89-004132 Duval County School Board vs. Kerby Smith Status: Closed Recommended Order on Wednesday, August 22, 1990.

Summary: Incompetence not proven despite discipline problems and proof that teacher's students did not get very best education.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DUVAL COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4132

)

KERBY SMITH, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before Robert T.

Benton, II, Hearing Officer of the Division of Administrative Hearings, on

February 27, 1990, and finished on March 1, 1990.

The Division of Administrative Hearings received the hearing transcript on

April 12, 1990, and the parties filed proposed recommended orders on May 15,

1990. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Gail A. Stafford

Assistant General Counsel

421 West Church Street, Suite 715

Jacksonville, Florida 32202

For Respondent: Al Millar

2721 Park Street

Jacksonville, Florida 32205

STATEMENT OF THE ISSUE

Whether petitioner should terminate respondent's employment or demote him

from his position as a teacher to a teacher's assistant's position, under the

authority of Chapter 21197, Laws of Florida 1941, as amended?

PRELIMINARY STATEMENT

By letter dated April 25, 1989, petitioner's superintendent, Larry L.

Zenke, advised respondent that he would be discharged from his position as a

teacher in the Duval County School System, if it could be proven that, as the

letter alleged, he was guilty of "professional incompetency as set forth in

Section 4(e) of the Duval County Teacher Tenure Act." Specifically the letter

alleged that respondent's principals had given him unsatisfactory evaluations

for school years 1987-88 and 1988-89.

FINDINGS OF FACT

1. Before his current assignment to a textbook depository, respondent

Kerby Clifton Smith taught school for the Duval County School Board for 26

years. Mr. Smith holds a teacher's certificate, No. 145127, authorizing him to

teach physical education to sixth through twelfth graders and science to

seventh, eighth and ninth graders.

2. In 1980-81, respondent received an unsatisfactory evaluation, which he

attributed to the distraction of his mother's terminal illness, culminating

ultimately in her death on Thanksgiving Day 1981. Otherwise, his annual

evaluations were satisfactory through the 1986-87 school year.

3. He began in August of 1963 as a physical education teacher at Lake

Shore Junior High School. He ended that school year and spent all the next at

"Paxon Junior High School teaching physical education, coaching track, baseball

and basketball." (T.557)

4. Mr. Smith returned to Lake Shore Junior High School in the fall of

1965. Until 1967, all his classes were physical education classes. In 1967,

when he began teaching three science classes, he continued to teach two physical

education classes, and to coach after school.

5. After 1974, although he continued to work as a coach, he did not teach

physical education classes, with the exception of a single physical education

course for hearing impaired students. Instead, he taught physical science and

earth science (or earth and space science) to junior high or middle school

students, mainly with ninth-graders.

Leaves Lake Shore

6. With the intention of pursuing computer science training, respondent

requested a leave of absence for the school year 1986-87. Request granted, he

began at Jacksonville University in the fall of 1986. But when he began to run

out of money toward the end of the first semester, he decided to return to work.

7. Because his position at Lake Shore was filled, he was sent to Fort

Caroline Junior High School, where he substituted for eight days before he took

over a retiring science teacher's five earth science classes, effective February

2, 1987. Soon after Mr. Smith began teaching the science classes, the principal

at Fort Caroline Junior High School, Mr. Pratt-Dannals, conducted a formal

observation, the first of at least three he conducted before the academic year

ended.

8. He gave respondent special attention because, during the school years

1981-82 and 1982-83, when Mr. Pratt-Dannals was dean of boys at Lake Shore

Junior High School, he had concluded that "a general lack of proper classroom

decorum" (T.43) in one or more of Mr. Smith's classes accounted for an

"inordinate number of referrals" (T.53) to the dean's office.

9. But he evaluated Mr. Smith's teaching in the spring of 1987 as

satisfactory over all. He also offered criticisms of various aspects of his

performance as a teacher, telling him he needed to improve. He urged Mr. Smith

to enroll in certain methodology courses in the summer of 1987, but Mr. Smith

declined because he "had the summer planned." T. 617.

10. When Mr. Smith returned in the fall, he found himself without a

classroom of his own. As a "travelling teacher," he moved from one classroom to

another in the course of the school day. This may have accounted for some of

his classes' getting off to less than a smooth start. T. 573.

1987-88 Observations

11. On September 15, 1987, Mr. Pratt-Dannals observed Mr. Smith teaching

an earth science class. On a "Summative Observation Instrument" he kept track

of specified behaviors classed either as effective, or as ineffective,

indicators. The former outnumbered the latter, and Mr. Pratt-Dannals commended

respondent for "asking a large number of questions on the film strip" which he

saw as evidence of a "desire to involve students in the discussion."

Petitioner's Exhibit No. 5.

12. But, from where he sat, Mr. Pratt-Dannals saw "students openly

cheating on the quiz," (T.88) (although he took no action against the supposed

offenders.) Mr. Smith did not see students cheating. T.594-5. "Mr. Smith

warned a student to stop talking. The student continued to talk, and there was

no repercussion." (T.88)

13. On October 21, 1987, Mr. Pratt-Dannals observed another of Mr. Smith's

earth science classes devoted, except for 18 minutes, to a test. He saw "13

students . . . openly sharing answers on the test," (T.88) again without taking

any action. Again Mr. Smith did not see students cheating. T.594-5.

14. Using the same "Summative Observation Instrument," Mr. Pratt-Dannals

identified about as many "ineffective indicators" as "effective indicators."

Among the ineffective teaching behaviors Mr. Pratt-Dannals made note of on

October 21, 1987, was Mr. Smith's defining "seismograph" for the class without

giving an example. (T.90)

15. When one student said to another, "You do and I'll beat your butt,"

(T.88) and the other responded, "Faggot," neither the principal nor the teacher

intervened, although respondent later reprimanded both students outside the

class. T. 582. Mr. Smith recognized the voice of only one of the protagonists,

and decided against "ask[ing] a class of 35 which one of you said, you're a

faggot?" T.585. From the owner of the voice he recognized, he learned the

identity of the other miscreant.

16. On November 5, 1987, Mr. Pratt-Dannals observed Mr. Smith

administering yet another test to yet another earth science class. Using the

same form as before, he recorded more ineffective indicators than effective

indicators. Petitioner's Exhibit No. 7. Mr. Pratt-Dannals testified:

There's some additions and corrections to the

test at the beginning of the period that

created some confusion. These were said

orally, so the student had to understand what

he was saying orally and write it down on his

test in order to do well on the test. I

suggested Mr. Smith write these on the board

if there were corrections necessary. The

cheating continued, particularly where

students sat next to each other. This was

when Mr. Smith was helping another student.

There is a term called with-itness, and that

is where a teacher is able to do two things at

one time. One of the things that would be

required in this situation would be to assist

a student who may have a question about the

test while continuing to look over the rest of

the class to determine if any cheating was

going on. He told one student that he would

deduct 10 points the next time he was talking.

This was on the test. The student talked, and

he did not deduct the points.

In written remarks made at the time, Mr. Pratt-Dannals noted, "While there was

some cheating going on, it was less than before," and suggested, "It looks like

it is time to rewrite the 'House Rules' on your cart. The pencil scribble

detracts from the impact." Petitioner's Exhibit No. 7.

17. When Mr. Pratt-Dannals next observed respondent's teaching, on

December 1, 1987, he perceived no "classroom management problems." (T.100) But

he felt "[t]here were problems with presentation of content," id., specifically

the effort to discuss dinosaurs, AIDS, the space program and the greenhouse

effect in the same class period. He nevertheless commended respondent on a

"[g]enerally good question/answer time with extension or correction as needed,"

Petitioner's Exhibit No. 8, and recorded many more "effective indicators" than

"ineffective indicators." Id.

18. Biweekly the science department received 50 student issues and a

teacher's edition of Science World, a magazine to which the school subscribed.

"There were eight science teachers and one set of magazines." T.591. The

chairman of the science department asked science teachers to include all topics

pertinent to their courses covered in the magazine "in our lesson plan

biweekly." T.586. The then current issue contained articles on dinosaurs, AIDS,

the space program, and the greenhouse effect (as well as numerous other topics)

and respondent had passed copies out to the students.

19. On February 18, 1988, Mr. Pratt-Dannals again observed respondent

teaching and again recorded many more "effective indicators" than "ineffective

indicators." But "problems with classroom management persisted, specifically

open talking, interrupting and socializing." (T. 117) Nevertheless, according

to Mr. Pratt-Dannals, "almost half of [Mr. Smith's] interventions were

effective." Petitioner's Exhibit No. 9.

20. Mr. Pratt-Dannals commended Mr. Smith for "[g]ood use of materials,

orienting statements, and beginning review . . [g]ood circulation during

seatwork . . . [and a]dequate coverage of 4 of 6 of the concepts,"

Petitioner's Exhibit No. 9, he explicated on February 18, 1988. The two

concepts Mr. Pratt-Dannals felt received inadequate coverage "were that light

passing through a prism gives a spectrum . . . [and] that the earth is

spherical, therefore, that the light hits the earth directly at the equator, but

it hits it at an angle at the poles. [Mr. Smith] stated those but did not give

any kind of application." T.118.

21. Finally, Mr. Pratt-Dannals again observed respondent's teaching on

March 2, 1988. He saw Mr. Smith stop misconduct effectively on three occasions,

but, on nine occasions, misconduct

extended beyond a reasonable period of time.

In other words, he might say, Okay, that's

enough, stop talking, and the talking continued

for a period of time following that. It may be

that the talking continued throughout the whole

period [, while the principal sat, mutely

observing.] In many cases it continued for a

longer period of time than was reasonable if the

students were responding to his correction.

T. 124. Mr. Smith also failed to give examples of several (but not all) of the

terms he defined. According to Mr. Pratt-Dannals, the "problem . . . was

that a definition was provided with no example . . . similar to," (T.124) the

situation with "seismograph."

22. In conjunction with his observations that school year, Mr. Pratt-

Dannals read Mr. Smith's lesson plans for each of the half dozen classes he sat

in on. These, he found, "minimally covered what is required." T.130. Aside

from these six, he read no other lesson plans Mr. Smith prepared that year. He

evaluated Mr. Smith's performance as a teacher as unsatisfactory principally

because of classroom management problems. T.131.

23. At Mr. Pratt-Dannals' behest, Gloriden J. Norris came to the school to

evaluate respondent's teaching and test administration on December 18, 1987, and

again on January 20, 1988. After her first visit, she reported, "[n]o major

problem identified from these observations." Petitioner's Exhibit No. 26. On

her second visit she recorded 30 effective teaching behaviors and only two

ineffective teaching behaviors. Petitioner's Exhibit No. 28. Both Mrs. Norris

and Mr. Pratt-Dannals gave Mr. Smith advance notice before observing his

teaching.

24. On the other hand, Daniel L. Weems, one of the science teachers whose

classrooms respondent made intermittent use of, had occasion to enter his room

without notice, during his own free period, while Mr. Smith was teaching there,

"in the range of once a week," (T.188) for from two to 15 minutes at a time.

Not infrequently he found that Mr. Smith did not have all the students' full

attention. He observed "[o]n a number of occasions things such as heads down on

the desk, writing notes or letters to one another, just talking with one

another, being teenagers." T.177.

MLST

25. Petitioner requires students in its earth science courses to pass a

Minimum Level Skills Test (MLST) demonstrating mastery of a specified fraction

of about 19 percent of the course objectives, in order to pass the course. In

March of 1988, Mr. Pratt-Dannals told Mr. Smith he was concerned that his

students would not be properly prepared for the standardized test; and

encouraged him to make special efforts to prepare them. Mr. Smith did make

special efforts.

26. The percentage of his students who passed the science MLST the first

time they took it was higher than comparable percentages for two other science

teachers' students, but lower than the comparable percentage for one of the

other science teachers' students. Respondent's Exhibit No. 5. Mr. Smith's

students' scores on the earth science MLST were not significantly better or

worse than their scores on minimum level skills tests in other subject areas.

1988-89

27. At respondent's request, he was transferred from Fort Caroline Junior

High School after Mr. Pratt-Dannals gave him an unsatisfactory evaluation. That

summer he signed up for two of the three education courses Mr. Pratt-Dannals

recommended that he take during the summer, but they were cancelled for lack of

adequate enrollment. The third recommended course was already completed by the

time he looked into it.

28. Mr. Smith's request to teach physical education during the 1988-89

school year was not honored. Instead, he was assigned to teach two science

courses, four classes of life science, which he had never taught before, and one

class of physical science at the Eugene J. Butler Seventh Grade Center (Butler).

His physical science students had all failed earlier attempts to pass the

seventh grade.

29. For the first two weeks of school or longer, Mr. Smith called

students' names, and they raised their hands when he took roll, but after that

he would simply "darken in the circles" (T.603) on a "bubble sheet" that listed

the class roll. Once he had learned their names, this procedure saved class

time, he felt. In each class, he asked a student to remind him to fill in the

sheet before the hour was up.

30. Before conducting his initial formal observation, Butler's principal,

Kenneth Leon Manuel looked for respondent's lesson plans, but did not find them

on file. When he did see the lesson plans, he concluded they "did not comply

with the format of objectives, instructional strategies, materials and

evaluation." Petitioner's Exhibit No. 14.

31. In the classroom, he noticed several students "discours[ing] while

[Mr. Smith] was talking," (T.259) on September 13, 1988, and again on October

18, 1988. Also on September 13, 1988, "several students walked in and out of

the classroom. Like one kid would walk in with the hall pass. And by the time

he put the hall pass down, another kid would get up, get the hall pass and walk

out." T.260.

32. Carole Lippert Benson, Butler's vice-principal, conducted a "formal

observation" in one of Mr. Smith's classes on September 28, 1988. Even though

class began four minutes late, five students were tardy. "The teacher usually

makes some sort of notation that the child was tardy, or gives them some sort of

reprimand," (T.404), but respondent did neither.

33. When he began his presentation, one student was at the pencil

sharpener and three others were out of their seats. He stood at an overhead

projector with his back to half the class. Some students talked. One put his

head down and went to sleep. A girl put on make up. Mr. Smith did not have the

attention of several students.

34. Kathleen Bowles, the science and health department chairperson at

Butler had her planning period second hour during the 1988-89 school year. She

walked through respondent's second period class on her way to the science

department's storage rooms, "probably 20 times or more, throughout the entire

school year." T.246. She saw children talking among themselves, writing notes

and out of their seats. She even saw some listening to radios or cassette

players with headphones. School policy forbids Walkman radios on campus.

35. Mr. Smith violated departmental policy by letting the children

"dissect pumpkins" without safety goggles, and nearly violated department policy

"when he was going to dissect earthworms, and the safety contracts had not been

signed." Although Ms. Bowles reported a "very high" noise level, a classroom

teacher nearer by was not disturbed.

36. On November 9, 1988, Kathleen Marie Poe, who then worked for

petitioner as "a science consultant with professional development" (T.454)

attended one of respondent's classes in order to conduct a scheduled formal

observation. When the tardy bell rang two boys were arguing over which should

retrieve a desk that had been moved for an earlier class. A student arrived

late. One of the students walking around the room refused to obey several

exhortations to sit down, so Mr. Smith ordered him to leave the class room "and

that child wouldn't step outside, so they finally negotiated that he asked him

to sit in the back of the room." T.455. But, when a girl finished sharpening

her pencil, the recently seated student rose to sharpen his pencil.

37. After these preliminaries, and a quiz, Mr. Smith made use of an

overhead projector and began a far ranging lecture on sea life, mentioning

(without defining that day) mollusks, bivalves, scallops, univalves, stingrays,

echinoderms and the Great Barrier Reef. During the lecture, one girl put on

make up, another did her English homework.

38. On November 17, 1988, a student arriving for Mr. Smith's sixth period

class told him he did not feel well, and asked to go home. Mr. Smith answered,

"[S]ee if you can't tough it out one more period. Your mom's not going to want

to come over here. Go . . . put your head down." T.624. Instead of putting his

head down, the child lay down on a table.

39. Mr. Manuel and Levi Garrett, another administrator in petitioner's

employ, were present for the first five minutes of this class. Mr. Smith

introduced Mr. Garrett to the students before proceeding with a scheduled VCR

presentation. Neither Mr. Manuel's testimony that, "There were several kids

that walked in and just lay down on the table," (T.266) nor his assertion that

respondent's lesson plans were not on respondent's desk has been credited.

40. On February 1, 1989, Ms. Norris observed respondent at Mr. Manuel's

request. "Other than the inadequate preparation and delivery of content, [she]

also concluded that there were some problems in inconsistency in . . . effective

strategies . . . used to manage student conduct." T.384. On the test he gave

that class, "there's a mixture of multiple choice and matching without

directions." T.386.

41. On February 15, 1989, Mr. Manuel conducted another formal observation,

this time of respondent's third and fourth period classes. With regard to the

third period class, Mr. Manuel reported:

[B]asically the behaviors that were in that

particular class during that time, there was

a lot of deviant behavior. Mr. Smith, at one

time, responded to the deviant behavior,

"Neil, you better get busy. You guys get

busy."

There was continuous conversation with a

student that had a missing lunch ticket.

During the period of time in this particular

classroom, Mr. Smith did circulate around the

classroom. There were numerous misconducts

[sic] of students going on. He had the

opportunity to cease and desist some of that;

however, in some cases he did not.

Also, in that particular one, in that specific

case, one student had indicated to Mr. Smith

that he had completed the assigned task

[an essay] . . . [A]nd Mr. Smith explained to

him to continue to work on the essay. . . . The

child just went ahead on.

T.275-7. About a third of the class finished the essay early, and had no

additional assignment other than (possibly) homework.

42. The fourth period class was the physical science class, full of

students who were repeating. Several students "were continuously off task."

T.279. Mr. Smith told a student she should have raised her hand, and she said

he had not required another student to do that. After two warnings, Mr. Smith

"wrote [a student] up on a referral, told him to leave the classroom." T.280.

Another student was playing with the thermostat. Still another student "was

constantly talking and complaining." T.281.

43. On February 28, 1989, Ms. Poe again observed respondent, whose

strength she had earlier described as "science content/knowledge." Petitioner's

Exhibit No. 33. In connection with her February visit, she prepared written

comments. "Some conduct problems - 4 students out of their seats - talking back

- frequent interruptions. One was sent out on a referral (girl) transparencies

were clearer as were his directions. He never raised his voice and was calm

throughout the hour." Petitioner's Exhibit No. 33.

44. Ms. Poe felt respondent "need[ed] to provide positive feedback to

students' answers and . . . for correct behavior and to be consistent with his

own set of classroom rules." Id. She also noticed that "he kept calling on the

same students, the ones who were paying attention, to answer the question." T.

459. Two boys played "paper football across the desk," (T.456) a boy threw

"basketball paper wads . . . three of them in a row", id, a distance of about

six feet, and "[t]here were a couple of paper airplanes being flown around the

room." T.456.

45. Mr. Manuel conducted a final observation on March 13, 1989. After

this observation he told respondent that he wished he had taught so well for the

whole year or words to that effect. He told him that this was the type of

teaching he had been looking for and was generally complimentary. Nevertheless

the next day he made a final evaluation that Mr. Smith's work for the year had

been unsatisfactory. After January 30, 1989, respondent did not file lesson

plans until June 14, 1989, when he filed lesson plans for some four months'

classes late.

MLST At Butler

46. Of the 21 students in Mr. Smith's year-long physical science class,

only ten passed the physical science MLST the first time it was administered.

T.302. Petitioner's Exhibit No. 23. Even fewer students passed the course

itself. "That's the class that were repeaters . . . ." T.603. Most of the

students who flunked the class "failed because we had an attendance policy. If

you missed more than seven days [in "[e]ach grading period" (T.607)] . . . you

automatically received an F or an E in the class." Id.

47. Students in Mr. Smith's four first semester life science classes

passed the life science MLST at rates of 34.8, 52.0, 52.2, and 63.6 percent, as

compared to a 77.7 percent pass rate for all teachers' first semester life

science students. Petitioner's Exhibit No. 24. But students in Mr. Smith's

second semester life science classes passed the life science MLST at rates of

92.0, 93.8, 94.1 and 94.7 percent as compared to an average 93.9 percent for all

teachers' life science students that semester. Petitioner's Exhibit No. 25.

Popular With Colleagues

48. A number of respondent's colleagues testified for him at hearing.

Paul Z. Martin, a teacher at Lake Shore Junior High School from 1954 to 1976,

said, in answer to counsel's questions:

A He got along fine. I got jealous of him a

lot of times, because he could handle the

students so well, and the students liked him,

and he had no problem there at all.

And another thing -- let me say right there --

you know, things will happen, which is natural.

They'll come up in class, or maybe under me or

maybe under another coach. And, well, two or

three times I recall where I would ask Kerby to

go see if he could resolve that situation, and

he did. He did a good job. He's a good

disciplinarian.

Q Good disciplinarian?

A Good disciplinarian. And his work in his

classroom was very efficient. (TR 344)

49. Barbara Miller who taught at Lake Shore Junior High School for twenty-

six (26) years and who, like Mr. Martin, had no personal knowledge of

respondent's performance at Fort Caroline Junior High School testified:

I think he is a very competent teacher.

I say this due to the fact that when I walked

into his classroom the many, many times that I

did, that his class was in order, that he had

control of his classroom, that his test scores

were good, that his grades were better than

mine, that he did take an interest in the

children. And I have one real criteria for

being a good teacher, and that is it involves

the heart and the love of your job and the love

of the children, and I absolutely will say

under oath that Kerby has these things, that

he enjoyed his job, he loved the kids, and he

gave to them beyond the capacity of just your

7:30 - to - 2:40 requirement. And that says a

lot for me. (TR 359, 360)

50. A former principal, John Rowell, who served as principal at Lake Shore

Junior High School, until 1969 testified:

I would say he tries to reach every student

that he can. He's very pleasant, and he --

for me, he maintained good order in the

classroom and a well-disciplined gym class,

and his teams that he coached were

well-disciplined teams.

He called on the kids to recite. He would

explain, and they would recite.

Q Do you think he was a competent teacher?

A Yes. He was a competent teacher for me.

Between 1963 and 1969, he was a very competent

teacher." (TR 484-485)

51. Another colleague who had not taught with Mr. Smith since he left Lake

Shore Junior High School was Betty Tut who had herself taught for some twenty-

five (25) years. She said:

Did you ever observe Kerby Smith in the

classroom?

A No, not observe him in the classroom, but

we taught P.E. kind of together. Sometimes

we would be outside, but this was some time

ago, not recent.

Q But you could see each other?

A Yes.

Q What was his conduct with the class when

you observed him?

A Very caring and compassionate about them

and wanting them to do well. He was very

concerned about each of the kids and wanted

them to do exceptionally well in what he was

doing. I know that much.

Q Did he seem to have control of his class?

A Being outside, he had pretty good control

outside. But when he was inside, I did not

observe him. (TR 494)

52. Another Lake Shore colleague, Floyd Watson, who taught at Lake Shore

Junior High School from 1966 to 1988, answered counsel's questions, as follows:

Q How did Mr. Smith conduct this classes?

A What do you mean?

Q You saw him in some of his classes. What

were they like; well-run, poorly-run, whatever?

A Of course, I'm not a science teacher, so I

can't say that sort of thing.

Q Did you find any atypical disciplinary

problems in his classes, as compared to the

others that you were familiar with?

A No.

Q Did he seem to have a rapport with the

students or lack or rapport?

A He seemed to have a good rapport. I think,

with the latter part of the years, I was just

thinking, when I came down here the other day,

that he seemed to have a right good rapport,

especially with minority students. Not all

teachers have that." (TR 502)

"Q In your opinion, from '63 to '85, was

Mr. Smith a competent teacher?

A Yes.

Q And the reason for that statement?

A Well, I think he's knowledgeable in his

subject matter. I think he put the material

across to the students. He did have a

classroom management so that a student that

wanted to learn could learn.

He was able to talk with the students and get

along with them reasonably well. Of course,

like any teacher, you don't satisfy all of

them. That never happens.

But, overall, I think he got along very well

with the students, and they tend to respect

him. He made it such that if they wanted to

learn they could, and he would try to teach

them. (TR 503, 504)

53. Robert A. Birmingham, an occupational specialist at Lake Shore Junior

High School, 1985-1990, testified:

Q What was the conduct of his classroom when

you were there?

A They're junior high kids, you know. In an

educational setting, there can be noise, and

it's educational noise, and there can

uncontrolled noise. And I don't recall

anything that I was unhappy with. (sic)

(TR 510)

54. Phil Valla, a 20-year teacher who taught with respondent early in his

career, testified:

Q How did he conduct his classes, as far as

demeanor and the rest of it?

A How did he conduct his classes?

Q Yes. From your viewpoint as a teacher,

yourself, do you have an opinion about how

Kerby conducted his classes?

A His classes were fine.

Q Do you think he's a competent teacher?

A Yes, sir.

Q And could you tell the Hearing Officer why

you think he's a competent teacher?

A When we worked together, we seemed to

accomplish everything we set out to do with

the kids, and he seemed to get along real well

with the kids and fellow coaches.

Q How was discipline in his class?

A Fine.

Q What rapport, if any, did he have with his

students?

A It was excellent. He had superior rapport

with the students.

Q Do you think the students respected him?

A Yes, sir.

Q You say he accomplished everything he

wanted to accomplish; was that subject matter?

A Yes, sir.

Q Do you think that got across?

A Yes, sir. We taught -- our goals were to

teach skills in physical education, and we

accomplished that in those years.

(TR 516, 517)

55. And Georgette Macarthur, a teacher with 28 years of experience,

offered her opinion, in response to counsel's questions:

Q Do you have any opinion about how he

conducted his classes?

A Yes. He had a real special, I think,

rapport with the students, and they liked him,

and they performed for him. And I don't think

he had a military discipline style, but that

mold -- everybody doesn't fit that mold. His

style of discipline was a little more relaxed,

but the students learned well, I think, and

they all did what they were supposed to do.

I'm more of a relaxed teacher, myself. And I

can see that what is right for one teacher, as

far as discipline goes, is not right for another

teacher. And students can't learn in chaos.

That's not what I'm saying. What I'm saying is

that if they're all tense and tight sometimes

they don't do their best.

I really like the way Kerby teaches, from my

memory. It's been several years, but, from what

I know, I really like the way he teaches.

Q You've known him for over 20 years at

Lakeshore (sic)?

A Right, right.

Q That's a long time to observe somebody.

A That's right. That -- well, go on with

your questions.

Q And he left to go on a sabbatical?

A Yes, and then he came back.

Q And then -- I don't -- if I asked you this --

did I ask you, "Do you think he's a competent

teacher?"

A Yes, I do. From my observations and just

from what I have known, I do think he's

competent. (TR 524, 525)

On the other hand, Messrs. Pratt-Dannals and Manuel, along with Ms. Bowles

testified that respondent was not a competent teacher.

56. Of the 6200 teachers the school board of Duval County employed in

1988-89, it sought to terminate the employment of only three. Raymond Bailey,

petitioner's "director of certificated personnel," (T.200) testified:

A competent teacher is one that has knowledge

of subject matter, is able to impart and

deliver that subject matter to students. That

competent teacher also is one that is competent

in the area of classroom management, meaning

managing the learning activities that take

place within those four walls. He's also an

individual that is effective in his delivery of

curricular material to students, interpreting

the curriculum of the district and, again,

imparting its students. He is an individual

that is charged with the responsibility of

teaching the curriculum as outlined by the

district and has the knowledge and background

to proceed through that and to provide his

students with the very best education.

While it is clear respondent did not provide his students with "the very best

education," the evidence fell well short of a showing that he was among the

three worst teachers in the school system.

57. At one point when respondent was teaching at Lake Shore and Mr.

Wechsler was serving as principal, all five or six science teachers were

evaluated by the School District's "teacher educational consultant for science"

(T.369), Gloriden J. Norris. Ms. Norris, who observed all of the teachers in

their classrooms, did not conclude that respondent's performance was

significantly worse than any of the other science teachers' performances.

(T.399-400).

CONCLUSIONS OF LAW

58. Petitioner seeks to dismiss respondent for cause, as defined by

Chapter 21197, Laws of Florida, 1941, as amended. Chapter 21197, Laws of

Florida, 1941 is the Teacher Tenure Act, applicable exclusively to teachers

employed by the Duval County School Board (Tenure Act). The Tenure Act provides

that teachers employed by the Duval County School Board may be discharged or

demoted for professional incompetency:

Section 4. Causes for the discharge or the

demotion of a teacher shall be:

(e) Professional incompetency as a teacher

. . . 72-576, Laws of Florida (1977).

In its proposed recommended order, the School Board raised the possibility for

the first time of a demotion instead of termination, but this does not relieve

the Board of its obligation to show cause for dismissal, if it is to remove

respondent's tenure as a teacher. Tenure Act, Section 4. In the final paragraph

of the proposed recommended order, moreover, the Board prays for dismissal.

59. Petitioner has the burden to prove, by a preponderance of the

evidence, that respondent has been guilty of the professional incompetence the

Board has alleged. See Ferris v. Turlington, 510 So.2d 292, 294, n.2 (Fla.

1987) (While the standard of proof in license revocation cases is clear and

convincing evidence, termination of employment only requires proof by a

preponderance of the evidence, citing Ferris v. Austin, 487 So.2d 1163 (5th DCA

1986)); South Florida Water Management Dist. v. Caluwe, 459 So.2d 390 (4th DCA

1984).

60. The Duval County School Board has not adopted rules defining

professional incompetency. Petitioner cites Smith v. School Board of Leon

County, 405 So.2d 183 (Fla. 1st DCA 1981) for the proposition that, when a

school board does not adopt rules defining professional incompetency, the state

board's rules, set out in the Florida Administrative Code, apply. But the

state board's rules implement statutes held applicable in Smith, not the Teacher

Tenure Act that applies here. The Smith decision does not say that rules apply

where statutes they interpret do not.

61. Although not definitive, the rules petitioner cites are nevertheless

instructive. Incompetency is defined in the Florida Administrative Code as

follows:

(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 preponder-

ance 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.

(Emphasis supplied.) Rule 6B-4.009, Florida Administrative Code. Chapter 6B of

the Florida Administrative Code contains "the minimal standards of the education

profession in Florida." Rule 6B-5.004, Florida Administrative Code, requires

that teachers

(2) Select, adapt or develop, and sequence

instructional materials and activities for the

designated set of instructional objectives and

student needs.

(3) Create interest through the use of

materials and techniques appropriate to the

varying abilities and backgrounds of students.

(4) Use individual students interests and

abilities when planning and implementing

instruction.

62. Rule 6B-5.005, Florida Administrative Code, provides:

The educator, commensurate with job require-

ments and delegated authority, shall

demonstrate competence in the following

instructional procedures:

(2) Use procedures appropriate to accomplish

the designated task to include but not to be

limited to:

(a) Identifying long range goals for a given

subject area.

(b) Constructing and sequencing related short

range objectives for a given subject area.

. . .

(4) Give directions for carrying out an

instructional activity by assuring that the

task is understood and using feedback

techniques which are relevant to the

designated task.

Rule 6B-5.007, Florida Administrative Code, entitled Management Techniques,

provides, as follows:

The educator, commensurate with job require-

ments and delegated authority, shall

demonstrate competence in the following

management techniques:

(1) Resolve discipline problems in compliance

with the policies of the school, rules of the

district school board and the State Board, and

Florida Statutes.

(2) Maintain consistency in the application

of policy and practice by:

(a) Establishing routines and procedures for

the use of materials and the physical movement

of students.

(b) Formulating appropriate standards for

student behavior.

(c) Identifying inappropriate behavior and

employing appropriate techniques for correction.

(3) Maintain standards of conduct required in

Rule 6B-5.007(2), F.A.C.

(4) Use management techniques appropriate to

the particular setting.

Petitioner's counsel has synthesized cases construing the foregoing rules:

63. "These rules have been interpreted by case law. Generally, behaviors

by the teacher which provide evidence of his or her incompetency include, but

are not limited to, the following:

"(a) A teacher who fails to adequately

prepare and plan for the instruction of

his/her students is incompetent. Turlington

v. Reaves, 9 FALR 1371 (1986) (The fact that

the teacher gave assignments without properly

explaining the assignment contributed to a

finding of incompetency.)

"(b) A teacher's failure to prepare lesson

plans or failure to prepare adequate lesson

plans is evidence of incompetency. Turlington

v. Reaves, 9 FALR 1371 (1986) (Teachers

incomplete lesson plans were considered in

determining her incompetence); Castor v.

Perry, 9 FALR 5291 (1987).

"(c) A teacher's failure to employ

appropriate disciplinary techniques suitable

to the particular situation substantiates a

finding of incompetency. Turlington v.

Reaves, 9 FALR 1371 (1986) (Teachers failure

to exercise consistent discipline and failure

to administer reprimand for disruptive

behavior conduced a finding of incompetence.)

"(d) A teacher's failure to adequately manage

and control students in the classroom lead to

a finding of incompetency. Turlington v.

Reaves, 9 FALR 1371 (1986) (Students failure

to raise hands before speaking and the

constant undercurrent of conversation

constituted unsatisfactory classroom

management and contributed to finding of

professional incompetence); Turlington v.

Walker, 9 FALR 2305 (1987) (Teachers inability

to control the behavior of disruptive students

within her class through verbal or nonverbal

strategies constituted incompetence);

Department of Education v. Ferrarra, 10 FALR

5766 (1987) (Teachers inability to handle

discipline problems revealed teacher

incompetence)." Petitioner's Proposed

Recommended Order, pp. 27-29.

"(e) A teacher's failure to utilize adequate

techniques of instruction in the classroom

warrants a finding of incompetence.

Turlington v. Reaves, 9 FALR 1371 (1986)

(Teacher's failure to provide stimulating and

varied learning experiences contributed to

finding of incompetency); Department of

Education v. Ferrarra, 10 FALR 5766 (1987)

(Teaching technique which consisted primarily

of giving students a reading assignment and

having them answer questions in class was

inadequate and was a factor denoting teacher

incompetence); Castor v. Brewer, 9 FALR 5339

(1987) (Teacher's dull presentation of the

subject matter, said presentation lacking an

appropriate background, introduction and

reinforcement, was a factor revealing teacher

incompetence); Department of Education v.

Marshall, 10 FALR 4303 (1987) (Teachers

failure to use more than one teaching

technique was a factor denoting incompetence).

"(f) When a teacher improperly sequences

lessons, evidence of incompetence exists.

Turlington v. Reaves, 9 FALR 1371 (1986)

(Teachers improperly sequenced lessons

confused the students and contributed to

finding of incompetency); Turlington v.

Walker, 9 FALR 2305 (1987) (Improperly

sequenced lessons render the teacher unable to

deliver instruction to students and lends to a

finding of incompetency).

"(g) A teacher who fails to create and

maintain a classroom environment conducive to

learning is incompetent. Turlington v. Walker,

9 FALR 2305 (1987) (A chaotic classroom

evidences a teacher's incompetence); Castor v.

Perry, 9 FALR 2305 (1987) (Fact that teacher

allowed nonessential, nonproductive movement

of the students in the classroom contributed

to a finding of the teacher's incompetence).

"(h) When a teacher fails to maintain proper

supervision of students in the classroom s/he

is incompetent. Turlington v. Walker, 9 FALR

2302 (1987) (The fact that a teacher's

students were not on task advanced a finding

of incompetence); Department of Education v.

Ferrara, 10 FALR 5766 (1987) (The fact that

students openly copied each others work and

cheated on exams was a factor indicating

teacher incompetence); Castor v. Brewer, 9

FALR 5339 (1987); Castor v. Perry, 9 FALR 5291

(1987) (Students observed off task were a

factor considered in judging a teacher to be

incompetent).

"(i) When there are errors in the teachers

lessons, a finding of incompetence is

appropriate. Department of Education v.

Marshall, 10 FALR 4303 (1987)."

64. Respondent neglected to file lesson plans, which creates problems, if

a substitute teacher has to fill in. But the proof did not establish that he

failed to prepare lesson plans or plan for his classes. The evidence showed

that he had serious problems maintaining good order in the classroom. Nothing

in the evidence indicated, however, that other teachers do not have problems

managing their classes, and "incompetency is a relative term." Rule 6B-

4.009(1), Florida Administrative Code.

65. Not all teachers can be paradigms for the profession. Among the some

6,197 teachers the Duval County School Board deemed competent in 1988-89,

thousands are "below average," in managing their classes. Hundreds necessarily

fall in the bottom ten percent. The evidence did not show that respondent's

performance, weak as it was in 1988-89, was worse than theirs. For the school

year 1987-88, the evidence did not show clearly that his performance was below

average.

66. New courses and a class of repeating students seem nearly to have

overwhelmed respondent the first semester of the 1988-89 school year, but Mr.

Manuel's final evaluation and the second semester MLST results both evinced a

comeback.

67. The issue here is not whether Mr. Smith might be able to do something

else better or whether he would enjoy it more. The issue is not whether Mr.

Smith is a good teacher, able "to provide his students with the very best

education." The question is whether he is willing and able to teach in a

minimally acceptable way. Or, more precisely, whether the School Board has

proven that he is unable or unwilling to teach in accordance with minimally

acceptable standards. On this record, the Board has not carried its burden.

RECOMMENDATION

It is accordingly, recommended that petitioner renew respondent's

employment contract.

RECOMMENDED this 22nd day of August, 1990, in Tallahassee, Florida.

_________________________________

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of August, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4132

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 26,

27, 28, 29, 30, 31, 37, 38, 39, 40, 45, 79, 87, and 89 have been adopted, in

substance, insofar as material.

Petitioner's proposed findings of fact Nos. 7, 12, 13 and 14 pertain to matters

outside the two-year period alleged by the Board, or are otherwise immaterial.

Petitioner's proposed findings Nos. 15, 16, 17, 18, 23, 24, 25, 32, 33, 34, 36,

46 and 81 pertain to subordinate matters.

With respect to petitioner's proposed findings of fact Nos. 19 through 22, see

finding of fact Nos. 11 through 22.

Petitioner's proposed findings of fact Nos. 35 and 86 were not established by

the evidence.

With respect to petitioner's proposed finding of fact No. 41, the testimony was

that in no other case of this kind was a teacher assigned to teach subjects he

had never taught before.

With respect to petitioner's proposed findings of fact Nos. 42, 43 and 44, the

evidence did not show that he was at any less disadvantage teaching life

science, and the "special accommodations" were contrary to his request to teach

physical education.

With respect to petitioner's proposed findings of fact Nos. 47 through 65, 82,

83 and 84, see findings of fact Nos. 27 through 45.

With respect to petitioner's proposed findings of fact Nos. 66 through 75, see

findings of fact Nos. 46 and 47.

Petitioner's proposed findings of fact Nos. 76, 77, and 78 have been adopted in

substance, insofar as material, except that Mr. Manuel's testimony that lesson

plans were not on respondent's desk has been rejected.

With respect to petitioner's proposed findings of fact Nos. 80 and 85, that is

the answer he gave on deposition.

With respect to petitioner's proposed findings of fact Nos. 85 and 88,

petitioner proved respondent was a weak teacher, but did not prove that he was

incompetent, within the meaning of the statute.

Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 10, 13, 17 and 18

have been adopted, in substance, insofar as material.

Respondent's proposed findings of fact Nos. 6 and 15 pertain to subordinate

matters.

The final two sentences of respondent's proposed finding of fact No. 7 have been

adopted, in substance, insofar as material, but there were not six formal

evaluations.

With respect to respondent's proposed finding of fact No. 9, nobody testified

that a traveling teacher should have any greater problems with discipline after

the first few minutes of class.

With respect to respondent's proposed finding of fact No. 11, the evidence did

not show that he actually attended summer courses.

With respect to respondent's proposed finding of fact No. 12, the first sentence

has been adopted but it is not clear what comparison the second sentence is

intended to make.

Respondent's proposed finding of fact No. 14 is rejected.

With respect to respondent's proposed finding of fact No. 16, she characterized

certain behavior as inconsistent.

COPIES FURNISHED:

The Honorable Betty Castor

Commission of Education

The Capitol

Tallahassee, FL 32399-0400

Dr. Larry Zenke, Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, FL 32207

James L. Harrison, General Counsel

Gail Stafford, Assistant Counsel

421 West Church Street, Suite 715

Jacksonville, FL 32202

Al Millar, Esquire

2721 Park Street

Jacksonville, FL 32205