10-001854PL Dr. Eric J. Smith, As Commissioner Of Education vs. Deborah Schad Status: Closed Recommended Order on Friday, July 23, 2010.

Summary: Petitioner demonstrated by clear and convincing evidence that Respondent was incompetent to teach or to perform her duties as an employee of the public school system. Recommend a six-month suspension and two-year probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 10-1854PL

)

DEBORAH JANE SCHAD, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on May 28, 2010, in Naples, Florida, before Errol H. Powell, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 10

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint issued on

October 19, 2009, and, if so, what action should be taken.

PRELIMINARY STATEMENT

On October 19, 2009, Dr. Eric J. Smith, as Commissioner of

Education (COE), issued a one-count Administrative Complaint

(AC) against Deborah Schad. The COE charged Ms. Schad with

violating Section 1012.795(1)(c), Florida Statutes, alleging

that Ms. Schad has proved to be incompetent to teach or to

perform duties as an employee of the public school system or to

teach in or to operate a private school. Ms. Schad challenged

the material allegations in the AC and requested a hearing. On

April 9, 2010, this matter was referred to the Division of

Administrative Hearings.

Prior to hearing, the parties filed a Joint Pre-hearing

Stipulation. At hearing, Ms. Schad admitted paragraphs numbered

1 through 3 of the AC. 1 Further, at hearing, the COE presented

the testimony of four witnesses and entered 23 exhibits

(Petitioner's Exhibits numbered 1 through 23) 2 into evidence.

Ms. Schad testified in her own behalf, presented the testimony

of two witnesses and entered eight exhibits (Respondent’s

Exhibits numbered 1 through 5, 8, 9, and 10) into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on June 17,

2010. The parties filed a joint motion to extend the time for

the filing of their post-hearing submissions, which was granted.

The COE timely filed its post-hearing submission. Ms. Schad was

one day late in filing her post-hearing submission, but the COE

did not object to the late-filing. Ms. Schad’s post-hearing

submission is accepted as filed. The parties’ post-hearing

submissions have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Ms. Schad holds Florida Educator’s Certificate

(Certificate) No. 407935, covering the areas of Early Childhood

Education, Elementary Education, English to Speakers of Other

Languages (ESOL), Mathematics and Reading. Her Certificate is

valid through June 30, 2013.

2. Ms. Schad began teaching in 1978. She has taught in

both the Lee County School District and Collier County School

District.

3. At all times material hereto, Ms. Schad was employed as

a Reading and Math Specialist at Village Oaks Elementary School

(Village Oaks) in the Collier County School District (School

District). She began at Village Oaks for the 2003-2004 school

year.

4. Ms. Schad’s duties and responsibilities at Village Oaks

included providing extra assistance to students who were not

proficient in reading and math. Classroom teachers chose which

students would receive the extra assistance from her.

Typically, Ms. Schad met with the students she assisted in pull-

out/break-out sessions in small groups of five students at a

time and provided 30 minutes of assistance to each group of

students. Some of the students to whom she provided the extra

assistance spoke English as a second language (ESOL students).

5. The principal at Village Oaks was Dorcas Howard. She

has been employed with the School District for 50 years and has

been a principal with the School District for over 21 years.

6. The Collective Bargaining Agreement between the Collier

County Education Association and the District School Board of

Collier County (Collective Bargaining Agreement) controls the

assessment of teachers. The Collective Bargaining Agreement

requires the evaluation of teachers in the School District based

on an evaluation system known as the Collier Teacher Assessment

System (CTAS). The CTAS consists of 12 educator accomplished

practices (EAPs)—Assessment, Communication, Continuous

Improvement, Critical Thinking, Diversity, Ethics, Human

Development and Learning, Knowledge of Subject Matter, Learning

Environments, Planning, Role of the Teacher, and Technology—that

are evaluated as Inadequate, Developing, and

Professional/Accomplished. Also, the overall evaluation is

Meets Expectation or Does Not Meet Expectation. If a

professional service contract or continuing contract teacher

fails to be rated at the Professional/Accomplished level in

three or more EAPs or is rated at the Inadequate level in one

EAP, the Collective Bargaining Agreement requires certain

procedures and processes to be taken to assist the teacher.

7. At all times material hereto, Ms. Schad was a

professional service contract teacher.

8. In order to perform an assessment pursuant to CTAS, one

must be trained in CTAS. At all times material hereto,

Ms. Howard was trained in CTAS.

9. Ms. Schad’s 2004 Annual Performance Evaluation for the

2003-2004 school year was performed by Ms. Howard. Ms. Schad

was rated overall as Meets Expectations, with two EAPs rated as

Developing—Knowledge of Subject Matter and Technology.

Ms. Schad was considered deficient in the two EAPs.

10. Ms. Schad’s 2005 Annual Performance Evaluation for the

2004-2005 school year was performed by Ms. Howard. Ms. Schad

was rated overall as Meets Expectations, with one EAP rated as

Developing—Technology. Ms. Schad was considered deficient in

the one EAP.

11. Ms. Schad’s 2006 Annual Performance Evaluation for the

2005-2006 school year was performed by Ms. Howard. Ms. Schad

was rated overall as Meets Expectations, with no EAPs rated as

Inadequate or Developing. Ms. Schad was not considered

deficient in any EAP.

12. Ms. Schad’s 2007 Annual Performance Evaluation for the

2006-2007 school year was performed by Ms. Howard. Ms. Schad

was rated overall as Meets Expectations, with no EAP rated as

Inadequate or Developing. Again, Ms. Schad was not considered

deficient in any EAP.

13. On or about May 12, 2008, Ms. Schad received her 2008

Annual Performance Evaluation for the 2007-2008 school year from

Ms. Howard. Ms. Schad’s overall rating was Does Not Meet

Expectations (unsatisfactory), with four EAPs rated as

Developing—Assessment, Communication, Learning Environments, and

Planning. Ms. Schad was considered deficient in the four EAPs.

14. As a professional service contract employee, pursuant

to the Collective Bargaining Agreement, for the 2008-2009 school

year, Ms. Schad was required to be assigned to Strand III, which

is a probationary 90-calendar-day period to correct the

deficiencies.

15. On or about August 11, 2008, Ms. Schad was placed on a

Strand III, 90-Day Improvement Plan to address the areas of

deficiency.

16. Pursuant to the Collective Bargaining Agreement, a

professional assistance team (PAT) at Village Oaks was organized

to assist Ms. Schad to correct the deficiencies. The PAT

consisted of Ms. Schad, Ms. Howard, and two teachers—one teacher

chosen by Ms. Howard, as a mentor to Ms. Schad, and one teacher

chosen by Ms. Schad, as a peer teacher.

17. The PAT met on several occasions. The first meeting

was on August 27, 2008. Essentially, the discussion consisted

of what was expected of Ms. Schad and what would occur at the

end of the probationary period—a recommendation would be

submitted to the Superintendent of the School District in 90

days. The expectations were that Ms. Schad would: provide

documentation of absence in order to be paid, which should

include date, time, and service; attend all planning sessions

for third grade to determine the standards, targets and

strategies, and activities that were to be taught; give a copy

of her plans for next week to the team leader and the principal

by 3:00 p.m. each Friday; follow the schedule to pick-up and

drop-off students and have materials on hand and ready to begin

lessons; meet each third-grade teacher to discuss progress or

lack of progress; and work with five students per session and

document (weekly/quarterly) their assessment results.

18. Another PAT meeting was held on September 3, 2008.

Pursuant to the Collective Bargaining Agreement, a Professional

Assistance Plan (PAP) was developed and was reviewed at the

meeting. The PAP contained major areas, with detailed

strategies, which were Attendance, Planning, Assessment,

Communication, and Role of Teacher; all were reviewed.

Additionally, another area contained in the PAP was Observation,

in which it was indicated that the Ms. Howard would complete at

least four observations with written feedback; this too was

reviewed. Implementation of the PAP occurred after the meeting.

19. PAT meetings were subsequently held on September 24,

October 15, and October 30, 2008. Other major areas of concern

were discussed at the meetings, including Student Participation

Progress; and Focus/Follow-Up. At each meeting, the focus of

the discussions was on what Ms. Schad was not doing; what she

was doing, but not doing correctly; what assistance could and

would be provided. As a result of each meeting, assistance was

being continuously provided to Ms. Schad by the PAT members to

assist her in improving and correcting her deficiencies.

20. At each meeting, Ms. Howard determined that Ms. Schad

was not correcting deficiencies even though she (Ms. Schad) was

being provided assistance to correct deficiencies.

21. At the meeting held on September 24, 2008, the noted

deficiencies included the areas of Planning and Student

Participation Progress.

22. At the meeting held on October 14, 2008, the noted

deficiencies included the areas of Focus/Follow-Up, Planning,

Student Participation Progress, and Assessment.

23. At the meeting held on October 30, 2008, the noted

deficiencies included the areas of Focus/Follow-Up, Planning,

Student Participation Progress, and Assessment/Differentation.

24. Furthermore, Ms. Howard was conducting observations of

Ms. Schad during the Probationary period. The observations

revealed continued deficiencies in spite of assistance being

provided by the PAT.

25. On or about November 7, 2008, about 64 days from the

development and implementation of the PAP, Ms. Schad received a

performance evaluation from Ms. Howard. Ms. Schad was rated

overall as Does Not Meet Expectations (unsatisfactory), with

four EAPs rated as Inadequate—Assessment, Communication,

Planning, and Role of the Teacher—and three EAPs rated as

Developing—Continuous Improvement, Knowledge of Subject Matter,

and Learning Environments. The EAPs were areas of deficiency.

26. The EAPs in which Ms. Howard found Ms. Schad to be

deficient in the 2008 Annual Performance Evaluation that were

not corrected within the Probationary period were Assessment,

Communication, Learning Environments, and Planning—with

Assessment, Communication, and Planning rated Inadequate; and

Learning Environments rated Developing. Additional EAPs were

found to be deficient at the end of the Probationary period,

which were Continuous Improvement, Knowledge of Subject Matter,

and Role of the Teacher—with Knowledge of Subject Matter and

Continuous Improvement rated Developing; and Role of the Teacher

rated Inadequate.

27. The School District considered Ms. Schad as not

competent to teach in the School District.

28. On or about January 15, 2009, Ms. Schad was terminated

from her teaching position with the School District. She has

appealed her termination. 3

29. The evidence demonstrates that Ms. Schad failed to

meet the minimum standards required by the School District for

teachers and was, therefore, not competent to teach according to

the standards of the School District.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2010).

31. The ultimate burden of proof is on the COE to

establish by clear and convincing evidence that Ms. Schad

committed the violation as set forth in the AC dated October 19,

2009. Department of Banking and Finance, Division of Securities

and Investor Protection v. Osborne Stern and Company , 670 So. 2d

932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA

1995); § 120.57(1)(j), Fla. Stat.

32. Section 1012.795, Florida Statutes (2008), provides in

pertinent part:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(c) Has proved to be incompetent to teach

or to perform duties as an employee of the

public school system or to teach in or to

operate a private school.

33. Florida Administrative Code Rule 6B-4.009 provides

guidance in the instant case and provides in pertinent part:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

34. The evidence is clear and convincing that Ms. Schad

failed to meet the minimum standards required by the School

District for teachers to teach; that Ms. Schad was placed on a

plan, with strategies, to assist her in correcting her

deficiencies and meeting the minimum standards; that, through

the plan, Ms. Schad was continuously provided assistance to

assist her in correcting her deficiencies and meeting the

minimum standards; that, even though she was provided with

continuous assistance, Ms. Schad failed to correct her

deficiencies; and that Ms. Schad again failed to meet the

minimum standards required by the School District for teachers

to teach.

35. Hence, the evidence demonstrates that Ms. Schad

violated Section 1012.795(1)(c), Florida Statutes (2008).

36. As to penalty, Section 1012.796(7), Florida Statutes

(2008), provides in pertinent part:

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

* * *

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $ 2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the investigative

office in the Department of Education upon

employment or termination of employment in

the state in any public or private position

requiring a Florida educator's certificate.

2. Have his or her immediate supervisor

submit annual performance reports to the

investigative office in the Department of

Education.

3. Pay to the commission within the first 6

months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully comply

with all district school board policies,

school rules, and State Board of Education

rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with the

terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certification file of such person.

37. The COE suggests a one-year suspension and a five-year

probation of Ms. Schad’s certificate.

38. Considering the totality of the circumstances, a more

appropriate penalty is a six-month suspension and a two-year

probation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Dr. Eric J. Smith, as Commissioner of

Education, enter a final order:

1. Finding that Deborah Jane Schad violated Section

1012.795(1)(c), Florida Statutes (2008).

2. Suspending Ms. Schad’s Certificate for six months and

placing her on probation for two years under the terms and

conditions deemed appropriate.

DONE AND ENTERED this 23rd day of July, 2010, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of July, 2010.

ENDNOTES

1/ The AC contains only three numbered paragraphs. Paragraphs

numbered 1 and 2 are under the heading of “Jurisdiction”; and

paragraph numbered 3 is under the heading of “Material

Allegations.”

2/ The COE offered only 23 exhibits into evidence even though it

stated that it was offering 24 exhibits; all were entered into

evidence without objection.

3/ The School District issued a Final Order terminating

Ms. Schad’s employment with it. Ms. Schad has appealed the

School District’s Final Order.

COPIES FURNISHED:

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 10

Clearwater, Florida 33761

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Kathleen M. Richards, Executive Director

Department of Education

Florida Education Center

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 34399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 34399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.