08-006398TTS Monroe County School Board vs. Maryeugene E. Dupper Status: Closed Recommended Order on Wednesday, July 22, 2009.

Summary: School Board failed to consider Pre-K student performance in decision to terminate Respondent's employment and, therefore, must reinstate her to her position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-6398

)

MARYEUGENE E. DUPPER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on April 28 and 29, 2009,

in Key West, Florida.

APPEARANCES

For Petitioner: Scott C. Black, Esquire

Joshua T. Hauserman, Esquire

Vernis & Bowling of the

Florida Keys, P.A.

Islamorada Professional Center

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Monroe County

School Board, has “just cause” to terminate the employment of

Respondent, Maryeugene E. Dupper, as a teacher for Petitioner.

PRELIMINARY STATEMENT

By letter dated November 14, 2008, the Monroe County School

District Superintendent, Randy Acevedo, informed Respondent,

that he was going to recommend to Petitioner at its December 16,

2008, meeting that her employment as a teacher for Petitioner be

terminated. By letter dated November 18, 2008, Respondent

requested an administrative hearing pursuant to Section 120.57,

Florida Statutes (2008), to challenge her anticipated

termination of employment.

Petitioner accepted the Superintendent’s recommendation at

its December 16, 2008, meeting, suspending Respondent without

pay, pending a final determination of whether her employment

should be terminated.

Respondent’s request for hearing and an Administrative

Complaint were filed with the Division of Administrative

Hearings on December 22, 2008. The matter was designated DOAH

Case No. 08-6398 and was assigned to the undersigned.

The final hearing was scheduled to be conducted on

February 24 and 25, 2009, by Notice of Hearing entered

January 7, 2009. By a joint request of the parties, the hearing

was rescheduled for April 28 and 29, 2009.

At the final hearing, Petitioner presented the testimony of

Ann Francis Herrin, Principal at Gerald Adams Elementary School

and Grace Willis, Assistant Principal at Gerald Adams Elementary

School. Petitioner also had 26 Exhibits admitted.

Respondent testified and presented the testimony of two

mothers of former students of Respondent, N. P. and O. U.

On May 22, 2009, a Notice of Filing Transcript was issued

informing the parties that the two-volume Transcript of the

final hearing had been filed. The parties were also informed

that, pursuant to their agreement at the conclusion of the final

hearing, their proposed recommended orders were to be filed on

or before June 11, 2009. The parties were subsequently granted

leave to file their proposed orders on or before June 19, 2009.

Both parties filed Proposed Recommended Orders on June 19, 2009.

Their submittals have been fully considered in preparing this

Recommended Order.

All references to the Florida Statutes in this Recommended

Order are to the 2008 codification unless otherwise noted.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, Monroe County School Board (hereinafter

board charged with the duty to operate, control, and supervise

all free public schools within the School District of Monroe

County, Florida. Article IX, Florida Constitution; § 1001.32,

Fla. Stat. Specifically, the School Board has the authority to

discipline employees. § 1012.22(1)(f), Fla. Stat.

2. Respondent, Maryeugene E. Dupper, has been a classroom

teacher with the School Board since August 2000. She began her

employment as a substitute teacher and was subsequently employed

as a full-time teacher at Poinciana Elementary School

profoundly handicapped students. She remained at Poinciana

through November 2006. Throughout her employment at Poinciana,

Ms. Dupper received good performance evaluations, although they

did decline over time.

3. On November 17, 2006, Ms. Dupper transferred to Gerald

Adams Elementary School (hereinafter referred to as “Gerald

Adams”), where she taught a Pre-K Exceptional Student Education

or ESE class for the first time.

4. At the times pertinent to this proceeding, Ms. Dupper

was employed as a teacher pursuant to a professional services

contract.

B. 2006-2007 School Year .

5. From the beginning of her employment at Gerald Adams,

Ms. Dupper evidenced difficulty implementing the curriculum in a

meaningful way. In particular, Ann Herrin, Principal at Gerald

Adams, whose testimony has been credited, found that Ms. Dupper

was having a difficult time establishing the scope and sequence

of lessons and effective classroom management techniques.

6. Among the deficiencies Ms. Herrin found with

Ms. Dupper’s performance was the lack of progress notes for her

students. Ms. Dupper failed to keep any notes indicating that

she had performed any formal evaluation of her students. When

Ms. Herrin asked Ms. Dupper how she could tell whether her

curriculum was successfully reaching each student, Ms. Dupper

simply replied that “I am a teacher and I just know.”

7. After conducting two formal observations and a number

of informal observations of Ms. Dupper, Ms. Herrin, in her 2006-

2007 annual teacher evaluation concluded that Ms. Dupper “Needs

Improvement” in Management of Student Conduct, Instruction

Organization and Development, Knowledge of Subject Matter, and

Evaluation of Instructional Needs. Ms. Herring used a Teacher

Annual Assessment Plan Comprehensive Assessment Form for this

evaluation. Overall, Ms. Herrin rated Ms. Dupper as “Needs

the learning environment unacceptable and unmanageable.”

8. Subsequent to Ms. Herrin’s evaluation of Ms. Dupper,

Ms. Herrin issued a Professional Development Plan for Ms. Dupper

dated May 30, 2007. Ms. Dupper, who had been provided

assistance throughout the school year by Gerald Adams

administrative staff, was offered guidance in the Professional

Development Plan intended to improve her performance as a

teacher. That guidance is accurately described in paragraph 9

of the School Board’s Proposed Recommended Order.

9. At the beginning of the 2007-2008 school year, the

School Board instituted a new curriculum for use by Pre-K

teachers. That curriculum, the Galileo Curriculum (hereinafter

referred to as “Galileo”), is a computer-based program which

includes lessons plans and benchmarks and goals for teachers to

use in assessing student performance. Although Galileo includes

a means for teachers to keep track of student progress, Galileo

is not a student evaluation instrument intended for use in

“testing” student progress.

C. 2007-2008 School Year .

10. During the 2007-2008 school year, Ms. Dupper was

observed on October 11, November 8, and December 18, 2007, and

on March 20 and 26, and May 6 and 22, 2008. Despite efforts to

provide Ms. Dupper with professional assistance and making

several changes in the teacher’s aide assigned to assist her,

Ms. Dupper’s performance remained inadequate. Ms. Dupper was

provided with assistance by teachers at Gerald Adams, including

a “mentor," and by the head of the Exceptional Student Education

department and an Exceptional Student Education Program

Specialist.

11. Ms. Dupper was observed on one occasion by Ms. Herrin

when every student in Ms. Dupper’s “learning center” left the

area while she continued to “teach.” One student stood on a

table dancing, uncorrected by Ms. Dupper. On two occasions, a

student left Ms. Dupper’s classroom altogether and were taken

back to Ms. Dupper’s classroom before she realized they were

gone.

12. On nine different occasions during the 2007-2008

school year, Ms. Herrin requested a discipline plan from

Ms. Dupper. No plan was ever provided.

13. Ms. Dupper’s use of Galileo was minimal during the

2007-2008 school year. The system contained a checklist, by

domain or skill, which was intended for use by a teacher in

determining whether each student was learning the listed skills.

Ms. Dupper rarely used the system, however, only logging into

the Galileo system 19 times. Nine of those times were on the

same day and four were on another day. Other Pre-K teachers

utilized Galileo an average of 100 times more than Ms. Dupper.

14. Ms. Herrin’s 2007-2008 annual evaluation of Ms.

Dupper, dated April 4, 2008, found that her performance had

declined and was “Unsatisfactory.” Ms. Herrin found Ms. Dupper

“Unsatisfactory” in Management of Student conduct, Instruction,

Organization and Development, Knowledge of Subject Matter, and

Evaluation of Instructional Needs. Ms. Dupper’s performance in

Professional Responsibilities also declined due to her failure

to complete Individual Education Plans on time, incomplete and

inaccurate progress notes, and her failure to follow suggestions

for improvement.

D. The 90-Day Probation Period .

15. As a result of her continuing decline in performance,

Ms. Dupper was informed on April 9, 2008, that she was being

placed on a 90-day probation period pursuant to Section 1012.34,

Florida Statutes. She was informed that her deficiencies

included the inability to manage student conduct, lack of lesson

planning, inadequate knowledge of subject matter, lack of

student progress evaluation, and inadequate professional

responsibility. Ms. Dupper was given suggestions for how to

improve her deficiencies over the summer break, suggestions

which Ms. Dupper did not follow.

16. While on probation, Ms. Dupper was also offered an

opportunity to transfer to another school, an offer which was

not accepted.

17. On June 6, 2008, at the request of Ms. Dupper’s union

representative, a second annual evaluation was performed by

Ms. Herrin. While Ms. Herrin found some improvement, she found

that, overall, Ms. Dupper’s performance was “Unsatisfactory.”

18. Ms. Dupper was on probation during the 2007-2008

school year a total of 62 days, excluding holidays and

“professional days.”

19. During the summer months between the 2007-2008 and

2008-2009 school years, Ms. Dupper, who was not teaching, failed

to follow any of Ms. Herrin’s suggestions for personal

improvement opportunities.

20. The first day of school for the 2008-2009 school year

and the commencement of the 90-day probation period was

August 11, 2008.

21. Ms. Herring formally observed Ms. Dupper during the

third week of September 2008, and on October 2, 2008. Assistant

Principal Willis observed Ms. Dupper on October 8, 2008.

Ms. Dupper’s performance and use of Galileo continued to be

unsatisfactory, despite continuing efforts of the administration

staff to assist her, as more particularly and accurately

described in paragraphs 30 through and including 35 of

Petitioner’s Proposed Recommended Order.

22. Additionally, Ms. Dupper continued to fail to prevent

her very young students from leaving the classroom without her

knowledge.

23. Excluding non-school days, Ms. Dupper was given more

than 120 days from the commencement of her probation period

until her probation period was considered ended in October 2008.

By the middle of October 2008, Ms. Herrin concluded that

Ms. Dupper had not evidenced satisfactory improvement in her

teaching skills. Ms. Herrin’s conclusions concerning

Ms. Dupper’s unsatisfactory performance as a teacher, which were

not contradicted, are credited.

E. The Decision to Terminate Ms. Dupper’s Employment

24. By letter dated October 30, 2008, Ms. Herrin

recommended to Randy Acevedo, Superintendent of the Monroe

County School District, that Mr. Acevedo review documentation

concerning Ms. Dupper’s 90-day probation period and make a

recommendation pursuant to Section 1012.33, Florida Statutes,

concerning her continued employment.

25. Ms. Herrin provided Mr. Acevedo with the following

information for his review:

Attached please find a copy of the

professional development plan and this

year’s observations conducted by Assistant

Principal, Grace Willis and me. The

remaining documentation for the 2007 and

2008 school years have been submitted to

personnel. I have also attached the follow

up documentation, the review of the 90-Day

plan and the observations that outline the

deficiencies that still remain. This

teacher’s performance remains

unsatisfactory.

Petitioner’s Exhibit 7. Missing from the information provided

for Mr. Acevedo’s consideration was any information concerning

student performance assessed annually by state or local

assessment.

26. By letter dated November 14, 2008, Mr. Acevedo

informed Ms. Dupper that he was going to recommend to the School

Board at its December 16, 2008, meeting that her employment as a

teacher be terminated. By letter dated November 18, 2008,

Ms. Dupper requested an administrative hearing pursuant to

Section 120.57, Florida Statutes, to challenge her anticipated

termination of employment.

27. The School Board accepted the Superintendent’s

recommendation at its December 16, 2008, meeting, suspending

Ms. Dupper without pay, pending a final determination of whether

her employment should be terminated.

F. Student Performance Assessment .

28. The Florida legislature has specified in Section

1008.22, Florida Statutes, a “Student assessment program for

public schools.” This assessment program is to be considered in

evaluating student performance as part of a teacher’s

evaluation. The assessment program, however, does not apply to

Pre-K students.

29. “FLICKRS” is a state assessment tool intended for use

in evaluating Kindergarten students. FLICKRS allows schools to

evaluate whether a Kindergarten student is actually ready for

Kindergarten-level work. FLICKRS is not utilized by the School

Board to evaluate the progress of Pre-K students.

30. The School Board has not developed any means of

annually assessing the performance of Pre-K students. As a

consequence, the decision to terminate Ms. Dupper’s employment

by the School Board was not based upon any annual assessment of

her students’ performance.

CONCLUSIONS OF LAW

A. Jurisdiction .

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569, 120.57(1), and

1012.33(6)(a)2., Florida Statutes (2009).

B. The Burden and Standard of Proof .

32. In an administrative proceeding in which a School

Board seeks to suspend or dismiss a member of its instructional

staff, the School Board bears the burden of proving, by a

preponderance of the evidence, each element of the charged

offense. See McNeill v. Pinellas County School Board , 678 So.

2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School

Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); and MacMillan

v. Nassau County School Board , 629 So. 2d 226 (Fla. 1st DCA

1993).

C. The Administrative Complaint .

33. The Superintendent of Schools of Monroe County,

Florida, issued an Administrative Complaint setting out the

following allegations in support of the preliminary decision of

the School Board to terminate Ms. Dupper’s employment:

6. At all times pertinent hereto, the

Respondent was employed as a Teacher at

Gerald Adams Elementary School in the Monroe

County School District.

7. On May 20, 2007, Assistant Principal

Grace Willis met with Respondent, MARYEUGENE

E. DUPPER, to discuss Respondent’s 2007

annual assessment, attached hereto as

Exhibit “A” and incorporated herein, because

many items were listed as “Needs

Improvement” and Unsatisfactory.” The

annual assessment, as evaluated by

supervisor/Principal Fran Herrin, and

subsequent meeting to discuss the assessment

were done pursuant to Florida Statute [sic]

1012.34(3)(c). Items that needed

improvement discussed at the meeting

included talking less, staying on subject,

keeping lessons simple and relevant,

providing more opportunities for the

students to communicate, using Creative

Curriculum to connect themes to the

material, and organizing centers to reflect

the curriculum. Subsequently, on May 30,

2007, a Professional Development Plan was

provided to the Respondent in an effort to

improve classroom performance, attached

hereto as Exhibit “B” and incorporated

herein.

8. On April 9, 2008, pursuant to Florida

Statute [sic] 1012.34(3)(d)(2)(a) [sic],

Principal Fran Herrin notified Respondent of

her official placement on 90 Day Performance

Probation due to Respondent’s 2008 annual

assessment, attached as Exhibit “C” and

incorporated herein, which overwhelmingly

described Respondent’s performance as

“Unsatisfactory.” The annual assessment was

done pursuant to Florida Statute [sic]

1012.34(3)(a) and discussed with the

Respondent. Listed deficiencies included

managing student conduct, planning and

developing lessons, knowledge of subject

matter, lack of supporting data regarding

student progress and missing deadlines. The

notification letter I s [sic] attached

hereto as Exhibit “D” and incorporated

herein. Pursuant to Florida Statute [sic]

1012.34(3)(d)(1) [sic], a 90 Day Probation

Period Professional Development Plan was

provided to the Respondent in order to

improve Respondent’s instructional

effectiveness, attached hereto as Exhibit

“E” and incorporated herein.

9. Respondent was given 90 calendar days,

not including school holidays and vacation

periods, to demonstrate corrective action,

as required by Florida Statute [sic]

1012.34(3)(d)(2)(a) [sic].

10. Pursuant to Florida Statute [sic]

1012.34(3)(d)(2)(a) [sic], classroom

observations on September 22, 2008, October

2, 2008, and October 8, 2008, were conducted

in an effort to evaluate implementation and

incorporation of the 90 Day Probation Period

Professional Development Plan. On October

30, 2008, pursuant to Florida Statute [sic]

1012.34(3)(d)(2)(b) [sic], the Final

Evaluation prepared by Principal Fran Herrin

to be send [sic] to Petitioner, attached

hereto as Exhibit “F” and incorporated

herein, concluded from those observations

that Respondent “is still performing in an

unsatisfactory manner,” and recommended

termination.

11. Pursuant to Florida Statute [sic]

1012.34 (3)(d)(2)(b) [sic], on November 14,

2008, Petitioner sent written notice to

Respondent advising that Petitioner

concurred with Principal Fran Herrin’s

recommendation for termination, and further

advised Respondent of Respondent’s right to

request a hearing to contest the charges,

attached hereto as Exhibit “G” and

incorporated herein.

. . . .

34. Although the bottom line is that the School Board has

decided to terminate Ms. Dupper’s employment pursuant to the

“Assessment procedures and criteria” provided in Section

1012.34, Florida Statutes, the more specific allegations of the

Administrative Complaint are quoted in order to emphasize what

the School Board did not base its decision on or, more

importantly, prove in this case: that the School Board, in

assessing Ms. Dupper’s performance as a teacher, “primarily

used[d] data and indicators of improvement and student

performance . . . measured by state assessments required under

s. 1008.22 and by local assessments for subject and grade levels

Fla. Stat.

D. Assessment Procedures and Criteria .

35 The decision in this case ultimately turns on the

proper application of Section 1012.34(3), Florida Statutes,

which provides in pertinent part:

(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 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. [Emphasis added].

36. As anticipated by the School Board, Ms. Dupper cites

Sherrod v. Palm Beach County School Board , 963 So. 2d 251 (Fla.

4th DCA 2006); and Young v. Palm Beach County School Board , 968

So. 2d 28 (Fla. 4th DCA 2006), in support of her argument that

the School Board’s failure to consider student performance as a

part of the evaluation of her performance requires that she be

reinstated to her employment as a teacher.

37. The Sherrod and Young cases, which have been

accurately summarized in Ms. Dupper’s Proposed Recommended

Order, essentially stand for the proposition that simply relying

upon the assessment by professional educators of a teacher’s

performance through the 90-day performance probation period

process, without primary consideration of the performance of the

teacher’s students, was insufficient to justify termination of

that teacher’s employment pursuant to Section 1012.34, Florida

Statutes (2003).

38. An analysis of the Sherrod and Young cases, however,

as both parties recognize, does not end the inquiry in this

case. Subsequent to those decisions, the legislature, in 2004,

amended the statutory language applied by the court in Sherrod

and Young by adding the following language to Section

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 . . . or any combination of student

performance and other approved criteria. . .” (hereinafter

referred to as the “2004 Amendment”). See Ch. 2004-295, § 11,

Laws of Fla.

39. Citing the Florida Third District Court of Appeal's

decision in Harrell v. School Board of Miami-Dade County , 866

So. 2d 704 (Fla. 3rd DCA 2003), rehearing denied , 2004 Fla. App.

LEXIS 3120 (Feb. 6, 2004), and the Recommended Order in Miami-

Dade County School Board v. Gomez , DOAH Case no. 04-2335, 2004

WL 2434340 (Fla. DOAH Recommended Order October 29, 2004; Final

Order December 15, 2004), the School Board has argued that the

2004 Amendment allows the termination of a teacher’s employment

without consideration of student performance.

40. The School Board’s reliance on Harrell is misplaced.

The decision in that case was limited to a consideration of

whether the findings of fact of the Administrative Law Judge

could be modified by the school board. The issue of the proper

interpretation of the 2004 Amendment was not considered by the

court because the school board’s decision in that case had been

made in 2002 and, therefore, the 2004 Amendment did not apply.

41. The decision of the Administrative Law Judge in the

Gomez case, a decision which was accepted by the school board,

did address the issue of the impact of the 2004 Amendment on

teacher evaluations, and does support the School Board’s

decision in this case. In Gomez , Administrative Law Judge

Stuart M. Lerner, states in an endnote, the following:

This second sentence was added by Section 3

of Chapter 2004-295, Laws of Florida,

effective June 10, 2004, to clarify that,

contrary to the holding in Palm Beach County

School Board v. Young , Case No. 03-2740,

2004 WL 542732 *14 (Fla. DOAH March 17,

2004)(Recommended Order), a finding of

unsatisfactory teacher or administrator

performance may be made under Section

1012.34(3), Florida Statutes, without

consideration of student performance .

Because this legislative addition merely

clarified and did not substantively modify

the version of Section 1012.34(3), Florida

Statutes, in effect when the

observations/evaluations at issue herein were

conducted, it should be considered in

determining the outcome of this case. . . .

[Emphasis added].

Apparently, Judge Lerner concluded that a school board could

terminate a teacher based upon three separate and distinct

considerations: student performance; other criteria approved to

assess instructional personnel performance; or any combination

of the two.

42. Ms. Dupper, rejecting the School Board’s

interpretation of the 2004 Amendment, cites the decision in

Miami-Dade County School Board v. Hannibal Rosa , DOAH Case

No. 08-1495 (Fla. DOAH Recommended Order December 16, 2008;

Final Order January 12, 2009). In that case, Administrative Law

Judge Claude B. Arrington, reaching the opposite conclusion from

Judge Lerner, concluded the following concerning the 2004

Amendment:

54. In applying Sherrod and Young , supra ,

the undersigned is constrained to conclude

that the provisions of Section 1012.34(a),

Florida Statutes (2007), when read in

conjunction with Section 1008.22, Florida

Statutes (2007), required Petitioner to

assess Respondent’s performance primarily

based on the performance of the students

assigned to his classroom utilizing an

annual assessment instrument required by

Section 1008.22, Florida Statutes (2007),

which for Respondent’s first grade class at

Caribbean, would be the Stanford Achievement

Test.

43. Consistent with Judge Arrington’s decision in Rosa ,

Administrative Law Judge John G. Van Laningham analyzed the 2004

Amendment in endnote 8 of Miami-Dade County School Board v.

Sergio H. Escalona , DOAH Case No. 04-1654 (DOAH Recommended

Order November 23, 2004; Final Order January 19, 2005), as

follows:

In 2004 the legislature added a sentence to

§ 1012.34(3), effective June 10, 2004, . . .

. 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 by

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.

44. The conclusions concerning the effect of the 2004

Amendment reached by Judges Arrington and Van Laningham are

persuasive. While the legislature made it clear with the 2004

Amendment that “other criteria approved to assess instructional

personnel,” may be considered when determining whether to

terminate a teacher’s employment, consideration of such criteria

may only come after consideration of student performance, which

the legislature continued to require the assessment the teacher

to be “primarily based” upon.

45. There is no real dispute that the School Board did not

give any real consideration to the performance of Ms. Dupper’s

students in reaching its decision to terminate her employment.

The suggestion in Petitioner’s Proposed Recommended Order that

it was essentially Ms. Dupper’s fault that there was no local

assessment available for her students because she had failed to

utilize Galileo is not persuasive. Galileo is not the type of

objective “testing” program the legislature has specified should

be the basis of evaluating student performance. Galileo, while

providing a tool for a teacher to evaluate his or her students,

is not an objective, independent method of testing student

performance.

46. Had the School Board first placed primary emphasis on

the performance of Ms. Dupper’s students, and then concluded,

based upon the evaluation process conducted by the School Board

described in this case that she was performing unsatisfactorily,

the decision to terminate her employment would likely have been

appropriate. Having failed to consider some objective measure

of student performance, however, Section 1012.34, Florida

Statutes, requires that she be reinstated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

charges of the Administrative Complaint; (b) providing that

Ms. Dupper be immediately reinstated to the position from which

she was terminated; and (c) awarding Ms. Dupper back salary,

plus benefits, to the extent benefits accrued during her

suspension, together with interest thereon at the statutory

rate.

DONE AND ENTERED this 22nd day of July, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

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 22nd day of July, 2009.

COPIES FURNISHED:

Scott Clinton Black, Esquire

Vernis and Bowling of the Florida Keys, P.A.

81990 Overseas Highway, Third Floor

Islamorada, Florida 33036

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Randy Acevedo, Superintendent

Monroe County School Board

umbo Road

Key West, Florida 33040-6684

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

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.