03-000126 Palm Beach County School Board vs. Cherlyn Kelson Status: Closed Recommended Order on Wednesday, August 6, 2003.

Summary: Evidence is sufficient to support termination for incompetence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0126

)

CHERLYN KELSON, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

in West Palm Beach, Florida , on June 11 and 12, 2003, before

Florence Snyder Rivas, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Jean Marie Nelson, Esquire

School District of Palm Beach County

3318 Forest Hill Boulevard, Suite C302

West Palm Beach, Florida 33407

For Respondent: Andrew DeGraffenreidt, III, Esquire

Powers, McNalis & Moody

Post Office Box 21289

2328 10th Avenue, North, Suite 601

Lake Worth, Florida 33461 - 6617

STATEMENT OF THE ISSUE

Whether Respondent’s termination of employment as a teacher

should be upheld.

PRELIMINARY S TATEMENT

By Petition for Suspension Without Pay and Dismissal from

Employment dated November 26, 2002, (Petition for Suspension),

Palm Beach County Superintendent of Schools, Dr. Arthur C.

Johnson, acting on behalf of the Palm Beach County School Board

( Petitioner or School Board), terminated the employment contract

of Respondent, Cherlyn Kelson (Respondent or Kelson), a teacher

at Jupiter Elementary School (Jupiter).

Respondent timely asserted her statutory and contractual

rights to contest the termina tion, requesting a formal hearing

before DOAH.

At the final hearing Petitioner presented the testimony of

Dr. Mary Gray (Professor at Florida Atlantic University); Dianne

Curcio - Greaves (Professional Standards Department); Wanda Hagan

(Area 5 School Boar d office); Learna Ramsey (Equal Employment

Opportunity Coordinator); Nuncia Lowery (Manager Multi - Cultural

Department); Ann Wark (Jupiter Principal); and Respondent.

Petitioner’s Exhibits numbered 1 - 6, 8 - 14, 21 - 23, 30 - 34,

35 - 38, 39 - 42a, 43 - 46, 56 - 59, 70 - 7 8, 85, 86, 88, 90, 93, 93a,

94 - 101d, 186, 189, 202, 203, 204 and Joint Exhibits 1 and 2 were

entered into evidence without objection.

Respondent testified in her own behalf.

Respondent’s Exhibits numbered 1 and 2 were admitted into

evidence without obje ction.

A four - volume transcript of the formal hearing was filed

with DOAH on July 14, 2003. Thereafter the parties submitted

written Closing Arguments, as well as Proposed Recommended

Orders, all of which have been carefully considered in the

preparation of this Recommended Order.

Petitioner's Motion to Strike Respondent's Proposed

Recommended Order is denied as moot.

FINDINGS OF FACT

1. Respondent received her Florida teacher certification

in elementary education in 1988.

2. Since then, she has worked for four different

elementary school principals, all in Palm Beach County Schools.

Although she has received overall satisfactory evaluations

throughout her career, only one of the four principals for whom

she has worked found her performance satisfactory in all areas

throughout an entire school year.

3. In its Petition for Suspension, the School Board seeks

to terminate Kelson's employment, alleging that her teaching

performance during the 2001 - 2002 school year at Jupiter was

deficient in the areas of pr esentation of subject matter,

knowledge of subject matter, planning, assessment and

recordkeeping. Each of these areas has, over the years, often

been identified as being an area of concern on evaluations

rendered by three out of four of the principals fo r whom Kelson

has worked.

4. For the 2001 - 2002 school year, Kelson was offered by

Jupiter's principal, Ann Wark (Wark), the opportunity to teach a

small class of older elementary aged children who spoke little

or no English.

5. Kelson accepted, never s uggesting that she was not

appropriately credentialed.

6. Kelson did not have a successful year in this

assignment. Through counsel, she stipulated that the School

Board has complied with all of the substantive and procedural

requirements set forth in st ate law and in Kelson's contract

with Petitioner for evaluating teaching performance. The

evaluations were negative. Kelson further stipulated that the

School Board has complied with all its legal and contractual

obligations governing procedures for term inating employment due

to deficient performance.

7. Numerous meetings were held between Kelson and School

Board representatives to discuss her 2001 - 2002 performance. At

least some of these meetings were also attended by Kelson's

union representative. At no time did Kelson express

disagreement with the substance of the evaluations.

8. The evidence affirmatively established that Kelson was

properly evaluated by individuals qualified to conduct her

evaluations; that she was provided with sufficient and

a ppropriate assistance, including improvement strategies

reasonably calculated to enable her to bring her performance up

to the district's minimum requirements; that she was given

adequate opportunity to correct her deficiencies; and that she

failed to do s o.

9. By way of defense, Kelson contends that she was

teaching out - of - field at the time the adverse evaluation was

rendered. She argues that, as a matter of law, she cannot be

terminated for performance deficiencies which occurred while

teaching out - of - f ield.

10. However, the record affirmatively shows that Kelson

was not teaching out - of - field. Neither was any evidence or

legal argument offered to support the notion that if a teacher

is assigned out - of - field, she has an absolute defense to

termination.

11. Like most elementary school teachers employed in

Florida, Kelson holds what is known as an English for Speakers

of Other Languages (ESOL) endorsement to her elementary

education certificate.

12. The endorsement arises pursuant to a "grandfathering "

provision contained in a Consent Decree entered into by the

State of Florida Department of Education on August 14, 1990.

13. The Consent Decree was aimed at assuring that children

of limited English proficiency (LEP) would not be left out or

left behin d due to the language barrier between them and their

teachers.

14. Like most of her colleagues, Kelson took the training

contemplated in the Consent Decree and necessary to qualify for

the ESOL endorsement to her teaching certificate.

15. The ESOL endors ement, or, more precisely, the classes

required to earn the ESOL endorsement, provides the teacher with

the requisite training, in fact and in law, to serve LEP

students, including students with no ability to speak English.

16. In order to obtain an ESOL endorsement, a teacher must

have obtained sufficient credentials to be presumed qualified to

teach LEP students in a classroom where most of the children

speak proficient English, as well as in a class of nothing but

LEP students.

17. At first blush it is counterintuitive at a minimum

that a child who speaks no English could learn academic content,

including language arts, from a teacher who speaks not a word of

the child's language.

18. Yet, the evidence established that in large school

districts such a s Palm Beach County, dozens of foreign languages

may be spoken by students; it would be impossible to find

teachers fluent in each of those languages.

19. The point of the Consent Decree is to assure that LEP

students are appropriately served, whether or not their teacher

is able to speak to them in their primary language. To that

end, the grandfathering provision was put in place. Over time,

the parties to the Consent Decree have come to be satisfied that

the grandfathering provision has furnished teach ers for LEP

students who have the necessary credentials to teach them.

20. Kelson's theory rests upon a misunderstanding of what

ESOL is and is not. ESOL is not a subject, like math or

history. Instead, it is a method, or set of strategies, by

which tea chers who speak no language other than English can

teach content to students who speak little or even no English.

21. Kelson, and all teachers who hold an ESOL certificate,

have the training necessary to deliver content not only to LEP

students in a class with English - speaking students, but also to

students in classes which include only children who speak

little, and perhaps even no English.

22. Kelson contends that the student population to which

she was assigned could be lawfully taught only by a teach er with

a state ESOL certification. A certification in ESOL requires

substantially more classroom hours than Kelson or any other

teacher with an ESOL endorsement would be expected to have.

23. Kelson's claim that only an ESOL certified teacher

would have been qualified to teach her 2001 - 2002 class was not

supported by any evidence other than her personal opinion, and

is rejected as factually and legally unsound.

24. Kelson claims that she accepted the assignment Wark

offered because she felt pressured to do so. She intimated in

general ways her belief that school officials, particularly

Wark, were not dealing in good faith with her.

25. No evidence was offered upon which a finding could be

based that Kelson's feeling of being pressured to teach any

part icular class was reasonable. Neither was there evidence

that Petitioner or its employees acted in bad faith toward her.

Rather, the evidence established that prior to the time she

retained counsel, Kelson had not claimed to anybody that she was

unqualifi ed to teach her class.

26. In fact, Kelson was appropriately credentialed for the

class she was teaching. It was her performance, not her resume,

which was deficient.

27. Subsequent to obtaining her ESOL endorsement, she

completed over one hundred hour s of in - service points in ESOL.

With this additional background, Petitioner could and did

reasonably expect that not only was Kelson qualified to teach

her assigned students, she was also credentialed to teach

certain aspects of ESOL to other teachers.

28 . In the spring of 2002, Kelson requested a transfer to

another school, which request was denied.

29. On November 26, 2002, acting in accordance with the

Superintendent’s recommendation, the School Board voted to

suspend Respondent without pay and term inate her employment

effective December 11, 2002.

CONCLUSIONS OF LAW

30. DOAH has jurisdiction over the parties and subject

matter of this proceeding. Sections 120.57(1) and 231.36,

Florida Statutes.

31. In order to terminate Kelson's employment contrac t,

the School Board must prove by a preponderance of the evidence

the allegations set forth in the Petition for Suspension. Allen

v. School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3rd

DCA 1990). The School Board has satisfied its burden of proof.

32. The idea that Kelson was teaching out - of - field was

brought to the attention of the School Board's attorneys long

after she had conceded the bona fides of the School Board's

claim that her classroom performance in the 2001 - 2002 school

year was unsatis factory. After careful scrutiny of the legal

argument offered in support of this theory, together with the

evidence and testimony in the record, it is concluded that

Kelson's theory is unpersuasive.

33. As previously noted, ESOL is not a discipline or

cu rriculum to be imparted to elementary school students.

Rather, it is a strategy or set of strategies used to teach LEP

students.

34. It is possible to obtain certification in ESOL; this

is a rigorous master's level program which few teachers

undertake. There is no obligation at the elementary level that

teachers of LEP students hold ESOL certification.

35. The ESOL endorsement is a sufficient credential for

teaching elementary aged LEP students. Thus, as a matter of law,

Kelson cannot be deemed to ha ve been teaching out - of - field.

36. Assuming for the sake of discussion that Kelson was

teaching out - of - field, there is no evidence that this would

constitute a bar to dismissing a teacher under all

circumstances, as Kelson contends.

37. No evidence was o ffered upon which a finding could be

based that Kelson's feeling of being pressured to teach the ESOL

class was reasonable, nor was there evidence that Petitioner or

its employees acted in bad faith toward Kelson. In addition,

Kelson's decision to rest he r entire case upon the legal

argument that she was teaching out - of - field renders irrelevant

the personal feelings of the parties toward one another.

38. The School Board's decision to deny Kelson the

transfer she requested is of no legal significance beca use there

is no evidence that the district was under any legal duty to

provide a transfer, nor was there evidence that the transfer was

denied in bad faith.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is RECOMMENDE D that the School Board issue a final

order terminating Cherlyn Kelson’s employment for unsatisfactory

performance as set forth in the Petition for Suspension dated

November 26, 2002.

DONE AND ENTERED this 6th day of August, 2003, in

Tallahassee, Leon Co unty, Florida.

S

___________________________________

FLORENCE SNYDER RIVAS

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 6th day of August, 2003.

COPIES FURNISHED :

Andrew DeGraffenreidt, III, Esquire

Powers, McNalis & Moody

Post Office Box 21289

2328 10th Avenue, North, Suite 601

Lake Worth, Florida 33461 - 6617

Jean Marie Nelson, Esquire

School District of Palm Beach County

3318 Forest Hill Boulevard, Suite C302

West Palm Beach, Florida 33407

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hi ll Boulevard, Suite C316

West Palm Beach, Florida 33406 - 5869

Honorable Jim Horne

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32499 - 0400

Daniel J. Woodring, General Counse l

Department of Education

1244 Turlington Building

325 West Gaines Street

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 Orde r. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.