02-001447 Miami-Dade County School Board vs. Micah D. Harrell Status: Closed Recommended Order on Tuesday, September 10, 2002.

Summary: Professional service contract should be terminated because of failure to improve performance during 90-day probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1447

)

MICAH D. HARRELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to n otice, a final hearing in the above - styled

matter was held on June 4, 2002, and June 21, 2002, by video

teleconference between Miami and Tallahassee, Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire,

Miami - Dade County School Board

1450 Northeast Second Avenue, Room 400

Miami, Florida 33132

For Respondent: Leslie A. M eek, Esquire

United Teachers of Dade

2200 Biscayne Boulevard, Fifth Floor

Miami, Florida 33137

STATEMENT OF THE ISSUES

Whether Petitioner has cause to terminate Respondent's

professional s ervice contract based on his failure to correct

his performance deficiencies during his 90 - Day Performance

Probation. Whether Respondent’s performance was properly

evaluated.

PRELIMINARY STATEMENT

At the times pertinent to this proceeding, Respondent was a

classroom teacher assigned to teach at Palmetto Middle School

(Palmetto). By letter dated April 3, 2002, Petitioner's

Superintendent of Schools notified Respondent that he would

recommend to the Miami - Dade County Schoo l Board (School Board)

that Respondent's employment be terminated and stated the

reasons for that proposed action. Respondent filed a request

for a formal administrative hearing to challenge the proposed

agency action on April 10, 2002. The matter was tr ansmitted to

the Division of Administrative Hearings for formal proceedings

on April 12, 2002. On April 17, 2002, the School Board voted to

terminate Respondent's employment, subject to the outcome of

this proceeding.

Petitioner filed its Notice of Sp ecific Charges on

April 22, 2002, which alleged that Respondent failed to

satisfactorily correct his performance deficiencies during his

90 - Day Performance Probation.

At the hearing, Petitioner presented the testimony of Paul

Merker (principal at Palmetto) ; Randal Cromer (assistant

principal at Palmetto); Alfred Meneses (assistant principal at

Palmetto); Maria Mayo (teacher at Palmetto), Vivian Taylor

(teacher at Palmetto); Reinaldo Benitez (executive director of

the Office of Professional Standards (OPS)); and Dr. Joyce

Annunziata (a former assistant superintendent at the OPS). The

School Board offered 17 sequentially numbered exhibits

(Exhibit 11 consisted of two parts, Exhibits 11(A) and 11(B)),

each of which was admitted into evidence. The parties offe red

two joint exhibits which were also admitted into evidence.

Respondent testified on his own behalf and he presented the

additional testimony of Dr. Thomasina O’Donnell (an

administrator in OPS) and recalled Dr. Annunziata. Respondent

presented no exhi bits other than the two joint exhibits.

During the hearing, Petitioner proffered testimony of

Ms. Mayo and Ms. Taylor concerning the assistance Respondent was

given by the Professional Growth Team (PGT). Because that

assistance and the sufficiency there of were not at issue, the

undersigned sustained Respondent’s objection to their testimony.

Following the Respondent’s case, counsel for Petitioner moved

ore tenus to reinstate the proffered testimony. That motion has

been denied by separate order.

A tr anscript of the proceedings was filed on July 15, 2002.

Both parties timely filed proposed recommended orders, which

have been duly considered by the undersigned in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was a

classroom teacher employed by Petitioner pursuant to a

professional service contract.

2. At all times material hereto, Petitioner was a duly

constituted school board charged with the duty to operate,

control and supervise all f ree public schools within the school

district of Miami - Dade County, Florida, pursuant to Article IX,

Constitution of the State of Florida, and Section 230.03,

Florida Statutes.

3. Petitioner has employed Respondent as a classroom

teacher since 1993. He taught at Redland Middle School from

1993 to 1996. He taught at South Miami Senior High School from

1996 to 1999. During the times pertinent to this proceeding

(the school years 1999/2000 and 2000/2001) Respondent taught

eighth grade math at Palmetto.

4 . Between 1984 and the school year 1999/2000 all teachers

employed by Petitioner were evaluated under the Teacher

Assessment and Development System (TADS).

5. The United Teachers of Dade (UTD) is the collective

bargaining unit representing all classroo m teachers employed by

Petitioner, including Respondent. In 1997, Chapter 231, Florida

Statutes, was amended to provide for a 90 - day performance

probation period for annual and professional service contract

teachers who are observed to have unsatisfactory performance. 1/

Petitioner and the UTD collectively bargained a Memorandum of

Understanding (MOU) to implement the 90 - day performance

probation. The new evaluation system is known as PACES, an

acronym for the Professional Assessment and Comprehensive

Ev aluation System. The MOU amended the collective bargaining

agreement between the UTD and Petitioner to authorize the

replacement of TADS with PACES.

6. During the 1999/2000 school year, the School Board

piloted PACES in selected schools. During the 2000/2001 school

year, PACES was utilized throughout the school district.

Teacher evaluations at Palmetto were performed pursuant to PACES

during the 1999/2000 and the 2000/2001 school years. The

evaluations at issue in this proceeding were performed pur suant

to PACES.

7. PACES has been approved by the Florida Department of

Education.

8. PACES observers must be extensively trained to observe

and evaluate teaching performance and student learning.

9. School supervisory personnel perform PACES observat ions

and evaluations. The principal and two assistant principals at

Palmetto performed the observations and evaluations at issue in

this proceeding. Respondent asserted at the final hearing that

certain administrators who participated in observing and

ev aluating Respondent were insufficiently trained. That

assertion is rejected as being contrary to the greater weight of

the evidence. PACES was a major district initiative, and both

teachers and administrators received extensive training in

PACES. The gr eater weight of the credible evidence established

that the principal and the assistant principals at Palmetto who

observed and evaluated Respondent were appropriately trained in

observing and evaluating teachers in accordance with PACES

procedures. 2/

10. Individual schools across the district, including

Palmetto, conducted PACES training for teachers. During the

2000/2001 school year each faculty member at Palmetto had a

handbook which contained PACES information, including discussion

on each domain, th e indicators, the PACES website, and training

videos on the website. Several faculty meetings were devoted to

discussions of PACES. There were mini - workshops within various

departments at Palmetto and all - day workshops for teachers were

available in the district. The Palmetto assistant principals

divided all six domains between themselves and explained and

discussed them with the faculty. A projector was used to show

the teachers how to get to the PACES website on the computers.

There were 300 computer s for teacher use at Palmetto by which

Petitioner’s website could be accessed. The faculty meetings at

Palmetto were mandatory. If a teacher missed any of the

meetings, it was the teacher’s responsibility to come to an

administrator to find out what was missed. Teachers who missed

meetings were given the handouts that had been utilized at the

faculty meetings. At the times pertinent to this proceeding,

Respondent knew, or should have known, the evaluation criteria

of PACES. 3/

11. Prior to the beginn ing of the 90 - day probation under

PACES an appropriately trained administrator must observe the

teacher's classroom performance and find that performance to be

below articulated standards. This observation is officially

referred to as the “initial observa tion not of record.”

Unofficially, this observation is referred to as the “freebie.”

The freebie observation triggers the probation process, but it

is not used to terminate a teacher’s employment.

12. The same administrator who conducted the freebie

obs ervation meets with the teacher, goes over the observation,

and notifies the teacher that he or she will be observed in

approximately one month. The administrator offers a PGT to the

teacher, the use of which by the teacher is voluntary at this

point. Ne xt is the “first observation of record,” which is

unofficially referred to as the "kickoff observation." If this

observation is below performance standards, a Conference - for -

the - Record (CFR) is held. Next, a Professional Improvement Plan

(PIP) is first g iven to the teacher, and the 90 - day Performance

Probation begins the next day. The Performance Probation lasts

90 days, not counting certain specified weekends and school

holidays. There must be two official observations within the

90 - day period. A PIP is given after any official observation

that is below performance standards. If the second official

observation is below performance standards, a confirmatory

observation takes place after the end of the 90 - day period to

determine whether the teacher has corrected the deficiencies.

The confirmatory observation must be completed within 14 days

after the conclusion of the probationary period. The evaluator

must thereafter forward to the Superintendent a recommendation

whether to terminate the teacher's emp loyment.

13. In PACES, there are six domains. Each domain has

components and each component has indicators. It takes only one

unacceptable indicator for an observation to be rated below

performance standards. If a teacher improves in a particular

in dicator from one observation to the next, but becomes

unacceptable in another indicator, the second observation is

rated below performance standards.

14. Mr. Cromer conducted Respondent’s freebie observation

on October 24, 2001. The observation did not m eet performance

standards.

15. Mr. Cromer testified as to his observation of

Respondent on October 24, 2001, and stated the reasons

Respondent's performance did not meet standards. The following

findings are based on Mr. Cromer’s testimony. Respondent did

not meet performance standards because he was going over 30

homework problems and simply giving out the answers, not making

an effort to know whether the students understood. He did not

seek input from the students. The students had no opportunity

t o participate. There was no interaction between Respondent and

the students. There was no introduction to the lesson, thereby

failing to establish motivation to learn. Respondent did not

tell the students what they should learn from the lesson or why

it was important that they understand the material. Respondent

failed to provide a logical sequence and pace. He was going

much too fast for the students. Respondent only demonstrated

one math problem, failing to demonstrate any of the others,

although th ere were six different types of problems for review.

Respondent failed to utilize higher order cognition, teaching at

only one cognitive level. There was no effort to clarify, using

different words or examples. The students were not encouraged

to make a ny association or consider examples from their own

experience. The students were not asked questions and were not

given an opportunity to answer questions. Respondent did not

monitor the engagement or involvement of the students in the

learning process. He made no effort to gauge whether the

students understood the material. He sought no questions from

the students and gave no feedback. Then Respondent sat down for

approximately fifteen to twenty minutes. He did not walk around

to monitor what the stu dents were doing. Most of the students

were not doing their work. Respondent failed to meet

performance standards in components of Domain III, Teacher -

Learner Relationships; Domain IV, Enhancing and Enabling

Learning; Domain V, Enabling Thinking; and Dom ain VI, Classroom -

based Assessment of Learning.

16. Mr. Cromer met with Respondent on November 1, 2001,

and went over each item on the observation and explained why

Respondent did not meet performance standards. Mr. Cromer made

suggestions for improvem ent. He advised Respondent that he

would be coming back to do a follow - up observation and that

Respondent was entitled to have a PGT. At first Respondent

declined the PGT, but the next day, he accepted it.

17. PGTs are for first year teachers and for an y teacher

on a PIP. PGTs are made up of seasoned teachers who are trained

in PACES and give support and assistance to other teachers.

Usually the administration chooses one member of the PGT and the

teacher chooses the other. In this case, Respondent w as

permitted to choose both teachers. He chose Vivian Taylor and

Maria Mayo. Both teachers gave appropriate assistance to

Respondent.

18. Under PACES, the same administrator who conducted the

freebie observation must conduct the kickoff observation. O n

November 26, 2001, Mr. Cromer conducted Respondent’s kickoff

observation.

19. Mr. Cromer testified as to his observation of

Respondent on November 26, 2001, and stated the reasons

Respondent's performance did not meet standards. The following

finding s are based on Mr. Cromer’s testimony. Respondent did

not meet performance standards because many of the students in

his class were excluded from the first twenty minutes while

Respondent focused exclusively on two students at the board.

One student fini shed her problem very quickly. The other

student was completely confused. Respondent did the problem for

him but did not make sure the student understood. The rest of

the class was ignored during that time. The students were not

given any explanations as to what the two students had done.

The remainder of the class talked among themselves, looked

around the class, and one student was sleeping. There was no

introduction to the lesson and no transition into the second

portion of the lesson. The student s were not engaged in

critical analysis or problem solving. Respondent did not

develop any associations between the pie graph he was working on

and its relationship to percentages and fractions. Respondent

did not provide sufficient “wait time” after que stions to

encourage the students to think about the answers. Instead, the

same few students called out answers. Respondent did not meet

performance standards in components of Domain III,

Teacher/Learner Relationships; Domain IV, Enhancing and Enabling

Le arning; and Domain V, Enabling Thinking.

20. On December 5, 2001, Mr. Merker and Mr. Cromer held a

CFR with Respondent and Respondent’s union representative to

address Respondent’ s substandard performance, his Performance

Probation, recommendations to improve the specific areas of his

unsatisfactory performance, and Respondent’s future employment

status with the School Board. Respondent’s input was sought.

21. Those in attendance at the meeting on December 5,

2001, met again the following day. Respondent’s input was again

sought. He was given a copy of the summary of the CFR and a PIP

at that time. The PIP required Respondent to read and summarize

pertinent sections from the PA CES manuals.

22. Respondent’s Performance Probation began on

December 7, 2001. The time frame was established with the help

of OPS. Respondent was provided assistance through his PGT and

his PIP to help him correct his deficiencies within the

prescribe d timeframe. Respondent's deadline to complete his PIP

was January 10, 2002.

23. On January 15, 2002, Mr. Merker conducted an official

observation of Respondent in his classroom.

24. Mr. Merker testified as to his observation of

Respondent on January 15, 2002, and stated the reasons

Respondent's performance did not meet standards. The following

findings are based on Mr. Merker’s testimony. Respondent did

not meet performance standards because the students were not

actively engaged in learning. Only six students out of 27 were

involved in the lesson. Many of the students did not have the

materials and were not able to follow through with the lesson.

Respondent did not monitor what the students were doing. Many

students were off - task, inattentive, and bored. Respondent did

not re - engage the students. Respondent did not re - direct the

off - task behavior, which persisted for the entire period.

Learning routines were not apparent. Respondent did not give

directions for the lesson. Respondent’s expla nations were

unclear. No adjustments were made. Respondent did not assess

the learning progress during the lesson. Respondent solicited

only basic knowledge in his questioning. He did not utilize a

range of questions to assess student understanding. R espondent

did not meet performance standards in components of Domain II,

Managing the Learning Environment; Domain IV, Enhancing and

Enabling Learning; and Domain VI, Classroom - based Assessments of

Learning.

25. Mr. Merker conferred with Respondent on Jan uary 24,

2002, made recommendations with respect to the specific areas of

unsatisfactory performance, and provided assistance through a

PIP and PGT to help Respondent correct his deficiencies. The

PIP required Respondent to observe other teachers and to v iew

PACES vignettes. Respondent's deadline to complete his PIP was

February 22, 2002.

26. On February 27, 2002, Mr. Meneses conducted the second

official formal observation of Respondent in his classroom.

27. Mr. Meneses testified as to his observati on of

Respondent on February 27, 2002, and stated the reasons

Respondent's performance did not meet standards. The following

findings are based on Mr. Meneses’ testimony. Respondent did

not meet performance standards because the students were not

engaged in learning. After wasting 27 minutes copying numbers

from the board, only three to four minutes were left for the

main part of the lesson. Respondent wasted a lot of time during

the lesson going over non - essential information, and the

students were onl y presented with basic knowledge - level tasks.

Inaccurate information was given by Respondent and accepted by

the students. Students were not given "wait time" after a

question to think about the answers. The learners were not

given any introduction to t he learning outcomes of the lesson.

Respondent did not meet performance standards in components of

Domain IV, Enhancing and Enabling Learning; and Domain V,

Enabling Thinking.

28. Mr. Meneses and Mr. Merker conferred with Respondent

on March 5, 2002, mad e recommendations with respect to the

specific areas of unsatisfactory performance and provided

assistance through a PIP and PGT to help Respondent correct his

deficiencies. Respondent’s PIP required him to complete a self -

assessment through the PACES web site. Respondent's deadline to

complete his PIP was March 22, 2002.

29. Respondent’s Performance Probation ended on March 24,

2002.

30. Respondent completed all of the activities required by

all of his PIPs. He never indicated that he had any difficu lty

understanding them.

31. Because Respondent’s second observation within the

Performance Probation was below performance standards, a

confirmatory observation was required after the expiration of

the 90 days to determine whether or not Respondent had co rrected

his performance deficiencies.

32. On March 26, 2002, Mr. Merker completed Respondent’s

confirmatory observation.

33. Mr. Merker testified as to his observation of

Respondent on March 26, 2002, and stated the reasons

Respondent's performance d id not meet standards. The following

findings are based on Mr. Merker’s testimony. Respondent did

not meet performance standards in components of Domain IV,

Enhancing and Enabling Learning; Domain V, Enabling Thinking;

and Domain VI, Classroom - based Asse ssments of Learning, because

the lesson appeared staged. It was a lesson on fractions that

had been presented approximately five weeks earlier. Respondent

went full steam ahead regardless of what the students were

doing. Respondent had not improved his questioning techniques

since Mr. Merker’s prior observation.

34. Mr. Merker notified Respondent on March 26, 2002, that

Respondent had not satisfactorily corrected his performance

deficiencies during his Performance Probation and that Mr.

Merker was goin g to recommend to the Superintendent of Schools

that Respondent’s employment be terminated. 4/

35. Mr. Merker notified the Superintendent of Schools on

March 29, 2002, that Respondent had not satisfactorily corrected

his performance deficiencies during his Performance Probation

and recommended that Respondent's employment be terminated.

36. On April 3, 2002, the Superintendent of Schools

notified Respondent that the Superintendent was going to

recommend that the School Board terminate Respondent's

em ployment contract because Respondent had failed to

satisfactorily correct his performance deficiencies during his

Performance Probation.

37. Petitioner established that it met all procedural

requirements and time frames set forth by statute, by PACES, a nd

by the MOU.

38. Under the collective bargaining agreement and under

PACES, a teacher is entitled to a fair, equitable, and impartial

evaluation. Respondent’s evaluations were fair, equitable, and

impartial.

39. On April 17, 2002, the School Board a cted upon the

Superintendent's recommendation and terminated Respondent's

employment contract subject to his due process rights.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of th ese

proceedings.

41. Petitioner has the burden of proving the allegations

against Respondent as set forth in the Notice of Specific

Charges by a preponderance of the evidence. Allen v. Sch. Bd.

of Dade Co. , 571 So. 2d 568 (Fla. 3d DCA 1990).

42. Petit ioner established that Respondent demonstrated

teaching deficiencies, which he failed to correct within the

Performance Probation provided by Section 231.29(3)(d), Florida

Statutes. Consequently, Petitioner has grounds to terminate

Respondent’s profession al service contract.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the School

Board of Miami - Dade County, Florida, enter a final order

sustaining the termination of Respondent's professional service

contract, effective April 17, 2002.

DONE AND ENTERED this 10th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Ju dge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admin istrative Hearings

this 10th day of September, 2002.

ENDNOTES

1/ Section 231.29, Florida Statutes, provides, in part, as

follows:

(1) For the purpose of improving the

quality of instructional, administrative,

and superv isory services in the public

schools of the state, the superintendent 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.

* * *

(2)(d) If an employee is not performing

his or her duties in a satisfactory manner,

the evalua tor 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 evalua tor

must confer with the employee, 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 in s. 231.36,

the employee shall be placed on performance

probation and governed by the provisions of

this section for 90 calendar days following

the receipt of the notice of unsatisfactory

performance to demonstrate correctiv e

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 noted

performance deficiencies. At any time

during the 90 calendar days, the employee

who holds a professional service contract

may request a transfer to an other

appropriate position with a different

supervising administrator; however, a

transfer does not extend the period for

correcting performance deficiencies.

b. Within 14 days after the close of the

90 calendar days, the evaluator must assess

whether t he performance deficiencies have

been corrected and forward a recommendation

to the superintendent of schools.

2/ Respondent argued that certain of Mr. Merker’s responses to

procedural questions pertaining to PACES and the fact that he

misstated the PACE S acronym established that he was

insufficiently trained. Mr. Merker did make mistakes while

testifying, but those were harmless errors that do not establish

that he was insufficiently trained. Respondent also argued that

Dr. Benetiz's inability to answe r certain questions as to PACES

demonstrates that there has been insufficient training as to

PACES. That argument is likewise rejected because Dr. Benetiz

did not participate in Respondent’s observations and

evaluations.

3/ Respondent argued at the fin al hearing that he was not

properly trained at to PACES. That contention is rejected as

being contrary to the greater weight of the evidence. There was

extensive testimony as to the mandatory training for teachers at

Palmetto. There was no evidence that prior to the final hearing

Respondent had complained to anyone that he had missed any of

the PACES training, that he did not have a faculty handbook, or

that he was uncomfortable with the PACES evaluation criteria.

4/ Respondent believes that Mr. Merk er reached his decision to

recommend his termination before his confirmatory observation.

Respondent failed to establish this theory by competent

evidence.

COPIES FURNISHED:

Madelyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Sec ond Avenue, Room 400

Miami, Florida 33132

Merrett R. Stierheim, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Room 912

Miami, Florida 33132

Leslie A. Meek, Esquire

United Teachers of Dade

2200 Biscayne Boulevard, Fifth Floor

Miami, Florida 33137

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Educati on

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

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

will issue the final order in this case.