02-003094 Duval County School Board vs. Cleveland F. Williams, Jr. Status: Closed Recommended Order on Wednesday, January 29, 2003.

Summary: The Board failed to show that it provided specific in-service training to correct Respondent`s deficiencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3094

)

CLEVELAND F. WILLIAMS, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 10

and 11, 2002, by Stephen F. Dean, Administrative Law Judge of

the Division of Administrative Hearings, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Michael B. Wedner, Esquire

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32302

For Respondent: David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

Whe ther the Duval County School Board (Board) may terminate

Respondent, Cleveland F. William, Jr.'s, employment as a teacher

based upon incompetence under the Duval Country Teachers Tenure

Act (the Act). This issue is dependent upon whether the Board

showed Respondent to be incompetent and whether the Board

complied with the procedural requirements of the Act.

PRELIMINARY STATEMENT

The record reflects that the initial charge against

Respondent was dated May 8, 2002. Respondent was charged with

professional i ncompetence under subsection (e) of Section 4 of

the Act. The charging document recites that Respondent received

unsatisfactory evaluations for the 2000 - 2001 and 2001 - 2002

school years. Respondent taught 6th grade science at Fort

Caroline Middle School d uring the 2000 - 2001 school year. He

taught 7th grade science at Joseph A. Stilwell Middle School

(Stilwell) during the 201 - 2002 school year. Respondent

requested a hearing on May 17, 2002, and the Board forwarded the

case to the Division of Administrativ e Hearings on August 5,

2002, to conduct a formal hearing pursuant to contract and

pursuant to the provisions of Chapter 120, Florida Statutes. On

August 27, 2002, the case was set for hearing on October 10 and

11, 2002, and was heard as noticed.

The char ging document alleges that Respondent is

incompetent, having been evaluated for two years in succession

as an unsatisfactory teacher and should be terminated from

employment. Respondent concedes, based upon his post - hearing

brief, that he was less than sa tisfactory during the 2000 - 2001

school year, but asserts that with regard to the 2001 - 2002

school year, the Board failed to meet its obligations under

subparagraphs (1) and (3) by not giving Respondent a clear and

detailed statement of the specific reasons upon which the claim

of incompetency is based and not affording Respondent the

opportunity of specific in - service training to correct his

alleged deficiencies.

Petitioner presented the testimony of Kathy Kassees, the

principal at Fort Caroline Middle Scho ol; Dianne Rahn,

instructor, design coach, and professional development

facilitator at Stilwell; Lisa Dunn, cadre representative;

Margarita Arroya science teacher and department head at

Stillwell; Darrell Perry, house administrator (assistant

principal) at Stilwell; and Frank Marjenhoff, principal at

Stillwell. Respondent presented the testimony of Camille

Hernandez, an interpreter for a deaf student in one of

Respondent's classes at Stillwell, and Jamal Gazaleh, who

co - taught an inclusion class with M r. Williams at Stillwell.

Petitioner prepared a binder containing 33 exhibits of which 1

through 11, 11A, 12 through 15, 17 through 21, 23 through 30,

32 and 33 were received into evidence. Respondent entered no

exhibits into evidence. The two - volume t ranscript was filed on

October 31, 2002.

Both parties filed post - hearing briefs containing findings

of fact that were read and considered.

FINDINGS OF FACT

1. Respondent was first assigned to Fort Caroline Middle

School during the academic year 2000 - 20 01 to teach 6th grade

science. Kathy Kassees was the principal at Fort Caroline

Middle School during that school year. Respondent's brother was

extremely ill and died during the school year. Respondent's

performance evaluation for that school year was l ess than

satisfactory. See Exhibit 2, 2000 - 2001 Performance Evaluation.

2. Respondent concedes that his performance in 2000 - 2001

was less than satisfactory. See paragraph 56 of Respondent's

Post - hearing Brief.

3. When a tenured teacher in the Duval C ounty system has a

performance evaluation of less than satisfactory, the teacher

may elect to transfer to another school, and Respondent

exercised that option for the school year 2001 - 2002. Respondent

was moved to Stillwell where he was assigned to teach 7th grade

science. In addition, he was assigned for the first time to

teach inclusion classes.

4. Inclusion classes are made up of students who are

exceptional education students who may have various

exceptionalities. These exceptionalities may include

disabilities such as deafness, emotional and behavioral

problems, and developmental disabilities. Behavioral problems

may include students diagnosed with attention deficit disorder

and hyperactivity.

5. Stillwell utilizes a program of instruction calle d the

America's Choice Plan (ACP). The ACP is a comprehensive

educational program which covers all aspects of instruction,

organization of the classroom, and display of student materials

in the classroom. ACP has its own vocabulary of terms to

describe a ctivities and things. For example, "artifacts" refers

to student work and other materials posted in the classroom. It

is expected that "artifacts" will be posted and changed

periodically. Weekly meetings to discuss the system are called

"Tending the Gar den" meetings. ACP had been used at Stillwell

previously and the returning faculty were familiar with it.

Respondent had never worked with ACP before.

6. Ms. Kassees had prepared a Success Plan for Respondent

after he received his unsatisfactory evaluat ion to help him

improve his deficiencies. Respondent took this plan with him to

Stillwell, but the plan did not address ACP or inclusion

classes.

7. Mr. Marjenhoff, the principal at Stillwell, met with

Respondent and discussed Marjenhoff's expectation of Respondent.

They did not discuss any special requirements or changes

necessitated by ACP or inclusion classes.

8. Petitioner was unable to establish that it had prepared

and delivered a new Success Plan to Petitioner at Stillwell.

After his poor ev aluation in February of 2002, Respondent asked

Mr. Marjenhoff for a copy of the Success Plan and one was

produced which was signed by Mr. Marjenhoff and dated August 6,

2001, and by Respondent on March 27, 2002. See Exhibit 13.

9. Respondent did attend v arious ACP, "Tending the Garden"

in - service educational classes presented by Dianne Rahn; Urban

Systemic Initiative (USI) seminars presented by Rose Curry; and

classes presented by his department head, Margarita Arroyo. His

attendance and punctuality at t hese meetings was on par with his

peers.

10. The first indication of evaluative inspections came in

a November 28, 2001, memo to Respondent from Marjenhoff stating

that Dianne Dunn, a cadre member, would be contacting him about

setting up a classroom visit . She did not conduct a visit until

January 28, 2002. See Exhibit 11 and attachments.

11. The annual evaluation of faculty occurs in February.

12. Petitioner concedes that other than the cadre work by

Dunn and some instruction on USI by Curry, little was done by

way of individualized in - service training to address

Respondent's shortcomings. Respondent was not afforded much in

the way of unique, individualized oral counseling or critiques

of his performance during the first part of the school year.

See p aragraphs 21 and 22 of Petitioner's Post - hearing Brief.

13. A review of Curry's visits reflects she met with

Respondent approximately once each month for a rough average of

an hour, with the exception of the first meeting which was four

hours. Curry's l ogs do not reflect the corrective actions taken

with regard to Respondent's teaching. This hardly constitutes

an accelerated effort to improve Respondents performance. See

Exhibit 21.

14. The dates of the various class visits and evaluations

by Marjenhof f are in February and March. See Exhibits 12, 18

and 19.

15. A review of the records of the in - class visits and

commentaries by the observers reveal that too many general

recommendations were made rather than specific, concrete changes

to implement. For example, Darrell Perry visited Respondent's

class and was concerned about its physical organization, i.e. ,

where the television was located, the direction in which the

seats were oriented, and where Respondent's desks was located.

This was written up in M arch, which was late in the year to

raise these issues, and Perry did not suggest or volunteer to

help Respondent alter the room to meet Perry's expectations.

Also see Exhibit 11 and attachments. In sum, there was too much

jargon and too little performan ce - oriented, hands - on correction

of Respondent.

16. Memoranda relating to Respondent's performance all

seem to be dated after January 2002. See Exhibits 16 and 17.

17. The corrections that were made came too late to have a

meaningful impact upon the impro vement of Respondent's teaching

performance.

CONCLUSIONS OF LAW

18. 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.

19. Wh ether Mr. Williams may be terminated by the Board

for professional incompetence is determined under the provisions

of the Duval County Teacher Tenure Act. A copy of the Act was

made available as an exhibit in a prior case, and it was not

necessary to prov ide a second copy of the Act.

20. Section 4(e)(3) of the Act states in pertinent part:

That prior to the institution of proceedings

as hereinafter provided, a period of one

year shall elapse during which such teacher

shall be afforded the opportunity of

sp ecific in - service training to correct the

alleged deficiencies . . . .

21. The burden of proof is on Petitioner to show that the

teacher was incompetent and that Petitioner complied with the

terms of the Act.

22. With regard to Respon dent's initial unsatisfactory

evaluation, it is clear from the record that Respondent does not

contest the validity of that evaluation. Respondent's position

is that the Board did not afford him the opportunity of specific

in - service training to correct h is alleged deficiencies. In

addition, the facts reveal there are some added factors which

reflect that Respondent's teaching assignment was made more

difficult by assigning him inclusion classes without proper

prior training, and by introducing him into a new school with a

relatively new and different system, ACP, with which he was not

familiar and in which he did not receive compensatory training.

23. There is a conflict in the testimony regarding the

preparation of a Success Plan for Respondent at Stil lwell. I

find that the Board did not prove it prepared a Success Plan

prior to Christmas 2001. The best evidence indicates a Success

Plan was generated around the first part of 2002.

24. For reasons that are unclear, there did not seem to be

an emphasi s in establishing a remedial program for Respondent

when he arrived at Stillwell, based upon his needs. The only

person who seemed to be working with Respondent from the outset

was Ms. Curry, whose first meeting with Respondent was

September 14 and again September 26, 2001. She met with

Respondent monthly thereafter until May. Ms. Curry's work with

Respondent was principally with instructional methodology in the

USI program, which was not specifically related to his

deficiencies. Petitioner attended so me in - service classes on

ACP presented by Ms. Rahn, and Ms. Arroyo visited his class

periodically as his department chair. Neither Rahn or Arroyo

presented any specific instruction to Respondent designed to

address specific deficiencies identified in his teaching. The

same was true for Mr. Perry's observations of Respondent.

25. The classroom observations of Respondent by Rahn,

Arroyo, and Perry may have been accurate; however, they did not

present any specific recommendations for improving Respondent's

t eaching method.

26. The language of the Act indicates that an

unsatisfactory teacher will be afforded the opportunity of

specific in - service training to correct the alleged

deficiencies. There does not appear to be a concrete assessment

of Respondent's sh ortcomings or concrete recommendations about

how to correct them made at a time when Respondent could have

reasonably acted to improve his teaching methods. See the

example of Mr. Perry's criticisms of the organization and

arrangement of Respondent's clas sroom which came after

Respondent's evaluation and where Mr. Perry did not volunteer to

help rearrange the room.

27. Ms. Rahn was not asked to assist Respondent until

October, did not contact him until November 28, and did not

visit him until January 2002. The 2002 evaluation was in

February. This can hardly be termed timely and affording

Respondent a meaningful opportunity to correct his deficiencies.

Even without specific, timely correction, Respondent was able to

improve competencies numbered five and six that were

unsatisfactory on his 2000 - 2001 evaluation.

28. As mentioned at the outset, Respondent's assignment of

inclusion classes without previous experience was unfair, as was

putting him in a school which was using a new and different

teaching meth odology in which Respondent had no prior experience

and was not provided supplemental instruction prior to the

commencement of classes.

29. The Board recognizes some of its shortcomings but

argues that it generally was fair and substantially complied

with the terms of the Act. To the contrary, the Board's actions

stacked the deck against Respondent by assigning him inclusion

classes and putting him in a school using ACP, then giving him

too little in - service training, too late to positively impact

his eval uation.

30. As to this specific case, based on the facts above,

the Board should provide Respondent with an additional year of

in - service training complying with the requirements of the Act.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

That the Board provide Respondent another year in which

timely and appropriate in - service training is provided to

correct his deficiencies in teaching.

DONE AND ENTERED this 29th day of January, 2003, in

T allahassee, 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 29th day of January, 2003.

C OPIES FURNISHED:

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Michael B. Wedner, Esquire

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

John C. Fryer, Jr., Superin tendent

Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207 - 8182

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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 that

will issue the final order in this case.