08-001495TTS Miami-Dade County School Board vs. Hannibal Rosa Status: Closed Recommended Order on Tuesday, December 16, 2008.

Summary: Respondent should be reinstated where school board did not use assessment of job performance mandated by statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-1495

)

HANNIBAL ROSA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on September 18, 2008, by video teleconference between

Tallahassee and Miami, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent’s

employment based on the alleged performance deficiencies.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on March 12, 2008,

Petitioner took action to suspend Respondent’s employment as a

classroom teacher with a professional services contract and to

initiate proceeding to terminate that employment. The

recommendation for the action made by the Superintendent of

Schools to Petitioner was based on “. . . just cause, including

but not limited to: failure to correct noted performance

deficiencies within the 90 day performance probation. This

action is taken in accordance with Sections 1001.32(2),

During the 2007-2008 school year, Respondent was assigned

to teach first grade class at Caribbean Elementary School

(Caribbean). Caribbean has been designated as a Reading First

School.

Respondent timely requested a formal administrative hearing

to challenge the Petitioner’s proposed action, the matter was

referred to DOAH, and this proceeding followed.

On April 23, 2008, Petitioner filed its Notice of Specific

Charges which set forth factual allegations based on

observations of Respondent’s classroom performance pursuant to

the Professional Assessment and Comprehensive Evaluation System

(PACES), deficiencies noted during those observations, and

Respondent’s alleged failure to correct the observed

deficiencies. The Notice of Specific Charges contained One

Count based on his failure to correct noted deficiencies during

his 90-day performance probation.

The Dynamic Indicators of Basic Literacy Skills (DIBELS) is

administered to Florida students in kindergarten through third

grade in Reading First schools. DIBELS was designed to help

assess the risk level a student may have for developing later

difficulties in reading.

On May 28, 2008, Petitioner filed an Amended Notice of

Specific Charges which contained allegations as to the

performance on the DIBELS testing by the students assigned to

Respondent’s classroom. Based on those allegations, Petitioner

added an allegation that the poor performance by the students in

Respondent’s class on DIBELS constituted grounds to terminate

his employment.

At the final hearing, Petitioner presented the testimony of

Monica Maza (Assistant Principal of Caribbean), Christina Guerra

(Principal of Caribbean), Dr. Donna Riley (Administrative

Director of Leadership Development), Pauline Ward (Executive

Director of Reading First), and Joyce Castro (District Director

of the Office of Professional Standards). Petitioner presented

49 sequentially numbered Exhibits, each of which was admitted

into evidence. Respondent presented no testimony and offered no

exhibits.

A Transcript of the proceedings was filed on October 21,

2008. Each party filed a Proposed Recommended Order, which has

been duly-considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Miami-Dade County, Florida.

2. At all times material hereto, Petitioner employed

Respondent as a classroom teacher pursuant to a professional

service contract. During the 2007-08 school year, Respondent

taught a first grade class at Caribbean Elementary School.

3. Teachers employed by Petitioner are evaluated pursuant

to an evaluation system named Professional Assessment and

Comprehensive Evaluation Systems (PACES), which was adopted

through the collective bargaining process. PACES has been

approved by the Florida Department of Education and complies

with the requirements set forth in Section 1012.34, Florida

Statutes (2008).

PACES contains the following seven DOMAINS: 1

I. Planning for Teaching and Learning.

II. Managing the Learning Environment.

III. Teacher/Learner Relationships.

IV. Enhancing and Enabling Learning.

V. Enabling Thinking.

VI. Classroom-Based Assessment of Learning.

VII. Professional Responsibilities.

4. Each Domain contains Indicators and Components, which

are standards which the evaluator must utilize in completing the

evaluation of a teacher.

5. PACES observers must be school administrators who have

been trained to conduct PACES observations. Monica Maza and

Christina Guerra were the PACES observers in this case. These

observers have had extensive training in the standards to be

observed and evaluated in teacher performance and student

learning. Ms. Maza and Ms. Guerra are authorized and well-

qualified to perform PACES observations.

6. If, during an observation, an administrator finds that

a teacher (the teacher) is performing below standards, that

initial observation is deemed to be not of record (initial

observation). The administrator promptly meets with the

teacher, goes over the observation, makes suggestions for

improvement, and notifies the teacher that he or she will be

formally observed within one month. The administrator offers a

Professional Growth Team (PGT) to assist the teacher achieve the

desired performance improvement. Members of the PGT are

individuals (usually fellow teachers) who have been trained in

PACES and are authorized to give support and assistance to the

teacher.

7. The same administrator who conducted the initial

observation must conduct the next observation, which is referred

to as the “kickoff observation.” The kickoff observation is of

record. If this observation is below performance standards, a

Conference for the Record (CFR) is held with the teacher and the

teacher is put on a Professional Improvement Plan (PIP). The

performance probation period of 90 calendar days (Performance

Probation Period) begins the day after the PIP is given to the

teacher.

8. There can be as many as four official observations of

the teacher during the Performance Probation Period. A final

observation is conducted after the conclusion of the 90-day

Performance Probation Period (the Confirmatory Observation) to

determine whether the teacher has corrected the deficiencies

that had been identified by the prior official observations.

Typically, if the administrator conducting the Confirmatory

Observation determines, by utilizing the PACES evaluation

criteria, that the teacher has not met standards, the school

administrators recommend to the Superintendent of Schools that

the teacher’s employment contract be terminated.

9. Monica Maza, an assistant principal at Caribbean,

conducted the initial observation (the observation that is not

of record) on September 7, 2007. Ms. Maza completed a PACES

Observation Form (Petitioner’s Exhibit 3), which found

Respondent to be below standards in the following Domains: II,

IV, V, and VI. Ms. Maza’s observation of Respondent on

September 7, 2007, was appropriate and fairly assessed

Respondent’s performance. Petitioner’s Exhibit 3 accurately

reflects Ms. Maza’s observations on September 7, 2007.

10. Ms. Maza met with Respondent on September 12, 2007.

During that meeting, Ms. Maza reviewed the observation with

Respondent and explained the reasons for the deficiencies she

noted. Ms. Maza advised that she would return to do a follow-up

observation. At the meeting of September 12, 2007, Ms. Maza

explained to Respondent the purpose of a PGT and offered

Respondent the services of a PGT, which he accepted. On

September 13, 2007, Ms. Maza identified the members of the PGT.

11. Between September 13 and October 17, 2007, the PGT

provided appropriate assistance to Respondent.

12. Ms. Maza conducted the kickoff observation on

October 17, 2007. Ms. Maza completed a PACES Observation Form

(Petitioner’s Exhibit 8), which found Respondent to be below

standards in the following Domains: II, III, IV, V, and VI.

Ms. Maza’s observation of Respondent on October 17, 2007, was

appropriate and fairly assessed Respondent’s performance.

Petitioner’s Exhibit 8 accurately reflects Ms. Maza’s

observations on October 17, 2007.

13. On October 24, 2007, Ms. Guerra and Ms. Maza held a

CFR with Respondent to address the areas of performance observed

to be unsatisfactory by Ms. Maza on October 17, advised that he

was being placed on a 90-day Performance Probation Period,

explained to him that he would have to correct his deficiencies

prior to the conclusion of the Performance Probation Period, and

provided him with a PIP (Petitioner’s Exhibit 10). The PIP

provided Respondent with specific information as to his observed

deficiencies and cited reference material to assist him in

correcting his deficiencies.

14. The PIP provided Respondent on October 24, 2007, was

appropriately drafted and complied with the requirements of

PACES.

15. Respondent’s 90-day Performance Probation Period began

October 25, 2007, the day after he received the PIP. Respondent

was provided additional assistance through his PGT to assist him

to correct the noted deficiencies. The provision of that

assistance complied with the requirements of PACES.

16. On November 19, 2007, Ms. Guerra formally observed

Respondent in his classroom over a period of two hours.

Ms. Guerra completed a PACES Observation Form (Petitioner’s

Exhibit 20), which found Respondent to be below standards in the

following Domains: II, V, and VI. Ms. Guerra’s observation of

Respondent on November 19, 2007, was appropriate and fairly

assessed Respondent’s performance. Petitioner’s Exhibit 20

accurately reflects Ms. Guerra’s observations on November 19,

2007.

17. Ms. Guerra met with Respondent on November 30, 2007,

to go over her observation of November 19 and to issue another

PIP (Petitioner’s Exhibit 22). The PIP of November 30 was

consistent with the requirements of PACES and was designed to

assist Respondent correct the observed deficiencies.

18. On January 8, 2008, Ms. Maza formally observed

Respondent in his classroom over a period of 121 minutes.

Ms. Maza completed a PACES Observation Form (Petitioner’s

Exhibit 24), which found Respondent to be below standards in the

following Domains: II, V, and VI. Ms. Maza’s observation of

Respondent on January 8, 2008, was appropriate and fairly

assessed Respondent’s performance. As with prior observations,

Respondent was not in control of his classroom. Respondent

failed to re-direct inappropriately off-task students who were

not engaged in learning. Petitioner’s Exhibit 24 accurately

reflects Ms. Maza’s observations on January 8, 2008.

19. On January 14, 2008, Ms. Maza met with Respondent to

go over her observation of January 8, 2008, and to issue another

PIP (Petitioner’s Exhibit 26). The PIP of January 14 was

consistent with the requirements of PACES and was designed to

assist Respondent correct the observed deficiencies.

20. Because the observation on January 8, 2008, reflected

that Respondent’s performance continued to be unsatisfactory, a

final observation was conducted after the expiration of his 90-

day Performance Probation Period. Ms Guerra conducted that

observation (the confirmatory observation) on February 15, 2008.

Ms. Guerra completed a PACES Observation Form (Petitioner’s

Exhibit 29), which found Respondent to be below standards in the

following Domains: II, V, and VI. Ms. Guerra’s observation of

Respondent on February 15 was appropriate and fairly assessed

Respondent’s performance. Petitioner’s Exhibit 29 accurately

reflects Ms. Guerra’s observations on February 15, 2008.

21. Ms Guerra notified Respondent on February 15, 2008,

that he had not satisfactorily corrected his noted deficiencies

during his 90-day Performance Probation Period and that she was

going to recommend to the Superintendent of Schools that

Respondent’s employment be terminated.

22. Ms. Guerra forwarded her recommendation to the

Regional Superintendent on February 15, 2008, by a memorandum

(Petitioner’s exhibit 48) which provided, in relevant part, as

follows:.

Pursuant to Section 1012.34, Florida

Statutes, the above-named employee was

placed on a 90-Calendar Day Performance

Probation commencing October 25, 2007.

During the probationary period, the employee

was provided assistance. The employee has

not satisfactorily corrected the noted

performance deficiencies within the provided

timeframe. Therefore, I am recommending

that the employee’s contract be terminated.

23. Ms. Guerra’s recommendation was also forwarded to the

Office of Professional Standards (OPS), which approved the

recommendation.

24. On February 26, 2008, a meeting was held in the Office

of Professional Standards which included appropriate

representatives of the School District, Respondent, and

Respondent’s representative from the United Teachers of Dade. A

memorandum generated as a consequence of the meeting

(Petitioner’s Exhibit 34) reflected that Respondent was advised

he would be “. . . recommended for dismissal on the following

charges: failure to correct noted performance deficiencies.”

25. On February 27, 2008, Maria Teresa Rojas, the

Assistant Superintendent of Schools, notified Respondent by

letter (Petitioner’s Exhibit 35) of the following recommendation

by the Superintendent of Schools:

This is to notify you that the

Superintendent of Schools will be

recommending to the School Board of Miami-

Dade County, Florida, at its scheduled

meeting of March 12, 2008, that the School

Board suspend and initiate dismissal

proceedings against you from your current

position as Teacher at Caribbean Elementary

School, effective at the close of the

workday, March 12, 2008, for just cause,

including, but not limited to: failure to

correct noted performance deficiencies

within the 90 calendar day performance

probation. This action is taken in

accordance with Section 1001.32(2),

1012.22(1)(f), 1012.33, 1012.34 and 447.209,

Florida Statutes.

If you wish to contest your suspension and

dismissal, you must request in writing

within 15 calendar days of the receipt of

the notice of the Board action, in which

case, formal charges will be filed and a

hearing will be held before an

administrative law judge.

If the School Board accepts (or approves)

the Superintendent’s recommendation, you

will be notified of the School Board’s

action.

26. The School Board approved the Superintendent’s

recommendation at its meeting of March 12, 2008. Respondent

timely requested a formal administrative hearing, the matter was

referred to DOAH, and this proceeding followed. On April 23,

2008, Petitioner filed its Notice of Specific Charges which

contained one count based on Respondent’s alleged failure to

correct noted deficiencies during his Probation Period.

27. On May 28, 2008, Petitioner filed its Amended Notice

of Specific Charges, which added the following factual

allegations in paragraphs 13 and 14:

13. The students assigned to Respondent’s

classroom were individually tested on their

early literacy development. The Dynamic

Indicators of Basic Literacy Skills (DIBELS)

are administered to Florida students in

kindergarten through third grade in Reading

First schools to determine risk levels for

later difficulties in reading. Caribbean

Elementary is a Reading First School.

14. Early in the 2007-2008 school year,

approximately fifty-three percent (53%) of

Respondent’s first grade students were

classified as low-risk. Respondent’s

students were tested a second time on or

about January 24, 2008. The number of low-

risk students decreased to 22%, a decline of

thirty-one (31) percentage points. At the

same time, the number of high-risk students

increased from 24% to 33%.

28. The Amended Notice of Specific Charges filed May 28,

2008, added the following as grounds for the termination of

Respondent’s employment in paragraph 22:

22. The students assigned to Respondent’s

classroom performed poorly when administered

the DIBELS test.

29. Petitioner proved the factual allegations set forth in

paragraph 13 of the Amended Notice of Specific Charges. The

allegations contained in paragraph 14 of the Amended Notice of

Specific Charges will be discussed below.

30. DIBELS has been approved by the Department of

Education 2 and is used throughout the country. The

administration of DIBELS is required by the Florida Department

of Education in Reading First schools.

31. DIBELS is administered one on one to each student by

members of what was referred to as a SWAT team who are not the

student’s regular teacher. DIBELS consists of subtests, which

are a minute to three minutes in length.

32. Two assessments of DIBELS are at issue in this

proceeding. The first, conducted in September 2007, consisted

of four subtests referred to, respectively, as “Letter Naming

Fluency”, “Phoneme Segmentation Fluency,” “Nonsense Word

Fluency”, and “DIBELS Oral Reading Fluency”.

33. Pauline Wood, Petitioner’s Executive Director of

Reading First, in reference to Petitioner’s Exhibit 38,

described the four subtests in response to questions from

Petitioner’s counsel (beginning on page 99 of the Transcript):

Q. Now, I just want to draw your

attention to the four categories, and if you

can just explain to us what the categories

are?

A. Those are on the four subtests that

the children were administered for the first

assessment. The first one is Letter Naming

Fluency.

Q. What is that? I’m sorry.

A. Children are given a sheet of paper, a

probe, that has both upper-case and lower-

case letters on it and in one minute’s time,

they’re asked to identify orally the

letters.

Q. The next category?

A. The Phoneme Segmentation Fluency. The

students are given a word, for example, Sam,

and they’re asked to segment each of the

phonemes. The Ss-Ah-Mm part, and that’s

exactly what we’re expecting children to do

at this point.

And, again, it’s a one minute probe.

Q. And the next category?

A. Nonsense Word Fluency is a phonics

decoding assessment. It’s a

consonant/vowel/consonant word and we’re

determining whether students can decode

short vowel sounds.

There are words like lut, L-U-T, which is

a nonsense word, not a real word, and

they’re asked to decode it.

Q. And the fourth category?

A. The DIBELS Oral Reading Fluency is a

series of three passages that are written on

grade level. The students are asked to read

each of the passages one at a time. Each of

them is one minute timed probe and the

correct words per minute are scored.

34. The second DIBELS test was administered to

Respondent’s class in January 2008. Consistent with the testing

protocol, the Letter Naming Fluency subtest was not

administered. The Phoneme Segmentation Fluency, Nonsense Word

Fluency, and the DIBELS Oral Reading Fluency subtests were

administered.

35. Ms. Ward made comparisons of the scores of

Respondent’s class on the first administration of DIBELS in

September and the second administration of DIBELS in January for

the subtests of Phoneme Segmentation Fluency, Nonsense Word

Fluency, and the DIBELS Oral Reading Fluency. Ms. Ward’s

analysis was performed in April or May 2008.

36. Her analysis reflected that, as compared to the two

administrations of DIBELS to Respondent’s class, a greater

percentage of the class fell into the high risk category and a

lower percentage of the class fell into the low risk category.

Ms. Ward’s analysis demonstrated that Respondent’s students did

not perform as well on the January 2008 administration of DIBELS

when compared to the September 2007 administration of DIBELS.

37. Petitioner’s Exhibit 49 is a list of the students

assigned to Respondent’s class who took the DIBELS test in

September and those who took it in January. An examination of

that list reflects that 15 of Respondent’s students took both

the first and second DIBELS test. Three of the students who had

taken the first test did not take the second test because they

had been removed from the class. Four students who had not

taken the first test took the second test for the first time.

As a consequence, the first test was administered to 17 students

and the second test was administered to 18 students. The pie

charts prepared by Ms. Ward reflect the overall performance of

the 17 students who took the first test as compared to the

overall performance of the 18 students who took the second test.

Her analysis makes no adjustment for the above-described changes

in the constitution of Respondent’s class. While it is clear

that there was a decline in performance by Respondent’s class on

the second administration of DIBELS, the undersigned declines to

adopt the percentages reflected on the pie charts because of the

failure to account for the changes in Respondent’s class between

the first and second administration of DIBELS.

38. When OPS evaluated the recommendation from Ms. Guerra

that Respondent’s employment be terminated, OPS had the results

of DIBELS tests administered to Respondent’s class in September

2007 and January 2008. OPS did not have Ms. Ward’s analysis of

those scores. Joyce Castro is the District Director of

Respondent’s Office of Professional Standards. Ms. Castro’s

testimony established that the OPS considered the DIBELS scores

discussed above as demonstrating that Respondent’s students were

making unsatisfactory progress.

39. The Stanford Achievement Test is a norm-referenced

test given in March of each school year to first and second

graders in Reading First schools. Norm-referenced scoring

compares a student’s score to scores of same grade students

nationwide.

40. Like the Florida Comprehensive Achievement Test (FCAT)

administered to older students, the Stanford Achievement Test is

an end of the year measurement to assess a student’s progress,

or lack thereof, during the school year.

41. The FCAT is a criterion referenced test, which has

certain benchmarks that students must meet and measures the

student’s progress toward meeting those benchmarks. In

addition, third, fourth, and fifth grade students also take what

was referred to as the Norm Referenced Test.

42. Ms. Ward was the only witness who testified as to the

purpose of DIBELS. She described DIBELS as being a tool to help

teachers target their instruction. She responded as follows to

the following question from Respondent’s attorney at page 116,

beginning at line 17 of the transcript:

Q. DIBELS is not designed as an

assessment tool to determine whether the

teacher has succeeded or failed, vis-à-vis

the FCAT or any of these other norm-

referenced tests, is that correct?

A. I don’t think I have the expertise to

answer that question, to tell you the truth.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2008). Because the termination proceedings began in 2007, the

relevant provisions of Sections 1008.22 and 1012.34, Florida

Statutes (2007,) apply to this proceeding.

44. Respondent argues, essentially, that the students’

performance on DIBELS should not be considered because that was

not a part of the recommendations made by the principal, made to

the superintendent, or to the school board. Respondent’s

argument is rejected because this is a de novo proceeding

designed to formulate agency action as to the matter at issue.

See Hamilton County Commissioners v. Department of Environmental

Regulation , 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); Young v.

Department of Community Affairs , 625 So. 2d 831, 833 (Fla.

1993); and McDonald v. Department of Banking and Finance , 346

So. 2d 569, 584 (Fla. 1st DCA 1977). Petitioner’s Amended

Notice of Specific Charges provided Respondent with sufficient

notice that it was relying on the students’ performance on the

DIBELS testing as part of its grounds for the termination of

Respondent’s employment.

45. Section 1012.34(3), Florida Statutes (2007), provides,

in relevant part, as follows:

(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.

46. 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 38 (Fla. 4th DCA 2006) construed the 2003

version of Section 1012.34, Florida Statutes, which did not

contain the following underscored language, which was added by

Chapter 2004-295, § 11, at 16, Laws of Florida:

(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:

47. The court in Sherrod , supra , reversed a school board’s

final order that had terminated a teacher’s employment based

upon such factors as the teacher’s failure to timely post

grades, failure to provide instruction consistent with suggested

time lines, failure to enter grades properly into the computer

system, and failure to exercise proper control over his

students. The ALJ found those reasons to be of sufficient

significance to justify a performance-based termination, despite

the absence of evidence as to the performance of the teacher’s

students on standardized tests.

48. The court in Sherrod , supra at 251, focused on the

following language of Section 1012.34(3), Florida Statutes

(2003), in reversing the teacher’s termination: “[t]he

assessment procedure for instructional personnel . . . must be

primarily based on the performance of students assigned to their

classrooms . . . .“ The court also focused on the following

language of Section 1012.34(3)(a), Florida Statutes (2003),

providing that the annual 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 employees’

performance.”

49. The court in Sherrod , supra at 252, specifically noted

that the school board had not made any use of the data described

in Section 1012.34(3)(a), Florida Statutes (2003). The court in

Sherrod , supra at 253, unequivocally stated that the statute

requires that “. . . the term primary in the statute

unmistakably makes student performance on annual tests the first

consideration in any teacher evaluation. And because the

requirement of 90 calendar days for compliance should be given

effect, the issue of termination may have to stretch over two

school years.” (Emphasis in the original).

50. The court in Young , supra , followed Sherrod on facts

very similar to those at issue in this proceeding and reversed

the termination of a teacher’s employment. In Young the school

board discharged the teacher for his failure to correct

unsatisfactory performance as observed by his principal, but had

not used data pertaining to student performance based on state

or local assessments. In Young , supra at 39, the court

observed:

Regardless of the good intentions of the

School Board in relying on what it felt were

suitable criteria to evaluate teacher

performance by depending on an assessment

procedure not primarily based on student

performance as measured by state FCAT tests

or local assessments, the School Board

failed to follow the applicable law. . . .

51. Petitioner correctly argues that the language added to

Section 1012.34, Florida Statutes, by Chapter 2004-295, § 11, at

16, Laws of Florida, affords more flexibility to school boards

in terminating a teacher’s contract. That added language does

not, however, change the requirement that the assessment of a

teacher’s performance be “. . . primarily based on the

performance of students assigned to their classrooms . . .,” nor

does it eliminate the requirement that the assessment “. . .

must primarily use data and indicators of improvement in student

performance assessed annually as specified in s. 1008.22. . . .”

52. Section 1008.22, Florida Statutes (2007), provides as

follows in subsection (1):

(1) PURPOSE.--The primary purposes of the

student assessment program are to provide

information needed to improve the public

schools by enhancing the learning gains of

all students and to inform parents of the

educational progress of their public school

children. The program must be designed to:

(a) Assess the annual learning gains of

each student toward achieving the Sunshine

State Standards appropriate for the

student's grade level.

(b) Provide data for making decisions

regarding school accountability and

recognition.

(c) Identify the educational strengths

and needs of students and the readiness of

students to be promoted to the next grade

level or to graduate from high school with a

standard or special high school diploma.

(d) Assess how well educational goals and

curricular standards are met at the school,

district, and state levels.

(e) Provide information to aid in the

evaluation and development of educational

programs and policies.

(f) Provide information on the

performance of Florida students compared

with that of other students across the

United States.

53. While DIBELS arguably promotes some of the goals of

Section 1008.22, Florida Statutes (2007), Petitioner failed to

establish that DIBELS is an annual assessment instrument as

specified in that statute. DIBELS, as explained by Ms. Ward, is

a tool to identify a student’s problem area(s) in reading, which

helps the teacher target his or her instruction to the student.

Moreover, it is clear that Petitioner is relying primarily on

the PACES evaluations, and Respondent’s failure to correct the

noted deficiencies. It cannot be said that Petitioner is

relying primarily on the performances by Respondent’s class on

the two administrations of DIBELS in acting to terminate

Respondent’s employment.

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.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. It is further RECOMMENDED that the

final order reinstate Respondent to his position with full back

pay and benefits.

DONE AND ENTERED this 16th day of December, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 16th day of December, 2008.

ENDNOTES

1 / Petitioner’s Exhibit 45 is the PACES manual which sets forth

the Seven Domains, Indicators, and Components. According to

Ms. Riley, the seventh Domain, styled Professional

Responsibilities, was added in 2002. The assessment forms used

by the evaluators for the evaluations that are at issue in this

proceeding do not contain the seventh Domain and appear to be on

forms that pre-date the adoption of the seventh Domain. The use

of the outdated forms has had no bearing on the conclusions and

recommendations set forth in this Recommended Order.

2/ This finding is based on the testimony of Ms. Ward. It is

not clear whether she was referring to the United States

Department of Education or the Florida Department of Education.

The distinction is immaterial to the findings and conclusions

set forth in this Recommended Order.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 912

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 agency that

will issue the Final Order in this case.