05-000942 Miami-Dade County School Board vs. Jose L. Rojas Status: Closed Recommended Order on Friday, July 29, 2005.

Summary: Recommend termination of Respondent, whose classroom was chaotic and who failed to correct deficiencies within a 90-day performance probation period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0942

)

JOSE L. ROJAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to noti ce, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on May 20, 2005, by video

teleconference between sites in Miami and in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Ma delyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdm an & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner should terminate

Respondent's professional service contract for his failure to

correct his performance deficiencies within his 90 - calendar - day

probation period.

PRELIMINARY STATEMENT

By correspondence dated March 9, 2005, Petitioner's

Superintendent of Schools advised Respondent Jose L. Rojas that

he would recommend to The School Board of Miami - Dade County,

Florida, that the School Board terminate Respondent's employment

contract as a teacher, effective April 13, 2005. Respondent

timely requested an administrative hearing regarding that

recommendation, and this cause w as thereafter transferred to the

Division of Administrative Hearings to conduct the evidentiary

proceeding.

Petitioner presented the testimony of Ava G. Byrne;

Lucy Iturrey; Margaret Fahringer; Craig DePriest; Natalie Roca,

Ph.D.; and Janice Farrell. Add itionally, Petitioner's Exhibits

numbered 1 - 25 and Respondent's Exhibits numbered 1 and 2 were

admitted in evidence. The Respondent did not testify and did

not present the testimony of any witnesses.

Both parties submitted proposed recommended orders aft er

the conclusion of the hearing in this cause. Those documents

have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Jose L.

Rojas, has been employed by The School Board of Miami - Dad e

County, Florida, as a teacher pursuant to a professional service

contract. During the 2004 - 2005 school year, he taught regular

sixth - grade math classes at Redland Middle School.

2. Teachers employed by the School Board, including

Respondent, are evalua ted pursuant to the Professional

Assessment and Comprehensive Evaluation System, known as PACES.

PACES was collectively bargained with the teachers' union and

approved by the Florida Department of Education in 2001 as being

in statutory compliance for tea cher evaluations in Petitioner's

school district.

3. PACES focuses on student learning and teacher

professional development, as well as on teaching behaviors. In

PACES, there are seven domains: six are to be observed during a

classroom observation, and t he seventh domain deals with

professional responsibilities demonstrated outside the classroom

observation. The domains reflect the required statutory

competencies of Section 1012.34, Florida Statutes.

4. Each domain has teaching and learning components , and

each component has indicators, 44 of which are required to meet

standards under PACES. The 44 indicators are fundamental units

of observation that are used to make professional judgments

about the quality of learning and teaching. They represent th e

basic level of teaching to be demonstrated by all teachers in

Petitioner's school district, i.e. , the minimum requirements.

They are the objective standards described in the PACES manual.

Teachers have PACES manuals and access to the PACES Internet

web site. The standards are also repeated in any professional

improvement plan, known as a PIP.

5. It takes only one unacceptable indicator for a domain

to be rated below performance standards. One below - standard

domain indicates a teacher's non - compliance with statutorily -

required competencies.

6. The Florida Comprehensive Assessment Test (FCAT)

measures student performance on the State's objectives for

Florida's required curriculum, the Sunshine State Standards.

While Petitioner's school district, as a whole, must utilize the

FCAT data and indicators of student performance, there is no

similar requirement for evaluating teachers by the results of

the performance of their students on the FCAT (or other local

assessments for subject matters not covered by the FCAT).

Individual evaluations of teachers, however, must address

student performance.

7. PACES addresses student performance in every domain.

What is assessed is whether the teacher is monitoring and

gauging student progress in the classroom, maki ng sure that the

students are mastering the required curriculum. Teachers are

expected to use their students' FCAT scores from the prior year

for planning, pursuant to PACES domain I, to meet the students'

deficiencies. Redland utilizes FCAT results in this manner.

8. Further, a teacher's teaching strategies and activities

are required to address FCAT expectations. At the beginning of

the school year, teachers at Redland receive copies of the scope

and sequence for what the students are to learn dur ing the

school year. The teachers develop the curriculum and timelines

for meeting benchmarks to be covered during the school year.

9. PACES domain II, as another example, deals with the

teacher's management of the learning environment. If time is

not managed and is, instead, wasted, the students' achievement

of the Sunshine State Standards will be impacted, which will

affect FCAT scores.

10. PACES domain IV, as yet another example, requires

teachers to informally assess the students' engagement in

le arning to assess their performance to ascertain whether the

students are mastering the Sunshine State Standards.

11. All of the administrators who were PACES observers in

this case have had extensive training in the standards to be

observed and evaluate d in teacher performance and student

learning and are, therefore, authorized to perform PACES

observations, which are based upon what the observer objectively

observes while in the classroom.

12. The performance probation process in Petitioner's

school d istrict, like the PACES teacher evaluation process, was

collectively bargained with the teachers' union. The process is

as follows: if there is an observation conducted by an

administrator that indicates a teacher is performing below

standards, it become s the "initial observation not of record."

The administrator meets with the teacher, goes over the

observation, makes suggestions for improvement, and notifies the

teacher that he or she will be observed again in approximately

three weeks. The administra tor offers the teacher the

assistance of a professional growth team (PGT). Use of a PGT is

voluntary on the part of the teacher at this point.

13. The PGT is part of the professional development aspect

of PACES. PGTs are composed of experienced peer tea chers who

are extensively trained in PACES and are authorized to give

support and assistance to teachers to improve classroom

instruction.

14. The same administrator who conducted the "initial

observation not of record" must conduct the next observation,

the "kick - off observation," which is the first observation of

record in that school year. If this observation reveals below -

standards performance, a conference - for - the - record (CFR) is

held. A PGT and a PIP are provided to the teacher.

15. The performan ce probation period begins the day after

a PIP is given to the teacher. The teachers' union and

Petitioner then mutually agree on the calendar for counting the

90 days. There must be two official observations during the

performance probation period. The teacher must meet all 44

required indicators in order to meet performance standards

during the teacher's performance probation. If any indicators

are below performance standards, PIPs are again given. There

are four levels of PIP activities, which are p rogressively more

complex.

16. A "confirmatory observation" takes place after the

90th day to determine whether the teacher has corrected his or

her deficiencies. The "confirmatory observation" must be

completed within 14 days after the conclusion of the performance

probation, and the evaluator must forward a recommendation to

the Superintendent of Schools. Within 14 days of receiving the

evaluator's recommendation, the Superintendent must notify the

teacher whether he will recommend to the school board that the

teacher's employment be continued or terminated.

17. It is not sufficient for the teacher to improve on

only some of the deficient indicators. It has been the custom

and practice under the collective bargaining agreement that

remediation occurs only when the teacher meets standards in all

of the required indicators.

18. Respondent's initial observation was conducted by

Assistant Principal Fahringer on September 23, 2004. Respondent

was teaching a class of 20 - 23 students. Respondent told the

st udents to take out their agenda books which contained their

homework. As Respondent went around the classroom checking each

student's homework, the remainder of the students just sat and

talked, waiting for a lesson to begin. They were not working on

mat h. Out of the two - hour block of class time, the class was

off - task about 25 percent of the time. Respondent failed to

meet performance standards in components and indicators of

domain II, managing the learning environment, and domain IV,

enhancing and en abling learning. Pursuant to the agreed - upon

procedures, the observation became "not of record."

19. Assistant Principal Fahringer met with Respondent

September 28, 2004, went over the evaluation, and explained why

Respondent had not met performance stan dards. Fahringer gave

Respondent suggestions for improvement and advised him that she

would return to do a follow - up observation. She offered

Respondent a PGT, which he accepted.

20. On October 19, 2004, Fahringer performed Respondent's

first observatio n of record, the "kick - off observation."

Respondent was giving a lesson on fractions, decimals, and

percentages to 32 students using cups of M&Ms and a chart.

Respondent told the students to divide into groups of four.

There followed much noise and conf usion. As Respondent went

from group to group, he did not monitor the other seven groups.

Students threw M&Ms and paper wads.

21. Respondent did not meet performance standards in

components and indicators of domains II and IV. He did not meet

standards in domain II because the learning did not begin

promptly. After a five - minute delay, another five minutes were

wasted while Respondent counted out the M&Ms. Ten minutes

wasted at the beginning of the class is a significant amount of

time since time spen t on - task improves achievement.

22. There were delays in the organizational and

teaching/learning activities. When Respondent told the students

to divide into groups of four, some students appeared uncertain

as to what group they were in and, instead, milled around

talking noisily.

23. Some students remained off - task throughout the lesson.

Respondent did not address the off - task behavior because he did

not appear to even notice it while he focused on one group at a

time. Students came to Respondent wi th their agenda books,

"visiting" other students and talking with them on the way.

Eight students were distracted, noisy, and off - task, but

Respondent failed to redirect them. Respondent's expectations

about acceptable behavior had apparently not been ma de clear to

the students. Although he told them to raise their hands and

not to talk, they continued to talk noisily to each other for 50

minutes.

24. Respondent failed to effectively monitor the class

throughout the lesson. When he was with one group, he did not

use management techniques to diffuse the unacceptable off - task

behavior of the other groups. The remaining seven groups did

not work (no learning took place) while they waited for

Respondent to come to them.

25. Respondent did not meet standar ds in domain IV because

he did not introduce the purpose of the lesson. The students

were told how to count the M&Ms and complete a chart, but there

was no explanation as to what they were to learn. The students

did not understand that they were learning the relationship

among fractions, decimals, and percentages.

26. Respondent did not give clear and complete directions.

He told the students that they were going to "integrate"

decimals, percents, and fractions, a meaningless word choice.

The directi ons did not include any explanation of content or

integration of mathematical concepts.

27. Respondent did not demonstrate accurate content

knowledge. He gave inaccurate and unclear information to the

students. He counted the various colored M&Ms and put the

numbers on the chart. On the chart, he explained that the

decimals -- .35, .10, .25, .17, .03, and .71 -- equal one, when in

fact they equal 1.61. Also on the chart, Respondent explained

that the percentages -- 35%, 10%, 25%, 17%, 3%, and 71% -- equal

10 0%, when in fact they equal 161%. The student s accepted the

inaccurate information. On the line of the chart indicating the

fractions, Respondent reduced some of the fractions leaving

different denominators, which made the addition of those

fractions dif ficult.

28. On October 29, 2004, Principal DePriest and Assistant

Principal Fahringer held a CFR with Respondent to address

Respondent's sub - standard performance, his performance

probation, recommendations for improving the specific areas of

his unsatisfa ctory performance, and Respondent's future

employment status with Petitioner. Respondent's input was

sought, and he was formally assigned a PGT.

29. Respondent was given a copy of the summary of the CFR

and a PIP on November 1, 2004. The PIP required hi m to read and

summarize pertinent sections from the PACES manual by

November 22, 2004.

30. Respondent's performance probation period began

November 2, 2004, the day after he received the PIP. He was

provided assistance through his PGT and his PIP to he lp him

correct his deficiencies within the prescribed time.

Respondent's PGT provided assistance to him throughout his

performance probation.

31. Respondent failed to complete his PIP activities by

the November 22 deadline. On December 2 he was given an other 24

hours to comply, which he did.

32. On November 24, 2004, Respondent was formally observed

in his classroom by Principal DePriest. Respondent was

presenting a lesson to 19 students, but the classroom was too

chaotic for learning to take place. R espondent again did not

meet performance standards in domain II.

33. Learning did not begin promptly. Respondent wasted 12

minutes reprimanding students, taking roll, and answering his

personal cell phone while the students were not engaged in

learning. There were also inefficient delays in organizational

and teaching/learning activities. The students went to the

board, one by one, to solve math problems. Respondent spent

approximately five minutes with each student at the board while

the rest of the c lass became noisy, walked around, or slept.

34. Respondent failed to monitor off - task behavior or the

behavior of the entire class. As Respondent focused on the one

student at the board, the other students were off - task for up to

five minutes at a time t hroughout the lesson, talking, putting

their heads down, tapping their pencils, and making

inappropriate comments such as "Can someone choke me?", "Can

someone kill me?", and "Can I die now?". One student simply

played with her hair for six minutes. Esse ntially, everyone was

talking, and no one was listening to Respondent. Yet,

Respondent did nothing to redirect the students.

35. He did not appear to have classroom conduct rules in

place. Thus, Respondent failed to make his expectations about

behavior clear to the students. He instructed them not to talk

without raising their hands. Nevertheless, eight of the

students talked out - of - turn for 20 minutes without raising their

hands.

36. DePriest met with Respondent on December 2, 2004, to

review the obs ervation. DePriest provided assistance through a

PIP to help Respondent correct his deficiencies. The PIP

required Respondent to observe other teachers and to view PACES

vignettes on the PACES Internet website. Respondent was to

maintain a log and discu ss techniques and strategies with

DePriest. Respondent's deadline to complete his PIP was

January 6, 2005.

37. On January 10, 2005, Respondent was formally observed

by Assistant Principal Janice Farrell. Respondent was

presenting a lesson on perimeters and surface areas to 22

students. The lesson was disorganized, and there was an "air of

confusion" in the class. Many students were being unruly and

exhibiting off - task behavior. Therefore, not much learning was

taking place.

38. Respondent still did not meet performance standards in

domains II and IV that had been previously identified. He also

failed to meet performance standards in components and

indicators not identified in the kick - off observation of

October 19, 2004, and, therefore, not the subj ect of

Respondent's 90 - day performance probation or this Recommended

Order.

39. Respondent caused inefficient delays in organizational

and teaching/learning activities. The learners were instructed

to complete a "bellringer" activity, i.e. , an activity t hat is

used at the beginning of the class period to engage the students

in learning as soon as they enter the room. Although they were

instructed to complete it, eight of the 22 students did not

receive a bellringer worksheet. Students were asking for

ma terials and attempting the activity unsuccessfully on their

own. Respondent appeared unaware of the problem

40. Respondent failed to monitor off - task behavior and

disengagement from learning throughout the lesson. One student

continuously called out Res pondent's name, louder and louder,

for five minutes. Students talked and copied each other's

answers. While a student walked around stamping the other

students' agenda books, they became off - task. A group of three

students at a back table remained off - t ask throughout the

lesson, talking, copying each other's answers, and throwing

papers. Respondent did not redirect any of these students until

the last five minutes of the class.

41. Respondent failed to monitor the whole class

effectively. When he went to the back of the room to address a

tardy student without a pass, he turned his back on the other 21

students who changed seats, threw papers at each other, and hit

each other with rulers. Respondent did nothing to redirect his

students.

42. He failed to make the purpose or importance of the

learning tasks clear to the students. He did not give a

rationale for the bellringer activity, which consisted of

answering questions about perimeters and areas of geometric

shapes. He also gave the students inacc urate information. He

incorrectly calculated the perimeter of a square as 3�=15.

43. DePriest and Farrell met with Respondent to review the

observation. Farrell made recommendations with respect to the

specific areas of unsatisfactory performance and provided

assistance through a PIP to help Respondent correct his

deficiencies. Respondent's PIP required him to complete self -

assessment activities through the PACES website. He was to

watch vignettes provided by the website in order to understand

w hat the PACES indicators required of him. Respondent's

deadline to complete his PIP was February 11, 2005.

44. Because Respondent's second observation within the

performance probation period was below performance standards, a

confirmatory observation wa s required after the expiration of

the 90 days to determine whether Respondent had corrected his

deficiencies. Principal DePriest performed that observation on

February 22, 2005. On that day, management of the learning

environment and classroom disciplin e were non - existent .

45. Respondent was presenting a lesson on geometric shapes

to 18 students. While he did have instructions written on the

board, there were still the same kinds of delays seen

previously, and the students were still not engaged in lea rning.

Overall, the class environment was chaotic. One - third to one -

half of the class was off - task at any given time. The class was

completely disorganized; the students were not engaged; the

students did not pay any attention to Respondent, and very

li ttle learning took place.

46. Each time supplies were distributed, commotion

resulted. When colored paper was distributed so that the

students could trace the shapes, they got into arguments over

the different colors, negotiated the trading of colors, and

asked Respondent for different colors. When rulers were passed

out, the students were not instructed to use them to draw the

geometric shapes. Some had already drawn the shapes freehand.

Others were dueling with the rulers. Some tore the shapes,

rather than waiting until they received scissors.

47. Respondent again did not meet performance standards in

domain II as identified in the kick - off observation. Learning

did not begin promptly. Respondent spent 10 - 11 minutes taking

roll and reprimandin g tardy students. There were inefficient

delays in organizational and teaching/learning activities.

Respondent allowed students to talk and distract others.

Students were not paying attention. Respondent accepted a phone

call and made a phone call duri ng the class. He failed to

monitor the off - task behavior caused by the manner in which

supplies were distributed and failed to redirect the students,

including while they argued about paper, scissors, and rulers.

48. DePriest notified Respondent on Febru ary 23, 2005,

that Respondent had not satisfactorily corrected noted

performance deficiencies during his performance probation period

and that DePriest would recommend to the Superintendent of

Schools that Respondent's employment be terminated. On that

sa me day, DePriest transmitted such a memorandum. On March 9,

the Superintendent notified Respondent that the Superintendent

would recommend that the School Board terminate Respondent's

employment contract for Respondent's failure to correct his

noted perfo rmance deficiencies during his performance probation.

49. Petitioner has met all procedural requirements and

statutory time frames.

50. The FCAT was administered to Florida students in late -

February to early - March, 2005. Petitioner received Responden t's

students' scores on May 17 and the district - wide FCAT results on

May 19, 2005, the day before the final hearing in this cause.

The district as a whole showed "tremendous" progress over the

prior year. Even though Redland is a "low - performing" school,

it likewise showed progress over the prior year in reading and

mathematics. Respondent's students, however, failed to follow

this trend.

51. Petitioner does not use a teacher's current students'

FCAT scores in assessing a teacher's performance because t he

scores are released too late in the school year. PACES,

however, addresses student performance, as statutorily required.

Where a teacher's students are observed as being noisy

throughout lessons, being confused, not paying attention, and

being given e rroneous lesson content, there is a clear lack of

student performance, and they are not engaged in learning.

CONCLUSIONS OF LAW

52. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

53. A proceeding under Chapter 120, Florida Statutes, is a

de novo proceeding which is intended to formulate final agency

action, not to review action taken earlier and preliminarily.

Young v. Dep't of Community Affairs , 625 So. 2d 831 (Fla. 1993).

Since Petitioner seeks only to terminate Respondent's employment

contract but not to revoke or otherwise discipline his teaching

certificate, it need only prove the allegations set forth in the

Notice of Specific Charges by a preponderance of the evidence.

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

DCA 1990).

54. Petitioner relies upon Section 1012.34, Florida

Statutes, which provides, in part, as follows:

(1) For the purpose of impro ving 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.

* * *

(3) The assessment procedure for

in structional 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 ins tructional 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 [the FCAT statute] and may

consider results of peer reviews in

evaluating the empl oyee'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 . . . .

4. Ability to plan and deliver

instruction . . . .

* * *

(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. Upo n 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

p rovide assistance in helping to correct

deficiencies within a prescri bed 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 th e 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

p rofessional service c ontract must be

evaluated periodically and apprised of

progress achieved and must be provided

assistance and inservice [sic] training

opportunities to help correct the noted

performance deficiencies. . . .

b . Within 14 days after the close of the 90

calen dar 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 superinten dent 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 continu e or terminate

his or her employment contract . . . .

(Emphasis added)

55. In accordance with subsection (1), the Florida

Department of Education is the agency responsible for approving

school districts' instructional personnel assessment systems.

The Department interpreted Petitioner's incorporation of the

data and indicators of student performance on the FCAT into the

PACES domains as being in compliance with Section 1012.34,

Florida Statutes, when the Department gave its full approval to

the PACES a ssessment instrument in 2001.

56. If the plain language of a statute is clear and

unambiguous, it must be given its plain and ordinary meaning.

Fla. Dep't of Education v. Cooper , 858 So. 2d 394 (Fla. 1st DCA

2003). Various provisions of Section 1012. 34, Florida Statutes,

however, appear somewhat inherently contradictory and,

therefore, ambiguous, e.g. , "primarily" using student

performance "as appropriate," "not [being] limited to . . .

student performance" as the sole criterion, using student

perform ance and other approved criteria in "any combination,"

and "primarily" using "data and indicators of improvement in

student performance assessed annually" by the FCAT, when results

are not available until the end of the school year.

57. Where statutory l anguage is ambiguous, the

interpretation given by the agency charged with its enforcement

is "entitled to great deference and should not be overturned

unless it is clearly erroneous." If an agency's "interpretation

is within the range of possible and reas onable interpretations,

it is not clearly erroneous and should be affirmed." A statute,

however, should not be interpreted so as to render any of its

terms meaningless. Cooper , at 396.

58. The mechanism provided by the Legislature to remove

deficient t eachers from classrooms is the 90 - day performance

probation. § 1012.34, Fla. Stat. A school district's attempt

to remove a deficient teacher utilizing the 90 - day probationary

period early in the school year does not allow for a

consideration of that teac her's current students' FCAT results

which are not available until the end of the school year.

59. The Florida Department of Education approved PACES as

being in compliance with a statute that has the legislative

intent of improving the quality of publ ic education through the

prompt and timely removal of deficient teachers from classrooms.

The Department has reconciled the inherently contradictory

provisions found in Section 1012.34 to effectuate this

legislative intent. Thus, the Department's interpr etation of

the statute is entitled to great deference, is not clearly

erroneous, and should not be overturned.

60. The evidence in this case is not only clear but also

unrebutted that Respondent's classes were chaotic and that his

students were not eng aged in learning. Under Respondent's

theory, a patently - deficient teacher such as Respondent would

remain in the classroom until the end of the school year when

FCAT results are received. Respondent's interpretation would

vitiate the 90 - day performance p robation provided by the

Legislature, rendering the 90 - day performance probation

meaningless, a prohibited statutory construction. Considering

that FCAT results are customarily not available to school

districts across the State until the end of each schoo l year,

Petitioner utilized the FCAT data and indicators of student

performance, in accordance with Section 1012.34, "as

appropriate," by incorporating them into its PACES domains.

61. The statute does not require teacher assessments to be

limited to st udent performance alone; rather, it allows for

teacher assessments to be based upon other factors, e.g. , the

teacher's ability to maintain discipline and the teacher's

knowledge of the subject matter, inter alia . Otherwise,

deficient teachers would be per mitted to remain in the classroom

through the end of that school year and into the next since the

performance probation could not be completed until the following

school year, a result contrary to the clear language used in the

statute to mandate the 90 - da y performance probation period.

62. Respondent argues that he was denied due process

because an analysis of his students' 2005 FCAT scores provided

to him three days before the final hearing in this cause was

admitted in evidence. Since the scores did not exist when

Petitioner made its decision to terminate Respondent's

employment, they cannot be considered now, according to

Respondent. Respondent is correct that those scores did not

form the basis of Petitioner's decision; rather, Respondent's

failure to correct his deficiencies formed the basis for that

decision. The scores are not irrelevant to this proceeding,

however, since Section 1012.34 specifically provides that FCAT

scores are a criterion in assessing a teacher's performance.

63. As Petiti oner based its decision to terminate

Respondent's employment contract on his failure to correct his

noted performance deficiencies within the 90 days allowed

therefor, this Recommended Order is based upon Respondent's

failure to correct his noted performan ce deficiencies within his

90 - day probationary period. The FCAT scores simply are

consistent with and support the preliminary decision made by

Petitioner and support the conclusions contained in this

Recommended Order. In this de novo proceeding to formu late

final agency action, all relevant evidence is to be considered.

§§ 120.569(2)(g) and 120.57(1)(c), Fla. Stat.

64. Moreover, Respondent was given an opportunity after

hearing the testimony of Petitioner's witness regarding

Respondent's students' 20 05 FCAT scores to have the final

hearing continued in order that he might prepare to cross -

examine that witness before doing so and may further consider

his evidence and defense in light of his knowledge as to

Petitioner's evidence against him. Not only d id Respondent

decline the offer of a continuance of the final hearing but he

also waived his right to cross - examine that witness.

Accordingly, his denial of due process argument is without

merit.

65. Respondent further argues that the School Board is

bou nd by its prior Final Orders criticizing PACES, its own

assessment tool approved by the Florida Department of Education

and collectively bargained with the teacher's union. However,

Respondent and Petitioner each placed into evidence two prior

Final Order s concerning PACES entered by the School Board. Each

pair of Final Orders is inconsistent with the other.

66. The two Final Orders admitted in evidence on behalf of

Petitioner found no fault with PACES and applied the 90 - day

performance probation portion of the statute. These Final

Orders adopted Recommended Orders entered by Administrative Law

Judge Arrington in Miami - Dade County Sch. Bd. v. Harrell , DOAH

Case No. 02 - 1447 (Sept. 10, 2002), and by Administrative Law

Judge Lerner in Miami - Dade County Sch. Bd. v. Gomez , DOAH Case

No. 04 - 2335 (Oct. 29, 2004).

67. On the other hand, the two Final Orders admitted in

evidence on behalf of Respondent adopted two Recommended Orders

entered by Administrative Law Judge Van Laningham in Miami - Dade

County Sch. Bd. v. Escalona , DOAH Case No. 04 - 1654 (Nov. 23,

2004) and Miami - Dade County Sch. Bd. v. Mutis , DOAH Case No. 04 -

1256 (Dec. 15, 2004). These Final Orders criticized PACES and

applied the FCAT - scores portion of the statute rather than the

90 - day performance p robation portion. The adoption of these

Recommended Orders suggests that no teacher's contract can be

terminated before the end of the school year or, more likely,

until the following school year. A reading of the entire

statute, however, strongly sugges ts that the Legislature

established more than one method for objectively evaluating a

teacher's performance and mandated the use of the 90 - day

performance probation method for a teacher not performing his or

her duties in a satisfactory manner during the s chool year.

68. Although an agency may depart from the precedent

established by its final orders, no evidence was offered that

the School Board intended in the Escalona and Mutis Final Orders

to depart from the precedent established in the Harrell and

G omez Final Orders. Rather, the evidence in this cause only

indicates that the School Board adopted the Recommended Orders

in all four cases. It is noteworthy that the Final Order in the

Harrell case was affirmed by an appellate court. Harrell v.

School Board of Miami - Dade County , 866 So. 2d 704 (Fla. 3d DCA

2003).

69. The evidence in this cause is unrebutted that

Respondent's classroom was chaotic every time Respondent's class

was observed by the administrators at his school. The evidence

is unrebutte d that Respondent's students were not learning since

they were not even engaged in the learning process. It is

neither logical nor implied in the statutory language that the

Legislature intended to render a school district's evaluation

instrument meaningl ess and prohibit a school board from removing

from the classroom a teacher who is unable to engage his

students in the learning process. Petitioner complied with

every required procedural step and rendered the assistance it

could to help Respondent overco me his deficiencies, but to no

avail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Respondent failed to correct his performance deficiencies and

terminating R espondent's professional service contract,

effective April 13, 2005.

DONE AND ENTERED this 29th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrativ e 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 29th day of July, 2 005.

COPIES FURNISHED :

Madelyn P. Schere, Esquire

Miami - Dade County 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

Hono rable John L. Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Rudolph F. Crew, Ed.D, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

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 agen cy that

will issue the Final Order in this case.