02-002775 Duval County School Board vs. Thomas Brown Status: Closed Recommended Order on Tuesday, March 11, 2003.

Summary: School Board showed it provided opportunity for teacher to improve and that teacher did not improve, continuing to be less than competent. Of particular note was showing that teacher did not maintain control of classroom.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2775

)

THOMAS BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in th is case was held by Judge Stephen F.

Dean, duly - designated Administrative Law Judge of the Division

of Administrative Hearings on October 8 and 9, 2002, and

continued and completed on October 31, 2002, at Jacksonville,

Florida, on disputed issues relating to the proposed dismissal

of Thomas P. Brown, a teacher in the Duval County School

District.

APPEARANCES

For Petitioner: Derrel Q. Chatmon, Esquire

Duval County School Board

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Resp ondent: David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUES

Whether the District has proven, by a preponderance of the

evidence, that there was just cause to dismiss Thomas Br own,

consistent with the provisions of the Duval County Teacher

Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended,

and Chapter 120, Florida Statutes .

PRELIMINARY STATEMENT

On May 8, 2002, a Notice of Dismissal was issued by the

Superintendent of the Duval County Public Schools alleging that

Thomas Brown had demonstrated professional incompetency as set

forth in subsection (c) of Section 4 of the Duval County Teacher

Tenure Act, Laws of Florida, Chapter 21197. As a result, the

Respondent reque sted an administrative hearing pursuant to

Chapter 120, Florida Statutes .

On October 8 and 9, 2002, the Petitioner presented the

testimony of Jack Shanklin, Dennis Hester, Patricia Ann

Butterboldt, Mary Safer, Bobby Powell, and John D. Williams.

The Peti tioner submitted Exhibits numbered 11 and 14 through 45,

all of which were admitted in evidence. The Respondent called

Samuel E. McCreary and Freddie McClain, Jr., and testified on

his own behalf.

The hearing was recessed until October 31, 2002, in order

for the Petitioner to depose the Respondent's expert witness,

Lenard C. Bowie, Ph.D. Although t he Petitioner did depose Bowie

on October 17, 2002, the Respondent elected not to present any

additional testimony or evidence. The three - volume transcript

wa s filed on November 25, 3003. Thereafter, it was determined

the proposed recommended orders would be submitted on Monday,

December 23, 2002. The Respondent's order was lost in

transmission and was not filed until February 5, 2003. Both

sides submitted p roposed recommended orders that were read and

considered.

FINDINGS OF FACT

1. The Respondent, Thomas Brown, was a teacher of

instructional music in the Duval County School District

(District). As part of the instructional personnel with th e

District, Brown was subject to be evaluated on an annual basis

pursuant to the teacher assessment system. The purpose for

evaluating teachers is to make certain that instruction is

occurring in the classroom and that students are learning the

required s ubject matter. The evaluation process also makes

certain that student safety in the classroom is taken into

consideration by the instructional personnel (teachers). The

District uses the teacher assessment system to evaluate all of

its teachers regardles s of the subject matter they instruct.

2. From the 1999 - 2000 and the 2000 - 2001 academic school

years, Brown was a teacher at Andrew Jackson High School where

Jack Shanklin (Shanklin) is principal. Shanklin has evaluated

teachers annually since he became a principal 22 years ago.

He uses the classroom observation instrument within the teacher

assessment system to evaluate all of his teachers.

3. At the beginning of the 2000 - 2001 academic year,

Shanklin; Ms. Pierce, assistant principal; Dennis Hester,

professional development cadre member; and Mr. Dudley took part

in creating a success plan for Brown. A success plan is a

course of action designed to prevent an at - risk teacher from

getting an unsatisfactory annual evaluation by engendering

professional improvement. Shanklin discussed the success plan

with Brown before it was implemented. Brown did not have any

objections to the plan.

4. Shanklin evaluated Brown for the 2000 - 2001 academic

school year during March of 2001. He based his evaluation

r esults on the observations and written reprimands that he had

issued to Brown throughout the 2000 - 2001 year.

5. During the year, Shanklin observed Brown's classes. In

preparation for a classroom visit, he reviewed Brown's lesson

plans for October 18, 20 00. Lesson plans describe the daily

plan for instruction of the students on a particular day.

Shanklin had previously directed Brown to turn in his lesson

plans on a weekly basis in order to monitor Brown's progress

because of his departure from planned lessons.

6. Shanklin attempted to observe Brown in his classroom on

October 18, 2000; however, neither the class nor the teacher was

present in Brown's classroom. Shanklin later found Brown and

the class with the choral class in the auditorium; but B rown had

failed to amend his lesson plans to include the choral visit,

although he had adequate time to do. He had presented none of

the lesson plan that had he filed.

7. Shanklin returned on October 19, 2000, to observe

Brown's classroom ten minutes af ter class has begun. As he

entered the classroom, two students ran out the back door. When

questioned, Brown had no knowledge of their identity. Shanklin

witnessed students harassing other students without correction

from Brown while he was addressing t he needs of only five of his

35 students. While Brown spoke with the small group, the other

students were doing whatever they wanted. There were no class

assignments being conducted by the other students.

8. Shanklin later identified one of the student s who had

been harassing other students as John Fields. Shanklin removed

Fields from class because his behavior was so menacing. Brown

should have prohibited and corrected the student misconduct,

which he failed to do. Shanklin gave Brown a written repr imand

by letter dated October 30, 2000.

9. Shanklin also observed Brown on December 4, 2000,

during a previously announced observation. Brown did not begin

class with an appropriate review of recent material or outline

of the day's lesson. Student m isconduct again was uncorrected

by Brown. Students were moving around and talking during

instruction by Brown without correction. This class was not a

band class, but a music appreciation class, and there was no

need for student movement during instructi on. After this

observation, Shanklin reviewed his observations with Brown in

January of 2001.

10. Following the January discussion, Shanklin observed

Brown again later that month, at a previously announced

observation. He also discussed that visit with Brown.

11. Shanklin also had Dennis Hester, a professional cadre

member, observe Brown's classroom instruction. As part of

Hester's responsibilities to improve "less than satisfactory"

teachers, Hester reviewed and approved the success plan

developed for Brown. Pursuant to that plan, Hester assisted

Brown with both formal and informal observations and conferences

through 2000 and 2001. After multiple informal conferences in

January, Hester began formal observations in February.

12. Hester utilized a nu mber of tools to accurately

document the classroom instruction by Brown. Domain One

Instrument is a tool in the Florida Performance Measurement

System which identifies a teacher's ability to plan lessons.

The Domain Two Instrument is a classroom manageme nt tool used in

the Florida Performance Measurement System (FPMS) to assess how

a classroom is run. Hester was trained to evaluate teachers by

using both tools and has done so with over 30 teachers in Duval

County. Hester also used a conference planning guide which is a

list of behaviors observed indicating areas to be worked on, and

the Clinical Educator Training (CET) anecdotal instrument to

clarify the events of a classroom observation in detail.

13. Hester observed Brown's class on February 1, 2001, and

saw a number of students off - tasks, and one child sleeping.

Hester observed Brown tell the sleeping child to "wake up, no

slobbering on the desk . . ." Brown should have taken positive

steps to keep the student awake, and should not have accused him

of "slobbering on the desk." Hester discussed these

deficiencies with Brown towards the end of February.

14. Hester was due to have all of his evaluations

completed on March 15, 2001. Although the Domain One, on

planning lessons, was due from Brown to H ester on January 18,

2001 for a February 27, 2001, class observation, Hester did not

receive it until March 7, 2001. Thereafter, Hester faxed his

commentary of the Domain One to the school for Brown to review

as the remaining time permitted.

15. Although Hester did not specifically provide Shanklin

with his observation notes for review, the principal reviewed

the cadre's notes which outlined the similar misconduct and

classroom mismanagement Shanklin witnessed himself.

16. Shanklin's evaluation was als o made with the

consideration of an incident at the May graduation of 1999/2000

academic school year. Brown's band refused to perform after

Brown instructed them to do so. It was later discovered that

those students who refused to perform were academical ly

ineligible to be in the class. In prior years, Brown had

allowed ineligible students to perform in the school band

against the school's rules and regulations, and had been told to

stop permitting this.

17. On March 15, 2001, Shanklin gave Brown an

uns atisfactory annual evaluation. In evaluating Brown as

unsatisfactory for Competency No. 1, Shanklin considered his own

observations of Brown's failing to follow his established lesson

plans. Brown's failure to manage his classroom and correct

student mis behavior supports Shanklin' unsatisfactory evaluation

under Competency No. 3. Because of a lack of academic climate

due to classroom mismanagement and unorganized instruction,

Shanklin deemed Brown to have been unsatisfactory in Competency

No. 4. In addi tion, regarding Competency No. 4, Brown allowed

students to eat in his classroom which was critiqued by Shanklin

in a letter to Brown dated December 6, 2000. In evaluating

Brown unsatisfactory under Competency No. 5, Shanklin considered

Brown's failure to provide sufficient evidence that any real

grades could be disseminated to Brown's students as there were

no rubrics or student work visible for assessments. Finally,

Shanklin gave Brown an unsatisfactory evaluation on Competency

No. 9 because Brown never demonstrated any type of diversified

lesson designed to maintain the attention of the students; which

was needed as evidenced by the repeated observation of students

sleeping in his class.

18. Following the 1999/2001 academic school year, Brown

was trans ferred to Jefferson Davis Middle School where Bob

Powell was principal. Powell created an initial success plan

for Brown when he first arrived in the beginning of the year.

After formally observing Brown, Powell created a second success

plan dated Octobe r 29, 2001, which was discussed and agreed to

by Brown. The plan was designed for Brown to implement the

components for his own benefit.

19. Throughout the year, Powell observed Brown's classroom

instruction. On November 20, 2001, Powell formally observ ed

Brown's instruction. Thereafter, Powell also observed Brown on

two more occasions on January 10 and 18 of 2002.

20. During his observations, Powell witnessed students

talking during "warm - ups," whose attention Brown failed to get.

Powell observed th at Brown failed to provide praise to his

successful students which is needed at the middle school age.

21. Powell noted problems Brown had with communicating

with band parents. Powell was concerned that a band parent

reported that Brown had threatened to fail and throw her child

out of band practice which Brown had no authority to do. In

addition, band parents also complained that Brown placed their

names as chaperones on a field trip, without their permission.

When this was revealed, the trip had to be cancelled.

22. Following the formal conferences with Brown, Powell

discussed his observations with Brown. Brown admitted to Powell

that other District personnel were telling him the same things

Powell was mentioning. Notwithstanding the counseling, Bro wn

was unable to constructively adapt.

23. Powell also requested Patricia Ann Butterboldt to

observe Brown during his instruction at Jefferson Davis Middle

School. Butterboldt is responsible for supervising and

overseeing the curriculum of music teacher s throughout the

District. During the 2001/2002 academic school year,

Butterboldt observed Brown with an intermediate class on two

occasions.

24. On November 1, 2001, Butterboldt observed that Brown

failed to follow his own instructional classroom schedu le. In

addition, Brown utilized students to instruct other students in

complex musical exercises for which students had no ability to

adequately conduct the drill. Butterboldt also witnessed

Brown's students consistently off task.

25. On January 23, 200 2, observation, Butterboldt again

observed inappropriate classroom instruction and management, to

include Brown's failure to correct the class for ridiculing a

student. Butterboldt noted that even if students forget their

instruments, the teacher is respo nsible to provide instruction

to that student.

26. Following both Butterboldt's observations, Powell was

provided copies of her observation's reports.

27. Sue Martin, professional cadre member, was requested

by Powell to provide feedback on Brown's instr uction. Her

report was introduced as Exhibit 29.

28. During the same academic school year, Mrs. Saffer,

vice - principal observed Brown pursuant to Powell's request.

Saffer also utilized the classroom observation instrument during

her observation of Brown .

29. Saffer observed that Brown failed to properly correct

the behavior of non - responsive students. Although critical,

Saffer also complemented Brown on his positive action; however,

after reviewing Brown's grade book for the day of her

observation, Sa ffer was surprised that the students were awarded

grades without any means of evaluation Saffer could decipher.

30. Afterwards, Saffer met with Brown weekly regarding his

grade book. In addition to the grade book, Saffer also

discussed with Brown her obs ervations (formal and informal) of

his instructional conduct throughout the school year.

31. Although Saffer did not evaluate Brown, she did

provide her observations to Powell for his evaluation.

32. In addition to school assistance and counsel, Powell

p rovided Brown with many opportunities for professional

training. Brown attended at least two training sessions to

Powell's knowledge. However, Powell learned that Brown rejected

a training conference in Jacksonville offered to him by

Butterboldt because he said the presenters of the conference

were "racists."

33. On January 30, 2002, Powell provided Brown with a

notice warning him of an unsatisfactory annual evaluation.

Powell based his notice of a possible unsatisfactory evaluation

on all of the observ ations and notations he made and had been

provided to him.

34. Thereafter, Powell observed another instruction by

Brown in February of 2002. However, Powell never witnessed

Brown perform pursuant to the schedule attached to a letter

drafted by Brown whi ch allegedly addressed Powell's concerns.

35. Powell eventually prepared Brown's annual evaluation

for the year which reflected Powell's assessment of Brown's

unsatisfactory performance demonstrated throughout the academic

year.

36. John Williams is the director of professional

standards for the District who was responsible for generating

the termination letter once he received the second

unsatisfactory evaluation. After reviewing all of the notices

and evaluations, Williams not only determined that the manner in

which both principals utilized the teacher assessment system was

appropriate, but that Brown's performance required that the

District initiate Brown's termination from employment.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings h as

jurisdiction over the subject matter and the parties hereto

pursuant to the provisions of the Duval County Teacher Tenure

Act, Laws of Florida, Chapter 21197 (1941), as amended, and

Chapter 120, Florida Statutes.

38. This Order is entered pursuant to the contract between

Duval County School Board and the Division of Administrative

Hearings, which is authorized by Chapter 120, Florida Statutes.

39. The Petitioner seeks to dismiss the Respondent for

cause, as defined by Chapter 21197, Laws of Florida 19 41, as

amended. Chapter 21197, Laws of Florida 1941, is the Teacher

Tenure Act (Tenure Act), applicable exclusively to teachers

employed by the Duval County School District. The Tenure Act

provides that teachers employed by the District may be

discharged or demoted for the following reasons:

Section 4. Causes for the discharge or the

demotion of a teacher shall be:

(e) Professional incompetency as a

teacher . . . .

40. It is the Petitioner's burden to prove, by a

preponderance of the eviden ce, that the Respondent has been

guilty of the charges alleged. Ferris v. Turlington , 510 So. 2d

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

license revocation cases is clear and convincing evidence,

termination of employment only requires proof by a preponderance

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

DCA 1986); South Florida Water Management District v. Caluwe ,

459 So. 2d 390 (Fla. 4th DCA 1984).

41. Section 4(e) of the Tenure Act provides that when

professional in compentency is the basis for discharging a

teacher, certain requirements must be met. These requirements

include giving the teacher a clear and detailed statement upon

which the claim of incompetency is based, giving at least one

opportunity to transfer t o a new school, giving one year during

which an opportunity of specific in service training will be

given to correct alleged deficiencies. Furthermore, the Tenure

Act provided that the teacher "shall cooperate in undergoing

specific in - service training." These prerequisites were met in

this case.

42. On May 11, 2001, Superintendent John Fryer put Brown

on notice in writing that unless his performance improved, he

would be dismissed as a teacher with the District. He was

offered the opportunity to transf er in this same letter, and

elected to do so. He transferred to Jefferson Davis Middle

School where Bobby Powell was the principal.

43. During the 2001/2002 academic school year, Brown was

given specific instructions from Powell regarding the

expectati ons for success at Jefferson Davis Middle School. In

addition, Brown was given the opportunity to attend in - service

training sessions and was personally assisted by Powell, Martin,

Butterboldt and Saffer in their attempts to help Brown improve

his perform ance. Brown, however, failed to meaningfully alter

his performance notwithstanding the various resources which the

District made available to assist him.

44. Although the District has not formally defined

"professional incompetency," incompetency as defi ned in the

Florida Administrative Code has been accepted as persuasive in

determining incompetency under the Tenure Act. School Board of

Duval County v. Kerry Smith , DOAH Case No. 89 - 4132 (August

1990). The Florida Administrative Code states:

(1) Incomp etency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term , an authoritative decision in

an individual case may be made on the basis

of testimony by mem bers of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Ineffic iency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an extent that pupils

are deprived of min imum educational

experience ; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization .

(emphasis added)

Rule 6B - 4.009, Florida Administrative Code.

45. Chapter 6B of the Florida Administrative Code contains

"the minimal standards of the education profession in Florida."

Rule 6B - 5.004, Florida Administrative Code, requires that

teachers:

(2) Use procedures appropriate to

accomplish the designated task to include

but not be limited to:

(a) Identifying long range goals for a

given subject area.

(b) Constructing and sequencing related

short range objectives for a given subject

area.

(3) Practice instructional and social

skills which assist students to interact

constructively with their peers by

encouraging expressions of ideas, opinions,

and feelings.

(4) Give directions for carrying out an

instructional activity by assuring that the

task is understood and using feedbac k

techniques which are relevant to the

designated task.

(5) Utilize information and materials that

are relevant to the designated task.

46. Rule 6B - 5.007, Florida Administrative Code, entitled

Management Techniques, provides as follows:

The educator, co mmensurate with job

requirements and delegated authority,

shall demonstrate competence in the

following management techniques:

(1) Resolve discipline problems in

compliance with the policies of the school,

rules of the district school board and the

Sta te Board, and Florida Statutes.

(2) Maintain consistency in the application

of policy and practice by:

(a) Establishing routines and procedures

for the use of materials and the physical

movement of students.

(b) Formulating appropriate standards for

s tudent behavior.

(c) Identifying inappropriate behavior and

employing appropriate techniques for

correction.

(3) Maintain standards of conduct required

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

(4) Use management techniques appropriate

to the particular sett ing.

47. These rules have been interpreted by case law.

Generally, behavior which provides evidence of incompetency

includes, but is not limited to, the following:

1. Failure to adequately prepare and plan

for instruction of students. Turlington v.

Re aves , 9 FALR 1371 (1986)(Giving

assignments without proper explanation of

the assignment contributed to a finding of

incompetency.)

2. Failure to employ appropriate

disciplinary techniques suitable to the

particular situation. Turlington v. Reaves ,

9 FALR 1371 (1986)(Constant undercurrent of

conversation constituted unsatisfactory

classroom management and contributed to

finding of professional incompetence);

Turlington v. Walker , 9 FALR 2305

(1987)(Inability to control the behavior

of disruptive stud ents within the class

constituted incompetence); Department of

Education v. Ferrara , 10 FALR 5766

(1987)(Inability to handle discipline

problems revealed teacher incompetence).

3. Failure to utilize adequate techniques

of instruction in the classroom w arrants a

finding of incompentency. Turlington v.

Reaves , 9 FALR 1371 (1986). Failure to

provide stimulative and varied learning

experiences contributed to finding of

incompetency. Department of Education v.

Ferrara , 10 FALR 5766 (1987). Teaching

techn ique which consisted primarily of

giving students a reading assignment and

having them answer questions in class was

inadequate and was a factor denoting teacher

incompetence. Castor v. Brewer , 9 FALR 5339

(1987). Dull presentation of the subject

matter, which lacked an appropriate

background, introduction and reinforcement,

was a factor revealing teacher incompetence.

Failure to pursue more than one teaching

technique was a factor denoting

incompetence. Department of Education v.

Marshall , 10 FALR 4303 (1987).

4. Failure to create and maintain a

classroom environment conducive to learning

is incompetence. Turlington v. Walker , 9

FALR 2305 (1987). A chaotic classroom

evidences a teacher's incompetence.

Allowing non - essential, nonproductive

movemen t of the students in the classroom

contributed to a finding of incompetence.

Castor v. Perry , 9 FALR 2305 (1987).

5. Failure to maintain proper supervision

of students in the classroom is

incompetence. Turlington v. Walker , 9 FALR

2302 (1987). Stude nts being off - task

advanced a finding of incompetence;

Department of Education v. Ferrara , 10 FALR

5766 (1987); and Castor v. Perry , 9 FALR

5291 (1987).

48. In this case, Brown demonstrated that he was incapable

of organizing the instruction of his st udents, managing his

classroom environment, and delivering instruction on a

consistent basis to all of his students. His classroom

management ability and teaching techniques were observed on

numerous occasions by Powell, Butterboldt, Martin, and Saffer.

Brown was incapable of effectively delivering a pre - determined

lesson and he failed to present interesting instruction to the

students. He failed to change his teaching technique and

materials despite the fact that he was counseled about their

inappropria teness or ineffectiveness by District personnel.

Brown was unable to adequately control his students, and failed

to employ appropriate techniques to correct the students'

behavior.

49. His actions, proven by a preponderance of the

evidence, demonstrate Brown deprived his students of minimum

educational or musical experience and constituted incompetence.

Refusal or Inexcusable Failure to Discharge the Duties of

Employment

50. In sum, Brown repeatedly failed to perform his class

management duties at And rew Jackson High School despite the

directives from Shanklin and Pierce. Brown refused to regulate

his classes and to limit them to those students who were

appropriately assigned. These refusals produced many of the

disruptions in Brown's classes at Andr ew Jackson High School.

At Jefferson Davis Middle School, Brown failed to maintain and

implement constructive lesson plans which resulted in his

failure to deliver classroom instruction to his students. Brown

failed to amend his methods although he was a fforded the added

training, opportunity, and counseling to do so.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That the Respondent, Thomas Brown, be dismissed from

employment.

DONE AND ENTERED this 11th day of March, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

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 Administrative Hearings

this 11th day of March, 2003.

COPIES FURNISHED :

Derrel Q. Chatmon, Esquire

Duval County Schoo l Board

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

John C. Fryer, Jr., Superintendent

Duval County Schools

1701 Prudential Drive

Jackson ville, Florida 32207 - 8182

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency tha t

will issue the final order in this case.