04-001575TTS Miami-Dade County School Board vs. Joann D. Dettrey Status: Closed Recommended Order on Tuesday, October 26, 2004.

Summary: Petitioner failed to prove unsatisfactory performance so as to justify termination of professional service contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1575

)

JOANN D. DETTREY, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Rober t E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on August 23, 2004.

APPEARANCES

For Petitioner: Madelyn P. Schere

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate the

professional service contract of Respondent due to a failure to

correct performance deficiencies during the 90 - calendar - day

probationary period.

PRELIMINARY S TATEMENT

By Notice of Specific Charges dated April 27, 2004,

Petitioner advised Respondent that it was seeking to terminate

her professional service contract due to a failure to correct

deficiencies within the 90 - calendar - day performance probation

period that was imposed on November 15, 2003.

The Notice of Specific Charges alleges that, on

December 11, 2003, Respondent functioned below standards in

components of Enhancing and Enabling Learning. The Notice of

Specific Charges alleges that, on February 4 , 2004, Respondent

functioned below standards in components of Managing the

Learning Environment, Teacher/Learner Relationships, Enhancing

and Enabling Learning, and Classroom Based Assessments of

Learning. The Notice of Specific Charges alleges that, on

March 15, 2004, Respondent functioned below standards in

Managing the Learning Environment, Enhancing and Enabling

Learning, and Enabling Thinking.

On March 19, 2004, Petitioner's Superintendent notified

Respondent that he was going to recommend that Peti tioner

terminate her professional service contract due to her failure

to correct the deficiencies during the 90 - calendar - day

probationary period. On April 14, 2004, Petitioner adopted the

Superintendent's recommendation and terminated Respondent's

contrac t.

By letter filed April 21, 2004, Respondent requested a

formal hearing.

At the hearing, Petitioner called six witnesses and offered

into evidence 24 exhibits: Petitioner Exhibits 1 - 24.

Respondent called three witnesses and offered into evidence four

exhibits: Respondent Exhibits 1 - 4. All exhibits were admitted

except that Respondent Exhibit 4 was not admitted for the truth.

On September 22, 2004, Petitioner filed a Motion for

Official Recognition. This motion is granted.

The court reporter filed the transcript on September 13,

2004. The parties filed proposed recommended orders on

October 4, 2004.

FINDINGS OF FACT

1. Respondent entered the teaching profession after

working 17 years as a bartender. She earned her undergraduate

degree in education - - specifically, learning disabilities and

varying exceptionalities -- and obtained her first teaching job at

Gulfstream Elementary School in 1995.

2. For her first eight years at Gulfstream, Respondent

taught a physically impaired class. These are small cla sses of

less than ten students with health or medical disabilities.

Many of the students cannot walk or talk. With a

paraprofessional and sometimes a fulltime aid, Respondent taught

substantially the same students from year to year. The focus of

much of the instruction was upon daily living skills, such as

reading the signs on restrooms and businesses.

3. In 1996, Respondent developed inoperable Stage IV

nasopharyngeal carcinoma. Eight months of radiation therapy

scarred Respondent's airway. When Respo ndent returned to school

after a five - month leave of absence, she, like many of her

students, wore a feeding tube and relied on a vocal

amplification device. Respondent made the most of these

characteristics that she now shared with some of her students,

encouraging them to overcome their disabilities as she was

doing.

4. In the physically impaired class, Respondent taught

most of the students on a one - on - one basis. Rarely did she have

to address the entire class as part of classroom instruction.

For this reason, Respondent was little handicapped by her speech

difficulties, which arose due to the cancer treatment. Even

today, loud speech is nearly impossible for Respondent, who, to

generate speech, must press against her throat to produce a

gaspy speech t hat requires close attention to understand.

5. A new principal arrived at Gulfstream for the 2002 - 03

school year. The new principal, who had previously been an

assistant principal for eight years and a teacher for nine

years, found Respondent's performance unsatisfactory in several

respects. Respondent was often late arriving to school and

failed to perform her duties on the bus ramp. Respondent often

left her paraprofessional alone with the physically impaired

class. To monitor the behavior of the chil d, Respondent

sometimes brought her high - school aged daughter to school

without permission. Overall, the principal found that

Respondent seemed unenthusiastic about teaching. Believing that

Respondent might have been depressed, the principal referred

Res pondent to the Employee Assistance Program.

6. Thinking that a change in assignment might rekindle

Respondent's enthusiasm for her job, for the 2003 - 04 school

year, the principal switched the assignments of Respondent and

another teacher, so that the other teacher would teach

Respondent's physically impaired class, and Respondent would

teach a varying exceptionalities class. Neither teacher had

requested a new assignment.

7. Respondent's varying exceptionalities class began the

2003 - 04 school year with 14 st udents. Eventually, the principal

reduced the class to nine students. Respondent had the help of

only a part - time paraprofessional. The wide range of cognitive

abilities of the students meant that some students could only

identify their names in print, and some students could read and

write. Students in the varying exceptionalities class were in

several classifications, such as educably mentally handicapped,

traumatic brain injury, and autistic.

8. By sometime in October 2003, the assistant principal

had twice observed Respondent teaching her class. The assistant

principal had concerns about Respondent's classroom management

and recordkeeping.

9. The assessments and evaluations in this case are based

on the Petitioner's Professional Assessment and Compr ehensive

Evaluation System (PACES). In conjunction with the statutory

90 - calendar - day probationary period, as discussed in the

Conclusions of Law, the PACES assessments follow a format. A

PACES - trained evaluator conducts an initial observation not of

rec ord. If the teacher fails to meet standards, the evaluator

goes over the findings with the teacher, offers a Professional

Growth Team to provide assistance in eliminating any

deficiencies, and advises that she will conduct another

evaluation in a month. If the teacher meets standards on the

second evaluation, which is known as the first observation of

record, the teacher reverts to the normal evaluation scheme

applicable to all teachers, and the first negative observation

is essentially discarded.

10. If the teacher fails to meet standards on the first

observation of record, she is placed on performance probation

for 90 days. The evaluator conducts a Conference for the Record

and gives the teacher a Professional Improvement Plan (PIP).

During the probationa ry period, the evaluator conducts other

observations, and, at the end of the period, the evaluator

conducts a final observation. If the teacher still fails to

meet standards, then the evaluator conducts a confirmatory

observation within 14 days after the end of the probationary

period. If the teacher still fails to meet standards, the

principal may recommend termination to the Superintendent.

11. PACES assessments cover six domains: Planning for

Teaching and Learning (Domain I), Managing the Learning

Envir onment (Domain II), Teacher/Learner Relationships (Domain

III), Enhancing and Enabling Learning (Domain IV), Enabling

Thinking (Domain V), and Classroom - Based Assessments of Learning

(Domain VI). Each of these domains comprises three to five

components, f or which the evaluator determines whether the

teacher meets standards. If the evaluator determines that the

teacher fails to meet standards as to a component, the evaluator

circles a listed indicator, so that the teacher may readily

identify authoritative sources of information, such as the PACES

binder provided to each teacher or videotapes in the District

office, that will assist her in curing a particular deficiency.

12. The assistant principal conducted the initial

observation not of record on October 14, 2003. She determined

that Respondent failed to meet standards for 18 of the 21

components. Respondent met standards only in Components III.A,

IV.C, and VI.A. Respectively, these are Interpersonal

Relations, which is the teacher's respect for the student s;

Resources for Learning, which is the teacher's use of teaching

aids and learning materials; and Monitoring Engagement and/or

Involvement in Learning, which is the teacher's monitoring of

the student's engagement during learning tasks.

13. Among the more sig nificant deficiencies reflected in

the October 14 evaluation are that Respondent lacked lesson

plans and failed to manage the learning environment. To help

with these and other deficiencies, the assistant principal

offered Respondent a Professional Growth Team and referred her

to her PACES binder, which would describe each deficient item

and suggest strategies to eliminate each deficiency.

14. For her part, Respondent had tried to deal with her

new assignment by grouping the children, where appropriate, by

cog nitive ability. In September or October, she was able to

send one student to regular education.

15. On November 5, 2003, the assistant principal returned

to perform the first observation of record. She found

Respondent reading a Thanksgiving story to the eig ht students

who were present in her class. Respondent would read one

sentence and ask a question about it. By using this approach,

Respondent took one hour to read a story that should have taken

five minutes to read. Each time that she stopped and asked a

question about the preceding sentence, Respondent undermined the

continuity of the story. Also, all of her questions tested the

students' memory; none of them required higher - order thinking,

as would be required by questions asking how or why something

happened.

16. Despite these shortcomings in Respondent's teaching,

the assistant principal determined that Respondent had met

standards in all of Domains I, II, III, and VI. However,

Respondent failed to meet standards in all components of Domains

IV and V, including the one component in Domain IV for which she

had previously met standards. However, Respondent performed

considerably better in this observation than in the previous

observation -- meeting standards in 13 of 21 components as opposed

to meeting sta ndards in 3 of 21 components three weeks earlier.

17. In the ensuing Conference for the Record, the

assistant principal prepared a PIP for Respondent and again

recommended that she take advantage of the Professional Growth

Team for assistance in eliminating the deficiencies. Dated

November 14, 2003, the PIP is a detailed documentation of each

deficiency noted in the November 5 observation. The November 14

PIP describes what Respondent did or did not do, as to each

deficiency. The PIP also contains specific recommendations to

eliminate each deficiency.

18. The number of deficiencies is misleading, at least as

an indicator of the scope of the teaching that was subject to

the evaluation. The Thanksgiving story, described above,

spawned all eight of the observed d eficiencies. Respondent's

reliance exclusively upon simple recall questions yielded five

deficiencies. (One of these deficiencies also relies on

Respondent's failure to correct a child who replied to the

question of what sound that turkeys make, by answe ring, "quack,

quack." Absent more context, it is possible that Respondent's

failure to correct this answer was an attempt not to reward

attention - getting behavior.) One of the remaining three

deficiencies criticizes Respondent for introducing the

Thanksg iving story with an open - ended question, "This is

November. What do you think happens in November?" Another

deficiency, which focuses on the one - sentence, one - question

approach of Respondent to the story, faults Respondent for

omitting hands - on activitie s. The last deficiency notes that

Respondent held up a small piece of paper showing the months of

the year, but she failed to post the paper for the children to

see. (This deficiency implies that Respondent's classroom lacks

a posted calendar.)

19. The detai l of the November 5 PACES evaluation and

November 14 PIP are undermined by the oddly narrow factual basis

upon which they rest. Intended as a comprehensive statement of

the deficiencies of an experienced teacher, these documents

reveal that Petitioner has placed Respondent on probation

because of an awkward reading of a Thanksgiving story to eight

students over a period of about one hour.

20. On December 11, 2003, the principal performed an

observation. The principal found that Respondent met standards

in Dom ains I, II, III, V, and VI, but not in three components of

Domain IV: Initial Motivation to Learn, Teaching Methods and

Learning Tasks, and Clarification of Content/Learning Tasks.

Respectively, these components involve the identification of the

learning objective, the use of logically sequenced teaching

methods and learning tasks, and the use of different words or

examples when clarification is required.

21. The two components within Domain IV for which

Respondent met standards are: Resources for Learning and

Knowledge of Content and Pedagogy. The former component

involves the use of learning materials to accommodate the range

of individual differences among learners, and the latter

component involves the creation of an opportunity to allow

different lear ners to learn at different cognitive levels.

22. The basis of the deficiencies was in Respondent's

presentation of another story, Little Miss Muffet, although,

this time, the problems centered more around her lead - in and

follow - up activities. The PIP, dated December 17, 2003, which

the principal prepared, notes that the pace of a writing

activity worksheet was too slow for four of 11 students, who sat

with nothing to do for ten minutes while waiting for their peers

to finish; Respondent failed to correct a s tudent who answered

the question, "what are you afraid of," with "sock" (perhaps the

same child who had said that turkeys quack); Respondent failed

to correct a student who said that a paper was missing words

when it was missing only letters; and Responden t failed to

identify tasks associated with the story that would challenge

all of the students, although Respondent used two worksheets --

one with missing words (presumably for the higher - functioning

group) and one with missing letters (presumable for the lo wer -

functioning group).

23. On February 4, 2004, the assistant principal performed

the next observation. She found that Respondent met standards

in Domains I and III. She found that Respondent failed to meet

standards in Components II.D, III.A, IV.A, IV.B, a nd VI.B.

Respectively, these are Managing Environment in Learning,

Interpersonal Relations, Initial Motivation to Learning,

Teaching Methods and Learning Tasks, and Informal Assessment.

24. During this observation, Respondent read a story on

how to build a ho use. The reading level of the story was at

least third - grade, but the students were in kindergarten and

first grade. For 40 minutes, Respondent used actual house

blueprints as a visual aid. As another visual aid, Respondent

used blocks to depict a house , but she lacked sufficient blocks

to finish the project. The story took one hour when it should

have taken ten minutes. Consequently, students were out of

their seats and trying to find something to do.

25. On February 10, the assistant principal prepared a

PIP. Although the contents of this PIP were not dissimilar to

the contents of the previous PIPs, one new deficiency was

Component III.A, Interpersonal Relations. The notes in the

February 10 PIP state: "One learner was ridiculed by the

teacher making r emarks about her behavior to the classroom

paraprofessional. Her remarks included, 'She's totally off the

wall' and 'She has been horrendous today.' She also said to

other learners not paying attention, 'I'm not going to talk to

the air' and 'I'm waiting in case you didn't notice.'" The

comments to the individual student were sarcastic and

derogatory.

26. In general, the principal found Respondent to be more

enthusiastic in the 2003 - 04 school year than she had been in the

previous school year. Respondent sh owed an improved attitude,

but her classroom remained disorganized. Respondent had

received considerable assistance from her Professional Growth

Team, but the principal concluded that Respondent had still

failed to meet standards.

27. From Respondent's perspe ctive, she felt that the

principal had prejudged her and was running through the

90 - calendar - day probationary period as an empty exercise.

Respondent became increasingly nervous, as she repeatedly tried,

and failed, to please the principal and assistant p rincipal.

28. At one point during the 90 days, Respondent restated

her desire for a transfer, as she had made such a request the

prior summer when she had learned of her new assignment, but the

principal refused to give the request any consideration or

deter mine if a transfer were feasible. At least once during the

90 days, Respondent's union representative asked the principal

to transfer Respondent, but the principal refused, again without

giving the request any consideration. In the meantime,

Respondent's difficulties in the varying exceptionalities

classroom were exacerbated by the removal, by October 2003, of

her voice amplification system.

29. On March 2, 2004, the principal, having determined

that the 90 calendar days had expired, performed what she

believ ed was the confirmatory observation. She found that

Respondent failed to meet standards in eight components in

Domains I, II, IV, and VI. Two days later, the principal

informed Respondent that she would be recommending that the

Superintendent terminate R espondent's professional service

contract.

30. Unfortunately, the principal had miscalculated the 90

days. Learning of this error, the principal discarded the

March 2 evaluation and performed a new confirmatory observation

on March 14 and again found that Respondent failed to meet

standards. Two weeks later, Respondent failed to meet standards

in six components in Domains II, IV, and V. Only three of the

six deficiencies covered the same components in the March 2

observation: Components II.D, II.E, and I V.D, which are,

respectively, Managing Engagement in Learning, Monitoring and

Maintaining Learner Behavior, and Knowledge of Content and

Pedagogy. In general, these were deficiencies at the start of

the 90 - day probationary period, but were eliminated duri ng the

90 - day probationary period, only to return again at the end.

31. Following the March 14 confirmatory observation, the

principal recommended that the Superintendent terminate the

professional service contract of Respondent. On March 19, 2004,

the Super intendent advised Respondent that he was going to

recommend to Petitioner that it terminate her contract, and, on

April 14, 2004, Petitioner did so.

32. A recurring issue in this case is what is meant by

failing to meet standards and, more importantly, unsatis factory

performance. Based on the testimony of Petitioner's witnesses,

Petitioner contends that the failure to meet any single

component within any of the domains of PACES is the failure to

meet standards, and a failure to meet standards is invariably

uns atisfactory performance, sufficient to place a teacher on 90 -

calendar - day performance probation or, if already on performance

probation, sufficient to terminate a professional service

contract. However, the PACES form does not so indicate, nor do

Petition er's online rules, of which the Administrative Law Judge

has taken official notice.

33. Petitioner has failed to prove what is an

unsatisfactory performance under the PACES evaluation system.

Absent the adoption of a rule to this effect, the isolated

omission of a teacher, during a single observation, to provide

suggestions to improve learning (Component VI.C) or to start a

class or lesson precisely on time (Component II.A) would not

constitute unsatisfactory performance, at least for the purpose

of initiating the 90 - calendar - day probationary period or

terminating the professional service contract of a teacher

already on performance probation. In this case, undermining the

observations of the principal and assistant principal,

especially where they appear to b e based on discrete failures by

Respondent, are the facts that neither supervisor has any

significant training in exceptional student education, the

principal has no experience teaching in exceptional student

education, and the assistant principal has limi ted experience in

teaching exceptional student education.

34. By granting Petitioner's Motion for Official

Recognition, the Administrative Law Judge acknowledges that, by

letter dated September 24, 2001, the Florida Department of

Education has approved PACES. (The identification of PACES is

missing from the letter, but the Administrative Law Judge

accepts the representation of Petitioner's counsel that PACES

was the subject of this letter.) However, this letter approves

PACES on its face, not as applied, and may have been based on

more than two - page PACES evaluation form. The present record

contains only the two - page form and testimony, unsupported by

any documentation, that a single deficiency means that a teacher

fails to meet standards and may be placed on probation, if the

deficiency arises when the teacher is not on probation, or may

be terminated, if the deficiency, even if different from the one

that initiated probation, is present at the confirmatory

observation.

35. The record does not document the extent to which

Respondent was in attendance at school during her 90 - calendar -

day probationary period. By her count, Respondent missed seven

or eight workdays due to illness. Petitioner's calculation does

not account for these missed days, and, if it had, the second

confirmatory observation was premature too.

36. The record contains some evidence of student

achievement. As noted above, one student was transferred early

in the 2003 - 04 school year from Respondent's varying

exceptionalities class to a regular educati on classroom, but the

proximity of this event to the start of the school year suggests

that the student was probably misclassified at the start of the

year.

37. The mother of another student testified that

Respondent helped her daughter make considerable acade mic

progress. The student had undergone a tracheotomy and,

consequently, speech delay. While in Respondent's class, the

student was eager to attend school and learned to write her name

for the first time. For the first time in school, the student

was pr ogressing. When the mother learned that Respondent was

being terminated, she tried to contact the principal, but the

principal declined to see her, claiming it was a personnel

matter and implying that a parent had no role in such matters.

38. The record conta ins the individual education plans

(IEPs) of nine students. Typically, IEPs are prepared in the

spring of each year, and, prior to the preparation of the next

year's IEP, the IEP team closes out the preceding IEP by marking

the extent to which the student has achieved the goals of his

IEP. The IEP team also indicates progress during the year with

respect to specific goals. A mark of "1" means mastery of the

goal, a "2" means "adequate progress made; anticipate meeting

goal by IEP end," a "3" means "some progress made; anticipate

meeting goal by IEP end," and a "4" means "insufficient progress

made; do not anticipate meeting goal by IEP end."

39. The last relevant marks for some of the IEPs were

January 2004, but some of them bore marks for March 2004. For

al l of the IEPs, exclusive of physical or occupational therapy,

with which Respondent was not substantially involved, 11 goals

were marked 2, 39 goals were marked 3, and 15 goals were marked

4. Five of the nine students for whom Petitioner produced IEPs

rec eived a mark of 4 on at least one goal in his or her IEP.

But 11 of the 15 4's went to two students: one had four 4's,

one 3, and one 2; and the other had seven 4's, two 3's, and one

2. One student had two 4's, but also six 3's. Another student

had one 4 and six 3's, and the fifth student had one 4 and three

3's. Thus, only two of the nine students were not making

satisfactory progress while Respondent was teaching the class.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction o ver the subject matter. §§ 120.569, 120.57(1),

and 1012.34(3)(d)2.b.(II), Fla. Stat.

41. Describing the requirements of a teacher - assessment

program, the 90 - calendar - day probationary period, and the

procedure to terminate a professional service contract, Sect ion

1012.34(1) - (3), Florida Statutes, provides:

(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 a ssessing 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 approp riate

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 ass essments

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 pee r assistance process. 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 guidelines 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 personn el and school

administrators must be primarily based on

the performance of students assigned to

their classrooms or schools, as appropriate.

Pursuant to this section, a school

district's performance assessment is not

limited to basing unsatisfactory perfor mance

of instructional personnel and school

administrators upon student performance, but

may include other criteria approved to

assess instructional personnel and school

administrators' performance, or any

combination of student performance and other

appro ved criteria. The procedures must

comply with, but are not limited to, the

following requirements:

(a) An assessment must be conducted for

each employee at least once a year. The

assessment must be based upon sound

educational principles and contemp orary

research in effective educational practices.

The assessment must primarily use data and

indicators of improvement in student

performance assessed 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 levels not measured by

the state assessment program. The

assessment criteria must include, but are

not limi ted to, indicators that relate to

the following:

1. Performance of students.

2. Ability to maintain appropriate

discipline.

3. Knowledge of subject matter. The

district school board shall make special

provisions for evaluating teac hers who are

assigned to teach out - of - field.

4. Ability to plan and deliver

instruction, including implementation of the

rigorous reading requirement pursuant to s.

1003.415, when applicable, and the use of

technology in the classroom.

5. A bility to evaluate instructional

needs.

6. Ability to establish and maintain

a positive collaborative relationship with

students' families to increase student

achievement.

7. Other professional competencies,

responsibilities, and requiremen ts 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

supervising 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 re sponse to the assessment, and the

response 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 de termination. The notice

must describe such 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

recomm endations with respect to specific

areas of unsatisfactory 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 probation 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 va cation 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 differe nt

supervising administrator; however, a

transfer does 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 bee n corrected and forward a

recommendation to the district school

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

satisfactorily 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

t he district school superintendent's

recommendation, the employee 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 procedures:

(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 district 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 o r

insufficiency of the grounds for termination

of employment; or

(II) 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 conducte d within 60 days

after receipt of the written appeal in

accordance with chapter 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 re quired

to sustain or change the administrative law

judge'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.

42. Petitioner has the burden of pr oving the material

allegations by a preponderance of the evidence. See , e.g. ,

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

DCA 1990).

43. This case is about whether Petitioner has proved that

Respondent's teaching performance is not satisfact ory.

Petitioner has erroneously equated unsatisfactory performance

with one or more deficiencies on the PACES evaluation forms.

Under this theory, Petitioner could terminate a professional

service contract anytime that a teacher scored a single

deficienc y in each of five or six observations over a three -

month period. The PACES evaluation forms provide a valuable,

reasonably calibrated means for assessing a teacher's

performance, but they are only part of the comprehensive

evaluation necessary to determin e whether a teacher's overall

performance is satisfactory.

44. Undoubtedly, tardiness, a sarcastic remark uttered

from weariness, a failure to exploit all learning media,

forgetting to solicit contributions from students throughout the

lesson, and failing to maintain proper instructional pacing are

deficiencies. A timely observation performs the useful task of

reminding a good teacher that there is always room for

improvement. Under Petitioner's theory in this case, though,

the successful, experienced teach er whose students are

flourishing may nonetheless be terminated if she displays each

of these deficiencies in five one - hour observations performed

over 90 days.

45. Section 1012.34, Florida Statutes, details the minimum

requirements of a teacher assessment ins trument and requires its

approval by the Florida Department of Education. Nowhere does

Section 1012.34, Florida Statutes, authorize the inference that

the scenario described in the preceding paragraph constitutes

unsatisfactory performance in every case, despite the nature of

the teacher's deficiencies and strengths, the performance of the

teacher's students, and the informed desires of the parents of

the teacher's students.

46. The adoption of PACES did not relieve Petitioner of

the burden of providing unsa tisfactory performance when it seeks

to terminate a professional service contract. Due to its

misunderstanding of the role of the PACES evaluation forms in

proving unsatisfactory performance, Petitioner introduced

little, if any, expert evidence on the ov erall question of

whether Respondent was performing her duties in a satisfactory

manner when placed on probation or when recommended for

termination.

47. In this case, a finding of unsatisfactory performance

is precluded by the discrete nature of Respondent' s reported

deficiencies and the limited observational basis on which they

are predicated; the process by which deficiencies disappeared,

new ones arose, then they disappeared, and old deficiencies

reappeared -- all over a 90 - day period -- without any evidence

establishing that this variability is more indicative of

unsatisfactory performance than the vagaries of the evaluations

performed by the principal and assistant principal; the

generally satisfactory performance of the students, whose

amenability to learni ng may not be readily apparent to the

principal, who has no experience teaching exceptional students;

and the principal's curious failures to accommodate Respondent's

disability when the principal transferred Respondent to the

varying exceptionalities clas s, which required her to try to

vocalize to the entire class, which was ambulatory, as

distinguished to the less ambulatory physically impaired class,

where she largely taught one - on - one, and when the principal

failed to assure the presence of an amplifica tion device for

Respondent's use at all times in the varying exceptionalities

class.

48. Exacerbating these deficiencies in proof are several

other factors. First, the determination of unsatisfactory

performance "must be primarily based on the performance o f

students . . .." Anecdotal evidence suggests that Respondent's

students were performing satisfactorily. The IEPs suggest

likewise. As Petitioner applied PACES in this case, it has

failed to show that the unsatisfactory assessments of Respondent

were p rimarily based on the performance of her students.

49. Second, as Petitioner applied PACES in this case,

parents had no meaningful input into the termination decision.

Petitioner argues that report cards provide the parents an

opportunity for input. Unless t he report cards notify the

parents that a teacher is on probation -- a doubtful prospect -- the

parents probably will not learn of the impending termination at

a convenient point in the report - card cycle. Here, at least one

parent tried to provide timely inpu t, and the principal shunted

her aside.

50. Third, as Petitioner applied PACES in this case,

Petitioner was denied her right to request a transfer. The

statute does not guarantee a right to a transfer, but it confers

upon the teacher on probation the right to request a transfer.

If this right is to mean anything, it must impose upon the

principal the duty of stating an informed, substantial reason

for denying the request or trying in good faith to make the

transfer. The principal did neither.

51. Fourth, as Peti tioner applied PACES in this case,

Petitioner was denied her right to 90 calendar days within which

to improve her performance adequately. First, the principal

prematurely terminated the probationary period. Already nervous

about her chances of retaining her job, Respondent was

effectively denied the last few days remaining to her to

demonstrate the required improvement.

52. Also, Petitioner failed to take into account

Respondent's absence from school for seven or eight days. By

statute, "school holidays a nd vacation periods" are excluded

from the 90 calendar days. "School holidays" is the same as

"school vacation periods," so the latter term must apply to a

teacher's personal leave, when such leave does not correspond to

school holidays. It is unclear wh ether all of the seven or

eight days of leave were sick leave or if any were personal

leave. But this is another reason militating against concluding

that Respondent received the full 90 calendar days to which she

is entitled to improve her performance.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order rejecting

the Superintendent's recommendation to terminate Respondent for

unsatisfactory performance during the 2003 - 04 school year.

DONE AND ENTERED this 26th day of October, 2004, i n

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Divis ion 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 26th day of October, 2004.

COPIES FURNISHED:

Dr. Randolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

32 5 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Madelyn P. Schere, Esquire

Miami - Dade Coun ty School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.