01-003991 Miami-Dade County School Board vs. Joanne T. Stern Status: Closed Recommended Order on Thursday, October 31, 2002.

Summary: School Board proved by a preponderance of the evidence that the Respondent failed to correct identified deficiencies in her classroom performance during her 90-Calendar Day Performance Probation period. Recommend termination of contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3991

)

JOANNE T. STERN, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on May 1 0, 2002, and June 13, 2002, by video teleconference,

with the parties appearing in Miami, Florida, before Patricia

Hart Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings, who presided in

Tallahassee, Florida.

APP EARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respo ndent: David G. Hutchison, Esquire

103200 Overseas Highway, Suite 7

Post Office Box 1262

Key Largo, Florida 33037

STATEMENT OF THE ISSUE

Whether the Respondent's professional services employment

contract should be terminated for the reasons set forth in the

Petitioner's letter to the Respondent dated October 1, 2002, and

in the Notice of Specific Charges of Unsatisfactory Performance

dated October 25, 2002.

PRELIMINARY STATEMENT

In a le tter dated October 1, 2001, the Superintendent of

Miami - Dade County Public Schools notified Joanne T. Stern that

he was recommending to the Miami - Dade County School Board

("School Board") that her employment contract as a teacher with

the School Board be t erminated effective October 24, 2001. The

Superintendent stated in the letter that he based his

recommendation on Ms. Stern's alleged failure "to satisfactorily

correct identified performance deficiencies during your 90 - Day

Performance Probation." The Su perintendent additionally alleged

that Ms. Stern was charged with gross insubordination, and she

was advised of her right to request an administrative hearing.

Ms. Stern contested the Superintendent's recommendation in a

letter dated October 15, 2001, and the matter was referred to

the Division of Administrative Hearings for assignment of an

administrative law judge. The final hearing was originally

scheduled for December 6, 2001.

On October 25, 2001, the School Board filed its Notice of

Specific Charges of Unsatisfactory Performance, in which it set

forth the factual allegations to support its charge that

Ms. Stern failed to correct performance deficiencies within the

time allotted. 1 After several continuances, all of which were

granted at Ms. Stern's re quest, the final hearing was conducted

on May 10, 2002, and June 13, 2002.

At the hearing, the School Board presented the testimony of

the following witnesses: Betty A. Thomas, Principal at Campbell

Drive Elementary School (Campbell Drive Elementary); Cla udia

Brown, Assistant Principal at Campbell Drive Elementary;

Dr. Joyce Annunziata, former Assistant Superintendent of the

School Board’s Office of Professional Standards; and

Dr. Thomasina O’Donnell, District Director of the School Board's

Office of Profe ssional Standards. Petitioner's Exhibits 1

through 18 were offered and received into evidence. In

addition, the School Board was given leave to late - file as a

rebuttal exhibit the transcript of the deposition of Randy Biro,

Respondent’s union bargaining agent representative at the times

material to this case; the deposition transcript was filed on

August 12, 2002, and is received into evidence as Petitioner's

Exhibit 19.

Ms. Stern testified in her own behalf, and Respondent's

Exhibits 1 through 5 were off ered and received into evidence.

The parties submitted one joint exhibit, received into evidence

as Joint Exhibit 1.

The first volume of the three - volume transcript of the

proceedings was filed with the Division of Administrative

Hearings on June 13, 2002 ; the corrected second volume of the

transcript was filed on August 8, 2002; and the corrected third

volume of the transcript was filed August 19, 2002. After

several extensions of time were granted at Ms. Stern's request,

the parties timely filed their P roposed Recommended Orders,

which have been considered in the preparation of the Recommended

Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findi ngs of fact are made:

1. The School Board is the entity authorized to operate

the public schools in the Miami - Dade County school district and

to provide for the appointment, compensation, promotion,

suspension, and dismissal of employees of the school dis trict.

Section 4(b), Article IX, Florida Constitution; Section

230.23(4) and (5), Florida Statutes (2001).

2. At the times material to this proceeding, Ms. Stern was

employed as a teacher with the School Board under a professional

services contract.

3. Ms. Stern is a member of the United Teachers of Dade

("UTD"), and the terms of her employment with the School Board

are governed by the Contract between the Miami - Dade County

Public Schools and the United Teachers of Dade ("UTD Contract").

4. Ms. Stern fi rst received her teaching certificate in

1952, and she began teaching in the Miami - Dade County public

school system in 1987. The 2000 - 2001 school year was her first

year teaching at Campbell Drive Elementary, and she was assigned

to teach a regular second grade class.

5. Campbell Drive Elementary was rated a "D" level school

at the times material to this proceeding.

Teacher Assessment and Development System .

6. The Teacher Assessment and Development System ("TADS")

had, prior to the 2001 - 2002 school yea r, been used in the Miami -

Dade County public school system for 15 years to evaluate

teachers employed by the School Board. The Joint Committee on

Standards for Educational Evaluation ("Joint Committee") decided

in 1996 that TADS should be replaced with a new evaluation

system. 2 As a result, the Professional Assessment and

Comprehensive Evaluation System ("PACES") was developed and has

been in use in the Miami - Dade County public school system since

the beginning of the 2001 - 2002 school year. As will be

di scussed in more detail below, the observations and evaluations

at issue herein were all performed using TADS.

7. TADS is a performance - based evaluation instrument,

which includes sixty - eight specific teacher behaviors that

should be performed in the class room.

8. The TADS evaluation procedures set forth in the UTD

Contract and established by the Joint Committee required that

formal Classroom Assessment observations be performed, that any

observed performance deficiencies be noted, and that

professional gr owth opportunities be provided to teachers with

noted deficiencies.

9. In 1997, Chapter 231, Florida Statutes, was amended to

provide for a 90 - Calendar Day Performance Probation period for

teachers with professional service contracts. A Memorandum of

Und erstanding was executed by representatives of the Miami - Dade

County public school system and the UTD to implement procedures

for the new system. Pursuant to the procedures adopted in the

Memorandum of Understanding, the 90 - Calendar Day Performance

Probati on period is commenced the day after a conference - for -

the - record is held with the teacher to advise him or her of

classroom performance deficiencies. At least two observations

must be conducted during the 90 - Calendar Day Performance

Probation period, and the teacher must be provided assistance

through prescription plan activities and through referrals to

resource persons for further assistance. At the conclusion of

the 90 - Calendar Day Performance Probation period, a confirmatory

observation is conducted t o determine if the performance

deficiencies have been corrected.

10. Prescription plan activities have the status of

administrative directives. 3

11. The principal of Campbell Drive Elementary at the

times pertinent to these proceedings was Betty Thomas, and the

assistant principal was Claudia Brown. Both were trained to

observe and evaluate teachers using TADS.

12. Ms. Stern was first observed at Campbell Drive

Elementary on October 10, 2001, by Ms. Brown. Ms. Stern

received an overall acceptable ratin g on the CAI (Classroom

Assessment Instrument) Post - Observation Report, as well as

acceptable ratings on each of the six TADS rating categories.

February 5, 2001, observation .

13. Ms. Thomas conducted her first formal observation of

Ms. Stern's classroom performance on February 5, 2002, 4 when she

observed Ms. Stern's second grade math class from 12:30 p.m.

until 1:35 p.m. Ms. Thomas completed a CAI Post - Observation

Report and a Record of Observed Deficiencies/Prescription for

Performance Improvement in w hich she reported the results of

this observation. In the CAI Post - Observation Report,

Ms. Thomas rated Ms. Stern's classroom performance acceptable in

the categories of Preparation and Planning, Knowledge of Subject

Matter, Teacher - Student Relationships, and Assessment

Techniques. Ms. Thomas rated Ms. Stern's classroom performance

unacceptable in the categories of Classroom Management and

Techniques of Instruction.

14. Specifically, Ms. Thomas rated Ms. Stern deficient in

indicator III.A.2. of the Class room Management category on the

CAI Post - Observation Report. Ms. Thomas noted in the Record of

Observed Deficiencies/Prescription for Performance Improvement

that, during the observation, instructional time was lost while

Ms. Stern sharpened pencils for s everal students and wandered

around the room without giving instruction to the students and

that instructional time was lost when Ms. Stern told the

students to put their heads on their desks approximately

12 minutes before they were to leave the classroom for Spanish

and Physical Education classes.

15. Ms. Thomas rated Ms. Stern deficient in indicators

III.B.2. and 3. of the Classroom Management category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to use verbal or non - verbal techniques to

redirect students who were off - task and behaving

inappropriately. Ms. Thomas noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that

Ms. Stern ignored or failed to respond when two students yelle d

at one another during a test, when students talked and played

with pencils during a lesson, when two students left the room

and returned, when two students hit one another, and when a

student crawled on the floor.

16. Ms. Thomas rated Ms. Stern deficien t in indicator

III.B.4. of the Classroom Management category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to use techniques to hold the attention of

students who had been re - directed. Ms. Thomas noted in the

Record of Observed Deficiencies/Prescription for Performance

Improvement that, when virtually everyone in the class was

talking, Ms. Stern asked those students who were talking to

raise their hands; Ms. Stern praised the students who raised

their hands for their honesty but did nothing to cause the

students to stop talking. Ms. Thomas also noted several

instances in which Ms. Stern responded to students with remarks

that were either ineffectual or not to the point.

17. Ms. Thomas rated Ms. Stern deficient in in dicator

III.C.1. of the Classroom Management category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to provide the students with clear expectations

regarding appropriate behavior. Ms. Thomas noted in the Record

of O bserved Deficiencies/Prescription for Performance

Improvement that no class rules were posted in the classroom and

that Ms. Stern did not refer to any class rules. Ms. Thomas

also noted that, while students were being sent to the board to

work math proble ms, 75 percent of the students in the class were

talking and several students were wandering around the room, all

without correction from Ms. Stern.

18. Ms. Thomas rated Ms. Stern deficient in indicators

III.C.3. and 4. of the Classroom Management categor y on the

CAI Post - Observation Report because, during the observation,

Ms. Stern failed to respond quickly or appropriately to students

who acted inappropriately or interfered with the work of others.

Ms. Thomas noted in the Record of Observed

Deficiencies /Prescription for Performance Improvement that

Ms. Stern did not respond, and actually ignored, most of the

students' inappropriate behaviors, which included a student

dancing around the back of the room, students laughing and

playing with a hat, students loudly asking how to do the

assignment, and students yelling to one another.

19. Ms. Thomas rated Ms. Stern deficient in indicators

IV.G.3. of the Techniques of Instruction category on the CAI

Post - Observation Report because, during the observation,

Ms. S tern failed to emphasize potential areas of difficulty,

specifically with respect to the math problems involving

"regrouping," by either verbal or non - verbal clues. Ms. Thomas

noted in the Record of Observed Deficiencies/Prescription for

Performance Impro vement that Ms. Stern failed to assist a

student who had difficulty with a math problem at the board. 5

20. Ms. Thomas rated Ms. Stern deficient in indicators

IV.H.1. and 2. of the Techniques of Instruction category on the

CAI Post - Observation Report becau se, during the observation,

Ms. Stern failed to clarify areas of potential confusion or to

clarify areas of confusion after it became obvious that the

students did not understand the assigned math problems involving

"regrouping." Ms. Thomas noted in the R ecord of Observed

Deficiencies/Prescription for Performance Improvement that

Ms. Stern wrote problems on the board and directed the students

to solve them without providing any explanation. When several

students asked Ms. Stern how to do the problems, she told them

she would go over it later, but she did not do so during the

math lesson.

21. It was Ms. Thomas's general impression during her

February 5, 2002, observation, that Ms. Stern was unable to

manage the students in her class. There were many disru ptions

in the classroom that distracted the students and made it

difficult for them to learn. Ms. Thomas estimates that

approximately 90 percent of the students in the class were

off - task at some point during the observation.

22. On February 20, 2001, M s. Thomas held a Conference -

for - the - Record with Ms. Stern. 6 Also present at the conference

were Ms. Brown, as well as Ms. Marcos and Ms. Rolle, Ms. Stern's

union representatives. During the conference, Ms. Thomas

discussed the February 5, 2001, observati on with Ms. Stern, and

they discussed the prescription plan activities that Ms. Thomas

had developed to assist Ms. Stern in correcting the deficiencies

identified in the Record of Observed Deficiencies/Prescription

for Performance Improvement and the timel ines for completion of

the prescription plan activities. It was agreed that Ms. Stern

would complete all of the prescription plan activities by

March 15, 2001.

23. The Record of Observed Deficiencies/Prescription for

Performance Improvement also included lists of administrators

and teachers that were available to assist Ms. Stern with

respect to the prescription plan activities for the various

deficiencies noted.

24. The Summary of the Conference - for - the - Record and

Prescription dated February 20, 2001, r eflects that Ms. Stern

was advised during the conference that her 90 - Calendar Day

Performance Probation period would commence the day after the

conference, on February 21, 2001. Ms. Stern was also advised by

Ms. Thomas that, after the conclusion of the pr obation period,

she would determine whether Ms. Stern had corrected the cited

deficiencies during the probation period and would make a

recommendation to the Superintendent at the conclusion of the

probation period that could lead to the termination of

Ms. Stern's employment.

25. On February 20, 2001, Ms. Stern signed the CAI

Post - Observation Report, the Record of Observed

Deficiencies/Prescription for Performance Improvement, and the

Summary of the Conference - for - the - Record and Prescription,

thereby indi cating that she had seen and received a copy of

these documents.

26. Ms. Stern completed approximately 80 percent of the

prescription plan activities in the February 5, 2001, Record of

Observed Deficiencies/Prescription for Performance Improvement

by the March 15, 2001, deadline.

March 16, 2001, observation .

27. Ms. Brown, the assistant principal at Campbell Drive

Elementary, conducted a formal observation of Ms. Stern's

classroom performance on March 16, 2001, when she observed

Ms. Stern's second grade language arts class from 9:00 a.m.

until 10:45 a.m. Ms. Brown's impression was that Ms. Stern was

agitated and angry that day and was unable to control the class

or to teach adequately.

28. Ms. Brown completed a CAI Post - Observation Report and

a Record o f Observed Deficiencies/Prescription for Performance

Improvement in which she reported the results of this

observation. In the CAI Post - Observation Report, Ms. Brown

rated Ms. Stern's classroom performance acceptable in the

categories of Knowledge of Subj ect Matter, Teacher - Student

Relationships, and Assessment Techniques. Ms. Brown rated

Ms. Stern's classroom performance unacceptable in the categories

of Preparation and Planning, Classroom Management, and

Techniques of Instruction.

29. The TADS Monitori ng Committee reviewed the Record of

Observed Deficiencies/Prescription for Performance Improvement

and gave Ms. Stern credit for indicators IV.F.1., 2., and 3.;

this change resulted in Ms. Stern's being rated acceptable in

the category of Techniques of Ins truction.

30. Specifically, Ms. Brown rated Ms. Stern deficient in

indicator I.A.1. of the Preparation and Planning category on the

CAI Post - Observation Report because Ms. Stern failed to include

in her lesson plan assessment tools, homework, materials, a nd

most of the lesson's objectives and activities.

31. Ms. Brown rated Ms. Stern deficient in indicator

I.B.1. of the Classroom Management category on the CAI

Post - Observation Report because Ms. Stern failed to prepare

content and instructional activitie s to fill the allotted

classroom time. Ms. Brown noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that,

although the language arts block of instruction was scheduled

from 9:00 a.m. to 11:00 a.m., Ms. Stern instructed t he students

to put their heads on their desks at 10:40 a.m., terminating the

language arts instruction.

32. Ms. Brown rated Ms. Stern deficient in indicator

III.A.2. of the Classroom Management category on the CAI

Post - Observation Report because, through out the observation

period, Ms. Stern allowed unnecessary delays during instruction

and transitions. The notes Ms. Brown included in the Record of

Observed Deficiencies/Prescription for Performance Improvement

reflect that Ms. Stern spent approximately 20 minutes of the

language arts period making comments to the students about the

quality of their work and attempting to get their attention. As

reported by Ms. Brown:

The teacher called out one comment and

direction after the other, such as "I don't

hear a nything from table 4. excuse me, I

just said your tables not talking. you did

a beautiful job. thank you, Yrline, did you

hear me?" "Salami, one, two, three, four.

Now take your paper . . . everybody's eyes

up here! Salami! Denise, table 1, your

eye s up here, table 1, 2, 3, 4. Take your

paper . . . Christian, Okoya, Desiree,

Stanley, take your paper . . . excuse me."

"Salame" is an acronym for "Stop and look at me," and its use is

recommended as a technique for quieting students. Ms. Stern did

not apply the technique correctly, however, because she talked

very quickly and did not wait to give the students a chance to

quiet down.

33. Ms. Brown rated Ms. Stern deficient in indicators

III.B.2. and 3. of the Classroom Management category on the CAI

Po st - Observation Report because, during the observation,

Ms. Stern failed to use verbal or non - verbal techniques to

redirect students. Ms. Brown noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that

students were talking and calling out to one another, making

noises, and getting out of their seats while Ms. Stern read a

story. Ms. Brown also noted that Ms. Stern told students to

raise their hands, then accepted answers from students who had

not raised their hands, and fa iled to correct a student who was

out of his seat and sitting with a student who had been

separated from the group for being disruptive.

34. Ms. Brown rated Ms. Stern deficient in indicator

III.B.4. of the Classroom Management category on the CAI

Post - Ob servation Report because, during the observation,

Ms. Stern failed to use techniques to hold the attention of

students who had been re - directed. Ms. Brown noted in the

Record of Observed Deficiencies/Prescription for Performance

Improvement that a student that Ms. Stern had separated from the

class for being disruptive was allowed to spend 20 minutes

building a house with word cards; that a student spent 15

minutes with his chin on his desk doing nothing without

Ms. Stern's redirecting him, and, although s he said she would

return to help him, she did not do so; and that, in several

instances, Ms. Stern either failed to correct students who were

behaving inappropriately or ignored students when they failed to

respond to her directions.

35. Ms. Brown rated M s. Stern deficient in indicator

III.C.1. of the Classroom Management category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to make her expectations regarding appropriate

behavior clear to the students. Ms. Brown no ted in the Record

of Observed Deficiencies/Prescription for Performance

Improvement that, although Ms. Stern told students to raise

their hands to answer questions, she accepted answers called out

by students who did not raise their hands and failed to cal l on

students who had raised their hands; that Ms. Stern re - enforced

inappropriate behavior by telling a student that he was doing

well when he was not working but was turned around in his seat

talking to a student behind him; and that, although class rule s

were posted in the classroom, Ms. Stern did not refer to them.

36. Ms. Brown rated Ms. Stern deficient in indicators

III.C.3. and 4. of the Classroom Management category on the

CAI Post - Observation Report because, during the observation,

Ms. Stern faile d to identify and deal quickly and appropriately

with students who interacted with others inappropriately and

interfered with the work of others. Ms. Brown noted in the

Record of Observed Deficiencies/Prescription for Performance

Improvement that Ms. Ster n either did not notice, or ignored,

students' inappropriate behavior, which included a student doing

work in another student's phonetic workbook; students talking

and making noises while Ms. Stern was talking or reading;

students laughing at another stude nt, who had been sent to the

corner and responded to Ms. Stern's direction to get up by

standing up and turning around and around. Ms. Brown also noted

that Ms. Stern did not state the consequences for students who

were continuously told to stop calling o ut or were continuously

told to sit down.

37. Ms. Brown rated Ms. Stern deficient in indicator

IV.F.4. of the Classroom Management category on the CAI

Post - Observation Report because, as noted in the Record of

Observed Deficiencies/Prescription for Perfo rmance Improvement,

during the observation, Ms. Stern failed to refer back to the

objective of the lesson, to relate one part of the lesson to

other parts of the lesson, and to summarize the lesson and apply

it to past or future lessons. 7

38. A conference was held on March 23, 2001, with

Ms. Stern, Ms. Thomas, and Ms. Brown in attendance. No written

summary of the conference was prepared, but Ms. Stern signed the

CAI Post - Observation Report and the Record of Observed

Deficiencies/Prescription for Performa nce Improvement on

March 23, 2001, acknowledging that she had seen and received a

copy of the documents.

39. At the March 23, 2001, conference, Ms. Thomas,

Ms. Brown, and Ms. Stern discussed the results of the March 16,

2001, observation and the prescript ion plan activities that

Ms. Brown had developed to assist Ms. Stern in correcting the

deficiencies identified in the Record of Observed

Deficiencies/Prescription for Performance Improvement, as well

as the timelines for completion of the prescription plan

activities. It was agreed that Ms. Stern would complete all of

the prescription plan activities by April 20, 2001. The

April 20, 2001, deadline was extended until May 18, 2001,

because of Ms. Stern's absences, as discussed below.

40. The Record of Obse rved Deficiencies/Prescription for

Performance Improvement also included lists of administrators

and teachers that were available to assist Ms. Stern with

respect to the prescription plan activities for the various

deficiencies noted.

May 17, 2001, Confere nce - for - the - Record .

41. In a memorandum dated May 7, 2001, and directed to

Dr. Thomasina O'Donnell, a District Director in the School

Board's Office of Professional Standards, Ms. Thomas requested

that Dr. O'Donnell take control of the "re - entry" of Ms. Stern.

Ms. Thomas asked for Dr. O'Donnell's intervention because

Ms. Stern had been absent a total of 22 personal and sick days

and because Ms. Stern was on 90 - Calendar Day Performance

Probation.

42. As a result of Ms. Thomas's request, Dr. O'Donnell

sen t a memorandum dated May 7, 2001, to Ms. Stern telling her

that she needed to contact the Office of Professional Standards

before she returned to work so that a clearance conference could

be scheduled.

43. The clearance conference was held on May 16, 2001 , at

the Office of Professional Standards. Dr. O'Donnell,

Ms. Thomas, Clemencia Waddell, Director of Region VI, and Dia

Falco, Ms. Stern's UTD representative, attended the conference.

As reflected in the Summary of the Conference - for - the - Record,

the purp ose of the conference was to address Ms. Stern's

performance assessments, her attendance, and her medical fitness

to perform her duties and to review Ms. Stern's record and her

future employment status with the Miami - Dade County public

school system.

44. As of May 15, 2001, Ms. Stern had used more sick time

than she had accrued, and Dr. O'Donnell advised her that her

absences, which consisted of 21.5 sick and personal days and

13 1/2 days of unauthorized leave without pay, were considered

excessive.

45. M s. Stern's performance evaluations were also

discussed at the conference, and it was noted that she had been

provided prescription plan activities to assist her in

correcting the deficiencies identified in the March 16, 2001,

observation report, which acti vities were to have been completed

by April 20, 2001. Ms. Stern had not provided the required

materials to Ms. Thomas or Ms. Brown, but, because she was

absent beginning on April 18, 2001, Ms. Stern was directed to

provide all of the required materials fo r the prescription plan

activities to Ms. Thomas by the end of the workday on May 18,

2001. Ms. Stern was advised that the failure to provide these

materials within the time specified would be considered a

deficiency in Category VII, which is the Professi onal

Responsibilities category of TADS, and that she would be placed

on a Category VII prescription.

46. Several directives were included in the Summary of the

Conference - for - the - Record, and Ms. Stern was advised that she

was cleared to return to work on May 17, 2001.

May 22, 2001, observation .

47. Ms. Brown conducted a formal observation of

Ms. Stern's classroom performance on May 22, 2001, when she

observed Ms. Stern's second grade language arts class from

9:00 a.m. until 11:00 a.m. Ms. Brown's overa ll impression was

that Ms. Stern 's performance was worse than it was during the

observation on March 16, 2001.

48. Ms. Brown completed a CAI Post - Observation Report and

a Record of Observed Deficiencies/Prescription for Performance

Improvement in which s he reported the results of this

observation. In the CAI Post - Observation Report, Ms. Brown

rated Ms. Stern's classroom performance acceptable in the

categories of Teacher - Student Relationships and Assessment

Techniques. Ms. Brown rated Ms. Stern's classr oom performance

unacceptable in the categories of Preparation and Planning,

Knowledge of Subject Matter, Classroom Management, and

Techniques of Instruction.

49. Specifically, Ms. Brown rated Ms. Stern deficient in

indicator I.B.1. of the Preparation and Planning category on the

CAI Post - Observation Report because Ms. Stern had failed to plan

content and instructional activities to fill the classroom time

allotted for the language arts block. Ms. Brown noted in the

Record of Observed Deficiencies/Prescrip tion for Performance

Improvement that Ms. Stern took the students to the library at

10:30 a.m., but had completed her planned classroom activities

at 9:55 a.m.

50. Ms. Brown rated Ms. Stern deficient in indicator

II.B.2. of the Knowledge of Subject Matter category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to present information in a meaningful or

orderly manner. Ms. Brown noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that

" [t]he sequence of the ideas did not flow into one another. The

teacher asked questions and talked about whatever came to her

mind, . . ." Ms. Brown also noted that there was no logical

sequence of activities or framework established for the

activities.

5 1. Ms. Brown rated Ms. Stern deficient in indicator

II.B.3. of the Knowledge of Subject Matter category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to tell the students the most important topics

in the lesson or va rious applications of the topics introduced

in the lesson. Ms. Brown noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that

Ms. Stern did not tell the students what they would be doing and

did not relate the lesson to t he students' experiences.

52. Ms. Brown rated Ms. Stern deficient in indicator

II.B.4. of the Knowledge of Subject Matter category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to present information using analysis o r

comparisons. Ms. Brown noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that

Ms. Stern did not ask open - ended questions, that she limited her

questions to those that were simple and basic, and that she

failed to chal lenge the students beyond one cognitive level.

53. Ms. Brown rated Ms. Stern deficient in indicator

III.A.2. of the Classroom Management category on the CAI

Post - Observation Report. The notes Ms. Brown included in the

Record of Observed Deficiencies/Pre scription for Performance

Improvement reflect that Ms. Stern wasted 12 minutes of

instruction time because of delays attributable to her

repeatedly consulting her lesson plan during class and failing

to use student helpers to pass out papers to the class, causing

the students to wait without instruction until she passed out

all of the papers.

54. Ms. Brown rated Ms. Stern deficient in indicators

III.B.2. and 3. of the Classroom Management category on the CAI

Post - Observation Report because, during the obse rvation,

Ms. Stern failed to use verbal or non - verbal techniques to

redirect students. Ms. Brown noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that

Ms. Stern did not notice or noticed but chose not to re - direct a

st udent who was making a paper airplane and rearranging his desk

and the inside of his book bag for a period of 15 minutes and

that Ms. Stern did not speak to a student who, for a period of

10 minutes, sat with her knees to her chest. Ms. Brown also

noted t hat Ms. Stern thanked two students for no apparent

reason.

55. Ms. Brown rated Ms. Stern deficient in indicator

III.B.4. of the Classroom Management category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to use tech niques to hold the attention of

students who had been re - directed. Ms. Brown noted in the

Record of Observed Deficiencies/Prescription for Performance

Improvement that Ms. Stern did not notice for two minutes that a

student had slid his chair halfway acro ss the room to place it

beside that of another student and that, when she noticed, she

merely told the student to sit down. Ms. Brown also noted that

a student fell asleep at 9:45 a.m.; after about 10 minutes,

Ms. Stern noticed the student, asked if he ha d stayed up late

the night before, and left him to sleep until he awoke at

10:25 a.m.

56. Ms. Brown rated Ms. Stern deficient in indicator

III.C.1. of the Classroom Management category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to make her expectations regarding appropriate

behavior clear to the students. Ms. Brown noted in the Record

of Observed Deficiencies/Prescription for Performance

Improvement that Ms. Stern told the students that she "love[d]

the way ever yone is talking at once but it doesn't help" and

that Ms. Stern continued to accept answers from students who

called out, accepting more answers from these students than from

the students who raised their hands.

57. Ms. Brown rated Ms. Stern deficient in indicator

III.C.2. of the Classroom Management category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to provide the students with appropriate and

correct verbal feedback regarding specific behaviors. Ms. Brown

note d in the Record of Observed Deficiencies/Prescription for

Performance Improvement that Ms. Stern ignored two students who

had their hands up for several minutes and accepted answers

called out by other students. Ms. Brown also noted that

Ms. Stern praised the class for working well together when the

activity was an activity that each student worked on alone.

58. Ms. Brown rated Ms. Stern deficient in indicator

IV.F.1. of the Techniques of Instruction category on the CAI

Post - Observation Report because, du ring the observation,

Ms. Stern failed to give the students necessary background about

their activities. Ms. Brown noted in the Record of Observed

Deficiencies/Prescription for Performance Improvement that

Ms. Stern did not tell the students the ideas or skills they

were to learn from the two stories that she read to them, one

about a bear with a toothache and one about an octopus; she

merely told the students that she was going to read a book.

59. Ms. Brown rated Ms. Stern deficient in indicator

IV.F.2. of the Techniques of Instruction category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to tell the students how each activity related

to the other activities. Ms. Brown noted in the Record of

Observed Deficiencies/P rescription for Performance Improvement

that Ms. Stern did not emphasize the important topics in the two

stories or link the topics in the stories to future activities.

60. Ms. Brown rated Ms. Stern deficient in indicator

IV.F.3. of the Techniques of Inst ruction category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to sequence activities and failed to point out

any logic to the order in which she presented components of the

lesson. Ms. Brown noted in the Record of O bserved

Deficiencies/Prescription for Performance Improvement that

Ms. Stern went from one activity to the next without having an

apparent goal or order to the lesson.

61. Ms. Brown rated Ms. Stern deficient in indicator

IV.F.4. of the Techniques of Instr uction category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to provide closure to the lesson. Ms. Brown

noted in the Record of Observed Deficiencies/Prescription for

Performance Improvement that Ms. Stern did not s ummarize,

recapitulate, or apply any of the concepts in the lesson to any

past or future lessons.

62. Ms. Brown rated Ms. Stern deficient in indicator

IV.H.2. of the Techniques of Instruction category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to clarify the students' confusion. Ms. Brown

relates in the Record of Observed Deficiencies/Prescription for

Performance Improvement that Ms. Stern asked a student a

question about an octopus; when the student answered, "Th e end

of one of the octopus' tails is the mouth," Ms. Stern's only

response was "OK. I don’t quite understand but OK." Ms. Brown

also noted that Ms. Stern passed out word cards to the students

but never told them what to do with the cards.

63. Ms. Brow n rated Ms. Stern deficient in indicator

IV.H.4. of the Techniques of Instruction category on the CAI

Post - Observation Report because, during the observation,

Ms. Stern failed to answer quietly the questions of individual

students but would address the ent ire class when answering the

questions of one or two students. Ms. Brown noted in the Record

of Observed Deficiencies/Prescription for Performance

Improvement that Ms. Stern interrupted the entire class several

times to answer the questions of two student s, with the result

that the class did not have enough quiet time to read and

complete the activity.

64. A Conference - for - the - Record was held on May 23, 2001,

which was attended by Ms. Thomas, Ms. Brown, and Ms. Stern. 8

During the conference, the deficien cies noted by Ms. Brown

during her observation on May 22, 2001, were discussed, as well

as the prescription plan activities that Ms. Stern was to

complete to assist her in correcting the deficiencies. The

timeline for completion of the prescription plan a ctivities was

also discussed, and it was agreed that Ms. Stern would complete

all the prescription plan activities by June 13, 2001.

65. The Record of Observed Deficiencies/Prescription for

Performance Improvement also included lists of administrators

and teachers who were available to assist Ms. Stern with respect

to the prescription plan activities for the various deficiencies

noted.

66. Ms. Stern's failure to complete the prescription plan

activities included in the March 16, 2001, observation by the

M ay 18, 2001, deadline was also discussed at the May 23, 2001,

Conference - for - the - Record. The Summary of the Conference - for -

the - Record reflects that Ms. Brown went over with Ms. Stern the

prescription plan activities that were not completed. As a

result o f her failure to complete the prescription plan

activities, Ms. Thomas placed Ms. Stern on prescription for

Category VII, the TADS Professional Responsibilities category.

Ms. Stern had been advised at the May 17, 2001, Conference - for -

the - Record at the Off ice of Professional Standards that a

Category VII prescription would be the consequence if she failed

to complete the prescription plan activities by the May 18,

2001, deadline.

67. Ms. Stern ultimately completed the prescription plan

activities in the Ma rch 16, 2001, Record of Observed

Deficiencies/Prescription for Performance Improvement, although

Ms. Brown had a difficult time determining that Ms. Stern

completed all of the activities because the materials she

submitted to Ms. Brown were very disorganiz ed.

68. Ms. Stern also turned in by the June 13, 2001,

deadline all of the written materials required in the

prescription plan activities assigned as a result of the May 22,

2001, observation. She did not, however, turn in her weekly

lesson plans to Ms. Brown prior to implementing them, as she had

been instructed; rather, she turned in her lesson plans late,

and, near the end of the 2000 - 2001 school year, she did not turn

in any lesson plans.

September 13, 2001, Confirmatory Observation .

69. In a letter to Ms. Stern dated April 26, 2001,

Dr. O'Donnell acknowledged having received a request for medical

leave from Ms. Stern for the period extending from April 18,

2001, through May 4, 2001. In the letter, Dr. O'Donnell

clarified for Ms. Stern the School Bo ard's position with respect

to the impact of her absences on the calculation of the days

remaining in her 90 - Calendar Day Performance Probation period.

Dr. O'Donnell confirmed in the letter that Ms. Stern's probation

period began on February 21, 2001, and that the prescription

plan activities arising out of the March 16, 2001, observation

were due to be completed on April 20, 2001.

70. Dr. O'Donnell further advised Ms. Stern that the first

10 days of absence were included in the calculation of the

90 cale ndar days of the probation period and that, accordingly,

the end of her probation period would be extended from May 31,

2001, to June 6, 2001, both of which dates fell within the final

10 days of the school year. Dr. O'Donnell acknowledged in the

April 26 , 2001, letter that, normally, no observations were

performed during the first and final 10 days of a school year,

but she advised Ms. Stern that her 90 - day probation period must

be concluded by June 16, 2001, because the Miami - Dade County

public school sy stem was to change from TADS to PACES for

teacher performance evaluations, effective at the beginning of

the 2001 - 2002 school year. Accordingly, Dr. O'Donnell put

Ms. Stern on notice in the April 26, 2001, letter that her

confirmatory observation would ta ke place after her 90 - Calendar

Day Performance Probation period ended on June 6, 2001.

71. In a letter dated May 9, 2001, Ms. Falco, on behalf of

the UTD, advised Dr. O'Donnell that, first, she had misstated

the rule regarding the treatment of absences. According to

Ms. Falco, the UTD Contract provided that the first 10 days of

absence were not to be counted in calculating the 90 days.

Nonetheless, Dr. O'Donnell's calculation of June 6, 2001, as the

last day of Ms. Stern's probation period was correct. Ms. Falco

also took issue with Dr. O'Donnell's decision to complete

Ms. Stern's probationary period on June 16, 2001, and she

advised Dr. O'Donnell that the then - current observation

procedures prohibited any formal observations during the first

and final 1 0 days of the school year and that the UTD would

appeal any formal observation of Ms. Stern conducted during the

final 10 days of the 2000 - 2001 school year. Finally, Ms. Falco

advised Dr. O'Donnell that the Joint Committee had not yet

determined how to tr eat teachers whose probation periods carried

over into the 2001 - 2002 school year, when teachers were to be

evaluated under PACES.

72. The Joint Committee considered Ms. Stern's case

individually and decided that Ms. Stern's confirmatory

observation was to be conducted using TADS rather than PACES.

Ms. Stern was not disadvantaged by having this observation

conducted under TADS because it is easier for a teacher to get

an acceptable evaluation under TADS than under PACES.

73. In accordance with the positio n taken by the UTD and

because Ms. Stern could not be observed during the first 10 days

of the 2001 - 2002 school year, the end of Ms. Stern's 90 - Calendar

Day Performance Probation period was finally determined to be

September 10, 2001.

74. On September 13, 2001, Ms. Thomas conducted a formal

observation of Ms. Stern's classroom performance when she

observed Ms. Stern teach a second grade math class from

1:30 p.m. to 2:30 p.m. This observation was the required

confirmatory observation conducted to determin e whether

Ms. Stern had corrected the performance deficiencies identified

in the February 5, 2001, March 16, 2001, and May 22, 2001,

observations. Ms. Thomas completed a CAI Post - Observation

Report in which she reported that she found Ms. Stern's

classroo m performance unacceptable in all five categories of

TADS, Preparation and Planning, Knowledge of Subject Matter,

Classroom Management, Techniques of Instruction, Teacher - Student

Relationships, and Assessment Techniques.

75. Ms. Thomas based her determina tion that Ms. Stern's

classroom performance was unacceptable on several factors.

During the September 13, 2001, observation, Ms. Thomas noted

that Ms. Stern was not teaching the lesson identified on her

lesson plan; one of the students repeatedly threw pa per across

the room into a garbage can without re - direction by Ms. Stern;

students were talking to one another and moving around the room

during the entire lesson, to the extent that it was difficult

for Ms. Thomas to hear Ms. Stern; Ms. Stern did not remi nd

students who were misbehaving of the class rules; Ms. Stern

appeared not to notice a student crawling around on the floor;

Ms. Stern told students to raise their hands, but she did not

call on the students who did so; and Ms. Stern had only two

grades f or the students in her grade book at a point in the

school year when she should have had two grades listed for each

student for each week of school in each the five subjects she

taught in her second grade class, or over 40 grades.

Recommendation for termin ation .

76. On September 17, 2001, Ms. Thomas notified Ms. Stern

that she had failed to comply with the Category VII prescription

imposed on May 23, 2001, because she had failed to turn in any

lesson plans during the first weeks of the 2001 - 2002 school

ye ar.

77. On September 17, 2001, Ms. Thomas also presented to

Ms. Stern for her signature a form that Ms. Thomas intended to

submit to Dr. George M. Koonce, Regional Superintendent,

containing Ms. Thomas's recommendation that Ms. Stern's

employment contract be terminated because she had not

satisfactorily corrected the noted performance deficiencies

within the 90 - Calendar Day Performance Probation period.

Ms. Stern refused to sign the form to acknowledge that she was

aware of the recommendation.

78. Dr. Ko once indicated his approval of Ms. Thomas's

recommendation and forwarded it to the Deputy Superintendent for

Personnel and Management Services, who, in turn, forwarded the

recommendation to the Superintendent of the Miami - Dade County

Public Schools.

79. I n a letter dated October 1, 2001, the Superintendent

notified Ms. Stern that he was recommending to the School Board

that her employment contract be terminated at its October 24,

2001, meeting. Ms. Stern timely contested the recommendation,

and this admin istrative proceeding commenced.

Summary

80. The evidence presented by the School Board is

sufficient to establish with the requisite degree of certainty

that Ms. Stern failed to correct the deficiencies identified in

her classroom performance within the 90 - Calendar Day Performance

Probation period, that School Board personnel adhered to the

applicable evaluation procedures in assessing Ms. Stern's

teaching performance and in reaching the decision to terminate

her for unsatisfactory teaching performance, a nd that the School

Board adhered to all statutory timeframes.

81. Throughout the duration of Ms. Stern's 90 - Calendar Day

Performance Probation period, Ms. Thomas and Ms. Brown offered

Ms. Stern assistance to help her correct the deficiencies in her

classr oom performance. The evidence presented by the School

Board is sufficient to establish with the requisite degree of

certainty that, although Ms. Stern completed many of the

prescription plan activities identified in the Record of

Observed Deficiencies/Pre scription for Performance Improvement

for the observations of February 5, March 16, and May 22, 2001,

she was unable or unwilling to implement in the classroom the

techniques and lessons included in the prescription plan

activities and failed to correct th e deficiencies in her

classroom performance.

82. In her testimony, Ms. Stern did not dispute any of the

facts included by Ms. Thomas and Ms. Brown in the Record of

Observed Deficiencies/Prescription for Performance Improvement

for the formal observations of February 5, March 16, and May 22,

2001. Rather, Ms. Stern presented in her testimony

justifications for and explanations of her classroom performance

during the formal observations. This testimony has been

considered and found insufficient to rebut th e evidence of

unsatisfactory performance presented by the School Board:

Ms. Stern's second grade class was composed of students of

varying abilities and ethnic backgrounds, but so were all of the

second grade classes at Campbell Drive Elementary. Ms. Ste rn's

classroom may not have provided an optimum environment for

teaching, but the shortcomings of the physical and technological

facilities provided to Ms. Stern do not justify the noted

deficiencies in her teaching and classroom skills. Finally,

Ms. Ster n's laissez - faire attitude regarding the inappropriate

behavior of her students is difficult to reconcile with her

obligation as a teacher to maintain a classroom environment in

which opportunities for learning are maximized. 9

CONCLUSIONS OF LAW

83. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes (2002).

84. Section 231.36, Florida Statutes (2001), governs

Ms. Stern' s professional services contract with the School

Board. Section 231.36(3), Florida Statutes (2001), provides in

pertinent part:

(e) A professional service contract shall

be renewed each year unless the

superintendent of schools, after receiving

the recom mendations required by s. 231.29 ,

charges the employee with unsatisfacto ry

performance and notifies the employee of

performance deficiencies as required by

s. 231.29 .

85. Section 231.29, Florida Statutes (2001), provides in

pertinent part:

(1) For the purpose of improving the

quality of instructional, administrative,

and supervisory services in the public

schools of the state, the superintenden t of

schools shall establish procedures for

assessing the performance of duties and

responsibilities of all instructional,

administrative, and supervisory personnel

employed by the school district. The

Department of Education must approve each

district's instructional personnel

assessment system.

* * *

(3) The assessment procedure for

instructional personnel and school

administrators must be primarily based on

the performance of students assigned to

their classrooms or schools, as appropriate.

The proc edures must comply with, but are not

limited to, the following requirements:

(a) An assessment must be conducted for

each employee at least once a year. The

assessment must be based upon sound

educational principles and contemporary

research in effectiv e educational practices.

Beginning with the full implementation of an

annual assessment of learning gains, the

assessment must primarily use data and

indicators of improvement in student

performance assessed annually as specified

in s. 229.57 and may consider results of

peer reviews in evaluating the employee's

performance. S tudent performance must be

measured by state assessments required under

s. 229.57 and by local assessments for

subjects and grade levels not measured by

the state assessment program. The

assessment criteria must include, but are

not limited to, indicators that relate to

the following:

1. Performance of students.

2. Abilit y to maintain appropriate

discipline.

3. Knowledge of subject matter. The

district school board shall make special

provisions for evaluating teachers who are

assigned to teach out - of - field.

4. Ability to plan and deliver instruction,

including the use of technology in the

classroom.

5. Ability to evaluate instructional needs.

6. Ability to establish and maintain a

positive collaborative relationship with

students' families to increase student

achievement.

7. Other professional competencies,

respo nsibilities, and requirements as

established by rules of the State Board of

Education and policies of the district

school board.

(b) All personnel must be fully informed of

the criteria and procedures associated with

the assessment process before the ass essment

takes place.

(c) The individual responsible for

supervising the employee must assess the

employee's performance. The evaluator must

submit a written report of the assessment to

the superintendent of schools for the

purpose of reviewing the emplo yee's

contract. . . . The evaluator must submit

the written report to the employee no later

than 10 days after the assessment takes

place. The evaluator must discuss the

written report of assessment with the

employee. The employee shall have the right

to initiate a written response to the

assessment, and the response shall become a

permanent attachment to his or her personnel

file. [ 10 ]

(d) If an employee is not performing his or

her duties in a satisfactory manner, the

evaluator shall notify the employee in

writing of such determination. The notice

must describe such unsatisfactory

performance and include notice of the

following procedural requirements:

1. Upon delivery of a notice of

unsatisfactory performance, the evaluator

must confer with the emplo yee, make

recommendations with respect to specific

areas of unsatisfactory performance, and

provide assistance in helping to correct

deficiencies within a prescribed period of

time.

2.a. If the employee holds a professional

service contract as provided i n s. 231.36 ,

the employee shall be placed on performance

probation and g overned by the provisions of

this section for 90 calendar days following

the receipt of the notice of unsatisfactory

performance to demonstrate corrective

action. School holidays and school vacation

periods are not counted when calculating the

90 - calendar - day period. During the

90 calendar days, the employee who holds a

professional service contract must be

evaluated periodically and apprised of

progress achieved and must be provided

assistance and inservice training

opportunities to help correct the note d

performance deficiencies. At any time

during the 90 calendar days, the employee

who holds a professional service contract

may request a transfer to another

appropriate position with a different

supervising administrator; however, a

transfer does not ext end the period for

correcting performance deficiencies.

b. Within 14 days after the close of the

90 calendar days, the evaluator must assess

whether the performance deficiencies have

been corrected and forward a recommendation

to the superintendent of sc hools. Within 14

days after receiving the evaluator's

recommendation, the superintendent of

schools must notify the employee who holds a

professional service contract in writing

whether the performance deficiencies have

been satisfactorily corrected and w hether

the superintendent of schools will recommend

that the district school board continue or

terminate his or her employment contract.

If the employee wishes to contest the

superintendent of schools' recommendation,

the employee must, within 15 days aft er

receipt of the superintendent of schools'

recommendation, submit a written request for

a hearing. The hearing shall be conducted

at the district school board's election in

accordance with one of the following

procedures:

(I) A direct hearing conduct ed by the

district school board within 60 days after

receipt of the written appeal. The hearing

shall be conducted in accordance with the

provisions of ss. 120.569 and 120.57 . A

majority vote of the membership of the

district school board shall be required to

sustain the superintendent of schools'

recommendation. The determination of the

district school board shall be final as to

the sufficien cy or insufficiency of the

grounds for termination of employment; or

(II) A hearing conducted by an

administrative law judge assigned by the

Division of Administrative Hearings of the

Department of Management Services. The

hearing shall be conducted wit hin 60 days

after receipt of the written appeal in

accordance with chapter 120. The

recommendation of the administrative law

judge shall be made to the district school

board. A majority vote of the membership of

the district school board shall be require d

to sustain or change the administrative law

judge's recommendation. The determination

of the district school board shall be final

as to the sufficiency or insufficiency of

the grounds for termination of employment.

86. Article XXI, Section B.1.b., of the UTD Contract

provides:

Any recommendation for suspension or

dismissal based upon unacceptable teaching

performance shall require that teaching

deficiencies be documented on the

observation/evaluation forms in compliance

with the procedures of the MDCP S evaluation

process. Disciplinary action based on

unacceptable teaching performance may not be

taken against an employee in the absence of

an official performance assessment conducted

in accordance with the procedures,

guidelines, stipulations, and requi rements

as are included in any employee assessment

system in effect at the time.

87. The School Board is seeking to terminate Ms. Stern's

professional services employment contract as a teacher, and,

therefore, it has the burden of proof in this proceedin gs and

must establish by a preponderance of the evidence that there are

sufficient grounds to take such action. See Allen v. School

Board of Dade County , 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo

v. School Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA

1990).

88. Based on the findings of fact herein, the School Board

has satisfied its burden of proving by a preponderance of the

evidence that Ms. Stern failed to correct deficiencies in her

classroom performance during the 90 - Calendar Day Performance

Prob ation period and that her classroom performance was

unsatisfactory at the conclusion of the probation period; that

Ms. Stern received all required notices; and that Ms. Stern was

consistently provided the opportunity to obtain assistance to

help her improv e her teaching performance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Miami - Dade County School Board

enter a final order terminating the professional services

contract of Joanne T. Stern.

DON E AND ENTERED this 31st day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearin gs

this 31st day of October, 2002.

ENDNOTES

1 / The School Board did not mention the charge of gross

insubordination in either its Notice of Specific Charges of

Unsatisf actory Performance or it Proposed Recommended Order, and

this charge is deemed to have been abandoned by the School

Board.

2 / Under the UTD Contract, the Joint Committee, which is

composed of both school system and UTD representatives, is

responsible for establishing all procedures connected with

teacher evaluations in the Miami - Dade County public school

system.

3 / Article XIII, Section 2, of the UTD Contract provides that

"[f]ailure to implement required professional growth practices

or to correct defi ciencies for which professional growth was

required shall constitute just cause for disciplinary action in

accordance with the due process provisions in this Contract."

4 / Ms. Thomas went to Ms. Stern's classroom on February 1, 2001,

to conduct an observ ation, but she was called away. As a

result, Ms. Thomas did not conduct a formal observation on

February 1, 2001, nor did she include anything she observed in

Ms. Stern's classroom on February 1, 2001, in the report of the

February 5, 2002, observation.

5 / Ms. Thomas also rated Ms. Stern deficient in indicator

IV.G.4. of the Techniques of Instruction category on the CAI

Post - Observation Report, but Ms. Stern was given credit for this

indicator as a result of a review of the Record of Observed

Deficiencie s/Prescription for Performance Improvement by the

TADS Monitoring Committee, which is a committee composed of UTD

members and School Board administrators whose function is to

review observation reports for procedural errors.

6 / The Conference - for - the - Rec ord was originally scheduled for

February 14, 2002, but Ms. Thomas attributed the delay in

holding the Conference - for - the - Record to Ms. Stern's absences on

February 13, 14, 15, and 16, 2001, and to the fact that

February 19, 2001, was a legal holiday.

7 / Ms. Brown also rated Ms. Stern deficient in indicators

IV.F.1., 2., and 3., but the TADS monitoring committee changed

Ms. Stern's ratings on these indicators to acceptable.

8 / Ms. Thomas noted in the Summary of the Conference - for - the -

Record that Ms. Ste rn advised her that she had contacted her UTD

representatives about the conference but that they had not

responded. Ms. Thomas advised Ms. Stern that two union

representatives were at the school, and one even came to the

office door to offer assistance. Ms. Stern declined the

assistance of the on - site union representatives, apparently

because she perceived that they had a conflict of interest.

Ms. Thomas refused Ms. Stern's request that the conference be

rescheduled.

9 / Ms. Stern also offered evidence regarding what appears to be

a misunderstanding regarding a retirement option offered to her

in March 2001. Having considered this evidence, and the

evidence offered by the School Board in rebuttal, I find that it

is not relevant or material to resolving the issue in this case;

that is, it is not relevant or material to a determination of

whether Ms. Stern's employment contract with the School Board

should be terminated because her classroom performance during

and after her 90 - Calendar Day Performance Prob ation period was

unsatisfactory.

10 / Section 231.29(3)(c), Florida Statutes (2001), also

provides:

If the employee is assigned to a school

designated in performance grade category "D"

or "F" and was rated unsatisfactory on any

function related to the emp loyee's

instructional or administrative duties, the

superintendent of schools, in consultation

with the employee's evaluator, shall review

the employee's performance assessment. If

the superintendent of schools determines

that the lack of general knowledg e, subject

area expertise, or other professional

competencies contributed to the employee's

unsatisfactory performance, the

superintendent of schools shall notify the

district school board of that determination.

The district school board shall require

tho se employees, as part of their

performance probation, to take and receive a

passing score on a test of general

knowledge, subject area expertise, or

professional competencies, whichever is

appropriate. The tests required by this

paragraph shall be those r equired for

certification under this chapter and rules

of the State Board of Education.

Campbell Drive Elementary was a "D" level school at the times

material to this proceeding. There was, however, no evidence

presented by the School Board to establish that the above - quoted

statutory procedures were followed in the instant case.

Assuming that the School Board did not follow the procedures for

teachers at "D" level schools with respect to Ms. Stern, the

failure would not affect the recommendation in this case because

the statute imposes more demanding requirements than those that

were imposed on Ms. Stern.

COPIES FURNISHED:

David G. Hutchison, Esquire

103200 Overseas Highway, Suite 7

Post Office Box 1262

Key Largo, Florida 33037

Leslie A. Meek, Esquire

United Teachers of Dade - Law Department

2200 Biscayne Boulevard

5th Floor

Miami, Florida 33137

Madelyn P. Schere, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

Merrett R, Stierheim, Interim Superintendent

School Board of Miami - Dade County

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132 - 1394

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to t his recommended order should be filed with the agency that

will issue the final order in this case.