03-001635 Brevard County School Board vs. Robert Dale Taylor Status: Closed Recommended Order on Monday, October 13, 2003.

Summary: Petitioner failed to prove Respondent is incompetent to teach based on inefficiency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1635

)

ROBERT DALE TAYLOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to no tice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on July 29 and 30, 2003, in Viera, Florida.

APPEARANCES

For Petitioner: Alan S. Diamond, Esqui re

Amari & Theriac, P.A.

96 Willard Street, Suite 302

Cocoa, Florida 32922

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2 595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

Whether or not Respondent is incompetent to teach as

defined in Rule 6B - 4.009(1)(a), Florida Administrative Code; and

whether or not Respondent's alleged inc ompetency to teach and

perform his duties constitutes just cause to terminate his

employment and to terminate his continuing contract pursuant to

Subsection 1012.33(4)(c), Florida Statutes.

PRELIMINARY STATEMENT

On or about April 22, 2003, a Petition for D ismissal urging

the termination of the employment and continuing employment

contract of Robert Dale Taylor, Respondent herein, was filed

before the Brevard County School Board by the Superintendent of

the Brevard County School District. The Petition for D ismissal,

in part, alleged:

3. Respondent has received two (2)

consecutive unsatisfactory annual

evaluations for the 2001 - 2002 and 2002 - 2003

school years due to his inability to

discharge his duties as a teacher.

4. Respondent is incompetent to teac h and

perform his duties as an instructional

employee of the Brevard County School

District as the term "incompetency" is

defined by State Board of Education Rule 6B -

4.009(1)(a).

5. Respondent's incompetency to teach and

perform his duties constitutes just cause to

terminate Respondent's employment and to

terminate his continuing contract pursuant

to Section 1012.33(4)(c), Fla. Stat.

On April 21, 2003, Respondent requested "a hearing on the

charges against me in accordance with Section 231.36(6)(a),

Florida Statutes." On April 30, 2003, an Order was entered by

the Brevard County School Board confirming the Board's action

accepting the Superintendent's recommendation and referring

"this matter for a formal Administrative Hearing by an

Administrative L aw Judge from the Division of Administrative

Hearings." On that same day, the case was forwarded to the

Division of Administrative Hearings.

On May 6, 2003, an Initial Order was sent to both parties.

On May 30, 2003, the case was scheduled for final heari ng on

July 29 and 30, 2003, in Viera, Brevard County, Florida.

The case was presented as scheduled on July 29 and 30,

2003. Petitioner presented the testimony of five witnesses and

offered six exhibits which were received into evidence and

marked Petition er's Exhibits 1 through 6. Respondent presented

eight witnesses, including Respondent himself, and offered two

exhibits which were received into evidence and marked

Respondent's Exhibits 1 and 2.

The Transcript of Proceedings was filed with the Clerk of

t he Division of Administrative Hearings, on September 12, 2003.

On September 18, 2003, an Order was entered confirming the Joint

Stipulation as to Filing Deadlines, extending the time to file

proposed recommended orders to September 26, 2003. Both parties

filed Proposed Recommended Orders. All statutory citations are

to Florida Statutes (2003), unless otherwise indicated.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petitioner operates, controls, and supervises the free

public schools of Brevard County, Florida. It has entered into

individual and collective agreements with the teachers it

employs and has published bylaws and policies that control the

activities of its teaching professionals.

2. Respondent is a teacher who was employed by Petitioner

from 1976 until his termination in April 2003. He had taught at

Palm Bay Elementary from 1984 until 2003. Respondent has a

degree in health and physical education. Ea rly in his teaching

career he was a classroom teacher; he has taught physical

education since 1984.

3. Petitioner conducts annual and interim evaluations of

its instructional personnel using a formal Instructional

Personnel Performance Appraisal System. The system delineates

specific areas of evaluation, the basis for evaluation, and

overall performance scores. The system evaluates nine

"performance areas": planning, instructional organization and

development, presentation of subject matter, instruction al

communication, knowledge of subject matter, responsibilities,

relationships, management of student conduct, and student

evaluation. In addition, there is an overall evaluation.

4. Administrative personnel, in the instant case, the

principal and assist ant principal, are trained to perform the

instructional personnel evaluations. Teachers receive one of

three ratings in each performance area: unsatisfactory, needs

improvement, or effective. Typically, evaluations are done

annually.

5. During his teac hing career, Respondent served under

five principals. In 1998, Joan Holliday became principal of

Palm Bay Elementary.

6. An analysis of the performance evaluations of

Respondent's first 22 years of teaching reflects that he was an

"effective" and "exempl ary" teacher (high ratings during the

particular rating periods). The same evaluations reflect

recurring, but not consistent, shortcomings in the areas of

planning and related responsibilities.

7. In Respondent's 1997 - 1998 annual evaluation, Principal

Jo seph F. Padula, Jr., who had evaluated Respondent from 1984 to

1998, rated him as unsatisfactory in "planning." Comments by

Principal Padula describe Respondent's failure to meet the

requirements of the Sunshine State Standards and show evidence

of "maint aining pace with new curriculum requirements."

8. Principal Joan Holliday's first opportunity to provide

an annual evaluation of Respondent was in the 1998 - 1999 school

year. Her assessment reflects Respondent as a teacher who

effectively teaches physic al education, but could improve in

planning, organization, and "could benefit from newer

philosophies in physical education."

9. Respondent responded to his 1998 - 1999 evaluation by

letter dated February 25, 1999. The letter is defensive and

reflects his opinion that he is making attempts to improve but

that he believes that he is an effective physical education

teacher.

10. Respondent's 1999 - 2000 evaluations (there were two

interim evaluations during the 1999 - 2000 school year) reflect

that he was respond ing positively to the previous critical

assessments although he continued to struggle with his lesson

plans. The evaluations indicate that he was continuing to

effectively teach and interact with students.

11. A 2000 - 2001 interim evaluation, dated Dece mber 11,

2000, contains an unsatisfactory rating. This occurs in the

"relationships" assessment area and reflects an apparent problem

Respondent has related to "kidding" students which was sometimes

not well - received and resulted in sporadic complaints fr om

parents. This rating appears to be incongruous with the

effective rating he received in "management of student conduct"

in the same evaluation. He continued to receive effective

ratings in "presentation of subject matter" and "instructional

communicat ion." According to Petitioner's Instructional

Personnel Performance Appraisal System, an effective rating

describes performance of "high quality" and is the highest

rating achievable.

12. The annual evaluation for the 2000 - 2001 school year

rates Responde nt unsatisfactory in the "relationships" category.

Respondent's "kidding" of students, which caused parental

complaints that evoked evaluator's concern and was the apparent

basis for the unsatisfactory rating in "relationships" in the

2000 - 2001 interim an d annual evaluations, was clearly subject to

interpretation. Testimony did not reveal any "kidding" which

would have caused the undersigned to believe Respondent

warranted an unsatisfactory rating as defined in the Performance

Appraisal System's rating sc ale definitions. In addition,

negative references to Respondent's interaction with "classroom

teachers" is not borne out by the testimony.

13. Respondent received five unsatisfactory ratings in his

2001 - 2002 school year evaluation. He is rated unsatis factory in

"planning," even though it is indicated that Respondent "does

turn in his weekly lesson plans," and there is criticism of his

failure "to integrate reading, mathematics and writing into

[physical education] curricula." At the final hearing,

Pri ncipal Holliday testified that Respondent's lesson plans for

2001 - 2002 and 2002 - 2003 were "adequate." He also is rated

unsatisfactory in "responsibilities" and "relationships"; these

ratings are supported by comments indicating perceived

communications an d cooperation problems with other faculty.

These perceived communications and cooperation problems were not

borne out by the testimony of faculty members.

14. On March 11, 2003, immediately prior to his

termination, Respondent received six unsatisfactory ratings on

an interim appraisal. This interim appraisal is the only

evaluation Respondent received during the 2002 - 2003 school year.

The evaluator observes that Respondent continued to fail to

indicate in lesson plans how he was integrating writing,

rea ding, and mathematics into his physical education curriculum

and that "developmentally appropriate activities should be

planned and taught at each class." Respondent was rated

unsatisfactory in "instructional communication"; during

Principal Holliday's te nure, Respondent had been rated effective

(the highest rating) in this area on five occasions. Comments

in this category indicate that Respondent "addresses students in

a loud, threatening voice." He was rated unsatisfactory in the

"responsibilities" cat egory. "Communication with classroom

teachers" is referenced in the comments to this category. The

unsatisfactory in "relationships" is referenced by a need to

continue to "work on his written and oral communication skills

with students, parents, and pee rs."

15. Principal Holliday had determined late in the 2001 -

2002 school year that she was going to recommend Respondent for

termination by reason of incompetency. As a result, the

evidentiary value of this last assessment is questionable.

16. Principal Holliday acknowledges that most of her

concerns with Respondent relate to "lesson planning and

communication." If Respondent, in fact, had inappropriate

communication with students, such communication reflects teacher

misconduct, not incompetence. Her te stimony reflects that she

formally observed Respondent teaching his class infrequently and

that when she formally observed, "he did everything he was

supposed to do in a correct manner." Principal Holliday's

opinions of Respondent's teaching abilities and utilization of

new methodology are largely drawn from her review of his lesson

plans, not observing Respondent teaching physical education to

students. She is critical of Respondent's failure to implement

new (sometimes controversial) physical education methodology;

however, she acknowledges that none of these new educational

theories are mandated. Respondent's lesson plans for his final

teaching years were "adequate." As far as Principal Holliday

knows all of Respondent's students met the Sunshine Stat e

Standards for physical education; the Sunshine State Standards

were all noted in his plan book during the final years she

evaluated Respondent. The ultimate goal of a teacher is to

teach children, not to write lesson plans.

17. During the period of the ir relationship as principal -

teacher, Principal Holliday wrote 29 letters of reprimand to

Respondent. There are 58 faculty members at Palm Bay

Elementary; during the five years she was principal, Principal

Holliday issued four letters of reprimand to othe r faculty

members. Most of the letters of reprimand concern subjects that

appear in Respondent's interim and annual evaluations.

18. Six Palm Bay faculty members testified as witnesses

for Respondent. They represent 115 cumulative years of teaching

expe rience; each of their teaching careers at Palm Bay

Elementary overlap Respondent's, giving each a familiarity with

Respondent. While they did not assess Respondent's lesson

plans, record and document production, and other administrative

details solely in the cognizance of administration, they had

ample opportunity to observe Respondent teaching his physical

education classes, his interaction with students, his

interaction with faculty, his attention to his faculty

responsibilities, and other areas formally assessed by the

Instructional Personnel Performance Appraisal System.

19. These informal evaluators collectively report

Respondent as "very dependable," having "good rapport with the

faculty," appearing to have "well - planned classes," and

responsive to s uggestions [made by other faculty members] for

physical education for younger children, "very helpful." One

witness advised, "he jokes with the kids; talks with them in a

way they understand." One witness offered the unsolicited

comment, "we really consi der him to be an asset to the school

because of his rapport with some of the older children. It's

really nice to have him there." A witness who had early morning

bus duty with Respondent reported that he was punctual and

dependable. Nothing reported by any of these teacher/witnesses

suggests a lack of teaching competency; in fact, their testimony

suggests that Respondent was a good teacher.

20. The evidence presented by Respondent's teaching

contemporaries, admittedly not trained evaluators, presents a

dramatically different assessment of Respondent's teaching

performance than does that offered by Petitioner. The testimony

of Respondent's teaching peers is credible.

21. The assistant principal, who authored critical interim

evaluations, testified that she did not witness Respondent

interact with any student in an inappropriate way, except that

he spoke loudly on occasion; that when she observed him

teaching, the children appeared to be learning; that he

conducted class in an appropriate and effective wa y; and that,

recently, he appeared to be complying with Sunshine State

Standards in terms of developing students' physical skills.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter. Se ction

120.57.

23. Subsections 1001.32(2) and (3) read as follows:

(2) SCHOOL BOARD. – In accordance with the

provisions of s. 4(b) of Art. IX of the

State Constitution, district school boards

shall operate, control, and supervise all

free public schools in their respective

districts and may exercise any power except

as expressly prohibited by the State

Constitution or general law.

(3) SUPERINTENDENT. – Responsibility for

the administration and management of the

schools and for the supervision of

instru ction in the district shall be vested

in the superintendent as the secretary and

executive officer of the school board, as

provided by law.

24. A district school board is considered the "public

employer," as that term is used in Chapter 447, Part II, "w ith

respect to all employees of the school district." Subsection

447.203(2). As such, it has the right "to direct its employees,

take disciplinary action for proper cause, and relieve its

employees from duty because of lack of work or other legitimate

re asons." Section 447.209.

25. "Under Florida law, a school board's decision to

terminate an employee is one affecting the employee's

substantial interests; therefore, the employee is entitled to a

formal hearing under section 120.57(1) if material issues of

fact are in dispute," for "a school board is a state agency

falling within Chapter 120 for purposes of quasi - judicial

administrative orders." Sublett v. District School Board of

Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

26. The appropri ate standard of proof in a school board

dismissal proceeding is preponderance of evidence, unless the

collective bargaining agreement covering the bargaining unit of

which the employee is a member prescribes a more demanding

standard of proof. McNeill v. Pinellas County School Board , 678

So. 2d 476 (Fla. 2d DCA 1996); Sublett v. Sumter County School

Board , 664 So. 2d 1178 (Fla. 5th DCA 1995). The parties agree

that preponderance of evidence is the appropriate burden of

proof in this case.

27. Because the statute and rules providing grounds for

terminating Petitioner's contract are penal in nature, they must

be construed in favor of the employee. Rosario v. Burke , 605

So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of

Professional Regulations , 348 So. 2d 923 (Fla. 1st DCA 1977).

28. When a school board seeks to terminate an employee's

contract for cause, it must establish each and every element of

the charge. MacMillan v. Nassua County School Board , 629 So. 2d

226 (Fla. 1st DCA 1993).

29. Any disci plinary action taken against the employee may

be based only upon the conduct specifically alleged in the

written notice of specific charges. Lusskin v. Agency for

Health Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA

1999); Cottrill v. Department of Insurance , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Department of Business and

Professional Regulation , 625 So. 2d 1237, 1238 (Fla. 2d DCA

1993); and Delk v. Department of Professional Regulation , 595

So. 2d 966, 967 (Fla. 5th DCA 1992).

30. P etitioner's Petition for Dismissal, the charging

document, states, in pertinent part:

* * *

3. Respondent has received as two (2)

consecutive unsatisfactory annual

evaluations for the 2001 - 2002 and 2002 - 2003

school years due to his inability to

discharge his duties as a teacher.

4. Respondent is incompetent to teach and

perform his duties as an instructional

employee of the Brevard County School

District as the term "incompetency" is

defined by State Board of Education Rule 6B -

4.009(1)(a).

5. Respondent's incompetency to teach and

perform his duties constitutes just cause to

terminate Respondent's employment and to

terminate his continuing contractor to a

pursuant to Section 1012.33(4)(c), Fla.

Stat .

31. Respondent has a continuing e mployment contract with

Petitioner. Section 1012.33 reads, in pertinent part, as

follows:

(4)(a) An employee who had continuing

contract status prior to July 1, 1984, shall

be entitled to retain such contract and all

rights arising therefrom as prescri bed by

rules of the State Board of Education

adopted pursuant to s. 231.36 , Florida

Statutes (1981), unless the employee

voluntarily relinquishes his or her

continuing contract.

* * *

(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any school pri ncipal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be based on immorality, misconduct

in office, incompetency, gross

insubordination, willful neglect of du ty,

drunkenness, or conviction of a crime

involving moral turpitude, as these terms

are defined by rule of the State Board of

Education. Whenever such charges are made

against any such employee of the district

school board, the district school board may

s uspend such person without pay; but, if the

charges are not sustained, he or she shall

be immediately reinstated, and his or her

back salary shall be paid. In cases of

suspension by the district school board or

by the district school superintendent, the

d istrict school board shall determine upon

the evidence submitted whether the charges

have been sustained and, if the charges are

sustained, shall determine either to dismiss

the employee or fix the terms under which he

or she may be reinstated. If such ch arges

are sustained by a majority vote of the full

membership of the district school board and

such employee is discharged, his or her

contract of employment shall be thereby

canceled. Any such decision adverse to the

employee may be appealed by the emplo yee

pursuant to s. 120.68 , provided such appeal

is filed within 30 days aft er the decision

of the district school board.

32. The State Board of Education's definition of

"incompetency" referenced in Section 1012.33 is found in Rule

6B - 4.009(1)(a), Florida Administrative Code, and reads as

follows:

The basis for charges upon whi ch dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. The basis for each of

such charges is hereby defined:

(1) Incompetency is defined as inability

or lack of fitness to discharge the re quired

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 members 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) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Se ction

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 minimum 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

stabi lity; (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.

33. Rule 6B - 4.009(1)(a), Florida Administrative Code,

makes reference to Section 231.09, Florid a Statutes (2001),

renumbered to Section 1012.53, which reads as follows:

(1) The primary duty of instructional

personnel is to work diligently and

faithfully to help students meet or exceed

annual learning goals, to meet state and

local achievement req uirements, and to

master the skills required to graduate from

high school prepared for postsecondary

education and work. This duty applies to

instructional personnel whether they teach

or function in a support role.

(2) Members of the instructional st aff of

the public schools shall perform duties

prescribed by rules of the district school

board. The rules shall include, but are not

limited to, rules relating to a teacher's

duty to help students master challenging

standards and meet all state and local

requirements for achievement; teaching

efficiently and faithfully, using prescribed

materials and methods, including technology -

based instruction; recordkeeping; and

fulfilling the terms of any contract, unless

released from the contract by the district

s chool board.

34. Respondent urges that Rule 6B - 4.009(1)(a), Florida

Administrative Code, and Clark v. School Board of Lake County ,

595 So. 2d 735 (Fla. 5th DCA 1992), require the "testimony by

members of a panel of expert witnesses appropriately appointe d

from the teaching profession" to prove "incompetency." Further

consideration based on the arguments presented in the Proposed

Recommended Orders does not persuade the undersigned to change

the ruling made at the final hearing that expert witness

testimo ny is not mandatory. The Fifth District Court's obiter

dicta , acknowledging "difficulty in reaching a decision as to

the incompetency of a teacher" is embraced, however.

35. Evidence in the instant case suggests that

Respondent's lesson plan preparation was less than satisfactory

and required continuing supervisory attention. In addition, his

attention to administrative details was lacking, at times.

36. The unsatisfactory ratings in the interim and annual

performance appraisals, which began in the 2000 - 2001 school

year, are eroded by the testimony of the evaluators themselves

and, more significantly, as related to teaching ability,

interaction with students and fellow teachers, and general value

to the school, are contradicted by credible evidence pres ented

by Respondent's teaching peers. The evidence reflects the

evaluators' frustration with Respondent's continuing marginal

lesson plans and administrative weakness which tainted their

ability to objectively consider other performance areas.

37. Petit ioner has failed to demonstrate, by a

preponderance of evidence, that Respondent is incompetent to

teach and perform his duties as an instructional employee of the

Brevard County School District as the term "incompetency" is

defined by the State Board of E ducation, Rule 6B - 4.009(1)(a),

Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Brevard County School Board,

enter a final order finding that Respondent should no t have been

terminated and reinstating his continuing employment contract

effective the date of his termination.

DONE AND ENTERED this 13th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Admi nistrative 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 Ad ministrative Hearings

this 13th day of October, 2003.

COPIES FURNISHED :

Harold T. Bistline, Esquire

Stromire, Bistline, Miniclier & Griffith

1970 Michigan Avenue, Building E

Post Office Box 8248

Cocoa, Florida 32924 - 8248

Alan S. Diamond, Esquire

Amari & Theriac, P.A.

96 Willard Street, Suite 302

Cocoa, Florida 32922

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Dr. Richard A. DiPatri, Superintendent

Brevard County School Board

2700 Judge Fran Jamieson Way

Viera, Florida 32940 - 6699

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exce ptions 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.