03-002740 Palm Beach County School Board vs. Samuel K. Young Status: Closed Recommended Order on Wednesday, March 17, 2004.

Summary: Petitioner School Board failed to carry its burden of proving that Respondent`s alleged performance deficiencies existed or persisted, and thus Respondent should be reinstated to the teaching position from which he was suspended without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2740

)

SAMUEL K. YOUNG, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing in West Palm Beach, Florida, on

November 4 and 5, 2003.

APPEARANCES

For Petitioner: Jean Marie Nelson, Esquire

Palm Beach County School Board

3318 Forest Hill Boule vard, Suite C - 302

West Palm Beach, Florida 33406

For Respondent: Catherine J. Chamblee, Esquire

Chamblee, Johnson & Haynes, P.A.

215 West Verne Street, Suite D

Tampa, Florida 33606

Matthew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A.

1615 Forum Way, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issues in this case are: (1) Whether Petitioner's

allegations regarding Respondent sc hoolteacher's purported

performance deficiencies are, in fact, true, thereby justifying

Petitioner's placing Respondent on statutory performance

probation; (2) If the first question is answered in the

affirmative, then, Whether Respondent satisfactorily co rrected

the specified performance deficiencies within the 90 - day

probation period prescribed by Section 1012.34(3)(d), Florida

Statutes; and (3) Whether Respondent's employment should be

continued or terminated.

PRELIMINARY STATEMENT

By letter dated Nov ember 18, 2002, and again via a Petition

for Suspension Without Pay and Dismissal From Employment dated

July 1, 2003, the Superintendent of Schools in Palm Beach County

notified Respondent Samuel K. Young that he intended to

recommend to the School Board o f Palm Beach County that Mr.

Young be suspended without pay pending the termination of his

employment as a teacher due to unsatisfactory job performance.

Mr. Young requested a formal hearing by letter dated

July 10, 2003. The School Board met on July 16, 2003, and

approved the Superintendent's recommendation. On July 28, 2003,

the matter was referred to the Division of Administrative

Hearings, where it was assigned to an Administrative Law Judge.

The undersigned convened the final hearing, as schedul ed,

on November 5, 2003, in West Palm Beach, Florida. Petitioner

presented the following witnesses during its case - in - chief:

Dr. Lisa Troute, Curriculum Specialist, Palm Beach County School

District; Dr. Kathleen K. Huie, Professor, Florida Atlantic

Unive rsity; Diane Curcio - Greaves, Manager, Palm Beach County

School District, Department of Professional Standards; Leo

Barrett and Tanya Daniel, Assistant Principals, Alexander W.

Dreyfoos, Jr. School of the Arts; and Ellen Van Arsdale,

Principal, Alexander W. Dreyfoos, Jr. School of the Arts.

Petitioner also called Mr. Young as an adverse witness.

Finally, Petitioner offered Petitioner's Exhibits 1 – 8 and 10 – 27,

which were received in evidence.

Respondent testified on his own behalf and also called Mary

Cole , Deborah Svec, and Delores Lucas as witnesses. He offered

Respondent's Exhibits 1 - 6, which were admitted.

In addition to their respective exhibits, the parties

introduced Joint Exhibits 1 - 3, and these were received in

evidence.

The final hearing t ranscript, comprising four volumes, was

filed on January 6, 2004, and after that each party filed a

Proposed Recommended Order before the deadline established at

the close of the hearing, which was February 5, 2004.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2003 Florida Statutes.

FINDINGS OF FACT

Material Historical Facts

1. At all times material to this case, Respondent Samuel

K. Young ("Young") was a teacher in the Palm Beach County School

District ("District"). From 1993 until July 2003, when

Respondent Palm Beach County School Board ("Board") suspended

him without pay, Young taught English at the Alexander W.

Dreyfoos, Jr. School of the Arts ("Dreyfoos"), a magnet high

school for students interested in an arts - center ed education.

2. In August or early September of 2001, shortly after the

beginning of the 2001 - 02 school year, one of the Assistant

Principals at Dreyfoos, Tanya Daniel, began routinely to observe

Young, on an "informal" basis, while he was teaching his

classes. These unscheduled, informal observations were

triggered by students' complaints, of which Ms. Daniel, as

Young's immediate supervisor, had been the recipient or been

made aware.

3. As time passed, the informal observations became

increasingly f ormal. On October 25, 2001, Ms. Daniel conducted

a formal evaluation of Young, using the Summative Observation

Instrument, which is a tool that was developed for the Florida

Department of Education's Florida Performance Measurement

System. Another Assist ant Principal, Leo Barrett, also started

formally observing Young's classes.

4. By early December 2001, Ms. Daniel had come to the

conclusion that Young was not performing his teaching

responsibilities in a satisfactory manner. Specifically,

Ms. Daniel believed that Young was deficient in the areas of

classroom management; presentation and organization; planning;

student assessment; obedience to policies and procedures; and

maintenance of the learning environment.

5. Two points are especially notable a bout Ms. Daniel's

negative assessment of Young. First, she placed considerable

reliance on student feedback. Indeed, Ms. Daniel invited and

encouraged Young's students to report to her on how he was doing

in the classroom. Second, she did not rely upon student

performance as measured, in accordance with Section 1008.22,

Florida Statutes, by state and/or local assessments.

6. On January 8, 2002, as a result of Ms. Daniel's

evaluation, the Principal of Dreyfoos, Ellen Van Arsdale, placed

Young on school - l evel performance probation pursuant to the

procedures spelled out in the Classroom Teacher Assessment

System (CTAS) Evaluation Handbook (the "CTAS"). (Under the

Collective Bargaining Agreement Between the District and the

Palm Beach County Classroom Teach ers Association, effective

July 1, 2002 to June 30, 2005 (the "Union Contract"), the

District is required to conduct formal evaluations of teachers

"in keeping with" the 1999 CTAS.) The CTAS provides that a

teacher whose performance is found deficient mu st be afforded at

least 30 calendar days to improve his performance to a

satisfactory level. During that time, the teacher must be given

"school - site assistance" to help him correct the identified

performance deficiencies. Accordingly, a 30 - day School - Si te

Assistance Plan was developed for Young and put into effect on

January 8, 2002.

7. The school - level performance probation that began in

January 2002 constituted a new phase in the evaluation process.

The purpose of the first phase, which lasted about three months

(from September through December 2001), purportedly was to

determine whether Young's performance was satisfactory or not.

Thus, the first - phase evaluators should not have assumed at the

outset that Young's performance was satisfactory or

unsa tisfactory. In contrast, during the second phase, the

evaluators worked from the initial premise that Young's

performance was, in fact, unsatisfactory, in the several areas

noted by Ms. Daniel. The focus, therefore, was on whether Young

was improving suf ficiently to correct deficiencies that were

assumed to exist.

8. Throughout the school - level probationary period, a

number of evaluators reviewed Young's performance. Ms. Van

Arsdale conducted several evaluations, and Mr. Barrett performed

at least one . Another was conducted by Dr. Lisa Troute, a

Curriculum Specialist with the District. Others, too, were

involved. None of the evaluators questioned the conclusion,

which was based largely on Ms. Daniel's opinions, that Young's

performance actually was deficient.

9. Ms. Daniel did not observe Young's classroom

performance during this second phase, evidently in consequence

of Young's having voiced some concerns about her impartiality.

Ms. Daniel remained an important participant in the process,

however , and she continued actively to solicit students'

opinions about Young's competence. On February 20, 2002, she

interviewed at least three of Young's students, making

handwritten notes (which are in evidence) to memorialize their

respective assessments. M s. Daniel asked one student to rate

Young's performance on a scale from 1 to 10, with 1 being "poor"

and 10 being "great"; the student gave Young a 3.5. There is no

evidence that Ms. Daniel elicited the opinions of a random,

representative sample of Young 's students —— or instead, for

example, polled only the known malcontents. There is also no

persuasive evidence that Ms. Daniel ever did anything but accept

the students' mostly unfavorable opinions uncritically. What

the evidence does establish is that Ms . Daniel put great weight

on the students' opinions —— so much so that the students she

spoke with effectively became Young's evaluators themselves.

10. The school - level probationary period was extended well

beyond 30 days, and ended up lasting until the e nd of the 2001 -

02 school year. By letter dated May 17, 2002, Ms. Van Arsdale

informed the Superintendent that Young's performance remained

unsatisfactory after 91 days of school - site assistance.

Specifically, it was Ms. Van Arsdale's opinion that Young's

performance was deficient in the following six areas, each of

which is a designated "indicator" of competence under the CTAS:

Management of Student Conduct; Presentation of Subject Matter;

Learning Environment; Planning; Assessment; and

Policies/Procedu res/Ethics. Ms. Van Arsdale asked the

Superintendent to place Young on statutory performance probation

for 90 days, pursuant to Sections 231.29 and 231.36, Florida

Statutes (2001).

11. The assessment procedure used to evaluate Young during

the school - l evel probation was not primarily based on the

performance of students as measured by state and/or local

assessments administered annually as specified in Section

1008.22, Florida Statutes. In fact, the evaluators placed no

meaningful weight on student per formance, so measured.

Nevertheless, the Superintendent acceded to Ms. Van Arsdale's

request. By letter dated May 20, 2002, the Superintendent

notified Young that he would be placed on performance probation

for 90 calendar days.

12. The statutory perf ormance probation —— a distinct, third

phase of the evaluation process —— commenced in August 2002, at

the beginning of the 2002 - 03 school year. On August 22, 2002,

Young was given a Professional Development Plan, which called

for the provision of assistance, as well as ongoing evaluations,

through November 2002, when a final evaluation would be issued

passing judgment on whether he had —— or had not —— corrected the

alleged performance deficiencies.

13. The statutory performance probation unfolded largely

as had the school - level performance probation. Young was,

again, observed and critiqued by a number of evaluators. Of the

written evaluations in evidence, the most balanced is a report

dated September 22, 2002, which Droute prepared concerning

her obser vation of Young on September 10, 2002. Based on this

contemporaneous report, the undersigned is persuaded that Dr.

Trout then believed Young was a "satisfactory" teacher who

could, with additional effort, be a "good" teacher.

14. Others were less charitable, however, including

Ms. Van Arsdale, who prepared Young's final evaluation based on

her November 5, 2002, observation of his class. On the CTAS's

evaluation form, Ms. Van Arsdale gave Young a rating of

"concern" on five separate "indicators" of competence :

Management of Student Conduct; Presentation of Subject Matter;

Learning Environment; Planning; and Assessment. This resulted

in an overall evaluation of "unsatisfactory."

15. The assessment procedure used to evaluate Young while

he was on statutory performance probation was not primarily

based on the performance of students as measured by state and/or

local assessments administered annually as specified in Section

1008.22, Florida Statutes. Indeed, once again, the evaluators

placed no meaningful wei ght on student performance, so measured.

16. By letter dated November 6, 2002, Ms. Van Arsdale

notified the Superintendent that, in her opinion, Young had

failed to correct performance deficiencies and therefore should

be fired. The Superintendent agr eed, and by letter dated

November 14, 2002, informed Young that he would recommend to the

Board that Young's employment be terminated. The Board later

accepted the Superintendent's recommendation, and Young was

suspended without pay, effective on or about July 16, 2003,

pending his discharge.

The CTAS

A.

17. Teachers who are evaluated under the CTAS are rated on

15 categories of qualities or abilities, which are referred to

collectively as "indicators." Each indicator, such as, e.g. ,

Management of Stud ent Conduct, is best understood not as a

single ability, but rather as a label for a skill - set, that is,

a collection of qualities, abilities, or skills.

18. The indicators are divided into two classes called

"performance areas." The performance areas are: "A. Teaching

and Learning" and "B. Professional Responsibilities." There are

eight indicators under Teaching and Learning and seven under

Professional Responsibilities.

19. The CTAS uses a two - point rating scale. The only

grades used for scoring a teacher on the 15 indicators are

"acceptable" and "concern." The section of the CTAS's

evaluation form where the grades are recorded is reproduced

below, with the ratings from Ms. Van Arsdale's final evaluation

of Young, dated November 6, 2002, added to show how the form is

used in practice:

A. TEACHING AND LEARNING ACCEPTABLE CONCERN

1. Management of Student Conduct X

2. Human Development and Learning X

3. Presentation of Subject Matter X

4. Communication X

5. Knowledge of Subject Matter X

6. Learning and Environment X

7. Planning X

8. Assessment X

B. PROFESSIONAL RESPONSIBILITIES ACCEPTABLE CONCERN

9. Technology X

10. Record Keeping X

11. Continuous Impro vement X

12. Working Relationships with Coworkers X

13. Working Relationships with Parents X

14. Policies/Procedures/Ethics X

15. Duties as Assigned by the School Administration X

20. The teacher's overall evaluation rating of

"satisfactory" or "unsatisfactory" depends entirely upon the

combination of ratings awarded on the 15 indicators. The

following combinations require an overall evaluation of

"unsatisfactory":

NUMBER OF CONCERNS

SECTION A SECTION B

3 0

2 1

1 3

0 4

As can be seen, the indicators under Section A carry greater

relative weight in the overall evaluation than those under

Section B. Because Young received five "concerns" on his final

evaluation, the CTAS dictated that he be given an overall

"unsat isfactory" rating.

21. In rating the various indicators, evaluators are

supposed to consider numerous "performance criteria." The CTAS

defines the "performance criteria" as "examples of descriptors

which define the indicators." To be more precise, the

performance criteria are specific behaviors, acts, and practices

that the teacher should be performing as an outward

manifestation of the teacher's command or mastery of the

respective skill - sets known as indicators. Various performance

criteria are set o ut in the CTAS as "bullet points" under each

of the indicators. The first bullet point under the first

indicator (Management of Student Conduct), for example, is:

"[The teacher] specifies and explains rules of conduct and

provides for practice of rules w hen appropriate."

22. For each of the indicators, the CTAS further provides

a set of "data collection sources." The CTAS defines the term

"data collection sources" as "examples of multiple data sources

used to determine a rating of 'acceptable' or 'co ncern.'" In

other words, the data collection sources are lists of "evidence"

that can be examined to determine whether, and perhaps how well,

the teacher is performing the prescribed performance criteria.

For example, the data collection sources for the indicator

Planning are: observation reports; lesson plans; conference

notes; assessment data; instructional materials; and written

reports.

B.

23. As we have seen already, the CTAS defines the terms

"satisfactory" and "unsatisfactory" in a completely o bjective

fashion. It does so by specifying the rating combinations that

will result in an overall evaluation of "unsatisfactory." Thus,

anyone who knows the number of "concerns" that a teacher has

received in Sections A and B can apply the formula and as sign

the overall grade; this ministerial function requires neither

discretion nor judgment.

24. What does demand discretion and judgment is rating the

teacher's command or mastery of the respective indicators as

either "concern" or "acceptable." This ra ting function requires

that qualitative determinations be made at two distinct levels.

First, for every indicator (skill - set), the evaluator must

decide how well the teacher is executing each of the several

subsidiary performance criteria (behaviors). Th en, based on how

well the teacher is executing the subsidiary performance

criteria (behaviors), the evaluator must render a judgment as to

how well the teacher is doing with regard to the indicator

(skill - set) that comprises those performance criteria. At both

stages of the analysis, to arrive consistently at fair

conclusions —— that is, to obtain similar results with respect to

similarly performing teachers most of the time —— requires (a)

that there be uniform standards to guide evaluators in making

the requ isite judgment calls and (b) that the same standards

always be applied, to all teachers in all evaluations. Thus, it

is important to know what standards, if any, the CTAS

prescribes.

25. To begin, some negative findings are in order. First,

the indicat ors are not standards upon which to make a judgment.

They are, rather, the qualities to be judged, using appropriate

standards of decision. Second, the performance criteria are

likewise not standards. They define or prescribe the relevant

facts to which , jointly and severally, standards should be

applied, so as to make a judgment regarding one indicator or

another. 1

26. To illustrate, the fact that a teacher is observed

"reinforc[ing] appropriate social behavior" tells us nothing

about how well he doe s this, much less about how well he has

mastered Management of Student Conduct, which indicator

comprises the referenced performance criterion. Rather, to make

a qualitative judgment regarding the teacher's performance of

this practice requires some test, some basis, for distinguishing

between good and bad performances. Similarly, the ultimate fact

that the teacher acceptably "reinforces appropriate social

behavior" tells us relatively little, presumably, about whether

the teacher's mastery of the indicat or Management of Student

Conduct is acceptable or not, for there are eleven other

performance criteria to be considered also in respect of this

particular indicator. To make a qualitative judgment regarding

whether the teacher has demonstrated an acceptab le command of

the skill - set known as Management of Student Conduct requires

some sort of standard, some yardstick for measuring the relative

importance of the teacher's demonstrated expertise (or lack

thereof) —— as determined by the evaluator —— in the execut ion of

the various performance criteria.

27. The only "standards" that the evidence in this case

persuasively establishes are the terms "acceptable" and

"concern." Superficially, these terms seem to possess some

degree of objective content. On reflecti on, however, it should

be seen that they do not, a point which will be examined in

greater detail below. The undersigned, moreover, has searched

the CTAS and the record in vain for an adequate definition of

these terms. As far as the proof in this case g oes, these terms

are criteria without content, and as such can be used as cover

for almost any decision an evaluator might want to make.

C.

28. It is desirable at this point to elaborate on why the

terms "concern" and "acceptable," by themselves, are not

standards that evaluators (or administrative law judges or

courts) can consistently and fairly apply to teachers across -

the - board. As a starting point, envisage a spectrum comprising

every conceivable level or degree of teacher talent, ranging

from, in t he abstract, "worst imaginable" (or "perfectly awful")

to "best imaginable" (or "perfectly excellent"). It makes no

difference, for present purposes, how exactly "worst" and "best"

might be defined. Rather, it is sufficient to say of the

"worst" teacher, in regard to any imaginable attribute, that

"none could be worse." Conversely, it need only be said of the

"best" teacher, in regard to any imaginable attribute, that

"none could be better." As should be obvious, these "worst" and

"best" teachers are co nstructs that serve to define the terminal

points at either end of the "talent - level spectrum" we are

calling to mind.

29. This talent - level spectrum can be depicted with a

simple drawing, as follows:

Worst ? ? Best

It can now be observed that all teachers, everywhere, must fall

somewhere on this talent - level spectrum, between the two poles

as we have defined them. Of course, the precise point at which

any given teacher should be placed on the spe ctrum, at any given

time, 2 is a matter about which reasonable people, in every

instance, could disagree. But that is presently of no

consequence.

30. Turning next to the facts of this case, the question

is posed: Where, on this spectrum of talent, sh ould the mark

separating "concern" from "acceptable" be placed? Given their

ordinary meanings, the words themselves provide no guidance in

this regard. Either of the following, for example, is consistent

with the plain meaning of "concern" and "acceptabl e":

Worst ? ? ? Best

Concern Acceptable

Worst ? ? ? Best

Concern Acceptable

It does not matter how the mark - point in either example might be

defined. What matters is the relationship between the mark and

the respective poles. As the mark moves closer to the "worst"

terminal, the "concern" band becomes narrower, leaving more

teachers on the "acceptable" side. Conversely, moving the mark

towards the "best" terminal narrows the "acceptable" band,

consigning more teachers to the "concern" category.

31. In the instant case, there is no persuasive evidence

on which the undersigned can base a finding as to where the mark

should be placed. As a result, the undersigned cannot make de

novo findings regarding whether Young's execution of the

performance criteria was "acceptable" or not, or whether,

ultimately, his command of the indicators in dispute was of

"concern," as the Board has alleged. To do that, the

undersigned would need to apply standards of his own devising.

Whatever merit such standards might have, they would not be the

standards used to judge other teachers, and hence it would be

unfair to apply them to Young.

32. Moreover, there is no persuasive evidence in this case

as to where the several evaluators placed the mark when they

assessed Young's performance. 3 The undersigned therefore cannot

find that the evaluators all used the same standards —— cannot

even infer that they did. Consequently, assuming it we re proper

to do so, the undersigned could not review whether the

evaluators acted fairly and appropriately vis - à - vis Young or

whether they reached a "correct" ( i.e. legally sustainable)

judgment regarding his teaching performance. 4

Student Performance

33 . The 1999 CTAS that was used in evaluating Young had

been developed in 1998 and approved by then - Commissioner Tom

Gallagher in January 1999. By letter dated January 25, 1999,

Commissioner Gallagher informed the District that its CTAS had

received "Full Approval." The Commissioner further instructed

the District:

[I]t will not be necessary for you to

resubmit the [CTAS] unless there are

statutory changes which affect the

requirements for district instructional

performance appraisal systems or unless you

substantively revise your system for other

reasons.

34. In the very next legislative session following this

letter, the legislature substantially amended the statute

governing the procedures and criteria for the assessment of

instructional personnel, wh ich at the time was Section 231.29,

Florida Statutes (1999). 5 See Ch. 99 - 398, § 57, Laws of Florida.

These statutory changes, which will be examined more closely in

the Conclusions of Law below, took effect on June 21, 1999. Id.

at § 78.

35. The thrus t of the relevant amendment was to require

that, in evaluating teacher performance, primary emphasis be

placed on student performance, as measured by "state

assessments" and "local assessments." These latter two terms

were defined, at the time, in Section 229.57, Florida Statutes

(2000). Section 229.57 was subsequently transferred to Section

1008.22, Florida Statutes (2003).

36. The District never amended the CTAS to reflect the

statutory changes. Not surprisingly, therefore, the CTAS puts

little or no particular emphasis on student performance 6 and

makes no specific references (that the undersigned can locate)

to state and local assessments within the statute's

contemplation. 7

37. Consequently, as was mentioned several times above,

none of the as sessment procedures used during Young's protracted

evaluation was primarily based on student performance as

measured by state and/or local assessments administered annually

as specified in Section 1008.22, Florida Statues (2003).

38. Equally if not more important, however, is the lack of

persuasive (indeed any ) evidence in the record regarding the

performance of Young's students as measured by state and/or

local assessments. Because of this, it is impossible for the

undersigned to make de novo findings b ased primarily on student

performance as to either (a) whether Young's execution of the

performance criteria was "acceptable" or not, or (b) whether,

ultimately, his command of the indicators in dispute was of

"concern," as the Board has alleged.

CONCLUSIO NS OF LAW

39. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

40. Because this case is a proceeding to terminate a

teacher's employment and does not involve the loss of a license

or certification, the Board has the burden of proving the

alleged grounds for dismissal by a preponderance of the

evidence. McNeill v. Pinellas County School Board , 678 So. 2d

476 (Fla. 2d DCA 1996); Allen v. Sc hool Bd. of Dade County , 571

So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Bd. of Lake

County , 569 So. 2d 883 (Fla. 3d DCA 1990). 8

41. Section 1012.34, Florida Statutes, which governs the

process for evaluating teachers, provides in full as follows :

1012.34 Assessment procedures and

criteria. --

(1) For the purpose of improving the

quality of instructional, administrative,

and supervisory services in the public

schools of the state, the district school

superintendent 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) The following conditions must be

considered in the design of the district's

instructional personnel assessment system:

(a) The system must be designed to support

district and school level improvement plans.

(b) The system must provide appropriate

instruments, procedures, and criteria for

continuous quality improvement of the

professional skills of instructional

personnel.

(c) The system must include a mechanism to

give parents an opportunity to provide input

into employee performance assessments when

appropriate.

(d) In addition to addressing generic

teaching competencies, districts must

determine those teaching fields for which

special procedures and criteria will be

developed.

(e) Each district school board may

establish a peer assistance pr ocess. The

plan may provide a mechanism for assistance

of persons who are placed on performance

probation as well as offer assistance to

other employees who request it.

(f) The district school board shall provide

training programs that are based upon

gu idelines provided by the Department of

Education to ensure that all individuals

with evaluation responsibilities understand

the proper use of the assessment criteria

and procedures.

(3) The assessment procedure for

instructional personnel and school

admi nistrators must be primarily based on

the performance of students assigned to

their classrooms or schools, as appropriate.

The procedures must comply with, but are not

limited to, the following requirements:

(a) An assessment must be conducted for

each e mployee at least once a year. The

assessment must be based upon sound

educational principles and contemporary

research in effective educational practices.

The assessment must primarily use data and

indicators of improvement in student

performance assesse d annually as specified

in s. 1008.22 and may consider results of

peer reviews in evaluating the employee's

performance. Student performance must be

measured by state assessments required under

s. 1008.22 and by local assessments for

subjects and grade le vels not measured by

the state assessment program. The

assessment criteria must include, but are

not limited to, indicators that relate to

the following:

1. Performance of students.

2. Ability to maintain appropriate

discipline.

3. Knowledge of subj ect matter. The

district school board shall make special

provisions for evaluating teachers who are

assigned to teach out - of - field.

4. Ability to plan and deliver instruction,

including the use of technology in the

classroom.

5. Ability to evaluate in structional needs.

6. Ability to establish and maintain a

positive collaborative relationship with

students' families to increase student

achievement.

7. Other professional competencies,

responsibilities, and requirements as

established by rules of the State Board of

Education and policies of the district

school board.

(b) All personnel must be fully informed of

the criteria and procedures associated with

the assessment process before the assessment

takes place.

(c) The individual responsible for

su pervising the employee must assess the

employee's performance. The evaluator must

submit a written report of the assessment to

the district school superintendent for the

purpose of reviewing the employee's

contract. The evaluator must submit the

written report to the employee no later than

10 days after the assessment takes place.

The evaluator must discuss the written

report of assessment with the employee. The

employee shall have the right to initiate a

written response to the assessment, and the

respo nse shall become a permanent attachment

to his or her personnel file.

(d) If an employee is not performing his or

her duties in a satisfactory manner, the

evaluator shall notify the employee in

writing of such determination. The notice

must describe suc h unsatisfactory

performance and include notice of the

following procedural requirements:

1. Upon delivery of a notice of

unsatisfactory performance, the evaluator

must confer with the employee, make

recommendations with respect to specific

areas of unsa tisfactory 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. 1012.33,

the employee shall be placed on performance

probat ion and governed by the provisions of

this section for 90 calendar days following

the receipt of the notice of unsatisfactory

performance to demonstrate corrective

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 another

appropriate position with a different

supervising administrator; however, a

transfer doe s 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 the performance deficiencies have

been corrected and forward a recommendation

to the district sc hool superintendent.

Within 14 days after receiving the

evaluator's recommendation, the district

school superintendent must notify the

employee who holds a professional service

contract in writing whether the performance

deficiencies have been satisfactor ily

corrected and whether the district school

superintendent will recommend that the

district school board continue or terminate

his or her employment contract. If the

employee wishes to contest the district

school superintendent's recommendation, the

emp loyee must, within 15 days after receipt

of the district school superintendent's

recommendation, submit a written request for

a hearing. The hearing shall be conducted

at the district school board's election in

accordance with one of the following

procedu res:

(I) A direct hearing conducted by the

district school board within 60 days after

receipt of the written appeal. The hearing

shall be conducted in accordance with the

provisions of ss. 120.569 and 120.57. A

majority vote of the membership of the

di strict school board shall be required to

sustain the district school superintendent's

recommendation. The determination of the

district school board shall be final as to

the sufficiency or insufficiency of the

grounds for termination of employment; or

(I I) A hearing conducted by an

administrative law judge assigned by the

Division of Administrative Hearings of the

Department of Management Services. The

hearing shall be conducted within 60 days

after receipt of the written appeal in

accordance with chapt er 120. The

recommendation of the administrative law

judge shall be made to the district school

board. A majority vote of the membership of

the district school board shall be required

to sustain or change the administrative law

judge's recommendation. T he determination

of the district school board shall be final

as to the sufficiency or insufficiency of

the grounds for termination of employment.

(4) The district school superintendent

shall notify the department of any

instructional personnel who receiv e two

consecutive unsatisfactory evaluations and

who have been given written notice by the

district that their employment is being

terminated or is not being renewed or that

the district school board intends to

terminate, or not renew, their employment.

T he department shall conduct an

investigation to determine whether action

shall be taken against the certificateholder

pursuant to s. 1012.795(1)(b).

(5) The district school superintendent

shall develop a mechanism for evaluating the

effective use of asse ssment criteria and

evaluation procedures by administrators who

are assigned responsibility for evaluating

the performance of instructional personnel.

The use of the assessment and evaluation

procedures shall be considered as part of

the annual assessment of the administrator's

performance. The system must include a

mechanism to give parents and teachers an

opportunity to provide input into the

administrator's performance assessment, when

appropriate.

(6) Nothing in this section shall be

construed to gr ant a probationary employee a

right to continued employment beyond the

term of his or her contract.

(7) The district school board shall

establish a procedure annually reviewing

instructional personnel assessment systems

to determine compliance with this section.

All substantial revisions to an approved

system must be reviewed and approved by the

district school board before being used to

assess instructional personnel. Upon

request by a school district, the department

shall provide assistance in develop ing,

improving, or reviewing an assessment

system.

(8) The State Board of Education shall

adopt rules pursuant to ss. 120.536(1) and

120.54, that establish uniform guidelines

for the submission, review, and approval of

district procedures for the annual

assessment of instructional personnel and

that include criteria for evaluating

professional performance.

(Emphasis added).

42. The operative terms of the emphasized language in

subsection (3) of the statute were added in 1999, with the

enactment of Cha pter 99 - 398, Section 57, Laws of Florida. For

ease of reference and discussion, the undersigned has outlined

the three crucial statements as follows:

1. The assessment procedure for

instructional personnel and school

administrators must be primarily base d on

the performance of students assigned to

their classrooms or schools, as appropriate.

2. The assessment

(a) must primarily use

(i) data and indicators of improvement

in student performance assessed

annually as sp ecified in s.

1008.22

and

(b) may consider

(ii) results of peer reviews in

evaluating the employee's

performance.

3. Student performance must be measured by

(a) state assessments required under s.

1008.22

and by

(b) local assessments for subjects and

grade levels not measured by the

state assessment program.

43. Statement No. 1. This sentence directs that each

school district shall establish, for the purpose of "assess ing

the performance of duties and responsibilities of all

instructional, administrative, and supervisory personnel

employed by the school district," see Section 1012.34(1), a

primarily student performance - based procedure (or system),

meaning that the metho d of accomplishing the assessment must be

tailored to meet the goal of forming evaluative judgments about

teachers ' performance based mainly on the performance of their

students .

44. What is striking about this is not that the

legislature has demanded a performance - based system for

evaluating the performance of teachers; 9 rather, it is that the

performance upon which the system must primarily be based is

that of students . In clear terms, the legislature has announced

that the primary (though not exclusiv e) indicator of whether a

teacher is doing a good job is the performance of his students.

If a teacher's students are succeeding, then, whatever he is

doing, the teacher is likely (though not necessarily) performing

his duties satisfactorily. It is plain ly the legislature's

belief that if we do not know how the teacher's students are

performing, then we cannot make a valid judgment as to whether

the teacher is performing his duties satisfactorily. The

prescribed approach can rightly be called results - ori ented and

should be thought of in those terms.

45. The Board's argument that the "as appropriate" clause

modifies "must be primarily based" is ungrammatical and

unpersuasive. It is clear from the statute's plain language, as

read with ordinary principles of grammar in mind, that the

legislative mandate is not to require that the assessment

procedure be primarily based on student performance only when

such principal reliance on student performance would be

appropriate. Rather, plainly, the legislature has decided that

it is always appropriate to employ evaluative methods chiefly

suited to drawing conclusions about teacher performance from

data relating to student performance. Had the legislature

intended to "soften" its mandate, allowing student performan ce

to be considered or not, "as appropriate," it would not have

tacked "as appropriate" onto the end of the sentence, but

instead would have placed the clause between "must" and "be" or

between "based" and "on." The only reasonable interpretation of

the " as appropriate" clause is that it distinguishes between

students assigned to teachers ' respective classrooms, on the one

hand, and students assigned to administrators ' respective

schools, on the other. The former student population is the

appropriate subj ect of study when teacher performance is being

assessed, the latter when administrator performance is being

assessed.

46. Sentence No. 2. This sentence requires that, in

assessing teachers, indicators of student performance —— which

performance is assesse d annually as specified in Section

1008.22 —— must be the primarily - used data. (In contrast,

evaluators are permitted, but not required, to make use of peer

reviews in assessing teacher performance.)

47. Section 1008.22, which is referenced specifically in

this sentence, requires that school districts participate in a

statewide assessment program, the centerpiece of which is the

Florida Comprehensive Assessment Test ("FCAT"). See

§ 1008.22(3), Fla. Stat. The FCAT is a standardized test that

is adminis tered annually to students in grades three through 10.

Id.

48. Section 1008.22 is not concerned only with the FCAT,

however. Subsection (7), for example, provides as follows:

(7) LOCAL ASSESSMENTS. -- Measurement of the

learning gains of students in a ll subjects

and grade levels other than subjects and

grade levels required for the state student

achievement testing program is the

responsibility of the school districts.

Thus, the school districts are charged with developing their own

local assessment tools, to fill in the gaps left open by the

statewide FCAT testing program.

49. Sentence No. 3. This sentence prescribes two —— and

only two —— measures of student performance: (a) the statewide

FCAT assessments and (b) the gap - filling local assessments. It

is now clear beyond argument that Sections 1012.34(3) and

1008.22 have at least one subject in common, namely, student

performance - based assessment of teachers. See also Section

1008.22(5)( " Student performance data shall be used in . . .

evaluation of instructional personnel . . . ."). Being in pari

materia in this regard, Sections 1012.34 and 1008.22 must be

construed so as to further the common goal. See , e.g. , Mehl v.

State , 632 So. 2d 593, 595 (Fla. 1993)(separate statutory

provisions that are in pari materia should be construed to

express a unified legislative purpose); Lincoln v. Florida

Parole Commission , 643 So. 2d 668, 671 (Fla. 1st DCA

1994)(statutes on same subject and having same general purpose

should be construed in pari materia ).

50. Wh en the requirements of Section 1012.34(3) are read

together with Section 1008.22, several conclusions are

inescapable. First, FCAT scores must be the primary source of

information used in evaluating any teacher who teaches an FCAT -

covered subject to stude nts in grades three through 10. Second,

school districts must develop, and annually administer, local

assessments for subjects and grade levels not measured by the

FCAT. Third, student performance data derived from local

assessments must be the primary s ource of information used in

evaluating teachers whose subjects are not covered on the FCAT

and/or whose students do not take the FCAT.

51. As previously mentioned, the absence of evidence in

the record concerning the performance of Young's students ei ther

on the FCAT or on local assessments, as appropriate, deprives

the undersigned of information that the legislature has deemed

essential to the evaluation of a teacher's performance. Having

neither state nor local assessments to review, the undersigned

cannot find that Young's performance was deficient in the first

place, much less whether he corrected the alleged performance

deficiencies. Without such findings, the Board cannot dismiss

Young in accordance with Section 1012.34.

52. Further, even if the lack of student performance data

were not fatal to the Board's case, the absence of evidence in

the record establishing appropriate standards for evaluating

Young's performance is , separately and independently.

53. As a matter of fact and law, there fore, the Board has

failed to carry its burden of proving the alleged grounds for

dismissal by a preponderance of the evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board enter a final or der: (a)

exonerating Young of all charges brought against him in this

proceeding; (b) providing that Young be immediately reinstated

to the position from which he was suspended without pay; and (c)

awarding Young back salary, plus benefits, that accrued d uring

the suspension period, together with interest thereon at the

statutory rate.

DONE AND ENTERED this 17th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 H earings

this 17th day of March, 2004.

ENDNOTES

1 / Some analogies might be helpful. Data collection sources are

like proof. This proof is probative of the teacher's executi on

of the performance criteria. The performance criteria, in turn,

are loosely akin to elements of a cause of action, effectively

defining the relevant evidentiary or historical facts. To the

extent the evaluator must decide whether the teacher is

perfor ming a particular performance criterion, the evaluator is

carrying out a straightforward fact - finding function. When the

evaluator decides how well the teacher is executing a

performance criterion, however, he must measure the historical

fact (teacher is/ is not doing X) against a standard that defines

what constitutes competent performance of X. (The standard

might, of course, make other evidentiary facts relevant, such as

how frequently the teacher does X, in what circumstances, with

what results, etc.) A determination that the teacher is doing X

well or badly is tantamount to an ultimate finding of fact.

Similarly, when the evaluator decides whether the teacher has

sufficiently mastered a particular indicator, the evaluator must

measure a set of ultima te factual determinations relating to the

performance criteria (teacher does X well, Y poorly, Z not at

all) against a standard that defines what constitutes sufficient

command of the indicator in question. Thus, a determination

that the teacher has or ha s not adequately mastered the

indicator is tantamount to an ultimate finding of fact.

2 / It should go without saying that in evaluating teacher

performance, the focus must necessarily be on presently

demonstrated talent as opposed to reputed, innate, or potential

talent. Thus, because even the very best teachers are capable

of performing poorly on a bad day, or during a down year, for

any number of reasons, just as even the worst teachers can rise

to the occasion sometimes, an evaluation is always a kind of

"snapshot" that might underestimate, or overstate, a teacher's

"intrinsic talent."

3 / Ms. Van Arsdale's testimony underscores the arbitrariness

inherent in an evaluation process that lacks fixed standards for

measuring teacher performance. She ackno wledged, candidly, that

"there's going to be some fluctuation" in the standards for

acceptable performance "based on the expectations of the

principal," with the result that what "would be acceptable to

one administrator may not be acceptable to me and vic e versa."

Transcript at 603. If true, this means, at the very least, that

teachers in the same school district are being held to different

performance standards, and hence that similarly performing

teachers are not necessarily receiving similar evaluatio ns.

Just how high the bar might have been for Young was revealed in

Ms. Van Arsdale's summary of the factors that led her to

recommend Young's termination:

I really had to consider the lives, the

education of 150 kids over the next number

of years, and I just couldn't —— I just

couldn't —— I just couldn't allow these kids,

who were entitled to the best . . .

education possible , to be subjected to a

poor teacher when they were in need of such

a —— and entitled to not only an appropriate,

but a very, very fine ed ucation .

Transcript at 560 (emphasis added). While it is impossible to

make specific findings regarding what standards Ms. Van Arsdale

used in evaluating Young, it can reasonably be (and is) inferred

that she pushed the mark relatively close to the "best " terminal

on our talent - level spectrum, more or less equating "acceptable"

with "very fine." Of course, if "acceptable" is synonymous with

"very fine," then "concern" includes "good but not great" and

maybe even "fine."

4 / To be clear, it would not be appropriate to review the

Board's preliminary decision respecting Young's termination, for

"a chapter 120 proceeding is a hearing de novo intended to

'formulate final agency action, not to review action taken

earlier and preliminarily.'" Young v. Departme nt of Community

Affairs , 625 So. 2d 831, 833 (Fla. 1993)( quoting McDonald v.

Department of Banking & Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA

1977)). The Board's burden in this case was not merely to

persuade the undersigned that the evaluators sincerely b elieved,

after conducting a legally sufficient assessment, that Young's

performance was deficient, nor even to persuade the undersigned

that the evaluators' judgment was factually and legally tenable.

Rather, the Board was required to persuade the undersi gned

himself to find, independently, that Young's performance was

deficient.

5 / In 2002, the legislature overhauled the entire Education

Code, creating new chapters 1000 through 1013, to which then -

chapters 228 through 246 were transferred, as amended. Most of

the provisions of the 2002 legislation took effect on January 7,

2003. See Ch. 2002 - 387, § 1064, Laws of Florida.

6 / To be sure, the CTAS does not ignore student performance.

Included among the data collection sources are "assessment

data." Th e CTAS defines "assessment data" as "evidence of

student performance (e.g. standardized tests, diagnostic tests,

portfolio assessment). The source "assessment data" is listed

as one of seven data collection sources associated with the

indicator Human Lear ning and Development. It is also listed as

one of six data collection sources associated with the indicator

Planning. Finally, all of the data collection sources listed

for the indicator Assessment can fairly be classified as

"assessment data" —— and one o f the 13 performance criteria for

Assessment is, "provides evidence of improvement in student

performance." (It should be stated, however, that with respect

to the indicator Assessment, the focus of the evaluation is on

how effectively the teacher is asse ssing student performance

(through tests, classwork, grades, etc.), not on how student

performance reflects on the effectiveness of the teacher.) What

the CTAS clearly does not do, however, is make student

performance the primary (or even a uniquely impor tant) factor

upon which to base the teacher's evaluation.

7 / The Union Contract, which requires the District to comply

with the 1999 CTAS in evaluating teachers, was approved by all

parties as of September 9, 2002, and given an effective date of

July 1, 2002. The Union Contract thus took effect after the

1999 amendment to Section 231.29 became law. As a matter of

law, provisions of collective bargaining agreements that

conflict with statutes never become effective. See

§ 447.309(3), Fla. Stat. Theref ore, the District cannot rely on

the Union Contract as a defense to its failure to follow the

statutory provisions governing teacher evaluations.

8 / Because this is not a proceeding pursuant to Section

1012.33(6), Florida Statutes, to terminate Young's e mployment

for "just cause," however, the Board did not have the authority

to suspend Young without pay . See Broward County School Board

v. Dorothy D. Clemons , Case No. 00 - 1203, 2000 WL 1902214, *22 -

*23 (DOAH Dec. 28, 2000).

9 / The first sentence of subs ection (3) would be a tautology if

that were the message.

COPIES FURNISHED :

Jean Marie Nelson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

Catherine J. Chamblee, Esquire

Chamblee, Johnson & Hayne s, P.A.

215 West Verne Street, Suite D

Tampa, Florida 33606

Matthew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A.

1615 Forum Way, Suite 500

West Palm Beach, Florida 33401

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines S treet, Room 1244

Tallahassee, Florida 32399 - 0400

Jim Horne, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Arthur C. Johnson

Palm Beach County School Board

3340 Forest Hil l Boulevard, C316

West Palm Beach, Florida 33406 - 5869

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 that

will issue the Final Order in this case.