09-000957TTS Brevard County School Board vs. Joyce D. Iloka Status: Closed Recommended Order on Tuesday, June 8, 2010.

Summary: Drafting teacher failed to keep students on task and deprived them of a minimum educational opportunity and failed to make corrections noted in the performance plan designed to address deficiencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0957

)

JOYCE D. ILOKA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on February 2, 3, and 5, 2010, in Viera, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph R. Lowicky, Esquire

Glickman, Witters and Marell, P.A.

The Centurion, Suite 1101

1601 Forum Place

West Palm Beach, Florida 33401

For Respondent: Thomas L. Johnson, Esquire

Jeffrey Sirmons, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether Brevard County School Board (Petitioner or School

Board), has just cause to terminate the professional services

contract held by Joyce D. Iloka (Respondent).

PRELIMINARY STATEMENT

On February 2, 2009, Petitioner, through its acting

superintendent, notified Respondent that a recommendation would

be made to terminate Respondent's employment as a teacher at

Titusville High School (THS) at the February 10, 2009, meeting

of the School Board. Thereafter, Respondent timely requested an

administrative hearing to challenge the decision and the matter

was forwarded to the Division of Administrative Hearings (DOAH)

for formal proceedings on February 19, 2009. Petitioner seeks

to terminate Respondent's employment with the school district

based upon alleged deficiencies that were not timely corrected

and Respondent's alleged incompetency.

In accordance with a Joint Response to Initial Order filed

by the parties, the case was scheduled for hearing April 28-29,

2009. An Order of Pre-hearing Instructions was entered on

February 26, 2009.

On April 7, 2009, the parties filed a Joint Motion for

Continuance that was granted. The case was then rescheduled to

be heard August 25-26, 2009. A second request for continuance

of the case was filed on July 22, 2009. The motion, entitled

Respondent's Agreed Motion for Continuance, was granted and the

case rescheduled to September 30 and October 1, 2009.

On September 23, 2009, a Joint Motion to Stay Proceedings

was filed. The parties represented that they were negotiating a

settlement to resolve the case. By order entered September 24,

2009, the case was placed in abeyance and the parties were

required to report as to the status of the matter no later than

October 23, 2009.

The case was transferred to the undersigned on

September 29, 2009. Thereafter, in accordance with the Joint

Status Report the case was scheduled for hearing. A Motion for

Leave to File an Amendment to Grounds for Petitioner's

Termination was granted. The amendment added no substantial

allegations of fact.

A second Order of Pre-hearing Instructions was entered on

November 2, 2009, to remind the parties of their continuing

obligation to prepare a pre-hearing stipulation. The parties'

Joint Pre-hearing Stipulation was filed on January 22, 2010. At

that time it was presumed the parties were prepared for hearing.

The stipulation acknowledged that there were no pending motions

to be addressed.

On January 27, 2010, Respondent filed a Motion for

Continuance. The Order of Pre-hearing Instructions entered on

February 26, 2009, directed the parties to confer and specified

that they:

(a) Discuss the possibility of settlement;

(b) Stipulate to as many facts and issues

as possible;

(c) Prepare the pre-hearing stipulation as

required by this Order;

(d) Examine all exhibits (except for

impeachment exhibits) proposed to be offered

into evidence at the hearing;

(e) Furnish opposing counsel the names and

addresses of all witnesses (except for

impeachment witnesses); and

(f) Complete all other matters which may

expedite the hearing in this case.

The Order entered on November 2, 2009, contained the

identical language. Respondent's Motion for Continuance was

opposed by Petitioner. On January 29, 2010, an Order Denying

Continuance was entered. The case then proceeded to hearing.

At the hearing, Petitioner presented the testimony of the

following witnesses: Dr. Lori Spinner, principal at THS;

Jane W. Speidel, a peer-mentor teacher at THS; John M. Hays, a

school district peer-mentor teacher; David Baldia, a resource

teacher in the technical education programs for the school

district; Jerri Mallicoat, an assistant principal at THS,

Dr. Deborah G. Albright, assistant principal for curriculum at

THS; and Joy Salamone, director of human relations for the

60, 62-66, and 70-72, were received into evidence.

Respondent testified in her own behalf and presented the

testimony of Ron Philpot, an assistant principal at THS.

Respondent's Exhibits 15-24, 29, 30, 37, 65, 66, 68, and 69 were

admitted into evidence. Respondent's Exhibit 73 was proffered

for the record but was not received.

The three-volume Transcript of the hearing was filed with

DOAH on February 24, 2010 . The parties stipulated at the

conclusion of the hearing that they would submit their proposed

recommended orders within 30 days from the filing of the

transcript. Subsequently, they requested an extension of that

time and by order entered March 26, 2010, were granted leave

until April 5, 2010, to file their proposals. Both timely filed

Proposed Recommended Orders that have been fully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a duly-constituted entity charged with

the responsibility and authority to operate, control, and

supervise public schools within the Brevard County Public School

District. As such, it has the authority to regulate all

personnel matters for the school district, including those

personnel decisions affecting the professional teaching staff at

THS.

2. At all times material to the allegations of this case,

Respondent was an employee of the School Board and was subject

to the statutes, rules, and regulations pertinent to employees

of the school district.

3. At all times material to this case, Respondent was

assigned to teach drafting at THS. All allegations relate to

Respondent's tenure at THS and the performance of her duties as

a drafting instructor.

4. By letter dated February 2, 2009, Petitioner notified

Respondent that a recommendation would be made to the School

Board to terminate her employment with the school district.

5. At its meeting on February 10, 2009, Petitioner

accepted the recommendation of the school administration and

voted to approve Respondent's employment termination.

6. Respondent timely requested an administrative hearing

to challenge the decision of the School Board.

7. Petitioner charged Respondent with failure to correct

deficiencies identified in a performance plan designed to assist

Respondent to remediate unacceptable defects in her teaching

performance. Second, Petitioner alleged that the deficiencies

noted by THS personnel also constituted an additional basis for

termination: incompetency. Respondent maintains that student

performance must be considered in the review of her performance

and that she was competent and qualified to perform her teaching

responsibilities and had done so for a number of years without

concern from the THS administration.

8. Respondent began employment with the school district in

1996. She was assigned to THS from 2004-2008. From her first

assignment until the 2007/2008 school year, Respondent received

satisfactory performance evaluations.

9. Petitioner utilizes an instructional personnel

evaluation system known as the Performance Appraisal System

(PAS). PAS was approved by state authorities and was

cooperatively developed by teachers and administrators for use

in Brevard County. PAS details the procedures, method, and

forms to be utilized in the completion of instructional

personnel evaluations. All such criteria were met in the

evaluations performed of Respondent's work.

10. Additionally, school administrators who perform

employee evaluations must be thoroughly trained in PAS and must

conform to the uniformity afforded by the PAS instrument.

11. All administrators identified in this cause who

performed evaluations of the Respondent were trained and were

fully certified to evaluate personnel based upon the PAS

instrument.

12. Ron Philpot is an assistant principal at THS. He has

worked in Brevard County for approximately 37 years and has been

assigned to THS for the last 17.

13. Lori Spinner is the principal at THS. For the

2006/2007 school year, Mr. Philpot was assigned to evaluate

Respondent. Dr. Spinner signed off on Respondent's 2006/2007

performance evaluation on February 14, 2007. Respondent's

2006/2007 PAS evaluation found her to be overall "high

performing." Mr. Philpot was the only administrator/observer

who visited Respondent's classroom in order to complete the

2006/2007 evaluation. In his many years of performing

evaluations, Mr. Philpot has given only one unsatisfactory

evaluation.

14. On December 4, 2007, Dr. Spinner visited Respondent's

classroom for the purpose of observing the class and

Respondent's performance. On that date there were 17 students

present and Dr. Spinner made visual sweeps of the classroom

every ten minutes to determine the engagement level of the

students. For the time period from 12:25-12:55 p.m., no fewer

than two and no more than four students were off-task or not

engaged in the lesson. Dr. Spinner remained in Respondent's

class for 45 minutes and completed notes from her observation.

Pertinent to the allegations of this case are the following

observations entered by Dr. Spinner:

Instructional Organization -

No teacher-based questioning was used during

the entire lesson.

No learning objective is evident and no

agenda or objectives are noted on the board.

Materials are not organized and six

incidents of non-instructional/unrelated

talk were noted.

In the middle of the lesson, the teacher

states, "Where are you third block?" "What

are you working on?"

Directions for activity are vague and non-

specific. Teacher states "Put in a window

anywhere"; "Put in a door somewhere".

Teacher circulated several times to address

individual concerns.

Presentation of Subject Matter -

Only 1 concept was presented during the

lesson (rotating windows and doors)and

appeared to be a review. No new concepts

were presented.

Instructions for the project were inadequate

and vague.

Visuals on the board are illegible and

difficult to see.

Students demonstrated confusion with

assignment. Several questions went

unanswered or ignored.

Communication -

Vague and sporadic.

No teacher questioning for comprehension.

Student questions went unanswered or hands-

raised were ignored.

In response to one question, teacher states,

"I think it says something about that in

your book, I think it says . . ."

Teacher expressed confusion in demonstrating

a plot plan. Was not able to implement the

correct commands with Mechanical Desktop

Architect program.

Management of Conduct -

Several students not engaged during lesson.

Five incidents of misconduct were not

addressed during the lesson.

15. Based upon the observations noted above, Dr. Spinner

met with Respondent to provide her with an interim evaluation of

her performance. Of the nine individual assessment categories,

Dr. Spinner identified only two items that needed improvement.

Both were noted under the "Instructional Strand" heading.

Comments entered by Dr. Spinner advised Respondent:

Ms. Iloka had several students off task or

not engaged in the lesson, throughout the

class period. She did not have materials

prepared in advance which resulted in lost

instructional time. Teacher-student

interactions often included unrelated talk

and off-task discussions. There were long

delays during the instructional lesson and

instructions/directions were not clear for

students. Requirements for the activity

were not presented in advance and directions

were vague. This resulted in delays in

learning and gaps in instructional

activities.

Presentation of instructions and project

directions were vague and difficult for

students to follow. Requirements were not

presented in advance. There was no

instructional questioning during the lesson

to ensure comprehension. Concepts were

presented with examples only. Students did

not have an instructional visual to

reference as they worked with the program.

16. Dr. Spinner attempted to communicate the areas of

concern noted above but Respondent was resistant. Further,

Dr. Spinner sought to encourage Respondent to continue her

education and professional development as a means of continuous

professional growth. Dr. Spinner hoped that Respondent would

recruit more students into the drafting program because the

enrollment had steadily declined during Respondent's tenure at

THS. None of Dr. Spinner's suggestions were well-received by

Respondent.

17. On January 30, 2008, Dr. Spinner observed Respondent's

class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual

sweep of the class to determine student engagement every ten

minutes. Again, as before, Dr. Spinner observed two to four

students not engaged during the sweeps. Many of the comments

generated by the January 30, 2008, observation mirrored the

prior observation. Dr. Spinner felt Respondent had made no

serious effort to improve the areas of concern that needed

improvement.

18. The interim PAS evaluation signed by Dr. Skinner and

Respondent on February 1, 2008, included three categories that

needed improvement and noted that Respondent's overall

evaluation needed improvement.

19. To provide assistance for Respondent, Dr. Skinner

assigned a teacher/peer mentor at the school level to provide

direction and help to the Respondent in order to remediate the

deficient areas of performance. Respondent did not avail

herself of the mentor and did not implement meaningful changes

to her instructional content or delivery.

20. Later Dr. Skinner secured a mentor teacher from

outside the school to assist the Respondent. Again, Respondent

did not implement the suggestions made by that mentor.

21. Dr. Spinner prepared professional development

assistance (PDA) forms for areas of concern in order to identify

the behaviors that were deficient, the strategies for

improvement of the deficiency, and the assistance that the

school would provide to Respondent. For example, the PDA dated

February 1, 2008, to improve management of student conduct noted

that peer mentor, Jane Speidel, would assist Respondent to

develop a classroom management plan so that students who are

off-task can be appropriately engaged in the learning process.

According to Ms. Speidel, Respondent did not want assistance in

this regard and had "no desire to adopt any new changes."

22. On February 19, 2008, Dr. Spinner again observed

Respondent's class. Many of the same deficiencies in the

categories of instructional organization, presentation of

subject matter, communication, and management of conduct were

noted. At one point during the observation, Respondent received

a sub sandwich and a drink from a colleague. As Respondent had

just finished a duty-free lunch time prior to the observation

time, the delivery of food during a class period seemed

inappropriate to Dr. Skinner.

23. Dr. Skinner’s next observation of Respondent's class

was on February 28, 2008. Deficiencies were listed in the areas

of instructional organization, presentation of subject matter,

communication, and management of conduct. Many of the problems

noted in prior observations were continuing.

24. The common thread running through each observation was

the failure on Respondent's part to even attempt to incorporate

new strategies or concepts into her teaching effort.

Specifically, with regard to student performance, students

remained off task. Students continued to be confused by vague

or confusing directions and exhibited an indifference to

drafting. Students were observed sleeping, eating, playing

solitaire, and computer games or surfing the Internet when they

should have been working on projects or completing appropriate

drafting assignments.

25. On March 6, 2008, Dr. Skinner gave Respondent her

annual evaluation. Unsurprisingly, Respondent was given an

overall evaluation of unsatisfactory. As Respondent had made

little or no effort to improve in the areas noted as deficient

during the school year (as delineated in prior observations),

Respondent was advised:

Ms. Iloka is expected to improve in the

areas noted as unsatisfactory. A formal

plan and support has been provided to assist

her in becoming more effective with her

students. She is expected to demonstrate

improvement as an expectation for continued

employment.

26. At the conclusion of the annual PAS evaluation,

Respondent was advised that a 90-day probationary period would

begin at the start of the 2008/2009 school year. Accordingly,

from August 11, 2008, Respondent was subject to PDA plans to

address deficiencies in the categories of instructional

organization and development, presentation of subject matter,

and management of student conduct. The same three areas of

concern that were identified throughout the 2007/2008 school

year continued to be a concern.

27. On August 11, 2008, Respondent signed a letter

acknowledging that she would be on probationary status for 90

days and that she would be evaluated periodically during that

time. A resource teacher from the county, John Hays, was

identified to Respondent as someone who would provide support

and information for presenting the subject matter appropriately

and developing a classroom management plan.

28. During the fall of 2008, Respondent was observed on

several occasions. None of the visits to Respondent's classroom

evidenced any significant improvement on her part to address the

deficient areas of performance. Assistant Principal Jerri

Mallicoat completed PAS evaluations that noted the same

deficiencies.

29. Respondent did not complete lesson plans with

sufficient detail so that a substitute could understand and step

in for an absence.

30. Respondent did not develop a classroom management plan

to ensure that off-task students could be redirected to the

assignment. Further, students committing violations of school

rules (such as eating in the classroom) were not appropriately

disciplined and redirected.

31. Respondent did not avail herself of resources

available through the school site mentor or county resource

opportunities.

32. Petitioner afforded Respondent with opportunities for

improvement through in-service classes and mentor teachers.

33. Respondent is a non-degreed vocational industrial arts

teacher. Drafting and other vocational industrial arts classes

are commonly taught by credentialed persons who achieve some

industry-recognized authorization as sufficient to demonstrate

knowledge of the subject matter. Respondent's knowledge of her

subject area is not questioned. Her ability to translate that

knowledge in a meaningful manner to a classroom of students

while maintaining order and on-task behavior and her failure to

recognize her need to improve performance in these areas is the

subject of this cause. For whatever reason, Respondent would

not or could not improve performance in the deficient areas.

34. During the 2008/2009 school year THS used block

scheduling. Teachers would have students for 90-minute blocks.

Respondent was challenged to fill that time with educational

content and maintain students in on-task efforts. Respondent

had two blocks of drafting students. Enrollment in drafting

declined such that the remainder of Respondent's work day was

spent as a substitute for other teachers.

35. Within a block, Respondent had multiple levels of

drafting students, first-time drafting students up to the more

advanced levels. Each level of proficiency required appropriate

instruction.

36. Drafting, like other vocational industrial arts

classes, does not have a state-mandated performance assessment

tool. Drafting students are recognized in the private sector by

whether they are able to achieve an industry-recognized testing

standard of performance. Classroom performance at THS was based

upon proficient use of the program utilized to create plans and

the written materials that accompanied the computer work.

Students eating, sleeping, playing solitaire, computer games, or

surfing the Internet did not demonstrate proficient use of

drafting skills. All of these behaviors were repeatedly

observed in Respondent's class.

37. Respondent did not remediate the performance

deficiencies noted in the evaluations of the 2007/2008 and

2008/2009 school years.

CONCLUSIONS OF LAW

38. DOAH has jurisdiction over the parties to, and the

subject matter of, these proceedings. §§ 120.569, 120.57(1),

and 1012.33(6), Fla. Stat. (2009).

39. Petitioner bears the burden of proof in this cause to

establish by a preponderance of the evidence that Respondent's

employment with the school district should be terminated. See

McNeill v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d

DCA 1996).

40. A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942).

41. Section 1012.33, Florida Statutes (2009), provides, in

pertinent part:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

42. Section 1012.34, Florida Statutes (2009), provides:

(1) For the purpose of improving the

quality of instructional, administrative,

and supervisory services in the public

schools of the state, the district school

superintendent shall establish procedures

for assessing the performance of duties and

responsibilities of all instructional,

administrative, and supervisory personnel

employed by the school district. The

Department of Education must approve each

district's instructional personnel

assessment system.

(2) The following conditions must be

considered in the design of the district's

instructional personnel assessment system:

(a) The system must be designed to support

district and school level improvement plans.

(b) The system must provide appropriate

instruments, procedures, and criteria for

continuous quality improvement of the

professional skills of instructional

personnel.

(c) The system must include a mechanism to

give parents an opportunity to provide input

into employee performance assessments when

appropriate.

(d) In addition to addressing generic

teaching competencies, districts must

determine those teaching fields for which

special procedures and criteria will be

developed.

(e) Each district school board may

establish a peer assistance process. The

plan may provide a mechanism for assistance

of persons who are placed on performance

probation as well as offer assistance to

other employees who request it.

(f) The district school board shall provide

training programs that are based upon

guidelines provided by the Department of

Education to ensure that all individuals

with evaluation responsibilities understand

the proper use of the assessment criteria

and procedures.

(3) The assessment procedure for

instructional personnel and school

administrators must be primarily based on

the performance of students assigned to

their classrooms or schools, as appropriate.

Pursuant to this section, a school

district's performance assessment is not

limited to basing unsatisfactory performance

of instructional personnel and school

administrators upon student performance, but

may include other criteria approved to

assess instructional personnel and school

administrators' performance, or any

combination of student performance and other

approved criteria. The procedures must

comply with, but are not limited to, the

following requirements:

(a) An assessment must be conducted for

each employee at least once a year. The

assessment must be based upon sound

educational principles and contemporary

research in effective educational practices.

The assessment must primarily use data and

indicators of improvement in student

performance assessed annually as specified

in s. 1008.22 and may consider results of

peer reviews in evaluating the employee's

performance. Student performance must be

measured by state assessments required under

s. 1008.22 and by local assessments for

subjects and grade levels not measured by

the state assessment program. The

assessment criteria must include, but are

not limited to, indicators that relate to

the following:

1. Performance of students.

2. Ability to maintain appropriate

discipline.

3. Knowledge of subject matter. The

district school board shall make special

provisions for evaluating teachers who are

assigned to teach out-of-field.

4. Ability to plan and deliver instruction

and the use of technology in the classroom.

5. Ability to evaluate instructional needs.

6. Ability to establish and maintain a

positive collaborative relationship with

students' families to increase student

achievement.

7. Other professional competencies,

responsibilities, and requirements as

established by rules of the State Board of

Education and policies of the district

school board.

(b) All personnel must be fully informed of

the criteria and procedures associated with

the assessment process before the assessment

takes place.

(c) The individual responsible for

supervising the employee must assess the

employee's performance. The evaluator must

submit a written report of the assessment to

the district school superintendent for the

purpose of reviewing the employee's

contract. The evaluator must submit the

written report to the employee no later than

10 days after the assessment takes place.

The evaluator must discuss the written

report of assessment with the employee. The

employee shall have the right to initiate a

written response to the assessment, and the

response shall become a permanent attachment

to his or her personnel file.

(d) If an employee is not performing his or

her duties in a satisfactory manner, the

evaluator shall notify the employee in

writing of such determination. The notice

must describe such unsatisfactory

performance and include notice of the

following procedural requirements:

1. Upon delivery of a notice of

unsatisfactory performance, the evaluator

must confer with the employee, make

recommendations with respect to specific

areas of unsatisfactory performance, and

provide assistance in helping to correct

deficiencies within a prescribed period of

time.

2.a. If the employee holds a professional

service contract as provided in s. 1012.33,

the employee shall be placed on performance

probation and governed by the provisions of

this section for 90 calendar days following

the receipt of the notice of unsatisfactory

performance to demonstrate corrective

action. School holidays and school vacation

periods are not counted when calculating the

90-calendar-day period. During the 90

calendar days, the employee who holds a

professional service contract must be

evaluated periodically and appraised of

progress achieved and must be provided

assistance and in-service training

opportunities to help correct the noted

performance deficiencies. At any time

during the 90 calendar days, the employee

who holds a professional service contract

may request a transfer to another

appropriate position with a different

supervising administrator; however, a

transfer does not extend the period for

correcting performance deficiencies.

b. Within 14 days after the close of the 90

calendar days, the evaluator must assess

whether the performance deficiencies have

been corrected and forward a recommendation

to the district school superintendent.

Within 14 days after receiving the

evaluator's recommendation, the district

school superintendent must notify the

employee who holds a professional service

contract in writing whether the performance

deficiencies have been satisfactorily

corrected and whether the district school

superintendent will recommend that the

district school board continue or terminate

his or her employment contract. If the

employee wishes to contest the district

school superintendent's recommendation, the

employee must, within 15 days after receipt

of the district school superintendent's

recommendation, submit a written request for

a hearing. The hearing shall be conducted

at the district school board's election in

accordance with one of the following

procedures:

(I) A direct hearing conducted by the

district school board within 60 days after

receipt of the written appeal. The hearing

shall be conducted in accordance with the

provisions of ss. 120.569 and 120.57. A

majority vote of the membership of the

district school board shall be required to

sustain the district school superintendent's

recommendation. The determination of the

district school board shall be final as to

the sufficiency or insufficiency of the

grounds for termination of employment; or

(II) A hearing conducted by an

administrative law judge assigned by the

Division of Administrative Hearings of the

Department of Management Services. The

hearing shall be conducted within 60 days

after receipt of the written appeal in

accordance with chapter 120. The

recommendation of the administrative law

judge shall be made to the district school

board. A majority vote of the membership of

the district school board shall be required

to sustain or change the administrative law

judge's recommendation. The determination

of the district school board shall be final

as to the sufficiency or insufficiency of

the grounds for termination of employment.

(4) The district school superintendent

shall notify the department of any

instructional personnel who receive two

consecutive unsatisfactory evaluations and

who have been given written notice by the

district that their employment is being

terminated or is not being renewed or that

the district school board intends to

terminate, or not renew, their employment.

The department shall conduct an

investigation to determine whether action

shall be taken against the certificate

holder pursuant to s. 1012.795(1)(c).

(5) The district school superintendent

shall develop a mechanism for evaluating the

effective use of assessment criteria and

evaluation procedures by administrators who

are assigned responsibility for evaluating

the performance of instructional personnel.

The use of the assessment and evaluation

procedures shall be considered as part of

the annual assessment of the administrator's

performance. The system must include a

mechanism to give parents and teachers an

opportunity to provide input into the

administrator's performance assessment, when

appropriate.

(6) Nothing in this section shall be

construed to grant a probationary employee a

right to continued employment beyond the

term of his or her contract.

(7) The district school board shall

establish a procedure annually reviewing

instructional personnel assessment systems

to determine compliance with this section.

All substantial revisions to an approved

system must be reviewed and approved by the

district school board before being used to

assess instructional personnel. Upon

request by a school district, the department

shall provide assistance in developing,

improving, or reviewing an assessment

system.

(8) The State Board of Education shall

adopt rules pursuant to ss. 120.536(1) and

120.54, that establish uniform guidelines

for the submission, review, and approval of

district procedures for the annual

assessment of instructional personnel and

that include criteria for evaluating

professional performance.

43. Delays in resolving this case were attributed to the

parties jointly seeking continuances. Thus it is concluded,

that the parties waived the requirement of the statute directing

that the hearing be conducted within 60 days of filing.

44. Florida Administrative Code Rule 6B-4.009 sets for the

criteria for suspension and dismissal of instructional personnel

and provides in pertinent part:

The basis for each of such charges is hereby

defined:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

45. In this case it is concluded that Respondent denied

the drafting students the minimal educational experience

required. The off-task behavior of the students, the observed

deficiencies noted by school administrators, and the resistance

to change exhibited by Respondent all contribute to this

conclusion. Respondent was afforded adequate opportunity to

improve her performance. All areas of deficiency were clearly

delineated and assistance was offered to afford Respondent with

sufficient resources to make the changes necessary.

46. The decision in this case must consider the

application of Section 1012.34, Florida Statutes (2009), cited

above. It is concluded that in evaluating instructional

personnel performance student performance is one of the criteria

to be considered; it is not, however, the sole criterion. It

cannot be concluded that off-task behavior demonstrates

insufficient student performance. Whether any students were

qualified to achieve an industry recognized, standardized

certification is unknown. When Respondent was questioned as to

how many of her first level drafting students went on to the

more advanced drafting levels she was unable to respond.

Brevard County does not have a standardized test to assess

drafting student performance. Drafting is not a core curriculum

subject assessed by standardized testing instruments. If

Respondent's students performed well on standardized achievement

tests this performance would not relate to drafting skills or

knowledge.

47. Further, whether Respondent attempted to correct

deficiencies noted in the PAS would not relate to student

performance. In this case it is undisputed that Respondent did

not do the basic items of remediation identified in the PAS and

requested by her PDA. Willfully refusing to accept assistance,

make changes, and demonstrate a modicum of effort to accommodate

the areas identified in the PAS establish that Respondent was

unwilling to perform the duties of her employment.

48. Respondent was unable to maintain appropriate

discipline, a duty of her employment.

49. Respondent was unable to plan and deliver instruction

with the use of technology available to her in the classroom,

also a duty of her employment.

50. Respondent did not carry out her professional

responsibilities as required by the PDA. Based upon the

foregoing, it is concluded Petitioner has demonstrated by a

preponderance of the evidence that Respondent is inefficient and

therefore, incompetent as those terms are defined by rule. The

students in Respondent's class were deprived of minimum

educational experience.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Brevard County School Board enter a

final order terminating Respondent's employment with the School

District.

DONE AND ENTERED this 8th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of June, 2010.

COPIES FURNISHED :

Joseph R. Lowicky, Esquire

Glickman, Witters and Marrell, P.A.

The Centurion, Suite 1101

1601 Forum Place

West Palm Beach, Florida 33401

Jeffrey Scott Sirmons, Esquire

Johnson, Haynes, & Miller

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

Thomas Johnson, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

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

Richard DiPatri, Ed. D., Superintendent

Brevard County School Board

2700 Fran Jamieson Way

Viera, Florida 32940-6601

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.