paraprofessionals, adult education paraprofessionals, library paraprofessionals, physical education and playground paraprofessionals, and other school-level paraprofessionals. In 2017, the Legislature amended section 1012.731(3) to establish that the scholarship award would be $6,000 for those classroom teachers rated “highly effective” who also had the requisite SAT or ACT scores: (3)(a) To be eligible for a scholarship in the amount of $6,000, a classroom teacher must: 1. Have achieved a composite score at or above the 80th percentile on either the SAT or the ACT based on the National Percentile Ranks in effect when the classroom teacher took the assessment and have been evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded, unless the classroom teacher is newly hired by the district school board and has not been evaluated pursuant to s.1012.34. * * * In order to demonstrate eligibility for an award, an eligible classroom teacher must submit to the school district, no later than November 1, an official record of his or her qualifying assessment score and, beginning with the 2020-2021 school year, an official transcript demonstrating that he or she graduated cum laude or higher with a baccalaureate degree, if applicable. Once a classroom teacher is deemed eligible by the school district, the teacher shall remain eligible as long as he or she remains employed by the school district as a classroom teacher at the time of the award and receives an annual performance evaluation rating of highly effective pursuant to s. 1012.34 or is evaluated as highly effective based on a commissioner- approved student learning growth formula pursuant to s. 1012.34(8) for the 2019-2020 school year or thereafter. Ch. 2017-116, § 46, Laws of Fla. The 2017 amendment to section 1012.731 also added a new subsection (3)(c), providing that lesser amounts could be awarded to teachers rated “highly effective” or “effective,” even if they could not demonstrate scores at or above the 80th percentile on the SAT or ACT: Notwithstanding the requirements of this subsection, for the 2017-2018, 2018- 2019, and 2019-2020 school years, any classroom teacher who: Was evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded shall receive a scholarship of $1,200, including a classroom teacher who received an award pursuant to paragraph (a). Was evaluated as effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded a scholarship of up to $800. If the number of eligible classroom teachers under this subparagraph exceeds the total allocation, the department shall prorate the per-teacher scholarship amount. This paragraph expires July 1, 2020. Id. By December 1 of each year, each school district must submit to the Department the number of eligible classroom teachers who qualify for the scholarship, as well as identifying information regarding the schools to which the eligible classroom teachers are assigned. § 1012.731(4)(a)-(c), Fla. Stat. For the 2017-2018 school year, the December 1, 2017, submission deadline was extended to January 2, 2018, due to a hurricane. The School Board’s deadline for teachers to apply for the scholarship was accordingly extended from November 1, 2017, to December 1, 2017. By February 1 of each year, the Department is required to disburse scholarship funds to each school district for each eligible classroom teacher to receive a scholarship. § 1012.731(5), Fla. Stat. By April 1, each school district is required to award the scholarship to each eligible classroom teacher. § 1012.731(6), Fla. Stat. In 2018, the Legislature amended section 1012.731 to provide that a school district employee who is no longer a classroom teacher may receive the $6,000 award if the employee was a classroom teacher in the prior school year, was rated highly effective, and met the requirements of this section as a classroom teacher. § 1012.731(3)(b)2., Fla. Stat. (2018). The Legislature did not add a similar provision stating that former classroom teachers who are still school district employees remain eligible for the $1,200 and $800 awards. § 1012.731(3)(c)2., Fla. Stat. (2018). The Legislature funds the Best and Brightest Program. The School Board had no role in creating the Best and Brightest Program. The School Board is required to determine the eligibility of classroom teachers who qualify for the Best and Brightest Program pursuant to the requirements of the statute. Petitioners in this case claim entitlement only to the $1,200 award established by the 2017 version of the statute. Brenda Troutman, director of Instructional Personnel, is the School Board employee in charge of the Best and Brightest Program application and submission process. Ms. Troutman has worked for the School Board for 17 years. She has been a junior high classroom teacher and an assistant principal and vice principal at the high school level. Though no longer teaching in the classroom, Ms. Troutman retains her certifications in math grades 5-9, exceptional student education (“ESE”), educational leadership, and school principal. When working as a high school administrator, Ms. Troutman was the master scheduler for her school, meaning that she built the schedule for every teacher at the school. This task required that she become very familiar with the School Board’s course code directory. Ms. Troutman also had to understand the certification system in order to hire and assign teachers. If a teacher asked to teach a certain course, Ms. Troutman had to know both the course requirements and the teacher’s certifications to determine whether the teacher was eligible to teach the course. As part of her current position in the School Board’s human resources department, Ms. Troutman is required to know the School Board’s various job titles and descriptions. She is responsible for replacing obsolete job descriptions and posting current job descriptions on the School Board’s website. Ms. Troutman testified as to how she manages the application and submission process of the Best and Brightest Program. She starts by making herself familiar with any changes the Legislature may have made to the program. She then issues a notice to teachers about the program and the current eligibility requirements. For the 2017-2018 Best and Brightest Program, Ms. Troutman prepared a draft email that Superintendent Addison Davis reviewed and sent to all of the school district’s teachers and administrators on September 28, 2017. The email explained that to be eligible for the $6,000, $1,200 or $800 scholarship, an applicant must meet the definition of classroom teacher as set forth in section 1012.01(2)(a). Ms. Troutman developed the School Board’s application for the Best and Brightest Program, based upon her understanding of the statutory requirements. All completed applications for the Best and Brightest Program come into Ms. Troutman’s office. Ms. Troutman testified that she received approximately 2,000 applications for the 2017-2018 award. Ms. Troutman, with the aid of her assistant, reviews and verifies the information on the applications. If Ms. Troutman has any questions about an application, she seeks the opinion of her direct supervisor David Broskie, the director of Human Resources. In some cases, they also have discussions with Superintendent Davis and School Board Attorney David D’Agata. The School Board employs two major data programs. FOCUS is the program/database that holds all student information, including attendance, grades, disciplinary actions, test information, and demographics. TERMS is the program/database that houses all employee information. When verifying information on the Best and Brightest Program applications, Ms. Troutman uses both FOCUS and TERMS, and on occasion conducts additional investigation. The School Board’s application asks for the teacher’s assignment. Because the application was titled “2017-2018 Clay County Application: Florida Best & Brightest Teacher Scholarship,” Ms. Troutman believed that the teachers were required to provide their 2017-2018 teacher assignments. As will be discussed in more detail below, the year of the teacher assignment was a major point of disagreement between Petitioners and the School Board. The application provided a checkmark system for the teacher to indicate which scholarship was being sought. The $1,200 scholarship line provided as follows: I am applying for the $1,200.00 highly effective scholarship. I have attached a copy of my 2016-2017 highly effective final evaluation (with student performance measures). The application’s language led Petitioners to believe that the 2017-2018 scholarship awards would be based on their teacher assignments and evaluations for 2016-2017. Ms. Troutman explained that this belief was incorrect. Eligibility for the 2017-2018 scholarship was based on a teacher’s assignment for the 2017-2018 school year. The plain language of the statute requires that one must be a “classroom teacher” in order to be eligible for the scholarship; having been a classroom teacher in a previous year does not suffice. Ms. Troutman stated that she verified with Mr. Broskie, Mr. Davis, and Mr. D’Agata that the School Board should base the award on the teacher’s 2017-2018 assignment. Petitioners, on the other hand, argue that the statutory language requires only an evaluation of “highly effective” for the 2016-2017 school year. The statute is silent as to whether a teacher applying for the $1,200 scholarship must be teaching in a classroom situation during the 2017-2018 school year. Petitioners argue that the School Board is reading a requirement into the statute that is not evident from the plain language. Ms. Troutman further explained that the applications for the 2017-2018 scholarships were to be submitted prior to the conclusion of the 2017-2018 school year. Therefore, as required by section 1012.731(3)(a)1. and (3)(c), the application requested the evaluation for “the school year immediately preceding the year in which the scholarship will be awarded.” Ms. Troutman testified that it is sometimes obvious from the teaching assignment that the teacher qualifies as a “classroom teacher.” If an application states that the assignment is “chemistry teacher” or “algebra teacher” or “fifth grade classroom teacher,” it is clear that the applicant meets the definition. Aside from verifying the assignment in the TERMS database, Ms. Troutman takes no further action. However, some applications require additional research before Ms. Troutman can conclude that the applicant qualifies as a classroom teacher. For example, Petitioner Abbie Andrews identified her assignment on her application as “classroom teacher.” Ms. Troutman went to TERMS and saw that Ms. Andrews was designated as an “ESE Support Facilitator” for the 2017-2018 school year. Ms. Troutman testified that ESE Support Facilitators are sometimes assigned to teach classes and therefore could be classified as “classroom teachers” for purposes of the Best and Brightest Program. Ms. Troutman examined both the master schedule and the teacher’s personal account in FOCUS to determine whether Ms. Andrews was assigned to teach any courses. Ms. Andrews had no teaching assignments for 2017-2018 in FOCUS. Ms. Andrews and fellow Petitioners Cherry Deaton, Donna Foster, and Danielle Perricelli held the position of ESE Support Facilitator during the 2017-2018 school year. The School Board concluded that these Petitioners did not qualify for the $1,200 scholarship because their schedules did not assign them the professional activity of instructing students in courses in a classroom situation, as required by the statute. It was undisputed that these Petitioners had been rated “highly effective” for the 2016-2017 school year. It was also undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the statutory definition of a classroom teacher for the 2016-2017 school year. The School Board’s general job description for an ESE Support Facilitator provides as follows: The teacher is responsible directly to the Principal. He/she provides for the instruction, supervision, and evaluation of assigned students on an as needed basis. He/she supports both general education and ESE teachers. He/she serves in a staff relationship with other teachers and supports and promotes ESE inclusion activities. (Emphasis added). The School Board contrasts this job description with that of “Classroom Teacher,” which provides: “The teacher is responsible directly to the principal for the instruction, supervision, and evaluation of students.” The classroom teacher is fully responsible for the “instruction, supervision, and evaluation” of the students in her classroom, whereas the ESE Support Facilitator performs those activities only “as needed.” The School Board also points out that, unlike a classroom teacher, an ESE Support Facilitator is not required to be certified in-field for the position. The ESE Support Facilitator is not the teacher of record for any particular course. Their schedule is fluid. The ESE Support Facilitator comes and goes as needed (“pushes in,” to use the teaching vernacular) in the classroom, and is expected to be wherever the ESE student assigned to them needs their services. Sometimes they push into the classroom and sometimes they pull students out of the class to work on a specific concept or skill. An ESE Support Facilitator is assigned “contact students” for whom individualized educational plans (“IEPs”) are prepared. The classroom teacher of record is responsible for giving the student course credit or a grade and is responsible for recording attendance in FOCUS. One-third of the classroom teacher’s evaluation is tied to student performance. Only the classroom teacher has default access to FOCUS in order to enter attendance and grade information for the students in the class. An ESE Support Facilitator must seek and be granted access to student’s FOCUS information. An ESE Support Facilitator is expected to meet with each contact student at least once a month; in practice, these meetings tend to occur more frequently. The ESE Support Facilitator goes over accommodations the student needs and assignments the student did not understand. The facilitator reteaches the course material if need be and stays in touch with the student’s teachers and parents, making sure all stakeholders in the student’s success are on the same page. The evidence presented at the hearing indicated that all of the students served by the ESE Support Facilitators in this case attended classes in regular classrooms, not in separate ESE classes. In such “inclusion” classes, the ESE Support Facilitator’s role is to push in and assist contact students in the regular classroom, ensuring that their IEP requirements are met and that the students are progressing satisfactorily through the course material. Based on these definitional and operative distinctions, Ms. Troutman considered ESE Support Facilitators to be “other instructional staff” as defined by section 1012.01(2)(d), rather than “classroom teachers” as defined by section 1012.01(2)(a). Ms. Andrews was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Andrews met the definition of a “classroom teacher” for the 2016-2017 school year. During the 2017-2018 school year, Ms. Andrews was a full-time ESE Support Facilitator at Middleburg High School, not assigned to teach any courses. In FOCUS, she was assigned as the “contact teacher” for approximately 60 students, meaning that she was primarily responsible for writing their IEPs and ensuring that they made adequate progress in their classes. She met with all of her contact students on an as needed basis, at least once per month but often as much as twice per week. However, Ms. Andrews was not listed in FOCUS as the teacher of record for any class. Even though she routinely pushed into classes to support her assigned ESE students, Ms. Andrews was not the primary teacher of record. She was there to assist her contact students with whatever they needed to learn the course, but the course was not assigned to her to teach. Ms. Andrews did not have a traditional classroom. She was not the teacher of record in any course for which students received academic credit, and she did not assign grades to students for the material she was teaching. Ms. Andrews prepared IEPs that were individualized to particular contact students. She did not prepare daily lesson plans in the manner of a classroom teacher. Ms. Andrews described her job as an ESE Support Facilitator as follows: My job is to teach, mentor, challenge students to make them -- make them ready for graduation, become productive members of society. I believe that’s the same thing a classroom teacher does. I am using the Florida standards to prepare lessons for remediation if a student needs it. I am constantly having conversations with not just students, but their parents, keeping them on track or making sure their students are on track because ultimately, a parent wants that student to graduate on time as well. I believe that the questions that are asked of me as a support facilitator are the same questions that parents would ask of a classroom teacher because they are very concerned. I am not just answering questions based on one classroom. I'm answering questions based on six classes. I'm responsible for that student being successful in six classes. The IEPs that I write, they're legally binding. I am involved in the academics, behavior, discipline. I deal with discipline problems. All of these things are the same things that a classroom teacher would deal with. I do not have a schedule in Focus; however, when a need arises, I'm there, I'm in a classroom, I'm helping, and I'm doing what's needed to be done for the kids to be successful. Ms. Deaton was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Deaton met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Deaton was a full-time ESE Support Facilitator at Middleburg High School, with approximately 60 contact students assigned to her in FOCUS. She was not assigned to teach any courses. If she pushed into a class to support her assigned ESE students, she was not the primary teacher of record. She was not designated as a co-teacher,3/ but she would assist teaching classes on an as-needed basis if she was not busy testing students or preparing IEPs. For those classes, she was provided access to view grades in FOCUS, but she did not have access to give grades. She would meet students as needed in her office, in another teacher's classroom, or in the computer lab. She did not develop lesson plans on her own, but provided suggestions and advice on lesson plans to the primary teacher. As an ESE Support Facilitator, Ms. Deaton did not have a classroom or teach a classroom full of students. She had no schedule assigned to her in FOCUS, but had contact students assigned to her in FOCUS. Ms. Foster was employed as an English/language arts and ESE Inclusion Teacher during the 2016-2017 school year. She taught four classes as ESE inclusion teacher. The remaining two periods were devoted to her position as ESE department head. Ms. Foster had a schedule in FOCUS. She had her own classroom and students, prepared daily lesson plans, and assigned grades. Students in her classes received academic credit. Ms. Foster was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Foster met the definition of a “classroom teacher” for the 2016-2017 school year. Ms. Foster was employed as an ESE Support Facilitator and ESE department head during the 2017-2018 school year. She retired at the end of the school year, effective June 7, 2018. As an ESE Support Facilitator, Ms. Foster did not have a set schedule. Ms. Foster’s assigned ESE students did not receive academic credit for the services she provided, but her assistance was integral in helping them pass their courses. Ms. Foster assisted with an American history class during the 2017-2018 school year, but was not assigned as the primary teacher in FOCUS. Ms. Foster testified that she did not believe she had ever been identified as a co-teacher in FOCUS, though she thought she should have been. Ms. Foster testified that she had IEPs for the American history class that listed both the class setting and the service delivery method as “co-teach.” She explained that because the class had both general education and ESE students, the teacher had to be certified in both the subject matter and ESE. Because the primary teacher was certified only in the subject matter, it was necessary for Ms. Foster to co-teach the class. Ms. Foster testified that she split lesson plan preparation with the primary teacher. Ms. Foster believed she was not listed in FOCUS as the co-teacher because the school administration never bothered to remove the name of Kristin Heard, the ESE teacher originally assigned to the class, who was moved to a science class early in the year. Ms. Foster pursued the matter with the assistant principals at Lakeside Junior High, but nothing came of it. Mallory McConnell, the principal at Lakeside Junior High School during the 2017-2018 school year, confirmed that Ms. Foster was not listed as a co-teacher on the master schedule. Ms. McConnell testified that in 2017-2018 there were no “true co-teacher” situations, by which she meant two teachers who equally shared responsibility for the instruction and grading of every student in the class. Ms. McConnell was aware of situations in which a student’s IEP mandates co-teaching in a class, but she testified that she was unaware of any student at Lakeside Junior High School in 2017-2018 whose IEP required a co-teacher. Ms. McConnell conducted infrequent walkthrough observations of the American history class. She testified that she saw Ms. Foster providing support services to the ESE students but never saw Ms. Foster teaching at the front of the class. Ms. McConnell stated that she would not have expected to see Ms. Foster teaching the class or creating lesson plans for the class as a whole because those tasks were not her job responsibility. Ms. McConnell was in no position to state whether Ms. Foster did, in fact, prepare lesson plans and teach the class. Ms. McConnell was able to state that for at least one month during the school year, Ms. Foster administered tests to her ESE students, meaning that she could not have been co- teaching the American history class. Ms. Foster did not tell Ms. Troutman that she had assisted teaching the American history class during the 2017- 2018 school year, nor did she include such information on her application for the Best and Brightest Program, because she believed the award was based upon her position in 2016-2017 and because she believed the school administration’s failure to include her as teacher of record in FOCUS was an “in-house” issue. Ms. Perricelli was employed as an ESE Support Facilitator, ESE department head, and MTSS intervention team facilitator at Orange Park Junior High School. “MTSS” is an acronym for Multi-Tiered System of Support, a framework for providing support to students who are struggling academically or have an identified need in a specific area such as speech, language, or behavior. MTSS interventions may be used for regular education or ESE students. Ms. Perricelli testified that she was not the teacher assigned by FOCUS for any class in 2016-2017. In addition to her regular ESE duties, Ms. Perricelli taught “grade recovery” to two students in language arts, science, and math. Grade recovery is a class offered to students who have failed a course and lack the credits to move on to the next grade level. Ms. Perricelli designed lesson plans and curriculum assessments for each subject, graded papers and tests, and reported the students’ grades to the school. Ms. Perricelli testified that she was not given the authority to enter the grade recovery students’ grades into FOCUS in 2016-2017. She requested a course code but was never provided one. Ms. Perricelli taught grade recovery for two periods, one for each student. For the other four periods of the school day, Ms. Perricelli would push into classrooms and work with ESE students, usually in small groups with students who needed remediation. She had around 40 contact students and developed IEPs for each of them. Most of her contact students were in the classrooms that she was going into, so she would see them throughout the week. She would meet with her other contact students about once a week. Ms. Perricelli would work with the assigned teacher to modify the course material to meet the needs of the ESE students. Ms. Perricelli was evaluated as “highly effective” for the 2016-2017 school year, based on standard classroom teacher criteria. She was observed working with her grade recovery students and in the classrooms in which she pushed in. Ms. Perricelli testified that her assignments were the same for the 2017-2018 school year. She taught one student in a grade recovery course. Due to her persistence, Ms. Perricelli was able to get a course code from Ms. Troutman for the grade recovery course in 2017-2018. The grade recovery course was named “Unique Skills.” In 2017-2018, Ms. Perricelli was assigned around 70 contact students for whom she prepared IEPs. As department head, Ms. Perricelli oversaw 22 ESE instructors. She was the only ESE Support Facilitator at the school. Janice Tucker was vice principal at Orange Park Junior High School in 2017-2018. She testified that early in the school year, the assigned teacher for seventh grade math left for another county. A long-term substitute, Lashonda Campbell, took over as teacher of record. Ms. Perricelli testified that she developed some of the curriculum in Ms. Campbell’s math classes, which included ESE and non-ESE students. She stated that she taught the class alone once a week when Ms. Campbell started, then tapered off into pulling out small groups of ESE students who needed remediation. She worked with four periods of seventh grade math classes that year. Ms. Perricelli testified that she gave grades to students in those courses and gave them to Ms. Campbell for entry into FOCUS. Ms. Tucker testified that Ms. Perricelli was not a co- teacher for the math class. Ms. Campbell was the teacher of record. Ms. Tucker testified that when she observed the math class, she saw Ms. Perricelli working with small groups in the back of the class or at a table in the hallway, and Ms. Campbell at the front teaching the class. Ms. Tucker never saw Ms. Perricelli at the front of the class teaching. Ms. Tucker conceded that she had no knowledge whether Ms. Perricelli was involved in creating lesson plans or assigning grades for the math class. Ms. Perricelli was evaluated by Ms. Tucker for the 2017-2018 school year. Ms. Tucker observed Ms. Perricelli in the seventh grade math class and in the Unique Skills class. Ms. Perricelli was again rated “highly effective.” Ms. Perricelli testified that she did not mention teaching the math class on her scholarship application. She stated that she did not tell Ms. Troutman about the math class because at the time, the school was still attempting to get a full-time teacher for the class. Ms. Troutman obviously knew about the “Unique Skills” class, having issued the course code to Ms. Perricelli. Ms. Troutman testified that she consulted with Mr. Broskie and Mr. D’Agata as to whether having one assigned class in FOCUS should qualify Ms. Perricelli for the scholarship. They concluded that teaching one class with one student was insufficient to qualify as a “classroom teacher” for purposes of the Best and Brightest Program. Ms. Troutman testified that this conclusion was consistent with the School Board’s historic practice of considering two or more classes as the “cutoff” for a classroom teacher. Ms. Troutman believed that if an ESE Support Facilitator taught two classes, then she would qualify as a “classroom teacher.” Petitioner Easter Brown taught a fourth grade classroom at Grove Park Elementary School during the 2016-2017 school year and was rated “highly effective.” It is not disputed that Ms. Brown met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Brown was a full-time SPRINT specialist. “SPRINT” stands for Supervisor of Pre-Interns and New Teachers. SPRINT specialist is a support position for teacher trainees and new teachers, operating under an agreement between the School Board and the University of North Florida (“UNF”), each of which pays half of the SPRINT specialist’s salary. Ms. Brown taught field classes at UNF and conducted workshops for clinical educator training and professional development. Ms. Brown kept Grove Park Elementary as her home base and shared a classroom there with two other teachers. She taught UNF students in classes at the university and worked with new teachers at the school. She estimated that she spent half her time at UNF and half at Grove Park Elementary. Ms. Brown had no K-12 courses or K-12 students assigned to her in 2017-2018. She had no courses assigned to her in FOCUS. She gave grades to only UNF students. Ms. Brown did not create traditional lesson plans but did assist new teachers in writing lesson plans. Ms. Brown testified that she did some teaching in a regular classroom for purposes of modeling teaching techniques for her student teachers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Finding that Petitioners Abbie Andrews, Cherry Deaton, and Donna Foster were not eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were not classroom teachers during the 2017-2018 school year; and Finding that Petitioners Easter Brown and Danielle Perricelli were eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were classroom teachers during the 2017-2018 school year, and directing staff to take all practicable measures to secure the scholarship monies for Ms. Brown and Ms. Perricelli. DONE AND ENTERED this 18th day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 18th day of March, 2019.
The Issue Whether the Respondent should be discharged from her employment as a teacher with the Duval County public school system for professional incompetency as provided in Section 4(e) of the Duval County Teacher Tenure Act?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida to teach in early childhood, biology, science, junior college and driver's education. The Respondent's license to teach is current, in full force and effect and valid through 1998. The Respondent received a bachelor's degree in biology and chemistry from Florida A & M University in 1970 and a master's degree in early childhood education from Antioch College in 1976. The Respondent has been employed as a teacher by the Petitioner since 1977. At all times relevant to this proceeding, the Respondent was employed as a tenured teacher with the Petitioner. Beginning with the 1977-78 school year, the Respondent was assigned to teach at Paxon Senior High School (hereinafter referred to as "Paxon"). The Respondent continued to teach at Paxon through and including the 1984-85 school year. Through the 1983-84 school year the Respondent received satisfactory evaluations of her performance as a teacher from the principal of Paxon. For the 1984-85 school year Mr. Frank Castellano was assigned as the principal of Paxon. This was Mr. Castellano's first year as principal of Paxon. During the 1984-85 school year, the Respondent was observed teaching by Mr. Castellano, Mr. William Jackson, the Vice-Principal of Paxon, and Dr. Jed R. Klein, the Director of Science and Environmental Studies of the Petitioner. On March 15, 1985, the Respondent was rated unsatisfactory on a Mini Evaluation Form by Mr. Castellano. This evaluation was based upon the observations of Mr. Castellano and the other individuals that had observed the Respondent listed in finding of fact 8. On April 26, 1985, the Respondent was again rated unsatisfactory by Mr. Castellano. The form used for this evaluation was a more detailed form which listed 36 factors. Mr. Castellano rated the Respondent "satisfactory" on 13 of the factors, "needs to improve" on 14 of the factors and "unsatisfactory" on 9 of the factors. The unsatisfactory factors were included in the general categories of classroom management and teaching effectiveness. Prior to evaluating the Respondent, Mr. Castellano reviewed the Respondent's previous evaluations back to 1980. Those evaluations do not note similar deficiencies to those noted by Mr. Castellano. The Respondent had had no problems with administration in the past. Although Mr. Castellano did not implement a specific program of remediation for the deficiencies he had observed in the Respondent's teaching performance, efforts were made to assist the Respondent in correcting noted deficiencies. The Respondent was provided with written summaries of the various observations and conferences were held between the Respondent and the individuals observing her. Following the unsatisfactory evaluations by Mr. Castellano, the Respondent was informed by Mr. Castellano that she had the right to transfer to another school for the 1985-86 school year. Mr. Castellano was required to inform the Respondent of this option pursuant to the Duval County Teacher Tenure Act (hereinafter referred to as the "Tenure Act"). Mr. Castellano told the Petitioner that if she did not believe that she would be treated fairly at Paxon, she might want to transfer. Mr. Castellano did not, however, try to convince the Respondent that she should transfer. Mr. Castellano recognized that the decision could only be made by the Respondent and so advised her. Although the Respondent had been at Paxon for 7 years before Mr. Castellano arrived and did not want to leave, she made the decision to request a transfer. The Respondent's decision was based upon her conclusion that she would not receive fair treatment if she remained at Paxon. The Respondent was transferred to Ed White Senior High School (hereinafter referred to as "Ed White"), where she taught during the 1985-86 school year. The Respondent was given no choice as to what school she was transferred to. Such a choice is not mandated by the Tenure Act. Nor is it a policy of the Petitioner to give such a choice. Mr. James Jaxon, the Principal of Ed White, was aware of the Respondent's unsatisfactory evaluation by Mr. Castellano. Mr. Jaxon met with the Respondent on August 23, 1985, in a pre-planning conference. In a memorandum dated August 26, 1985, Mr. Jaxon memorialized the steps that Mr. Jaxon and the Respondent had agreed on August 23, 1985, would be followed to attempt to improve the Respondent's teaching performance. Mr. Jaxon did not request that the Respondent be transferred to Ed White and would not have hired her if she had applied for a position. Mr. Jaxon was not "out to get the Respondent" as suggested by this finding of fact being proposed by the Respondent. Mr. Jaxon attempted to assist the Respondent in improving her teaching skills and provided her with an opportunity to improve her performance. The Respondent was provided in-service training during the 1985-86 school year as required by Section 4(e)(3) of the Tenure Act. The primary source of the Respondent's in-service training was provided by Ms. Gloriden J. Norris. Ms. Norris is a Teacher Education Center Consultant. She is employed by the University of North Florida and not the Petitioner. Mr. Jaxon and Ms. Norris met with the Respondent on September 4, 1985. The Respondent was informed in a memorandum dated September 5, 1985, of the steps that would be followed in assisting the Respondent. During the 1985-86 school year, Ms. Norris observed the Respondent's class on 6 different occasions: September 19, 1985, October 7, 1985, November 26, 1985, December 4, 1985, January 21, 1986 and April 25, 1986. Ms. Norris also conducted approximately 8 to 10 conferences with the Respondent, gave her written materials to assist her in improving her teaching skills and talked to the Respondent on the telephone. In addition to Ms. Norris' observations, the Respondent was observed by Mr. Jaxon (October 13 and 22, 1985, February 3 and 13, 1986 and March 5, 1986), Mr. George Paugh, the Assistant Principal/Student Services at Ed White (September 3, 5 and 26, 1985) and Dr. Klein (March 18, 1986). Written comments concerning most of the observations of the Respondent during the 1985-86 school year were provided to the Respondent. Conferences were also held with the Respondent throughout the school year. The Respondent followed up on some of the suggestions Mr. Jaxon made to her concerning improving her teaching skills and she asked about an in- service workshop. The Respondent did not sufficiently implement recommendations for improvement made to her. Ms. Norris was not able to establish a rapport with the Respondent and therefore her ability to assist the Respondent was diminished. This lack of rapport was a result of the Respondent's attitude toward those who were attempting to assist her in improving her teaching abilities. The Respondent evidenced a belief that she was being treated unfairly and that she had no significant problems as a teacher. This attitude of defensiveness hampered the efforts of Ms. Norris and others to assist the Respondent. After January 21, 1986, Ms. Norris did not check to see if the Respondent had incorporated her suggestions as to the development of a lesson plan. On October 30, 1985, Mr. Jaxon rated the Respondent's performance as unsatisfactory. Mr. Jaxon also rated the Respondent's performance unsatisfactory on March 27, 1986. Respondent's deficiencies were in the areas of classroom management and teaching effectiveness. The following deficiencies concerning the Respondent's classroom management were observed during the school years in question: The Respondent was late to class or in starting class (according to Mr. Jackson, Mr. Castellano, Mr. Jaxon and Ms. Norris); Students were late to class (according to Mr. Jackson, Dr. Klein and Mr. Jaxon); The students were allowed to dismiss themselves (according to Dr. Klein and Ms. Norris); No roll was taken (according to Mr. Jaxon); On numerous occasions students were not paying attention -- they talked, combed their hair and put on makeup, read unrelated materials including magazines and paperback books, daydreamed and slept (according to Mr. Jackson, Mr. Castellano, Dr. Klein, Mr. Paugh and Mr. Jaxon); and Some students did not have their textbooks with them (according to Mr. Jaxon). The following deficiencies concerning the Respondent's teaching effectiveness were observed during the school years in question: The Respondent did not have her lesson plans with her in the classroom (according to Mr. Castellano) or were not followed (according to Dr. Klein); The Respondent failed to check to see if students understood directions (according to Ms. Norris); Only low order questions (those dealing with facts and knowledge) were asked. No high order questions (those requiring reasoning, justification, comparison or analysis) were asked (according to Ms. Norris); The Respondent allowed group responses to questions. She did not call on one student to answer a question. This resulted in incorrect responses not being corrected (according to all those who observed the Respondent); The Respondent did not give summaries or reviews to place lessons in perspective (according to Mr. Jaxon and Dr. Klein); Lag time or dead time was allowed at the end of the classes. This resulted in students having nothing meaningful to do (according to Mr. Paugh and Ms. Norris); and The Respondent was unable to justify grades she had given to some students who complained (according to Mr. Castellano and Mr. Jaxon). The Respondent timely prepared her lesson plans. On the occasions when she did not have her lesson plans in the classroom with her they had been prepared but she did not have them with her. She had turned them in as required on Friday for approval by the principal and they had not yet been returned. The plans were not always approved by the following Monday. The Respondent had been instructed, however, that if the plans had not been approved by the following Monday, the plans were to be picked up before class anyway. The lesson plans prepared by the Respondent were "good" according to Don Price, Dean of Boys of Paxon. Mr. Price so advised Mr. Castellano. Mr. Price also advised Mr. Castellano that the Respondent was a "good teacher." During the school years in question, the Respondent did not demonstrate the ability to plan and teach a meaningful lesson. Ms. Norris attempted to assist the Respondent in demonstrating this ability. Neither Mr. Jaxon nor Ms. Norris ever saw the Respondent teach a lesson in the manner suggested by Ms. Norris. Based upon Dr. Klein's observation of the Respondent during the 1985- 86 school year, the Respondent did not materially improve her abilities from the time he observed her during the 1984-85 school year. Dr. Klein did believe that the Respondent had improved her ability to discipline a little. During the 1984-85 school year, students were taken out of the Respondent's classes to equalize class loads. Except for slightly larger classes during the first part of the 1984-85 school year, there was nothing unusual about the size or makeup of the Respondent's classes. Because students must be scheduled to take certain courses in secondary schools as opposed to one teacher having the same group of students for the entire year, school administrators have less control over the size or composition of classes. During the 1985-86 school year the Respondent taught in an "open school." A large area was divided into several classrooms creating problems with noise and other distractions. These problems were not proved to be sufficient to account for the Respondent's deficiencies as a teacher. Other teachers are able to teach effectively in these circumstances. During the 1985-86 school year the Respondent was assigned to teach marine biology for the first time. The Respondent had never had any courses in marine biology. Marine biology is, however, a subject within the Respondent's areas of certification. The evidence did not prove that the additional effort required of the Respondent in teaching marine biology was the cause of the Respondent's deficiencies. During the 1984-85 and 1985-86 school years the Petitioner provided the Respondent with detailed statements concerning her deficiencies, as required by Section 4(e)(1) of the Act. Most of the 30 exhibits offered by the Petitioner are letters or memoranda written to the Respondent in an effort to inform the Respondent of her perceived deficiencies and to offer suggestions for improvement. The Respondent responded to most of these documents in writing. By certified letter dated May 16, 1986, Herb A. Sang, the Superintendent of Duval County Public Schools, brought charges against the Respondent seeking her discharge for professional incompetency during the 1984- 85 and 1985-86 school years. The Respondent was informed of her right to a hearing pursuant to Chapter 120, Florida Statutes, as required by Section 4(e)(4) of the Tenure Act. The Respondent was given the right to a speedy and public hearing, she was informed of the nature and cause of the accusations against her, she was confronted with accusing witnesses, she was allowed to subpoena witnesses and documents and she had the assistance of counsel in compliance with Section 4(e)(5) of the Tenure Act. No definition of "professional incompetency" is provided in the Tenure Act.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be dismissed as a tenured teacher within the Duval County public school system, effective immediately. DONE and ORDERED this 10th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3564 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection RO 1 and 4. RO 4. 3 RO 9-10, 31 and 42. 4 RO 45. Conclusion of law. RO 10 and 31. 7 RO 32. 8 RO 33. 9 RO 20. 10 RO 21-22. RO 24 and 28. Not supported by the weight of the evidence. Not a proposed finding of fact. 14 RO 38. 15 RO 39. 16 RO 40. 17 RO 26 and 41. 18 RO 13, 15 and 17. 19 RO 43-44. 20 RO 44. RESPONDENT'S PROPOSED FINDINGS OF FACT: 1 RO 3. 2 RO 1-2. 3 RO 4. 4 RO 5. 5 RO 6. 6 RO 7. 7 RO 9-10. 8 RO 8. 9 RO 33. 10 RO 34. 11 RO 35. 12 Hereby accepted. 13 RO 11. 14 RO 12. 15 RO 13-14. 16 RO 11 and 15. 17 RO 15. 18 RO 16 and 18. 19 RO 23. 20 RO 24. 21 Irrelevant. 22 RO 24 and 26. 23 RO 29-30. 24 RO 25 and 35. 25 RO 36. 26 RO 19. 27 Mr. Jaxon did testify that he could find deficiencies in nearly any classroom teacher. He also testified thatit would be unusual for a large numberof teachers to suddenly become incompetent. 28 RO 37. Hereby accepted. The first sentence is hereby accepted. The second sentence is rejected as not supported by the weight of the evidence. 31-33 Irrelevant or not supported by the weight of the evidence. 34 RO 41. 35 RO 27. COPIES FURNISHED: Mr. Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Gary E. Eckstine, Esquire Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Phil J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue The issue is whether Petitioner, Ricky Lynn Sapp (Sapp), was nonrenewed for his annual teaching contract for constitutionally permissible reasons.
Findings Of Fact Petitioner was first employed by the Escambia County School Board for the 1984-85 school year in the compensatory education program at Bellview Middle School and later that school year he took the place of an eighth grade math teacher who was out on maternity leave. Sapp holds a Florida Teaching Certificate in elementary education and is not certified to teach in middle school. He has a bachelors degree. Sapp was asked by the School Board to take the courses necessary to become certified in middle school math, but did not do so because he was working at another job at the time. Petitioner was hired on annual contract by the principal of Bellview Middle School to teach seventh grade math during the 1985-86 school year and to teach sixth grade for the 1986-87 school year. For the most part, Sapp received excellent performance evaluations from the Bellview principal. In September, 1986, a mother of a Bellview Middle School student complained to the principal regarding what she believed to be unacceptable contact between Sapp and her son. The principal told Sapp to stay away from the student, but the parent's complaints continued. The student had been in Sapp's seventh grade math class the prior school year. On November 7, 1986, Sapp was arrested for lewd and lascivious assault on that student. As a result of these charges the Superintendent of the Escambia County School District recommended to the School Board that Sapp be suspended without pay. The School Board voted to disapprove the Superintendent's recommendation. Instead, Sapp was reassigned to administrative duties at the Hall Center. In the fall of 1986, Sapp was also notified by the Department of Education, Professional Practices Services (PPS), that an investigation of the allegations involved in the criminal charge had been instituted. On April 1, 1987, Sapp received the standard memo from the School Board, signed by the Bellview principal, indicating that his annual contract was going to expire at the end of the 1986-87 school year. The memo also indicated that the school district would move as rapidly as possible on the reappointment of the annual contract teachers recommended to the Superintendent for reappointment for the 1987-88 school year, but "personnel assignments resulting from the closing of the Beggs Center and the redistricting of all middle school boundaries greatly obscures the timeline for such reappointments." During the summer of 1987, Sapp talked to Dr. Roger Mott, the Assistant Superintendent for Personnel Services of the school district, and others in his office regarding appointment to an annual contract for the 1987-88 school year. Sapp claims he was told by Mott that he would not be rehired until after his criminal trial. Mott denies telling this to Sapp. Because Sapp's testimony was very confused and contradictory regarding these alleged statements by Mott, Sapp's version is given little weight. Instead, it is found that Mott did not tell Sapp that he would be rehired after the criminal trial. During the discussions between Sapp and Mott in the summer of 1987, Mott did tell Sapp that he was free to interview with any principals in the district for open annual contract positions, however those principals who inquired would be told that there was a Professional Practices Services investigation. Sapp expressed interest only in employment at Bellview. During 1987 the middle schools of Escambia County were redistricted. As a result of redistricting, Bellview Middle School anticipated losing approximately 300 students and 10 teaching positions for the 1987-88 school year. After the jury found him not guilty on August 12, 1987, Sapp again inquired regarding employment. According to Charles McCurley, principal of Bellview Middle School, there were no positions available at Bellview. By letter dated August 21, 1987, Sapp was advised that the Professional Practices Services was investigating two complaints. The first related to the charge of lewd and lascivious assault on a child. The second complaint was that Sapp had received his teaching certificate by fraudulent means because he failed to disclose two criminal convictions on his applications. Mott became aware of the PPS investigation and he discovered that Sapp had apparently falsified the applications for his teaching certificate and the applications for employment with the Escambia County School District. Mott then informed Sapp that the chances of reemployment were not good and that he could not be considered for employment until the PPS investigation was complete. Mott also testified that Sapp was not reemployed because of the information that formed the basis of the second PPS investigation. While this is not the place to determine whether or not Sapp falsified these applications, it is necessary to determine what facts the Respondent acted on in not renewing Sapp's annual contract. Sapp's applications to both the school district and the state showed that he answered "no" when asked if he had ever been convicted of a felony or first degree misdemeanor or other criminal offense other than a minor traffic violation. Sapp has, in fact, been convicted of at least two such violations which were not disclosed. Sapp approached Robert Husbands, Executive Director of the Escambia Education Association, for assistance in getting employment. Husbands talked to Mott. Mott informed him that Sapp could not be rehired until the PPS investigation was resolved. Husbands found that there were seven teaching positions in the whole county which were vacant at the beginning of the 1987-88 school year. Two of those positions were located some distance from Pensacola. Only one of those positions was known to have been filled by an annual contract teacher. There were 37 annual contract teachers in the school district who were not renewed for the 1987-88 school year. Eight others who were not renewed at the beginning of the school year were rehired during the year. Because of redistricting, Bellview had only one opening for an annual contract teacher after it placed its continuing contract teachers. That one opening was for reading and was filled by a reading teacher with a masters degree. Sapp was not qualified for that position. After the 1987-88 school year had begun, Bellview experienced increased enrollment and a resulting increase in teaching positions. Those positions were filled by teachers who were teaching in their field of certification and who were at least as qualified as Sapp. It was very important that Bellview have teachers working in their area of certification because the school was to be audited for accreditation in the 1987-88 school year. Sapp's former position at Bellview was filled by a continuing contract teacher who had previously taught seventh grade and who was certified to teach in both middle and elementary school. The teacher who took over Sapp's class in the 1986-87 school year was not rehired. During the first week of the 1987-88 school year, Sapp sought employment at Bellview and the principal correctly told him there were no jobs. Later, in October, 1987, a position opened up at Bellview and a continuing contract teacher with a masters degree in reading and 18 years of experience was transferred in at her request. Sapp believes he was not renewed as retaliation for the School Board's rejection of the Superintendent's recommendation for suspension on January 27, 1987. This allegation is based only on Sapp's personal feeling and no evidence was presented to substantiate his belief. Sapp also believes he was not renewed because of the arrest itself. Again, no evidence was presented to substantiate his belief. By letter of September 18, 1987, the School District, through counsel, advised Sapp's attorney that Sapp would not be considered for reemployment until the PPS investigation was concluded and the District was advised of the results. The PPS has not filed any complaint against Sapp based on either of its investigations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Ricky Lynn Sapp, be DENIED relief from the nonrenewal of his annual contract and that his request for relief be DISMISSED. DONE and ENTERED this 8th day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5059 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Finding's of Fact Submitted by Petitioner, Ricky Lynn Sapp Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(10); 3(12); 4(14); 5(2); 6(2); 8(3); 9(3); 11(4); 12(5); 13(8); 15(6); 16(7); 18(23); 20(20); 21(24); 22(26); 23(26); and 25(27). Proposed findings of fact 7, 17, 28 and 29 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 10 is rejected as irrelevant. Propose findings of fact 14, 19, 24, 26, 27, and 30 are rejected as being unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Escambia County Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(1 and 10); 3(11); 4(25); 5(25); 6(13); 7(14 and 16); 8(15 and 22); 9(18); 10(22 and 23); 11(6); 12(19); 13(29); 14(30 and 31); 15(32); 16(33); 18(19); 19(27); 20(28); 21(33); 22(34); and 23(35). Proposed finding of fact 17 is rejected as being unnecessary. Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: G. James Roark, III, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Mike Holloway Superintendent of School Board Escambia County 215 West Garden Street Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
