90-004566 Duval County School Board vs. Rita E. Strauss Status: Closed Recommended Order on Tuesday, December 24, 1991.

Summary: Teacher's performance insufficient to meet standards in rules regarding class instruction, management; refused training-found incompetent, insubordination, fail to perform duty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4566

)

RITA E. STRAUSS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause on for formal proceeding before P. Michael

Ruff, duly-designated Hearing Officer of the Division of Administrative

Hearings, in Jacksonville, Florida.

APPEARANCES

FOR PETITIONER: Cheryl R. Peek, Esq.

Assistant Counsel

Office of General Counsel

421 West Church Street

Towncentre, Suite 715

Jacksonville, FL 32202

FOR RESPONDENT: David A. Hertz, Esq.

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, FL 32216

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent

should be dismissed from her employment with the Petitioner agency for alleged

violations of the Duval County Teacher Tenure Act (Chapter 21197, Laws of

Florida, 1941, as amended by Chapter 70-671, 72-576, and 81-372, Laws of

Florida). Specifically, it is alleged that the Respondent should be dismissed

from her employment duties for alleged "professional incompetence", "refusal or

inexcusable failure to discharge the duties of her employment", "insubordination

or physical or mental incapacity to perform the duties of employment", and

"immoral character or conduct".

PRELIMINARY STATEMENT

This cause arose upon the advice to the Respondent by the Petitioner's

superintendent, by letter dated September 12, 1990, that the Respondent would be

discharged from her position as a guidance counsellor for the Petitioner, Duval

County School Board ("Board"). The four (4) charges alleged in that letter were

later incorporated in the Amended Notice of Proposed Dismissal, which raised the

issues referenced in the above-captioned Statement of Issues. The Respondent

was thus advised that the Board proposed to discharge her for alleged

professional incompetency, as set forth in Section 4(3) of the Duval County

Teacher Tenure Act ("Act"); for alleged refusal or inexcusable failure to

discharge her duties, as set forth in Section 4(c) of the Act; for alleged

insubordination or physical or mental incapacity to perform her duties, as set

forth in Section 4(a) of the Act; and for alleged immoral character or conduct,

as set forth in Section 4(a) of the Act.

The cause became ripe for hearing and was originally set for hearing on

November 30, 1990. Prior to the scheduled hearing, it developed that the

Respondent had a serious medical condition requiring hospitalization and an

extensive recovery period. Consequently, the case was abated and was ultimately

heard on August 28, 1991.

The cause came on for hearing as noticed. The Petitioner presented 35

exhibits, Exhibits A-II, all of which were admitted into evidence, without

objection. The Petitioner adduced the testimony of witnesses, Selinda J. Keyes,

Sarah Cunningham Harper, Mirta Martinez, Carolyn Bishop Stone, Mildred H.

Marshall, and Susan Van Brunt Joseph. The Respondent cross- examined the

Petitioner's witnesses; however, she presented no witnesses or exhibits. After

the hearing, the parties obtained a transcript of the proceeding and agreed upon

an extended briefing schedule, concomitantly waiving the requirements of Rule

28-5.402, Florida Administrative Code. Thereafter, proposed findings of fact

and conclusions of law in the form of Proposed Recommended Orders were filed by

the parties. The proposed findings of fact in those pleadings are treated in

this Recommended Order and, again, specifically, in the Appendix attached hereto

and incorporated by reference herein.

FINDINGS OF FACT

1. The Respondent, Rita E. Strauss, is a certificated and tenured teacher

pursuant to the pertinent provisions of the Act cited above. The Respondent has

been in the employ of the Board at all times pertinent hereto. Her most recent

school assignments have been to Long Branch Sixth Grade Center and Holiday Hills

Elementary School, in Duval County, Florida.

2. The Board is, for purposes of this proceeding, an agency of the State

of Florida charged, as pertinent hereto, with regulating and enforcing the

Teacher Employment and Practice Standards embodied in the Act cited above.

3. Elementary school counsellors situated as the Respondent are

responsible for counselling students and consulting with parents and teachers

regarding progress problems and potential problems and related matters

concerning counselled students or students recommended for counselling.

Counsellors must coordinate counselling-related special services with the

Board's staff and other county agencies and parents. Counselling activities

involve counselling individual students and small groups of students, as well as

providing guidance for students in the classroom situation. A guidance

counsellor is also charged with being the organizational agent at the school for

the Child Study Team ("CST"). The counsellor's duties are specifically set

forth in Exhibit B in evidence, the job description for elementary school

counsellors of the Board.

4. Counsellors are allowed to select their own guidance materials. They

are not limited by the Board, except that materials must be appropriate for the

age level of students to which the materials are presented. The specific duties

of a counsellor vary from one school to the other depending upon the particular

need of the school, its students, and the principal's direction concerning the

emphasis of the counselling effort. It is important that counsellors spend a

certain amount of time with students in the counselling effort. Florida law

mandates that counsellors spend 75% of their time in direct contact with

students. This time must be documented through logs required to be kept by

guidance counsellors. Classroom guidance is also a valid and required part of

an elementary counsellor's role. Guidance counsellors are not considered to be

performing their job adequately if classroom guidance sessions are not

conducted. They are expected to know how to make a classroom guidance schedule

and are expected to be able to and carry out the organization of a planned

program which they must disseminate to all instructional and other pertinent

staff members in the school so that teachers and administrators are aware of

their present and proposed counselling activities.

5. The CST is a committee involved in placing students in special

education programs. This involves testing, parental contact, and consideration

of and carrying out of "interventions" and observations. This is considered by

the Board to be an important part of a counsellor's job, as well as the

individual counselling, small group counselling, and classroom guidance. All of

these duties are included in Exhibit B, a counsellor's job description.

6. Ms. Selinda Keyes was the Principal at Long Branch Sixth Grade Center

from 1984 through 1989. She had been an employee of the Board since 1972. She

holds a bachelor's degree, as well as a master's degree and is certified in

guidance, as well as in educational leadership. In addition to her other

experience with the Board, she served as an elementary school guidance

counsellor, herself, for five years. Ms. Keyes first came into contact with the

Respondent in 1984, when Ms. Keyes began her principalship at Long Branch. The

Respondent was already serving as a guidance counsellor at that school when Ms.

Keyes arrived.

7. A guidance counsellor's duties at Long Branch included gathering

materials for the CST, helping in the articulation of students, setting up

individual counselling sessions, assisting teachers, having interventions for

students, assisting the parents in helping students with problems, and assisting

the students, themselves.

8. Between 1984 and 1988, Ms. Keyes noted a decline in performance level

from the Respondent. In August of 1988, on the Respondent's annual evaluation,

Ms. Keyes evaluated the Respondent as performing inadequately. Ms. Keyes met

with the Respondent at the beginning of the 1988-89 school year to review

specific improvements that Ms. Keyes expected the Respondent to make during the

upcoming year. Exhibit E in evidence encompasses the recommendations which Ms.

Keyes made to the Respondent in this regard. Among other items, Ms. Keyes felt

that the Respondent needed to communicate in an appropriate and professional

manner to administrators and other school personnel. Ms. Keyes also recommended

that the Respondent do a better job at maintaining accurate written records and

in maintaining positive professional relations and interactions with school

personnel at all times, which had been an observed problem in the past. Ms.

Keyes met with the Respondent once again on September 9, 1988 to reiterate the

areas of the Respondent's performance which needed improvement and to give her a

written memorandum concerning the need for these improvements and detailing what

the improvements were to be.

9. In spite of these conferences and written directives, which included

the requirement of better preparation for the activities and operations of the

CST, Ms. Keyes observed that on September 20, 1988, when she met with the

Respondent, that the Respondent was not yet prepared for the CST activity

scheduled for September. Ms. Keyes met with the Respondent on September 21,

1988 to discuss the Respondent's inappropriate methods of communications with

teachers. During that conversation, the Respondent became extremely angry and

told Ms. Keyes to "get off her back" and that Ms. Keyes was making her "sick".

Shortly thereafter, the Respondent went to Ms. Keyes' office unannounced,

slammed the door in a hostile manner, and addressed Ms. Keyes by saying "kiss my

butt". She then threatened Ms. Keyes by saying "I will sue you. Just go ahead

and fire me and I will sue you and I will start a company".

10. The CST met on September 27, 1988. The Respondent was unprepared for

the meeting and did not have the correct documents prepared to present to the

CST despite Ms. Keyes' multiple efforts to see that that duty was performed.

11. On September 28, 1988, Ms. Keyes telephoned the Respondent to find out

why she had not attended the school's open house the evening before. During

this conversation, the Respondent told Ms. Keyes that she did not want to hear

anything that Ms. Keyes had to say and hung up the telephone on Ms. Keyes. A few

minutes, the Respondent stormed into Ms. Keyes' office and slammed the door.

Standing in front of Ms. Keyes' desk, the Respondent turned sideways, pointed to

her posterior, and told Ms. Keyes to "kiss my butt". The Respondent was quite

angry and left Ms. Keyes' office, slamming the door behind her, and then opened

the door and stated "hit me, hit me, just go ahead and hit me".

12. Ms. Keyes then arranged to meet with the Respondent on October 3, 1988

to discuss the Respondent's unprofessional and erratic behavior of September 28,

1988. Ms. Keyes presented the Respondent with a memorandum dated September 28,

1988 regarding the Respondent's inappropriate behavior. See Exhibit F in

evidence. The memorandum warned the Respondent that her demonstrated lack of

respect for authority and display of hostility was considered insubordination

and would not be tolerated. The Respondent refused to sign a receipt for the

memorandum and, instead, retorted that she would not read it and did not want to

hear it. The Respondent then stated "go ahead and hit me, hit me, and I will

hit you back". The Respondent then stormed out of Ms. Keyes' office, once

again, slamming the door behind her.

13. Because of the continuing nature of this sort of behavior, Ms. Keyes,

on October 5, 1988, arranged for the Respondent to meet with Ray Bailey, the

Director of Personnel for the Board. When Ms. Keyes met with the Respondent to

arrange the meeting, the Respondent told Ms. Keyes that there was no sense in

talking with Mr. Bailey because she had not done anything wrong. The Respondent

then stated that she was "just going to lie because he was a friend of Ms. Keyes

and that she was not going to tell the truth". The Respondent continued by

saying "I will sue you, just fire me and I will sue you and get money and just

be able to sit at home". During this same meeting, Ms. Keyes brought to the

Respondent's attention that she had given inaccurate information to a student's

mother regarding the CST.

14. On October 7, 1988, Ms. Keyes inquired of the Respondent to see if she

had kept the appointment with Mr. Bailey. The Respondent had not done so and

had, thus, refused to follow Ms. Keyes' direction in this regard. During this

same meeting, Ms. Keyes, again, gave the Respondent guidance on how she should

improve her performance. On that same day, Ms. Keyes also counselled with the

Respondent regarding her claimed illness. Ms. Keyes, once again, encouraged the

Respondent to get medical attention if she felt that she needed it.

15. From October, 1988 through January, 1989, Ms. Keyes observed no

improvement in the Respondent's poor performance, including her failure to keep

an adequate daily log of her activities, after being directed to do so by Ms.

Keyes. On January 10, 1989, Ms. Keyes met with the Respondent, once again, to

determine if she had done required follow-up work regarding a student named

Jovan Scott, which the Respondent had not done. This resulted in the student

being denied required mental health services for some two weeks.

16. On January 26, 1989, Ms. Keyes observed the classroom guidance session

conducted by the Respondent. In that session, the students were observed to be

noisy, not listening to the presentation, and not keeping on task. When Ms.

Keyes later discussed the poor guidance session with the Respondent, the

Respondent explained that the class went poorly because the "kids were bad" and

they would not listen because they were "bad". The Respondent also stated that

she was in a "bad" school and that the children were "bad kids", they were too

old, and that she needed to work with younger kids in a better school.

17. On January 31, 1989, Ms. Keyes met with the Respondent to evaluate the

Respondent's performance as a guidance counsellor for the 1988-89 school year at

the Long Branch School. Exhibit G in evidence reflects the inadequate

performance of the Respondent. Among other things, Ms. Keyes instructed the

Respondent to improve her demeanor toward teachers, to show concern for students

and parents, to present and maintain accurate CST records, to keep an adequate

daily log, to attend counsellor workshops, and to assist in sharing the total

responsibility of the school toward the students. Also, on this date, Ms. Keyes

inquired of the Respondent concerning whether she had been attending the Board's

"in service" training sessions for guidance counsellors, as she was required to

do. The Respondent indicated that she did not attend those meetings because she

knew all of the material and that there was no need for her to go.

18. Ms. Keyes observed other poor performance examples on the part of the

Respondent during the 1988-89 school year, which included the Respondent's

failure to give adequate information to teachers, her refusal to use a variety

of counselling techniques, and her inability to communicate and relate to

students, as well as the failure to adequately develop and convey information to

students. Her individual counselling techniques were inadequate. She would see

individual students for an excessive period of time, as much as two or three

hours. In that time period, she would allow them to play with toys or other

materials in the classroom and would send them on errands instead of conducting

counselling as she was supposed to do. During the 1988-89 school year, Ms. Keyes

observed numerous classroom guidance sessions run by the Respondent. In those

sessions, she observed that the students consistently failed to pay attention or

stay on task. The Respondent would praise them inappropriately for

inappropriate behavior and was observed to be unable to control their behavior.

19. In collecting information for the CST, as she was charged to do, the

Respondent would discourage teachers from requesting testing for students,

saying "it's a lot on me, I have a lot to do, don't refer this child". Despite

the Respondent's discouragement of referrals, approximately 80 students were

processed through the CST concerning counselling during that school year. On

the average, one out of every ten "packets" concerning students for the CST

would be incomplete. The Respondent was responsible for preparing these

packets. It was her duty to make sure that the information in the packets was

complete. Throughout that school year, the Respondent frequently forgot or

failed to observe deadlines and other important dates which she was required to

observe. The Respondent failed to complete important assignments which she had

concerning her other duties. She was observed to be unable to select and

effectively direct the activities of teachers regarding testing, the SAT

program, and concerning the EST and CST packets.

20. In summary, it was established, through Ms. Keyes testimony, which was

unrefuted, that the Respondent was an ineffective guidance counsellor during the

1988-89 school year at the Long Branch School. Her final performance evaluation

or review for that school year reflected her poor performance by her receiving

an unsatisfactory rating.

21. The Respondent's job duties', while she was at the Long Branch School,

included ordering the standard achievement tests ("SAT") for the school. She

was never authorized, however, to order a first-grade SAT. Ms. Keyes

discovered, however, that on April 25, 1989, the Respondent had in her

possession the answer key and student manual to a Form E first-grade SAT. The

next day, on April 26, 1989, Ms. Keyes discovered that the Respondent also had a

teachers manual for the first-grade SAT. When questioned by Ms. Keyes as to why

she had these materials in her possession, the Respondent stated that she had

ordered them "just in case". Ms. Keyes questioned the other teachers and

confirmed that no one else had requested a first-grade SAT.

22. Ms. Mirta Martinez is employed as a first-grade teacher at Parkwood

Heights Elementary School. Carl Strauss is the Respondent's son. Ms. Martinez

was Carl's first-grade teacher during that 1988-89 school year. During the

1988-89 school year, Carl had done poorly academically; and Ms. Martinez had

sent scholarship warnings home to his parents, Mr. and Mrs. Strauss, as well as

a letter indicating than he might be retained in the first grade the following

year. The Form E SAT was given by Ms. Martinez to her class on April 24, 1989.

Carl Strauss' performance was much better than Ms. Martinez expected, judging

from his prior academic performance in her class. On April 25, 1989, Ms.

Martinez noticed Carl sitting in the front of the classroom. As she gave the

test, she noticed that he was going ahead of her and answering questions which

she had not yet read aloud to the class. When she cautioned him that he should

slow down, he said that the test was easy and that he knew all of the answers.

Indeed, Carl did very well on the Form E SAT he took on those dates. He scored

in the 58th percentile, which was much better than his classroom performance

would indicate he could do. Later, he was given a Form F SAT, which is of the

same difficulty level, is designed for first graders and tests the same

information but simply with different questions. On this test, Carl did much

worse. He scored in the 37th percentile, which performance was consistent with

that to be expected, judging from his past classroom academic work. A drop of

20 percentile points is unusual in SAT scores from one test to the next.

Students usually have fairly constant scores on the various areas tested

throughout their school career, with perhaps as much as a 10 percentile point

differential at most.

23. This situation was brought to the attention of the appropriate

supervisory personnel with the Board; and ultimately, the Respondent was

disciplined by the Florida Department of Education, Education Practices

Commission, which found that she had supplied her son with answers to the first-

grade SAT in question. After making this determination, the Education Practices

Commission reprimanded the Respondent with an official letter of reprimand, in

evidence as Exhibit GG.

24. Dr. Sarah Cunningham Harper holds a bachelor's degree from the

University of Central Florida in psychology. She has a master's degree from the

University of Central Florida in counselling and a doctorate from Nova

University in educational leadership. She testified on behalf of the Board in

this proceeding. Her experience includes classroom teaching, as well as

guidance counselling for eight years. She then became a resource counsellor for

the Board and was later promoted to be a supervisor for guidance counsellors for

the Board. She provided resources for guidance counsellors, giving them

materials they needed in order to adequately perform their duties.

25. Dr. Harper first met the Respondent at Long Branch School in

September, 1988. She met with the Respondent and Ms. Keyes, together, and later

with the Respondent alone. Dr. Harper reviewed the resources available to the

Respondent and gave her additional suggestions regarding material she might use

in her duties. Dr. Harper further arranged specific training for the

Respondent, involving meeting with two other guidance counsellors to get ideas

as to how a guidance counsellor could effectively operate in the classroom.

Further, Dr. Harper gave the Respondent suggestions on how to feel better about

her duties and employment situation and referred her to Suni Peterson, with the

Employee Assistance Program of the Board. She also suggested that if the

Respondent was feeling physically ill, she should consider taking sick leave.

Dr. Harper documented this meeting with the Respondent and sent her a copy of

the document outlining recommendations for improvement.

26. Dr. Harper also encouraged the Respondent to attend the Professional

Staff Development Program which the Board furnished for guidance counsellors.

These workshops were held once a month. In the 1988-89 school year, 37 hours of

in-service training was, thus, offered to guidance counsellors. The Respondent

apparently never attended any of these sessions. Dr. Harper never saw her

attend nor did she sign in at any of the workshop sessions, which would indicate

her attendance if she had done so. Dr. Harper then followed up on the matter to

see if the Respondent had met with either Ms. Cobb or Ms. Converse, the guidance

counsellors whom she had suggested that the Respondent meet with to obtain ideas

about more effective counselling operations in the classroom. The Respondent

had never met with Ms. Converse and did not meet with Ms. Cobb until the second

semester of the 1988-89 school year.

27. Exhibit J in evidence reflects Dr. Harper's attempts to help the

Respondent. This included the day the Respondent spent observing another

elementary guidance counsellor and arranging for a district-level counsellor to

work with the Respondent.

28. Dr. Harper met with the Respondent again in January of 1989. At that

time, Dr. Harper reviewed what the Respondent had accomplished from September,

1988 through January, 1989. Dr. Harper found that the Respondent's log was

totally disorganized and that she had no organized calendar nor documentation of

student counselling. At this meeting, the Respondent continued to complain

about Long Branch, stating that the school was making her ill and that she was

being unfairly treated by Ms. Keyes. Dr. Harper, once again, encouraged the

Respondent to take time off if she felt it to be necessary. Dr. Harper also

reminded the Respondent to be a "team member" since that was an important part

of the functions of a guidance counsellor.

29. In a letter dated April 25, 1989, the Respondent was notified that

since she had received an unsatisfactory evaluation, she had a right to transfer

to another facility. She was also put on notice that her employment with the

Board would be terminated if her performance did not rise to a satisfactory

level within the next school year. See Exhibit C in evidence.

30. Consequently, in the 1989-90 school year, the Respondent was

transferred to Holiday Hill Elementary School ("Holiday Hill"). It is a smaller

elementary school, with approximately 500 students.

31. At the beginning of that school year, Dr. Harper met with the

Respondent and Ms. Marshall, the Principal of Holiday Hill, to discuss the

guidance program at that school. Exhibit K in evidence demonstrates the

counselling duties that the Respondent was expected to accomplish at Holiday

Hill. That evidence is unrefuted and is accepted. The Respondent was to

present classroom guidance lessons from 2:00 p.m. to 3:15 p.m. each day, to

supervise the Student Council, to supervise the Star Student Program, to

organize Career Days, to attend all CST meetings, to counsel individual

students, to be prepared for grief counselling for students, and to counsel with

students and bus drivers regarding "bus referrals". Both Dr. Harper and the

Respondent agreed that these were legitimate guidance counsellor functions.

32. Dr. Harper was convinced that Holiday Hill had made a commitment to

have a strong guidance program and that this was a good opportunity for the

Respondent to use her talents and to show her skills as a counsellor. Dr.

Harper inspected the facilities that the Respondent was to use and determined

them to be adequate.

33. Dr. Harper stressed to the Respondent that she was to attend in-

service training during the 1989-90 school year. However, at the very next in-

service training, which started at 8:00 a.m., the Respondent did not arrive

until 9:30 a.m. and indicated that she wished to leave at 10:30 a.m. Toward

the end of September, 1989, Dr. Harper went to Holiday Hill to check on the

Respondent's progress. Once again, the Respondent complained about her

situation at that school and about a lack of supplies. The Respondent also

complained that she had to do cafeteria duty. Dr. Harper pointed out to her that

this would be a good opportunity for her to visit with students. Dr. Harper

also conversed with the Respondent about meeting with Marianne O'Donnell,

another counsellor, to receive training from her on the use of a guidance tool

known as "Penelope Mouse". Dr. Harper, at this September meeting, asked the

Respondent if she had prepared a classroom schedule. The Respondent stated that

Ms. Marshall had not approved the schedule which the Respondent had presented to

her and that it was being revised. The school had already been in session for

five weeks at that point.

34. Exhibits Z and DD, in evidence, represent guidance activities which

the Respondent presented to kindergarten students at Holiday Hill during the

1989-90 school year. Dr. Harper found that Exhibit Z was not an appropriate

counselling activity for a kindergarten-age student. The level of the material

in that Exhibit is beyond a kindergarten-age student's comprehension level. It

was inappropriate even as a coloring tool because the designs to be colored by

the student were too complicated for a kindergarten student. Dr. Harper also

established that Exhibit DD was an inappropriate counselling tool for

kindergarten or first-grade students. The "Seals Guidance Program" was a

supplementary guidance program and should not be used alone.

35. Dr. Harper also reviewed a counselling session that the Respondent

described concerning a student whose mother was an alcoholic. Dr. Harper

established that the Respondent's counselling technique for such a situation was

inappropriate. Dr. Harper also established that it is inappropriate to have a

student sit in an individual guidance counselling session and not converse with

the student. A counselling session should be a learning situation and involve

an exchange of ideas between the counsellor and the student, with both persons

conversing and interacting together. Dr. Harper established that it is

inappropriate to use counselling as a gossip session and that it is

inappropriate to keep an individual in a counseling session for one or more

hours. An individual counselling session should last no longer than 30-35

minutes. The Respondent conducted counselling sessions in the inappropriate

manner described above by Dr. Harper.

36. Ms. Carolyn Bishop Stone is employed by the Board and has been for 22

years. She is Supervisor of Guidance Services. Ms. Stone assumed this position

when Dr. Harper left the Board. Ms. Stone's experience includes elementary

school teaching and elementary school guidance. She has a bachelor of science

degree in elementary education and master of art's degree in counselling, with a

specialty in school psychology. Ms. Stone is presently a doctoral student in

educational leadership. She serves as a resource person for guidance

counsellors for the Board.

37. Ms. Stone first met the Respondent on January 23, 1990 because her

Principal, Mildred Marshall, had indicated that there were some problems with

the Respondent's performance. Ms. Stone arranged with the Respondent to observe

a classroom guidance session conducted by the Respondent. The Respondent

selected a kindergarten class guidance session to be observed by Ms. Stone on

January 25, 1990.

38. In observing this classroom guidance session, Ms. Stone noted that the

Respondent used no management techniques to get the kindergarten students

focused on the lesson. It took five minutes to get the class under control, and

the Respondent then began the lesson by using a handwritten 8"x10" piece of

paper on which she had written the term "citizenship" and included a definition

of "citizenship", which apparently came from a dictionary. It was in small

print and written in crayon and trailed off the paper and was not legible to the

students because it was not large enough for them to see at the distance at

which it was presented to them. There were too many words on the paper and it

was beyond the language level of kindergarten students.

39. Ms. Stone observed that the lesson taught by the Respondent was above

their readiness or comprehension level. According to Ms. Stone, the lesson

deteriorated from the beginning. The Respondent spoke in a soft monotone, and

the students clearly were not understanding the lesson and were not maintaining

their attention. The Respondent did not demonstrate that she knew how to keep

the students' attention. The Respondent failed to give the students a response

to their own statements or expressed ideas concerning the lesson material nor to

enlarge on what the students were saying in order to make the lesson more

understandable.

40. This verbal part of the session took only a few moments. The

remainder of the lesson consisted of handing out an 8"x10" "ditto sheet", with

12 seals on it, which the students used as a design for coloring. This was

shown to be inappropriate for this age level since the items on the page were

too small for them to be able to color with their level of eye/hand coordination

and manual dexterity. The Respondent failed to explain to the students how the

seals related to the concept of "citizenship". At that point, Ms. Stone

circulated through the class and spoke to some students, which confirmed her

suspicion that the children did not understand what the lesson was about. There

was approximately five minutes of attempted teaching of the lesson and 20

minutes of coloring. In Ms. Stone's view, as one highly trained in appropriate

guidance counselling and teaching techniques, the classroom guidance session

which she observed conducted by the Respondent was totally inadequate.

41. This was especially disturbing to Ms. Stone considering that the

Respondent had had 10 or 11 years of counselling experience at that point.

After the classroom session was over, Ms. Stone counselled the Respondent

concerning the observed weaknesses in her lesson and presentation. Ms. Stone

also pointed out some resources available to the Respondent to improve her

performance. Ms. Stone further informed the Respondent that she would be

willing to visit the Respondent again and to help her in any way. Ms. Stone

followed up on this offer with a letter reiterating that willingness to help the

Respondent. Ms. Stone also informed the Respondent that developmental guidance

books at the guidance office were available for her use. Lastly, Ms. Stone

offered Ms. Strauss another guidance counsellor to assist her in improving her

counselling techniques. She never took advantage of this offer. Indeed, the

Respondent never contacted Ms. Stone for any further assistance. Ms. Stone

never visited the Respondent at Holiday Hill after that meeting since she made

it clear that she was available to her any time she needed assistance. Ms.

Stone did not want the Respondent to perceive that any of her actions

constituted harassment; therefore, instead of repeatedly going to visit with the

her, she simply left the door open for the Respondent to meet with her or seek

assistance any time the Respondent felt it necessary. However, Ms. Strauss

never requested any further assistance from Ms. Stone.

42. Mildred Marshall has been the Principal of Holiday Hill for 18 years.

Before becoming a principal, she was a teacher for 12 years in the elementary

school system. She has both a bachelor of art's degree and a master of science

degree. She has been employed by the Board for a total of 39 years. The

Respondent was assigned to Holiday Hill for the 1989-90 school year, with Ms.

Marshall being aware of her less-than-satisfactory evaluation concerning her

performance the year before at Long Branch. Being mindful of this, Ms. Marshall

promulgated a list of duties which she expected the Respondent to perform while

at Holiday Hill. Exhibit K in evidence is the written list which Ms. Marshall

gave to the Respondent before the school year started. The list included, among

other duties, supervising the Student Council, checking fifth grade cumulative

folders at the end of the year, counselling with individuals, counselling with

students who were receiving bus referrals, working with the Star Student

Program, giving grief counselling to students, and counselling bus drivers about

bus referrals. Ms. Marshall informed the Respondent that she expected her to

improve in those areas of her duties and responsibilities which had been rated

unsatisfactory the previous year. This memorandum constituted Ms. Marshall's

plan of assistance for the Respondent for that ensuing school year. Exhibit M

in evidence reflects that Ms. Marshall had reviewed each item of the July 3rd

memorandum with the Respondent. The Respondent appeared to understand Ms.

Marshall's directions to her during this conference.

43. Upon the commencement of that school year, Ms. Marshall immediately

had problems with the Respondent's performance, particularly involving her

failing to schedule classroom guidance sessions and failing to go to classrooms

to conduct guidance sessions. The Respondent was expected to counsel 15 classes

on a rotating basis. The classroom teachers relied on the Respondent coming to

the classroom and reserved portions of their days for her lessons. However, the

Respondent failed to set up a teaching schedule for these classroom guidance

sessions. Although Ms. Marshall informed the Respondent that she needed to be

in the classrooms between 2:00 p.m. and 3:15 p.m., after six weeks of the school

year had passed, as shown by the October 8th memorandum to the Respondent from

Ms. Marshall (Exhibit O in evidence), the Respondent still had not formulated a

classroom guidance schedule.

44. On September 27, 1989, Ms. Marshall gave a memorandum to the

Respondent (Exhibit N in evidence) admonishing her about her failure to submit a

log to Ms. Marshall concerning how she spent her time and enumerating the

children she had counselled. Additionally, before the school year started, Ms.

Marshall had informed the Respondent that she needed to personally inform Ms.

Marshall of any absences. In spite of this, the Respondent continued to be

absent and not to report to Ms. Marshall of her intent to be absent.

45. In October, 1989, Ms. Marshall gave the Respondent an early evaluation

which reflected that her performance was unsatisfactory and declining. Ms.

Marshall and the Respondent met on November 1, 1989. In that meeting, Ms.

Marshall pointed out to the Respondent the problems she was having with the

Respondent regarding her failure to conduct classroom guidance sessions, her

unnotified absences, her missed in-service guidance training sessions, and her

failure to attend the "planning day". Ms. Marshall informed the Respondent that

she was not meeting the needs of the teachers and students at the school. From

August until November of 1989, the Respondent had still not inaugurated and

followed a classroom guidance schedule. Exhibit R in evidence, for example,

reflects the problems that a kindergarten teacher was having in getting the

Respondent to come to her classroom for guidance sessions. By November 2, 1989,

the Respondent had still not gone to Ms. Dees' classroom for any guidance

sessions. When Ms. Marshall counselled the Respondent about this, the

Respondent continued to have excuses such as "I didn't know I was supposed to be

there" or "I was on my way there". The very next week, the Respondent missed a

classroom guidance session scheduled for Ms. Dees' class.

46. Exhibits T and V in evidence reflect the November 30th classroom

guidance session, which Ms. Marshall observed the Respondent give. Ms. Marshall

observed that the Respondent was ineffectual in getting control of the students

and getting them to be quiet so they could get the benefit of her lesson. This

was to be a lesson where children used crayons; however, one entire table of

students had no crayons, and it took her a substantial period of time to notice

that. The Respondent did not gain the students' attention and constantly had to

admonish them to stop talking. It was not an effective guidance session. The

Respondent indiscriminately praised students for inappropriate responses and

screamed at the children to "quit talking!". The children ignored this approach

and continued to talk and were off task and out of control during this classroom

guidance session. The elementary teachers at Holiday Hill complained about the

fact that when they came into their classrooms after one of the Respondent's

guidance sessions, the children were out of control.

47. Additionally, the Respondent was unable to effectively operate the

Student Council Program, which was one of her duties. During 1989-90, a child

in the Student Council Program appeared to be running the program instead of the

Respondent. The Respondent also was ineffective in operating the Star Student

Program. The Respondent complained that working with Student Council and

conducting the Star Student Program was not a part of her counselling job, in

her view. Consequently, Ms. Marshall relieved her of those responsibilities and

encouraged the Respondent to make a career change if she felt that that would be

helpful.

48. The Respondent used a room for her counselling activities, where the

extended day-care material, such as toys, "Play Doh" and the like, were kept.

Instead of counselling, she allowed her counselling students to play with toys

and other supplies. She also allowed students to return to their classrooms

unescorted. This caused disruption when the children would run up and down the

hall and posed a potential risk to the students, themselves, since many of them

were emotionally handicapped. The Respondent continued to fail to escort

children back to their classrooms, as reflected by Exhibit Y in evidence. The

Respondent, on occasion, would leave children alone and unsupervised in her

classroom while she went to eat lunch. It is never appropriate to leave a

student unattended at the elementary level, especially without telling the next-

door teacher to supervise the children. The Respondent was observed, on those

occasions when she would escort children to her counselling session, to go to

the door of the teacher's classroom and just yell across the room to get the

child to come with her. In so doing, she would disrupt the teacher's lesson.

49. Finally, these problems culminated in a written warning issued to the

Respondent from Ms. Marshall in evidence as Exhibit X. Ms. Marshall thereby

informed the Respondent that she would get an unsatisfactory evaluation for the

1989-90 school year unless her performance improved.

50. Ms. Marshall observed a number of classroom guidance sessions

conducted by the Respondent. In those sessions, the Respondent never had

control of the classroom, failed to communicate effectively with the children,

was unable to integrate the lesson to the group as a whole, and was unable to

adjust the guidance lesson to the correct learning level of the students.

Exhibit Z in evidence is a communication from a kindergarten teacher regarding

an inappropriate counselling lesson which the Respondent had given to her

kindergarten students. Ms. Marshall had informed the Respondent on a number of

occasions that other more appropriate counselling materials were available for

her use. This included a "DUSO kit" with puppets. Ms. Marshall encouraged the

Respondent to use the media center, as well, and to use some of the other

materials available. The Respondent never incorporated any other counselling

materials or plans suggested to her into her counselling lessons. In the

Respondent's end-of-the-year evaluation given on February 14, 1990, she was

rated unsatisfactory.

51. From mid August, 1989 to April, 1990, when the Respondent left Holiday

Hill, she was able to accomplish only one of the expectations she was told to

accomplish at the beginning of that school year. This was the educational

evaluation of children in the school. The Respondent failed to coordinate or

organize a Career Day, so that none was held at Holiday Hill during the 1989-90

school year, in spite of the fact that prior to the beginning of the school

year, she had been informed that that was one of her duties. Her performance on

the CST was also poor. Her observations concerning students was very topical

and shallow and, consequently, was not helpful or effective. She also failed to

give grief counselling, to handle school bus referrals or to counsel bus drivers

concerning referrals during the 1989-90 school year, although that was part of

her duties. She failed to use the "seals program" appropriately and effectively.

It was designed to be a part of her counselling program and not the total

emphasis of the program. Additionally, during the 1989-90 school year, the

Respondent, in handling a child abuse case, called the Department of Health and

Rehabilitative Services and reported the child abuse, the child and parent, and

the home address to the Department. In fact, she reported the wrong child and

the wrong parent and wrong home address to HRS. The parent who was falsely

reported understandably was extremely upset. When questioned about this

incident, the Respondent indicated simply that "Well, the rolodex flipped" as

the reason for giving the wrong name, address and telephone number to HRS.

52. Ms. Susan Joseph is an elementary school teacher at Holiday Hill. She

has been there 11 years and employed with the Board for 17 years. She was a

primary resource teacher during the 1989-90 school year. She holds a bachelor

of science degree and a master of science degree in elementary and early

childhood education. She first met the Respondent during that school year.

They shared a room at Holiday Hill. The room was a regular-size classroom,

approximately 30' by 30', with a sink, water fountain, and bookshelves. It was

divided in half by a tall bookcase and "cubbies" or compartments for the

students to place their materials and books in. Since this divider did not

extend either to the ceiling or to the back wall of the room, Ms. Joseph could

observe what was occurring on the Respondent's side of the classroom.

53. Ms. Joseph observed that the small group counselling sessions

conducted by the Respondent were frequently out of control. They were noisy and

disruptive, with children running around the room, pushing, shoving, and

shouting. The Respondent had no control of her students. Ms. Joseph would go

to the Respondent's side of the classroom and take control of her students.

Because of the Respondent's inability to control her students, Ms. Joseph began

scheduling her time with her students at a time other than during the

Respondent's small-group counselling sessions. The Respondent's disciplinary

measures generally consisted of loudly and ineffectively shouting "shut up, shut

up, or you will have to go back".

54. Ms. Joseph also observed that the Respondent's general technique in

small group counselling sessions was to write the lesson on the chalkboard in

cursive writing. This is inappropriate since cursive writing is not taught to

the students until the third grade in Duval County. The students involved had

not yet achieved the third-grade level. The Respondent's technique would be to

read the objective on the board, then hand out drawing paper, and have the

students "draw the topic". After the students finished drawing, the class would

become disruptive. The Respondent was observed to use the same "methods whether

the children were in kindergarten or in fifth grade. This is inappropriate

because of the different levels of learning for elementary school children. Ms.

Joseph never observed the Respondent conduct a discussion session with the

children that would integrate the lesson she had written on the chalkboard so

that they could comprehend it.

55. Ms. Joseph also observed an inappropriate lesson, whereby the

Respondent asked second-grade students to draw a picture of what their last wish

would be if they ware going to die in a few days. In Ms. Joseph's experience,

this is an inappropriate topic unless there has been a death and grief therapy

is going on. This session and the group of students involved was not undergoing

grief therapy. The only follow-up discussion concerning this topic was when one

of the students asked what they would die of, and the Respondent informed them

"cancer" or "AIDS" as an example. The Respondent simply never communicated any

counselling concept to the students with regard to this session and topic.

56. Ms. Joseph also observed the Respondent allowing her counselling

students to play with extended day-care materials during counselling sessions,

including coloring books, lego toys, and play doh. This was allowed to occur

instead of counselling being delivered to the students. The Respondent would

simply sit at her desk on these occasions while the students, individually,

played with the toys. No counselling took place during these sessions. Ms.

Joseph also observed the Respondent accuse students of lying or stealing paper.

She found these interactions between the Respondent and her students

inappropriate.

57. Ms. Joseph observed some individual counselling sessions conducted by

the Respondent. These counselling sessions amounted to no more than a gossip

session, with discussions about their weekend plans or talking about other

students and their mothers or other students' attire. In particular individual

counselling sessions, Ms. Joseph observed the Respondent sitting at her desk

doing nothing while the children were playing with extended day-care materials,

which had no relationship to the counselling session, and engaging in no

dialogue between herself and her students. In particular, Ms. Joseph recalled a

student, Sarah Williams, engage in individual counselling sessions with the

Respondent. Sarah, a third-grade student, came in for three or four days

consecutively for four to five hours each day. Sarah would run errands for the

Respondent, write on the chalkboard, play with materials, or just gossip with

the Respondent. Ms. Joseph informed Ms. Strauss at the time that she felt that

this was inappropriate as a counselling method.

58. Near the end of September, 1989, when Ms. Joseph attempted to help the

Respondent devise a classroom guidance schedule, she found that she did not

understand it, after Ms. Joseph explained it to her. Consequently, at times

when the Respondent was scheduled to be in the classroom, she did not arrive and

could not be found. Ms. Joseph also observed the Respondent leave students

unattended in the classroom. Ms. Strauss did not inform Ms. Joseph at the time

that she would be out of the classroom on these occasions.

59. In summary, from September, 1989 through April, 1990, Ms. Joseph, in

effect, witnessed disorganized, disruptive and ineffective counselling

performance from the Respondent. The Respondent had little control of her

students and was unable to conduct an effective guidance lesson with either

small groups or individuals.

CONCLUSIONS OF LAW

60. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes (1989).

61. The Petitioner herein seeks to dismiss the Respondent for cause, as

that is defined in the Act, cited hereinabove. The Act provides that teachers

employed by the Board may be discharged or demoted for the following reasons:

Section 4. Causes for the discharge or the

demotion of a teacher shall be:

(a) immoral character or conduct,

insubordination or physical or mental

incapacity to perform the duties of the

employment....

(c)...refusal or inexcusable failure to

discharge the duties of such employment....

(e) professional incompetency as a

teacher...

62. It is the Petitioner's burden to prove, by a preponderance of the

evidence, that the Respondent is guilty of the charges alleged. See, Ferris v.

Turlington, 510 So.2d 292, 294, n.2 (Fla. 1987). While the standard of proof in

a license revocation case is clear and convincing evidence, the termination of

employment only requires proof by a preponderance of the evidence. Ferris v.

Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); South Florida Water Management

District v. Caluwe, 459 So.2d 390 (Fla. 4th DCA 1984).

Professional Incompetence

63. Section 4(e) of the Act provides that when professional incompetency

is the basis for discharging a teacher, certain requirements must be met. These

requirements include giving the teacher a clear and detailed statement on which

the claim of incompetency is based, giving at least one opportunity to transfer

to a new school, giving one year (during which an opportunity of specific in-

service training will be given to correct alleged deficiencies). Further, the

Act provides that the teacher "shall cooperate in undergoing specific in-service

training". These prerequisites were met in this case, as shown by the unrefuted

evidence culminating in the above Findings of Fact.

64. On April 25, 1989, the Respondent was put on notice by the Petitioner

that unless her performance improved, she would be dismissed as a teacher with

the Board. She was offered the opportunity to transfer to another school in

this same letter. See Exhibit C in evidence.

65. During the 1989-90 school year, the Respondent was given specific

instructions from Ms. Marshall regarding her new duties, was given the

opportunity to attend in-service training sessions, and was personally assisted

by both Dr. Harper and Ms. Stone in their attempts to help the Respondent

improve her performance. The Respondent, however, failed or refused to avail

herself of the training opportunities which were repeatedly offered to her.

66. Although the Board has not formally defined "professional

incompetency", "incompetency", as defined in the Florida Administrative Code,

has been accepted as persuasive in determining incompetency under the Act. See,

School Board of Duval County v. Kirby Smith, DOAH Case No. 89-4132 (August,

1990). Rule 6B-4.009, Florida Administrative Code, provides:

(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.

67. Chapter 6B of the Florida Administrative Code also 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 in sequence

instructional materials and activities far

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.

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

provides as follows:

The educator, commensurate with job

requirements 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.

These rules have been interpreted by a number of decisions which provide

examples of the sort of behavior or teaching characteristics which provide

evidence of incompetency. In Turlington v. Reaves, 9 FALR 1371 (1986), it was

found that giving assignments without proper explanation of the assignment

contributed to a finding of incompetency in the area of failure to adequately

prepare and plan for instruction of students. That case also dealt with the

teacher's failure to employ appropriate disciplinary techniques suitable to the

particular situation, which involved a constant undercurrent of conversation

amounting to unsatisfactory classroom management, which was determined to

contribute to a finding of professional incompetence. In Turlington v. Walker,

9 FALR 2305 (1987); and in Department of Education v. Ferrara, 10 FALR 5766

(1987), the inability to control behavior of disruptive students and to

appropriately handle discipline problems was held to be an indicator of

incompetency. These two decisions also stand for the proposition that the

failure to use adequate techniques of instruction in the classroom and to

provide stimulative and varied learning experiences contributes to a finding of

incompetence. In Castor v. Brewer, 9 FALR 5339 (1987), it was found that a

teaching technique consisting primarily of giving students a reading assignment

and having them answer questions in class was inadequate and was a factor in

denoting teacher incompetence. So too, the dull presentation of subject matter,

lacking an appropriate background, introduction and reinforcement, and the

failure to use more than one teaching technique was deemed to be a factor

denoting incompetence in Department of Education v. Marshall, 10 FALR 4303

(1987).

68. In the Walker decision and in Castor v.Perry, 9 FALR 5291 (1987), it

was also determined that failure to create and maintain a classroom environment

conducive to learning; allowing nonessential, nonproductive movement of students

in the classroom and a chaotic classroom situation; the failure to maintain

proper supervision of students in the classroom; and allowing students to be

"off task", were factors supporting as finding of teacher incompetence.

Demonstrated errors in lessons prepared by a teacher support a finding of

incompetence, as determined in Department of Education v. Marshall, supra.

69. In the case at hand, the Respondent has demonstrated that she is

incapable of counselling students, managing their behavior, or otherwise

performing her assigned duties. Her classroom management ability and teaching

techniques were observed on numerous occasions by Ms. Marshall, Ms. Keyes, Ms.

Stone and Ms. Joseph. The Respondent essentially was unable to control her

students, failed to employ appropriate teaching techniques, and disciplinary

techniques to correct the students' behavior; was incapable of effectively

delivering a guidance lesson, and failed to create interesting presentations for

her students so as to maintain their interest, which would have helped her

maintain order in the classroom. After being repeatedly advised and counselled

concerning her teaching techniques and use of materials, she steadfastly refused

to vary her teaching techniques and materials employed, despite the fact that

they were often inappropriate for the learning level of the students she was

supposed to be teaching. She spurned opportunities for training. These actions

and omissions were proven by a preponderance of the evidence and, indeed, no

countervailing evidence was offered. Thus, the Respondent effectively deprived

her students of minimum educational or guidance experience and was demonstrated

to be incompetent.

Refusal or Inexcusable Failure to Discharge

Duties of Employment

70. The Respondent was shown to have repeatedly failed to perform her

counselling duties at Long Branch and Holiday Hill Schools, despite the repeated

directives from Ms. Keyes and Ms. Marshall, her Principals and supervisors. The

Respondent refused to try different materials and techniques and never sought to

improve her lesson delivery. She never generated or followed a coherent

classroom schedule. At Long Branch the Respondent failed to insure that the

materials were consistently prepared for the CST, of which she was a part. Her

failure to do so resulted in delayed placement of children in need of special

services. Her failure to accurately convey information to teachers at Long

Branch caused confusion and necessitated Ms. Keyes having to clarify and correct

misinformation generated by the Respondent.

71. At Holiday Hill, the Respondent's failure to maintain a classroom

guidance schedule, and follow it, significantly disrupted and denigrated the

class schedules and teaching plans of teachers who were relying upon her

appearance far the required counselling sessions. Her continued erroneous used

of classroom guidance materials which were "age-inappropriate" resulted in

meaningless guidance lessons for the children to whom they were directed. These

acts and omissions were also proven by a preponderance of the evidence; no

countervailing evidence was offered in opposition to it; and it was thus

demonstrated that the Respondent refused or inexcusably failed to discharge her

duties as a guidance counsellor.

Insubordination

72. "Gross insubordination or willful neglect of duty", as used in Section

231.36(a), Florida Statutes, is defined in Rule 6B-4.009, Florida Administrative

Code, as a constant or continuing, intentional refusal to obey a direct order,

reasonable in nature, and given by and with proper, authority. Actions which

occur after a specific instruction to avoid such conduct constitute gross

insubordination under this rule. School Board of Dade County v. Garcia, 13 FALR

2290, 2301 (1991). In the situation at hand, the Respondent continued to

communicate in an unprofessional manner after she had been specifically

admonished and instructed to cease this behavior on August 31, 1988 by her

Principal. The Respondent was informed at the beginning of the 1988-89 school

year that she was to communicate in a professional manner with administrators at

Long Branch. Despite this instruction, on at last two separate occasions

thereafter, the Respondent addressed her Principal in inappropriate language,

such as "kiss my butt" and to "hit me, I'll sue you". She also deliberately

refused to meet with Ray Bailey, after being instructed to do so by her

Principal, failed to maintain an adequate log of her counselling activities

after being instructed to do so, failed to escort students to and from the

classroom and provide classroom guidance sessions after being repeatedly

instructed to do so. All such conduct constituted a continuing intentional

refusal to obey reasonable orders given to the Respondent by Ms. Keyes and Ms.

Marshal, who had authority to give her such instructions. Thus, these actions

and failures, proven by a preponderance of the evidence, to which no

countervailing evidence was offered, constituted insubordination.

Immoral Conduct

73. The definition of "immorality" operative in this situation is found in

Rule 6B-4.009(2), Florida Administrative Code, which provides as follows:

...conduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct sufficiently notorious

to bring the individual concerned or the

education profession into public disgrace or

disrespect and impair the individual's

service in the community.

74. Exhibit GG in evidence is an official letter of reprimand from the

Florida Department of Education, Education Practices Commission, which

determined that the Respondent had supplied her son with answers to the SAT.

This evidence, coupled with the testimony of Ms. Martinez and Ms. Keyes,

establishes that the Respondent supplied her son with answers to the first-grade

SAT. The Commission found that in doing this, the Respondent had lessened the

reputation of educators and that, therefore, such actions could not be condoned,

for which she was reprimanded. This action was proven by a preponderance of the

evidence, and it is concluded that it is inconsistent with standards of public

conscience and good morals and is conduct which brings the individual concerned

or the education profession into disrespect. As such, these actions are

inexcusable and constituted immoral conduct.

75. Accordingly, it is concluded that the charges referenced herein are

all supported by preponderant evidence to which no countervailing evidence was

offered and that those charges have been sustained. In view of the repetitive

and continuing nature of the insubordination, the refusal or inexcusable failure

to discharge the duties of her employment, her demonstrated professional

incompetency, especially after repeated opportunities were afforded the

Respondent to gain assistance in improving her teaching, classroom management

and administrative skills, which opportunities she spurned; a substantial

penalty for the referenced conduct is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law,

the unrefuted evidence of record, the candor and demeanor of the witnesses, and

the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered by the Petitioner dismissing the

Respondent from her employment with that agency.

DONE AND ENTERED this 24th day of December, 1991, in Tallahassee, Leon

County, Florida.

__________________________________

P. MICHAEL RUFF

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 24th day of December, 1991.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 90-4566

Petitioner's Proposed Findings of Fact:

1-116. Accepted.

Respondent's Proposed Findings of Fact:

1-5. Accepted.

6. Accepted, but not probative of the Respondent's position in this

proceeding.

7. Accepted, but not probative of the material issues presented for

adjudication.

8. Accepted.

9. Accepted, but not probative of the material issues presented for

adjudication.

10. Accepted.

11. Accepted, but not probative of the Respondent's position nor of the

material issues presented in this proceeding.

12-14. Accepted, but not, standing alone, probative of any material issues

presented for adjudication.

15. Rejected, as immaterial.

16. Accepted, but not in itself dispositive of any material issues

presented.

17-22. Rejected, as not in accordance with the preponderant weight of the

evidence.

23. Accepted, but not itself dispositive of any of the material issues

presented.

24-25. Accepted.

26-27. Accepted, but not itself dispositive of any of the material issues

presented.

28. Accepted, but immaterial.

29. Accepted.

30. Accepted, in the sense that Ms. Harper never observed the Respondent

actually performing her classroom duties.

31. Accepted, in the sense that the "seals" program was available for use

by the Respondent at the Respondent's option, not to the extent that the

Respondent could use the program in any way she saw fit once she elected to use

it.

32. Rejected. The record, at page 161 of the Transcript, indicates that

Ms. Harper met the Respondent two times in the 1989-90 school year, not in the

1988-89 school year.

33. Accepted, as to no specific guidance curriculum being mandated by the

Board, but rejected in the sense that the proposed finding states that "only

suggestions" are provided to individual guidance employees. The record reflects

that much more than suggestions are provided to help individual guidance

employees perform their duties and become trained to perform their duties.

34. Accepted, but not itself materially dispositive.

35. Accepted, but not itself materially dispositive.

36. Accepted.

37-38. Accepted.

39. Accepted, but not materially dispositive.

40. Accepted, but not materially dispositive.

41. Accepted, but not materially dispositive and subordinate to the

Hearing Officer's findings of fact.

42. Accepted, but not as to its overall material import and subordinate to

the Hearing Officer's findings of fact on this subject matter.

43. Accepted.

44-45. Accepted, but not materially dispositive.

COPIES FURNISHED:

Dr. Larry Zenke

Superintendent

Duval County School Board

1701 Prudential Drive

Jacksonville, FL 32207

Betty Castor, Commissioner

Department of Education

The Capitol

Tallahassee, FL 32399-0400

Cheryl R. Peek, Esq.

Assistant Counsel

Office of General Counsel

421 West Church Street

Towncentre, Suite 715

Jacksonville, FL 32202

David A. Hertz, Esq.

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, FL 32216

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptionns. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.