04-001654 Miami-Dade County School Board vs. Sergio H. Escalona Status: Closed Recommended Order on Tuesday, November 23, 2004.

Summary: Respondent`s teaching certificate should not be terminated because the evidence was insufficient to show that the alleged performance deficiencies existed or persisted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04-1654

)

SERGIO H. ESCALONA, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing in Miami, Florida, on July 8 and

9, 2004.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Ainslee R. Ferdie, Esquire

Emily J. Philips, Esquire

Ferdie & Gouz

717 Ponce de Leon Boulevard, Suite 215

Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent

satisfactorily corrected specified performance deficiencies

within the 90-day probation period prescribed by Section

1012.34(3)(d), Florida Statutes, and, if not, whether

Respondent's employment should be terminated.

PRELIMINARY STATEMENT

By letter dated April 20, 2004, the Superintendent of

Schools in Miami-Dade County notified Respondent Sergio H.

Escalona that he intended to recommend to the School Board of

Miami-Dade County at its meeting on May 19, 2004, that Mr.

Escalona's employment as a teacher be terminated due to

unsatisfactory job performance.

Through counsel, Mr. Escalona requested a formal hearing by

letter dated April 30, 2004. On May 6, 2004, 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 scheduled,

on July 8, 2004, in Miami, Florida. Petitioner presented the

following witnesses during its case-in-chief: Douglas

Rodriguez, Carlos del Cuadro, Deborah Carter, Ana Drew, Thomas

Gammon, and Isabel Siblesz. Petitioner also offered

Petitioner's Exhibits 1 through 14, inclusive, which were

received in evidence.

Respondent testified on his own behalf and called the

following additional witnesses: Daniel Muller, Jesus Llano,

Agnes Aldana, Enrique Diaz, Rafael Dacal, Zamira Wuscovi, and

Dr. Siblesz. As well, he offered Respondent's Exhibits 2, 4

through 7, 9, and 11 through 17, which were admitted.

(Respondent's Exhibit 18 was marked for identification but not

received in evidence.)

The final hearing transcript, comprising two volumes, was

filed on August 26, 2004, and after that each party filed a

Proposed Recommended Order before the deadline, as enlarged

pursuant to Respondent's motion for additional time, which was

November 1, 2004.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

A.

1. One of the statutory duties of Petitioner Miami-Dade

County School Board ("Board") is to evaluate the performance of

every teacher employed in the Miami-Dade County School District

("District"), at least once per year. To accomplish this, the

Board uses a personnel assessment system known as "PACES," which

is an acronym for Professional Assessment and Comprehensive

Evaluation System. PACES is the product of collective

bargaining between the Board and the teachers' union, and it has

been duly approved by the Florida Department of Education.

2. The Board's evaluation procedure begins with an

observation of the subject teacher, conducted by an

administrator trained in the use of PACES. On a score sheet

called the Observation Form for Annual Evaluation ("OFAE"), the

evaluator rates the teacher's performance on 44 independently

dispositive "indicators." The only grades assignable to the

respective indicators are "acceptable" and "unacceptable"; thus,

the evaluator's decision, for each indicator, is binary: yes or

no, thumbs up or thumbs down. 1 A negative mark on any one of the

44 indicators results in an overall performance evaluation of

"unsatisfactory." For the teacher under observation, therefore,

each indicator constitutes, in effect, a pass/fail test, with

his or her job hanging in the balance.

3. If the teacher passes all 44 of the independently

dispositive indicators, then the teacher's performance is rated

"satisfactory" and the evaluative process is complete. If, on

the other hand, the teacher is given a failing grade on one or

more of the 44 indicators and hence adjudged an unsatisfactory

performer, then the initial observation is deemed to be "not of

record" ( i.e. inoperative) and a follow-up, "for the record"

evaluation is scheduled to occur, upon notice to the affected

teacher, about one month later.

4. In the meantime, the teacher is offered the assistance

of a Professional Growth Team ("PGT"), a group of peers who,

having received special training in PACES, are in a position to

help the affected teacher correct performance deficiencies in

advance of the follow-up evaluation.

5. The follow-up evaluation is conducted in the same

manner as the initial "not of record" evaluation. If the

teacher passes all 44 indicators, then his performance is deemed

satisfactory and the evaluative process is complete. If he

fails one or more of the indicators, however, then the teacher

is placed on probation for a period of 90 calendar days

(excluding vacations and holidays). The probation period is

preceded by a formal Conference-for-the-Record ("CFR"), at which

notice of the specific performance deficiencies is provided to

the teacher. As well, the teacher is given a Professional

Improvement Plan ("PIP"), wherein particular remedial tasks,

intended to help the teacher correct the noted performance

deficiencies, are assigned.

6. During the performance probation, the teacher must be

formally observed at least twice, by an evaluator using the

OFAE. If, on any of these probationary observations, the

teacher fails at least one indicator, then another PIP is

prepared and offered.

7. Within 14 days after the end of probation, a

"confirmatory evaluation" is conducted, using the OFAE. The

purpose of the confirmatory evaluation is to determine whether

the noted performance deficiencies were corrected. If they

were, then the teacher's performance is rated "satisfactory."

If not, the principal then makes a recommendation to the

superintendent whether to continue or terminate the teacher's

employment.

8. As mentioned above, a PACES evaluation takes account of

44 crucial indicators. 2 The indicators are organized under

"components." The 44 outcome determinative indicators fall

within 21 components, which are identified on the OFAE. These

components are organized, in turn, under "domains," of which six

are identified on the OFAE.

9. Each domain has been assigned a Roman numeral

identifier: I through VI. The components are distinguished

alphabetically: A, B, C, etc. The indicators are numbered

using Arabic numerals. Each specific indicator is named

according to the Roman numeral of its domain, the letter of its

component, and its own Arabic number. Thus, for example, the

first indicator under Component A of Domain I is referred to as

"I.A.1."

10. Notwithstanding the PACES taxonomy, the

classifications of "domain" and "component" are useful only as a

means of organizing the indicators. This is because a teacher

does not pass or fail a performance evaluation at the domain

level or at the component level; rather, he passes or fails at

the indicator level, for, again, each of the 44 indicators is

independently dispositive under PACES. 3 Thus, each of the

determinative 44 indicators is of precisely equal weight. None

is more important or less important than another. 4

B.

11. At all times material to this case, Respondent Sergio

H. Escalona ("Escalona") was a teacher in the District. From

2000 until May 19, 2004, when the Board suspended him pending

termination of employment, Escalona was a science teacher at

Miami Springs Senior High School ("Miami Springs"), a typical

high school in the District.

12. During the 2003-04 school year, an evaluator observed

Escalona in his classroom on five separate occasions, each time

using the OFAE. The dates of these evaluations were, and the

names of the respective evaluators are, as follows:

Evaluation Date Evaluator

November 5, 2003 Carlos M. del Cuadro,

Assistant Principal,

Miami Springs

December 2, 2003 Mr. del Cuadro

January 16, 2004 Douglas P. Rodriguez,

Principal, Miami Springs

February 17, 2004 Deborah Carter,

Assistant Principal,

Miami Springs

April 5, 2004 Mr. Rodriguez

13. The Board contends that Escalona failed all five

evaluations; the first, however, was deemed "not of record" and

thus is relevant only insofar as it opened the door to the

process that followed. The following table shows, for each

evaluation (including the first), the indicators that the

respective evaluators thought Escalona had failed:

11-05-03 I A 1 I A 2 I B 1 I B 3 I E 3 I F 1 I F 2 I I A 1 I I A 3 I I B 2 IIB4

x x x x x x x

12-02-03 x

01-16-04 x x x

02-17-04 x x x x

04-05-04 x x x

11-05-03 I I D 1 I I D 3 I I D 4 I I E 1 I I E 2 IIE5 I I I A 1 I I I A 3 I I I B 1 IIIB3 IIIB4

x x x x x x

12-02-03 x x

01-16-04 x x

02-17-04 x

04-05-04 x x x x x

11-05-03 I V A 3 I V A 5 IVA6 IVB1 I V B 2 I V B 3 I V C 2 IVD1 I V D 3 I V D 6 I V E 2

x x x x x x x x x

12-02-03 x x x

01-16-04 x x x x x x

02-17-04 x x x x x

04-05-04 x x x x x

11-05-03 I V E 4 VA1 VA4 VB1 V B 2 V C 1 VIA2 V I B 1 V I B 3 V I C 2 V I C 4

x x x x x x x x

12-02-03 x x x x

01-16-04 x x x x x x x

02-17-04

04-05-04 x x x x

14. Because Mr. del Cuadro identified 10 performance

deficiencies on December 2, 2003, Escalona was placed on

performance probation, pursuant to the procedure described in

detail above. Mr. Rodriguez held a CFR on December 9, 2004, to

review with Escalona the identified deficiencies and explain the

procedures relating to the 90-day probation. Following the CFR,

Escalona was given written notice of unsatisfactory performance,

in the form of a Summary of Conference-For-The-Record And

Professional Improvement Plan (PIP), dated December 9, 2003

("Summary"). In the Summary, Mr. Rodriguez charged Escalona

with failure to satisfactorily perform the following PACES

indicators: II.B.4, II.E.5, III.B.3, IV.A.5, IV.B.1, IV.D.1,

V.A.1, V.A.4, V.B.1, and VI.A.2. (These 10 indicators are

highlighted vertically in the table above.) At the same time,

Escalona was given a PIP, and a PGT was assembled to provide

assistance.

15. Following the confirmatory evaluation on April 5,

2004, based on which Mr. Rodriguez identified 24 deficiencies as

shown in the table above, Mr. Rodriguez notified the

superintendent that Escalona had failed to correct noted

performance deficiencies during a 90-day probation and

recommended that Escalona's employment be terminated. The

superintendent accepted Mr. Rodriguez's recommendation on

April 12, 2004, and shortly thereafter notified Escalona of his

decision to recommend that the Board terminate Escalona's

employment contract. On May 19, 2004, the Board voted to do

just that.

C.

16. Of the four evaluations "for the record," the two that

were conducted during Escalona's probation (on January 16, 2004,

and February 17, 2004) are presently relevant mainly to

establish that the proper procedure was followed——a matter that

is not genuinely disputed. The substance of these probationary

evaluations cannot affect the outcome here because even if

Escalona's performance had been perfect during probation, Mr.

Rodriguez nevertheless found deficiencies during the post-

probation, confirmatory evaluation, which is the only one

probative of the dispositive question: Had Escalona corrected

the noted performance deficiencies as of the two-week period

after the close of the 90 calendar days' probation?

17. In view of the ultimate issue, the evaluation of

December 2, 2003, is primarily relevant because it established

the 10 "noted performance deficiencies" that Escalona needed to

correct. For reasons that will be discussed below in the

Conclusions of Law, the Board cannot terminate Escalona's

employment based on other deficiencies allegedly found during

probation or at the confirmatory evaluation; rather, it must

focus exclusively on those 10 particular deficiencies which

Escalona was given 90 calendar days to correct. Thus, stated

more precisely, the ultimate question in this case is whether

any of the 10 specific deficiencies identified in the Summary

provided to Escalona on December 9, 2003, persisted after the

90-day probation.

18. As it happened, Mr. Rodriguez determined, as a result

of the confirmatory evaluation on April 5, 2004, that Escalona

had corrected three of the 10 noted performance deficiencies,

for Mr. Rodriguez gave Escalona a passing grade on the

indicators II.B.4, II.E.5, and III.B.3. The remaining seven

deficiencies upon which termination could legally be based are

identified in the table above with the " " symbol. It is to

these seven allegedly uncorrected deficiencies that our

attention now must turn.

19. The Board contends, based on Mr. Rodriguez's

confirmatory evaluation of April 5, 2004, that Escalona was

still, as of that date, failing satisfactorily to perform the

following PACES indicators:

IV.A.5: The purpose or importance of

learning tasks is clear to learners.

IV.B.1: Teaching and learning activities

are appropriate for the complexity of the

learning context.

IV.D.1: Learners have opportunities to

learn at more than one cognitive and/or

performance level or to integrate knowledge

and understandings.

V.A.1: Learners are actively engaged and/or

involved in developing associations.

V.A.4: Learners are actively engaged and/or

involved and encouraged to generate and

think about examples from their own

experiences.

V.B.1: A variety of questions that enable

thinking are asked and/or solicited.

VI.A.2: Learner engagement and/or

involvement during learning tasks is

monitored.

20. The only descriptive evidence in the record regarding

Escalona's performance on April 5, 2004——and hence the only

evidence of historical fact upon which the undersigned can

decide whether Escalona failed adequately to perform the seven

indicators just mentioned——consists of Mr. Rodriguez's

testimony. Mr. Rodriguez, who had observed Escalona in the

classroom for 50 minutes that day, recounted at final hearing

what he had seen as follows:

Again, there were students that were simply

not engaged at all in learning. For

example, there was a student that put his

head down at a particular time. He slept

for about fifteen minutes. Mr. Escalona

never addressed the student, never

redirected the learning, never tried to

engage that student. Overall the students

continued to pass notes in class. The

students simply——there was really no plan at

all. That was get up, give a lecture. Kids

were not paying attention. No redirection

for student learning. Questions again very

basic. Most of the questions had no

response from the students. And [they] just

seemed very disinterested, the students did,

and the lesson was just not acceptable.

Final Hearing Transcript at 103-04. To repeat for emphasis, any

findings of historical fact concerning Escalona's performance

during the confirmatory evaluation must be based on the

foregoing testimony, for that is all the evidence there is on

the subject. 5

21. Mr. Rodriguez did not explain how he had applied the

seven indicators quoted above to his classroom observations of

Escalona to determine that the teacher's performance was not up

to standards.

D.

22. The seven indicators at issue in this case, it will be

seen upon close examination, are not standards upon which to

base a judgment, but rather factual conditions ("indicator-

conditions") for which the evaluator is supposed to look. If a

particular indicator-condition ( e.g. the purpose of learning

tasks is clear to learners) is found to exist, then the

evaluator should award the teacher a passing grade of

"acceptable" for that indicator (in this example, Indicator

IV.A.5); if not, the grade should be "unacceptable."

23. The indicator-conditions are plainly not objective

historical facts; they are, rather, subjective facts, which come

into being only when the evaluator puts historical facts against

external standards, using reason and logic to make qualitative

judgments about what occurred. Subjective facts of this nature

are sometimes called "ultimate" facts, the answers to "mixed

questions" of law and fact.

24. To illustrate this point, imagine that the class Mr.

Rodriguez observed on April 5, 2004, had been videotaped from

several different camera angles. The resulting tapes would

constitute an accurate audio-visual record of what transpired in

Escalona's class that day. Anyone later viewing the tapes would

be able to make detailed and accurate findings of objective

historical fact, including words spoken, actions taken, time

spent on particular tasks, etc. But, without more than the

videotapes themselves could provide, a viewer would be unable

fairly to determine whether, for example, the "[t]eaching and

learning activities [had been] appropriate for the complexity of

the learning context" (Indicator IV.B.1), or whether the

questions asked adequately "enable[d] thinking" (Indicator

V.B.1). 6 This is because to make such determinations fairly,

consistently, and in accordance with the rule of law requires

the use of standards of decision, yardsticks against which to

measure the perceptible reality captured on film.

25. Another term for standards of decision is "neutral

principles." A neutral principle prescribes normative conduct

in a way that permits fair judgments to be made consistently——

that is, in this context, enables the reaching of similar

results with respect to similarly performing teachers most of

the time. A neutral principle must not be either political or

results oriented. It must be capable of being applied across-

the-board, to all teachers in all evaluations.

26. In the unique milieu of PACES, neutral principles

could take a variety of forms. One obvious form would be

standards of teacher conduct. Such standards might be defined,

for example, with reference to the average competent teacher in

the District (or school, or state, etc.). In an adjudicative

proceeding such as this one, expert testimony might then be

necessary to establish what the average competent teacher does,

for example, to monitor learner engagement and/or involvement

during learning tasks (Indicator VI.A.2) or to create

opportunities to learn at more than one cognitive level

(Indicator IV.D.1). 7

27. Other standards might be definitional. For example,

to determine whether teaching and learning activities are

appropriate (Indicator IV.B.1) practically demands a definition

of the term "appropriate" for this context. Still other

standards might be framed as tests, e.g. a test for determining

whether a question enables thinking (Indicator V.B.1).

28. However the neutral principles are framed, at bottom

there must be standards that describe what "satisfactory"

performance of the indicators looks like, so that different

people can agree, most of the time, that the indicator-

conditions are present or absent in a given situation——and in

other, similar situations. Without neutral principles to

discipline the decision-maker, the indicators can be used as

cover for almost any conclusion an evaluator (or Administrative

Law Judge) might want to make.

29. In this case, the record is devoid of any persuasive

evidence of neutral principles for use in determining, as a

matter of ultimate fact, whether the conditions described in the

seven relevant indicators were extant in Escalona's classroom on

April 5, 2004, or not.

E.

30. In this de novo proceeding, the undersigned fact-

finder is charged with the responsibility of determining

independently, as a matter of ultimate fact, whether, as of the

two-week period following probation, Escalona had corrected all

of the performance deficiencies of which he was notified at the

outset of probation. The only evidence of Escalona's post-

probation teaching performance consists of Mr. Rogriguez's

testimony about his observation of Escalona for 50 minutes on

April 5, 2004, which was quoted above.

31. Mr. Rodriguez's testimony gives the undersigned little

to work with. His observations can be boiled down to four major

points, none of which flatters Escalona: (a) Escalona lectured,

and the students, who seemed disinterested, did not pay

attention——some even passed notes; (b) Escalona asked "very

basic" questions, most of which elicited "no response"; (c) one

student slept for 15 minutes, and Escalona left him alone; (d)

the lesson was "just not acceptable."

32. On inspection, these points are much less helpful than

merely a conclusion which invades the undersigned's province as

the fact-finder; accordingly, it has been given practically no

weight. The only facts offered in support of the conclusions,

in point (a), that the students "seemed" disinterested and were

"not paying attention" to Escalona's lecture is the testimony

that some students passed notes, and some (many?) did not answer

the teacher's questions. But this is a rather thin foundation

upon which to rest a conclusion that the students were bored

because Escalona's teaching was poor . And even if they were (or

looked) bored, is it not fairly common for teenaged high-school

students to be (or appear) bored in school, for reasons

unrelated to the teacher's performance? There is no evidence

whatsoever that student boredom (or note passing or non-

responsiveness) features only in the classrooms of poorly

performing teachers. As for the supposedly "basic" nature of

Escalona's questions, see point (b), the undersigned cannot give

Mr. Rodriguez's testimony much weight, because there is no

evidence as to what the questions actually were or why they were

so very basic. Finally, regarding point (c), the fact that a

student slept during class is, to be sure, somewhat damaging to

Escalona, inasmuch as students should not generally be napping

in class, but without additional information about the student

(who might have been sick, for all the undersigned knows) and

the surrounding circumstances the undersigned is not persuaded

that the sleeping student is res ipsa loquitur on the quality of

of Escalona's teaching performance. There is certainly no

evidence that students doze only in the bad teachers' classes.

33. More important, however, than the paucity of evidence

establishing the objective historical facts concerning

Escalona's performance on April 5, 2004, is the failure of proof

regarding neutral principles for use in determining the

existence or nonexistence of the relevant indicator-conditions.

Even if the undersigned had a clear picture of what actually

occurred in Escalona's classroom that day, which he lacks, he

has been provided no standards against which to measure

Escalona's performance, to determine whether the indicator-

conditions were met or not.

34. The absence of evidence of such standards is fatal to

the Board's case. To make ultimate factual determinations

without proof of neutral principles, 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 Escalona.

CONCLUSIONS OF LAW

A.

35. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Statutes.

36. When a teacher contests a superintendent's

recommendation of dismissal, as here, the ensuing hearing must

be conducted "in accordance with chapter 120." See §

1012.34(3)(d)2.b.(II), Fla. Stat. A "chapter 120 proceeding

[entails] a hearing de novo intended to 'formulate final agency

action, not to review action taken earlier and preliminarily.'"

Young v. Department 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)). Thus, the Board's

burden in this case was not merely to persuade the undersigned

that the evaluators sincerely believed, 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's burden was to persuade the undersigned himself to

find, independently, that Young's performance was deficient.

37. 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 was required to prove the alleged

grounds for Escalona's dismissal by a preponderance of the

evidence. McNeill v. Pinellas County School Bd. , 678 So. 2d 476

(Fla. 2d DCA 1996); Allen v. School 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).

B.

38. 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 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 personnel 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 performance

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

approved 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 contemporary

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 limited 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 teachers 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. Ability 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 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

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 response 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 determination. 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

recommendations 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 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 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

been 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 the 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 or 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 conducted 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 required

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.

(4) The district school superintendent

shall notify the department of any

instructional personnel who receive 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.

The 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 assessment 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 grant 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 developing,

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.

(Underlining and italics added).

39. Under Section 1012.34(3), school districts must

establish a primarily student performance -based procedure (or

system) for assessing the performance of teachers. In other

words, the method 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.

40. In clear terms, then, the legislature has announced

that the primary (though not exclusive) 8 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 plainly 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. 9

41. The statute further mandates that, in assessing

teachers, indicators of student performance——which performance

is assessed 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.)

42. Section 1008.22, which is referenced specifically in

Section 1012.34(3)(a), 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 administered annually to students in grades three

through 10. Id.

43. 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 all 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. Section 1008.22(5) provides

additionally that "[s]tudent performance data shall be used in

. . . evaluation of instructional personnel[.]"

44. Section 1012.34(3)(a) prescribes two and only two

permissible measures of student performance for use in

evaluating teachers: (a) the statewide FCAT assessments and (b)

the gap-filling local assessments, both of which measures are

required under Section 1008.22. It is clear that Sections

1012.34(3) and 1008.22 have at least one subject in common,

namely, student performance-based assessment of teachers. 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 Com'n , 643 So. 2d 668, 671 (Fla. 1st DCA

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

should be construed in pari materia ).

45. When 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 students 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 source of information used in

evaluating teachers whose subjects are not covered on the FCAT

and/or whose students do not take the FCAT.

46. The absence of evidence in the record concerning the

performance of Escalona's students either on the FCAT or on

local assessments, as appropriate, see endnote 5, supra ,

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 Escalona's performance was

deficient in the first place, much less whether he corrected the

alleged performance deficiencies in accordance with Section

1012.34(3)(d). Without such findings, the Board cannot dismiss

Escalona for failure to correct noted performance deficiencies.

C.

47. It was stated in the Findings of Fact above that the

Board can terminate Escalona's employment only if, based on an

assessment of his performance as of the two-week period

following the 90 calendar days of probation, the teacher had

failed to correct the particular performance deficiencies of

which he had been formally notified in writing prior to

probation; other alleged deficiencies, whether observed during

probation or thereafter, cannot be relied upon in support of a

decision to dismiss Escalona. Standing behind this observation

is Section 1012.34(3)(d), Florida Statutes.

48. The pertinent statutory language instructs that a

teacher whose performance has been deemed unsatisfactory must be

provided a written "notice of unsatisfactory performance," which

notice shall include a description of "such unsatisfactory

performance" plus recommendations for improvement in the

"specific areas of unsatisfactory performance." The statute

then specifies that the teacher must be allowed 90 calendar days

"following the receipt of the notice of unsatisfactory

performance" to correct "the noted performance deficiencies."

Clearly, the "noted performance deficiencies" are the specific

areas of unsatisfactory performance described in the notice of

unsatisfactory performance. Finally, the statute mandates that

the teacher shall be assessed within two weeks after the end of

probation to determine whether "the performance deficiencies"

have been corrected. It is clear, again, that " the performance

deficiencies" are "the noted performance deficiencies" described

in the written notice of unsatisfactory performance. See

§ 1012.34(3)(d)1. & 2.a., Fla. Stat. (emphasis added).

49. The reason why a decision to terminate a poorly

performing teacher must be based solely on the specific

performance deficiencies described in the pre-probation notice

of unsatisfactory performance is plain: allowing the school

district to rely on subsequently observed deficiencies would

defeat the teacher's unambiguous statutory right to have 90

post-notice calendar days in which to correct the noted

performance deficiencies that triggered probation in the first

place.

50. This case exemplifies the problem posed by post-notice

deficiencies. The notice of unsatisfactory performance (the

Summary) that gave rise to Escalona's probation, which was based

on Mr. del Cuadro's evaluation of December 2, 2003, charged the

teacher with 10 specific performance deficiencies. By

February 17, 2004, when Ms. Carter formally observed Escalona

for the last time before the end of probation, Escalona had

corrected all but one (Indicator IV.A.5) of the noted

performance deficiencies——suggesting that he had made

significant improvement.

51. Unfortunately for Escalona, however, Ms. Carter

believed that the teacher had exhibited nine deficiencies

besides the noted performance deficiencies, with the net result

that, near the end of probation, Escalona still had 10

deficiencies. Of these nine post-notice deficiencies, four

(Indicators I.F.1, I.F.2, II.A.1, and IV.B.3) were recorded for

the first time ever on February 17, 2004. Obviously, Escalona

was not given 90 days to correct these four alleged

deficiencies. Yet another three of the post-notice deficiencies

reported by Ms. Carter (Indicators I.A.1, IV.A.6, and IV.B.2)

had not been seen since Mr. Cuadro's initial evaluation of

November 5, 2003. This initial evaluation, being "not of

record," cannot count as a notice of unsatisfactory performance

to Escalona. Hence he was not given 90 days to correct these

three alleged deficiencies. For that matter, the remaining two

post-notice deficiencies alleged to exist on February 17, 2004——

Indicators II.D.4 and IV.A.3——had not been observed, post-

notice, until January 16, 2004, which means that Escalona did

not have 90 days to correct them, either.

52. For the above reasons, when assessing whether, in

fact, Escalona had corrected the noted performance deficiencies

as of the two-week period following probation, the undersigned

focused, as he was required to do, exclusively on the 10

deficiencies described in the Summary, seven of which were

alleged not to have been timely corrected. Having determined as

a matter of fact that the evidence was insufficient to prove

these seven alleged deficiencies existed or persisted, it must

be concluded that the Board has failed to carry its burden of

establishing the alleged factual grounds for dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

exonerating Escalona of all charges brought against him in this

proceeding; (b) providing that Escalona be immediately

reinstated to the position from which he was suspended; and (c)

awarding Escalona back salary, plus benefits, to the extent

these accrued during the suspension period, together with

interest thereon at the statutory rate.

DONE AND ENTERED this 23rd day of November, 2004, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of November, 2004.

ENDNOTES

1 / The evaluator indicates unacceptable performance of an

indicator by circling the indicator's name on the OFAE. ( See

paragraph 9, infra in the text, for a description of how the

indicators are named.)

2 / In fact, PACES comprises more than 100 indicators. Only the

independently dispositive 44 are meaningful, however; a

teacher's successful (even superb) performance of all 56

additional indicators would not overcome a failing grade on even

one of the crucial 44.

3 / Put another way, PACES evaluators do not rate teachers at the

domain level or the component level. That is, when an evaluator

determines that a teacher has failed a particular indicator, say

II.E.5 (quickly and reasonably manages unacceptable behavior),

the evaluator does not then make a qualitative determination

whether the teacher failed the broader Component E (monitoring

and maintaining learner behavior). Such a determination would

require that the teacher's failure to manage unacceptable

behavior (however that failure was manifested in a given

observation) be considered in context with his satisfactory

performance of the other indicators relating to monitoring and

maintaining learner behavior, to assess whether, on the whole,

the teacher was adequately monitoring and maintaining learner

behavior. Under PACES, such a determination is not necessary

because failing the indicator automatically results (without

need for further deliberation or consideration of other

indicators, components, or domains) in the conclusion of overall

unsatisfactory performance. Likewise, and for the very same

reasons, the evaluator, upon finding a teacher's performance of

indicator II.E.5 deficient, does not then make a qualitative

determination whether the teacher failed the overarching Domain

II (managing the learning environment), which would require that

the teacher's failure to manage unacceptable behavior (however

that failure was manifested in a given observation) be

considered in context with his performance of (a) the other

indicators relating to Component E and (b) the indicators

relating to the rest of the components under Domain II, to

assess whether, on the whole, the teacher was adequately

managing the learning environment.

4 / The 44 indicators are not equally apportioned between the six

domains. There are 12 indicators under Domain IV and 10 under

Domain II; seven under Domain I; and five apiece under Domains

III, V, and VI. Therefore, all indicators being equal (and they

are), a teacher is more likely to fail an observation on an

indicator falling under Domains II or IV than, say, V or VI. In

this statistical sense, then, it could be said that Domains II

and IV are more important than the others. But this would be

somewhat misleading, because passing Domain IV is of no greater

benefit to the teacher than passing Domain V, or any other. In

the final analysis, all that truly matters is whether or not the

teacher passed each and every indicator.

5 / There is no evidence in the record regarding the performance

of Escalona's students as measured by state and/or local

assessments; indeed, the Board's witnesses admitted (and the

undersigned finds) that Escalona's evaluators did not take

account of his students' standardized test results. Because of

this, it is impossible for the undersigned to make de novo

findings based primarily on student performance as to whether,

ultimately, Escalona's performance was satisfactory.

6 / A viewer could make such determinations, of course, but he

would necessarily make them based upon personal standards of his

own choosing, for the cameras would not have recorded decisional

standards. Determinations founded upon personal preferences are

not fair (or consistent with the rule of law) because they

inevitably produce inconsistent results, each decision-maker

doing what is right in his or her own eyes, seeing similar

situations differently.

A real-life example of this phenomenon is provided by a

news story receiving wide coverage as this Recommended Order is

being written. The story involves a U.S. Marine who, during the

liberation of Fallujah, Iraq, shot and killed a wounded enemy

combatant, which latter might——or might not——have posed a

present danger. The incident happened to have been caught on

film by an embedded reporter. Once the video was broadcast on

television, the question arose: Was this a murder, or a

justified killing in battle? The matter is far from settled as

of this writing, but opinions on both sides of the issue have

been expressed in the media by experts, pundits, and others.

The point here is this: A viewer watching the videotape cannot

fairly determine, without more than the film shows, whether a

war crime was committed, for that determination requires that

the historical facts be compared to external standards (known as

law), using reason and logic to arrive at an ultimate

determination of guilt or innocence. The question of guilt or

innocence cannot be settled fairly, consistent with the rule of

law, unless the fact-finder is provided with (and disciplined

by) neutral standards of decision against which the historical

facts as captured on the film and established through other

evidence can be measured.

7 / Such expert testimony, designed to assist the fact-finder in

understanding the applicable standard of conduct, must be

distinguished from testimony, offered in the guise of expert

opinion, which is calculated merely to instruct the fact-finder

how to decide the case, without helping the fact-finder make an

independent determination about what occurred. Testimony that

simply tells the fact-finder how to decide the case is

impermissible and generally inadmissible. See , e.g , Schneer v.

Allstate Indem. Co. , 767 So. 2d 485, 488-89 (Fla. 3d DCA

2000)(no error in excluding proffered expert testimony that

plaintiffs had not committed insurance fraud); Fino v. Nodine ,

646 So. 2d 746, 749 (Fla. 4th DCA 1994)(opinion testimony that

accident was "unavoidable" should not have been admitted); 3-M

Corp.—McGhan Medical Reports Div. v. Brown , 475 So. 2d 994, 997

(Fla. 1st DCA 1985)(opinion that product was "defective" was

inadmissible).

Much of the evaluators' testimony in this case about

Escalona's allegedly unsatisfactory performance largely had the

effect of advising the undersigned how to decide the case, as

opposed to supplying evidence about what specifically occurred

in the classroom and what standards should be used to judge such

performance. In other words, much of the testimony amounted to

little more than witnesses opining that Escalona's performance

was "unsatisfactory"——an ultimate determination that the

undersigned independently must make. The undersigned,

exercising his prerogative as the fact-finder, has given little

weight to such testimony, which probably would have been

excluded in a civil trial.

8 / In 2004 the legislature added a sentence to § 1012.34 (3),

effective June 10, 2004, the language of which is shown in

italics in the quotation above. See Ch. 2004-295, § 11, Laws of

Fla. The Board maintains, and the undersigned agrees, that this

recent amendment merely makes clear what was already reasonably

apparent from the statute's preexisting language, namely, that

student performance is not the only factor to consider in

evaluating a teacher. Rather, as the amendment underscores,

unsatisfactory performance can be found to exist even if the

student performance data are acceptable, where the teacher's

performance, as measured against other approved criteria, is so

poor as to outweigh the favorable indicators of student

performance. As a clarifier, the amendment does not change the

statutory directive that teacher evaluations be based primarily

on student performance as measured by the FCAT and other

standardized tests. Thus, in short, while a teacher's

performance might be deemed unsatisfactory for reasons other

than student performance, student performance on standardized

tests cannot be ignored (or given short shrift) in a teacher's

evaluation, for an assessment that gives little or no weight to

students' test scores obviously is not one "primarily based on

the performance of students" "as measured by [specific] state

[and local] assessments" under any reasonable understanding of

those unambiguous words.

9 / Whatever its shortcomings, the prescribed approach leans

heavily on objective factors (test scores), thereby minimizing

the subjectivity (and potential unfairness) inherent in other

methods of evaluation.

COPIES FURNISHED :

Madelyn P. Schere, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Ainslee R. Ferdie, Esquire

Emily J. Philips, Esquire

Ferdie & Gouz

717 Ponce de Leon Boulevard, Suite 215

Coral Gables, Florida 33134

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, 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. Rudolph F. Crew, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1394

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.