10-000949TTS Collier County School Board vs. Peggy Addison Status: Closed Recommended Order on Friday, September 17, 2010.

Summary: Petitioner did not prove that Respondent failed to demonstrate progress in enumerated areas of professional practice. Petitioner's process was flawed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLLIER COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0949

)

PEGGY ADDISON , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on April 27 through 29, May 24

through 27, and June 2, 2010, in Naples, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings. The parties were repr esented as set

forth below.

APPEARANCES

For Petitioner: Jon D. Fishbane, Esquire

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUES

The issue s in this case are whether Respondent, Peggy

Addison ("Addison") , failed to correct certain performance

deficiencies identified by Petitioner, Collier County Sch ool

Board (the "School Board"); and whether such failure constitutes

just cause for terminating Addison's professional service

contract.

PRELIMINARY STATEMENT

By letter dated January 15, 2010, the Office of the

S uperintendent of Collier County Schools noti fied Addison that

she had not satisfactorily corrected certain enumerated

performance deficiencies. As a result of that failure, the

s uperintendent was recommending to the School Board that

Addison's contract be terminated. Respondent timely filed a

requ est for hearing to contest the recommendation. The request

for hearing was forwarded to the Division of Administrative

Hearings so that a formal administrative hearing could be

conducted. The hearing was held on the dates set forth above ,

and both partie s were in attendance.

At the final hearing, Petitioner called the following

witnesses: Nicole Hughes (formerly known as Nicole Stocking and

referred to herein as "Stocking"), principal of Shadowlawn

Elementary School (the "School"); Susan Edwards, forme r

assistant principal at the School; Aimee Arcand, teacher; Lori

Chamness, teacher; Reka Monoki, assistant principal; Debbie

Terry, human resources director; Susan Jordan, specialist; Libby

Buck, specialist; Paula Bryant, reading coach; and Jessica

Campbel l, math and reading coach. Petitioner Exhibits 1

through 30, 33, 35 through 58, 60 through 70, 72 through 75,

77 through 86, 88 through 90, and 92 through 101 were offered

and admitted into evidence.

Respondent called the following witnesses: Peggy Addi son;

Dorothy Lawrence, teacher; Cynthia Lang, teacher; David "Matt"

Williamson, teacher; and Sheryl Creighton, teacher.

Respondent's Exhibits 1 through 33 were offered and admitted

into evidence. Two joint exhibits were also offered and

admitted into evi dence.

A transcript of the final hearing was ordered by the

parties. The T ranscript was filed at the Division of

Administrative Hearings on August 2, 2010. By rule, the parties

were allowed ten days, i.e. , up until August 12, 2010, to submit

proposed r ecommended orders, but the parties subsequently

requested a 30 - day extension of time . The request was allowed.

Respondent filed its Proposed Recommended Order on September 1 ,

2010 ; Petitioner attempted to fax and efile its proposed

recommended order on t hat day, but was unable to do so due to

electronic problems. The Proposed Recommended Order was filed

September 2, 20 10 , along with a motion asking that it be

accepted. The motion is granted , inasmuch as the one - day late

filing does not prejudice Respond ent. Each of the Proposed

Recommended Orders was duly considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The School Board is the governing body of the Collier

County Public School system. The School Board is responsible

for hi ring, monitoring, supervising and firing all employees of

the school system, including all teachers.

2. Addison has been a school teacher since her graduation

from college in 1969, with the exception of a few years taken

off to raise her family. She ha s been a teacher within the

Collier County School S ystem for 25 years. For 15 years, and

for all times relevant to this matter, Addison was a teacher at

the School. Addison taught various grades at the School, but

primarily first and second grade s . She taught first grade at

the School for two years prior to the 2009 - 2010 school year.

3. During the summer of 2008, the School was assigned a

new principal, Nicole Stocking. The assignment was Stocking's

first as the principal of a school. Previously, Stoc king had

experience as a school teacher and as an assistant principal.

At the time of her appointment, the School had not been making

progress for a number of years and was admittedly a "problem"

school, meeting only about 60 percent of its goals. In

edu cation parlance, the school was not meeting its Annual Yearly

Progress (AYP) goals. Stocking was directed by the

s uperintendent of schools to take all measures necessary to make

improvements at the School.

4. Stocking immediately took aggressive actions to e nsure

improvement at the School. She let all staff and administrators

know that there would be a concerted focus placed on reading

programs. She advised all teachers that she expected drastic

improvements at the S chool and expected each teacher to wo rk

hard toward that end. Stocking established a leadership team

made up of her, Vice - Principal Edwards, Reading Coach Bryant,

and Reading Coach /Learning Team Coordinator Campbell. The

leadership team would conduct weekly walk - throughs of all

classrooms a nd then meet to discuss any problems they had

identified. The intent of the walk - throughs was to identify all

problem areas needing attention in order to meet the AYP goals

for that school year. 1

5. Stocking was described as "all business" and "not a

peo ple person" by her subordinates. It is obvious that Stocking

took a fairly hard - line approach to her supervisory

responsibilities. At one point, ten classroom teachers filed a

group grievance against Stocking due to the harshness of her

management style. The grievance was deemed unfounded, but the

fact that it was filed is some indication of how teachers

perceived their new principal. Some of the teachers who joined

in the grievance testified at final hearing, and it is clear

there was a broad view of S tocking as a difficult person to work

for. That is not to say that Stocking did anything improper,

only that her actions could be perceived more harshly by some

than by others.

6. The 2008 - 2009 school year started with some significant

changes. For exam ple: A new literacy program (MacMillan) with

a text called "Treasures" was implemented district - wide; f ocus

was placed on " Guided Reading " - - a process whereby students were

divided into small groups where their reading skills and

progress could be monitore d closely; and t eachers were told to

expect "walk - throughs" by the principal and other

administrators. It was clear that the new administration would

be pressing everyone to make vast improvements at the School.

7. Improvement in student reading was expe cted to be the

catalyst for overall school improvements for the 2008 - 2009

school year. Specifically, the School was going to be focused

on the Guided Reading process. Teachers would divide students

into groups according to their needs, and then meet with each of

the groups independently while other students busied themselves

with other tasks. During the groups, the teacher would evaluate

one student individually by doing a "running record," that is, a

short checklist to see how many words the student rea d correctly

from an assigned text. By doing running records for one student

in each group and four groups per day, the teacher could assess

every child every week. The running records could then be used

to help prepare lesson plans for the upcoming weeks . The

evidence at final hearing was somewhat contradictory as to how

long it took to do a running record, but the consensus seemed to

be that it takes about two to three minutes per student. 2

8. During the 2008 - 2009 school year, Addison was a

first - grade teacher. Addison had taught other grades during her

career, but preferred and enjoyed first and second grades the

most. She had developed a feel for first - grade curriculum and

felt most comfortable in that setting. The first - grade team

that year consis ted of Arcand, the team leader ; Laing ; Chamness ;

Tyler ; and Addison.

9. Each of the first - grade classes had a mix of students ,

including some English language learners ( " ELL " ), i.e. , those

for whom English was a second language, and exceptional student

ed ucation (" ESE ") students, those with learning difficulties.

Addison's class had some ELL and ESE students, but the overall

makeup was not significantly different from the other

first - grade classes.

10. Almost immediately upon commencement of the 2008 - 20 09

school year, Stocking began to perceive shortcomings in

Addison's teaching skills. Some of the perceptions were based

on Stocking's personal observation of Addison's classroom ; some

were based on reports from her leadership team. Stocking was

concerne d that Addison's students were not sufficiently engaged

in some classroom activities. She felt that Addison was not

appropriately implementing the G uided R eading p rogram, and she

had some concerns about safety issues for Addison's children.

Stocking bega n to correspond with the first - grade team leader

(Arcand) concerning Addison's teaching abilities. Arcand

provided Stocking with somewhat negative information gleaned

from her own observation of Addison. At the same time,

first - grade team members Laing a nd Creighton expressed positive

feelings about Addison's abilities.

11. Stocking developed the following specific concerns

about Addison's teaching skills:

Ʊ Classroom management -- All of the children were not

actively engaged in the classroom work at time s;

some children seemed not to know what their

assignment was about.

Ʊ Group reading -- Not all children were reading at

their appropriate level, i.e. , Addison had rated

them at too high or low a level. One child

appeared to Stocking to be struggling despit e

assurance from Addison that the child could read

well.

Ʊ Some children were not being properly supervised or

monitored during the transition from lunch back to

the classroom.

12. Addison had some difficulties with the new MacMillan

reading program, but s he continued to employ it as directed.

Some of her peers attempted to guide Addison and provide

instruction, but Addison continued to struggle. To her credit,

as expressed by Stocking, Addison sought help from her

co - workers to master the program. Despi te Addison's best

efforts, Stocking did not feel that Addison's students were

being properly rated and assessed by way of running records.

Addison, on the other hand, felt comfortable with her teaching.

13. There were instances where Addison appeared no t to be

properly monitoring her students on their way from the lunch

room back to the classroom. However, the first graders all

transitioned from lunch to class at about the same time, and all

first - grade teachers were involved in the transfer process.

W hile it may be true that another teacher saw one of Addison's

students misbehaving or going somewhere they were not supposed

to go during this time, that fact does not necessarily indicate

a failing on Addison's part. She may have been helping or

guiding another teacher's student at the same time. There is no

evidence, however, that Addison ignored her responsibilities ,

vis - à - vis , her students.

14. As for students not be ing fully engaged during

instruction, that determination cannot be made upon the evide nce

presented. While there were apparently children not actively

engaged in the lesson being presented while Stocking or someone

observed the classroom, Addison admits that first graders are

not always on task. She provided several reasons that some of

t he children might have been unfocused on any given day. The

fact that some child may have been disengaged on a particular

day is not sufficient to make a finding that such behavior was

rampant or a problem.

15. During the second half of the 2008 - 2009 scho ol year,

Addison received numerous written disciplinary - type reports from

Stocking, including: a n "Observation" memorandum dated

January 21, 2009, wherein Assistant Principal Edwards criticized

Addison's teaching; a "Conference Summary" memorandum dated

J anuary 26, 2009, concerning Addison's interaction with a

student who was out of control; a memorandum dated January 28,

2009 , moving Addison to " Developing " status in five Educator

Accomplished Practices (EAPs); a Warning of Unsatisfactory

Performance memo randum dated February 5, 2009, in which Stocking

chastised Addison for turning in lesson plans a day later than

they were due; a memorandum warning about being placed on

Developing status dated March 5, 2009; a letter of reprimand

dated March 12, 2009, rel ating to Addison being absent without

proper notification; a nother letter of reprimand one week later

saying Addison failed to turn in lesson plans after an illness;

a nother letter of reprimand dated April 3, 2009, addressing

Addison's Guided Reading group s; a memorandum concerning an

adverse classroom incident dated April 16, 2009; a letter of

reprimand dated May 1, 2009, regarding gifts of water pistols

Addison had given to two students at the end of the year; and a

letter of discipline, with a one - day su spension, dated May 6,

2009. Addison had never received a letter of discipline prior

to the 2008 - 2009 school year, but in that year she received them

almost weekly during the second part of the school year.

16. At the end of the 2008 - 2009 school year, Add ison

received an annual evaluation in accordance with School Board

policies. The evaluation addressed the 12 areas of performance

which form the basis of each teacher's assessment. Addison was

placed in the "Developing" category for four of those areas.

The Developing category indicates that the teacher has not

sufficiently mastered the performance required in that

particular area of teaching. By School Board policy, a teacher

placed in the Developing category for three or more areas of

performance is a utomatically placed on Strand III status.

Addison was placed on Strand III commencing with the start of

the 2009 - 2010 school year. 3

17. Strand III is a probationary category under the School

Board's Collier Teacher Assessment System ("CTAS") and is

applic able to teachers with a Professional Service Contract.

Strand III is covered under Article 5 of the Collective

Bargaining Agreement between the School Board and Collier County

Education Association. A teacher placed on Strand III has 90

days to demonstra te improvement in the Developing areas of

performance in order to return to Strand II.

18. Prior to being placed on Strand III for the 2009 - 2010

school year, Addison had never been placed on Strand III before.

Her past five annual evaluations were as foll ows:

Ʊ 2007 - 2008 - - All twelve areas were at Professional.

The evaluation was done by Ms. Grieco, whose

position was not disclosed in the evidence.

Ʊ 2006 - 2007 - - Eleven areas were at Professional; one

was at Developing. The evaluation was done by

Ms. Psenic ka , an assistant principal.

Ʊ 2005 - 2006 - - Ten areas were at Professional; two

were at Developing. The evaluation was done by

A ssistant P rincipal Manley.

Ʊ 2004 - 2005 - - Seven of 12 areas were deemed

Professional; five were deemed Accomplished.

Principal Ferg uson did the evaluation.

Ʊ 2003 - 2004 - - Seven of 12 areas were deemed

Professional (the highest level of proficiency);

five were deemed Accomplished (meaning that the

teacher was not deficient in that area). The

evaluation was done by P rincipal Ferguson.

19 . The Strand III process is quite involved. It requires

the creation of a team of individuals whose purpose is to help

guide the teacher toward improvement in the deficient areas.

Stocking actually put three teachers on Strand III at the same

time that A ddison was designated, although she had never placed

a teacher on Strand III before and was not experienced in

administering the program. Knowing that the process was very

time - consuming, Stocking decided to transfer the other two

teachers to other school s , rather than try to run three

Strand III processes at once.

20. Each of the other teachers was removed from Strand III

once they reached their new schools. Neither of those teachers

had received as many disciplinary notices from Stocking as

Addison had received, but Stocking testified that she saw the

most potential for improvement in Addison versus the other two.

There is some incongruity in that statement, but , nonetheless ,

it is a fact.

21. The Strand III team for Addison was made up of a

school admi nistrator (Stocking), an administrative support

person (Terry), Addison, and a person selected by Addison

(Creighton). This team then developed a Professional Assistance

Plan (the "Plan") which set forth the areas of performance that

needed to be addresse d and general goals to be accomplished.

22. Addison's Plan contained four areas of concern

corresponding with the four Developing areas in her 2008 - 2009

annual evaluation. However, six additional areas were added to

the Plan , because Stocking said they "n eeded some attention."

No authority for adding additional areas was provided by

Stocking other than that the human resources department told her

it was allowable.

23. As a result of the added areas of concern, the Plan

contained ten EAPs to be addressed by Addison and the team.

Within each EAP , there were a number of " Indicators " which more

specifically addressed a component within the general EAP. By

way of example, the first EAP was "Assessment" with nine

Indicators such as: d iagnose the entry level and skill of

students using diagnostic tests, observations, and student

records; a ssess the instructional level of exceptional students;

and, c orrectly administer required grade level and district

assessments in identified assessment windows. The EAPs wo uld be

deemed to have been "observed" if Addison made significant

progress on the individual Indicators. While 117 Indicators are

a lot, many of them overlap and addressing one I ndicator may

also address several others at the same time. Nonetheless, when

written in a Plan, that many EAPs and Indicators could appear

quite daunting.

24. At about the same time Addison was notified that she

was being placed on Strand III, Stocking decided to move Addison

from teaching first grade to a fifth - grade class. Addi son had

never taught fifth grade , although her certification was for

grades one through five. Addison was opposed to the move ,

because she was more comfortable with first grade , and during

the Strand process, she knew that more would be expected of her.

She did not feel that a move to fifth grade would be the best

scenario for dealing with Strand III. Stocking denied her

request to remain in first grade and also denied Addison's

request to be transferred to another school. School - to - school

transfers are allowed whenever there are openings available at

the target school, but it appears no openings were available.

25. Once the new school year commenced, Addison , now in a

new teaching environment with fifth grade , had 90 calendar days

under the Plan to show improvement in the areas of concern. The

Plan is dated August 24, 2009 , and contains the following time

line:

Ʊ Commence on August 24, 2009 (Date of formal notice

to Addison);

Ʊ September 4, 2009 (Day 10) -- Assign assistance team;

Ʊ September 14, 2009 (Da y 15) -- Hold professional

assistance plan meeting;

Ʊ September 21, 2009 (Day 22) -- Write professional

assistance plan;

Ʊ September 22 through November 24, 2009 -- Plan,

implement and collect data;

Ʊ November 24, 2009 (Day 92) -- Assessment;

Ʊ December 16, 2009 -- Written recommendation from lead

administrator to superintendent;

Ʊ January 15, 2010 -- Written recommendation from

superintendent to Addison;

Ʊ If termination was recommended; then

Ʊ February 2, 2010 -- Written request for hearing.

26. The amount of time fro m when the notice was given to

Addison until the assessment was done was 92 calendar days,

which is consistent with the times set forth by CTAS. While the

schedule complied with CTAS guidelines, Addison obviously did

not have 90 days to address the ten EA Ps and 117 indicators.

Nonetheless, the Strand III process was correctly implemented

from a timeframe perspective.

27. In order to effectuate the Plan, the team was to meet

at least weekly to review Addison's progress, re - focus her

efforts, and establish goals for the coming week. The weekly

meetings were generally held at 7:40 a.m., 30 minutes prior to

the start of class on Monday mornings. The meetings would

sometime run a little long , and Addison would arrive late to her

class. In such instances, she was expected to use her teaching

skills to catch up with the timed lesson plans. All teachers

were expected to teach in accordance with their lesson plans so

that at any given time , anyone coming into their classroom would

know exactly what lesson was be ing taught. Strict compliance

with the lesson plan schedule was expected from all teachers.

There were documented instances of Addison not teaching lessons

in strict accordance with the lesson plan schedule. However,

there were extenuating circumstances involved. For example,

when the weekly team meeting last ed too long, it would adversely

affect Addison's teaching schedule. At other times, Addison

would teach one course to another teacher's students and

vice - versa. As a result, the teachers may not b e teaching in

accordance with the l esson plan schedule. There was

insufficient evidence to find that Addison was in serious

violation of the lesson plan schedule requirements.

28. The weekly team meetings were codified in minutes

taken by Vice - Principal M onoki. Sometimes two people took

minutes of the meetings in an effort to assure correctness. The

minutes were ostensibly meant to be a general overview of what

the meeting was about, but , in actuality , they were quite

detailed concerning some issues. Ad dison often took exception

to the minutes as printed, and would attempt to submit

amendments or changes. Those amendments were generally not

accepted by the team. At one point Addison requested the right

to tape record the meetings, but that request was denied. The

form of the minutes was altered in October 2009 , into a sort of

chart , rather than regular minute format. The purpose of that

change was to allow for better comparison between prior weeks,

the current week and the upcoming week.

29. The min utes were provided to each team member at the

beginning of the subsequent meeting. All of the team members ,

except for Addison , would sign the minutes to confirm that they

were correct and accurate. Addison did not ever agree that the

minutes were correc t and accurate. Addison's designated

representative on the team, Creighton, did sign the minutes each

week.

30. During the approximately 45 school days that Addison

was assessed under the Plan, she made progress in some areas,

but according to the team , h er progress was followed by further

shortcomings. However, measurement of Addison's progress was

extremely subjective.

31. For example, Addison was found to be deficient in the

use of "targets" for her class. Targets are written focus

points placed on the bulletin board so that students can

remember what topics are currently being taught. Addison was

chastised for having inappropriate targets. However, when

compared to other fifth - grade teachers' targets, Addison's were

virtually identical. For examp le, on September 4, 2009, Addison

took pictures of the targets posted in her classroom and two

other classrooms. The targets are compared below:

Addison Classroom 2 Classroom 3

Reading: Tall Tall tales, plot Compound words,

tales, plot development, setting - > where - >

development (setting setting, subject & when, words with

influences pl ot), predicate, long long vowels,

reading words with vowel sounds, chronological order,

long vowels and many dialect building fluency

syllables

Science: Make Tools scientist use, Tell what causes

observations, scientific method, w eather . . . make

explain how science mass=amount of observations, take

tools are used, matter in an object, measurements,

describe the steps Inquiry=observe, explain how science

of the scientific measure, gather and tools are used,

method . . . record data . . . steps of the

scientific

method . . .

Language Arts: Six traits: Idea, Compound subjects,

simple and compound voice, organization, compound predicates,

subjects and word choice, commas in a series

predicates, six sentence fluency

traits of writing:

idea, voice,

organization, word

choice, sentence

fluency,

conventions,

Commas used in a

series

Math: place value Place value through Sums and differences

through millions, billions, compare of whole numbers and

compare and order and order numbers, decimals, strategies

decimals, place place value for solving word

value patterns, sums patterns, rounding, problems, place

and differences of estimating, adding value patterns,

whole number, adding and subtracting problem solving

and subtracting whole numbers and

decimals decimals

32. There appears to be only minimal differences between

the three teachers' targets set forth above. There was no

competent testimony at final hear ing as to why Addison's wording

of her targets was somehow inferior to that of the other

teachers.

33. As another example of subjective measuring, Addison

was cited for allowing some children to be disengaged while she

was teaching other children. At leas t one outside observer

noted that some children were not on task and others were seen

leaving the classroom. But Addison explained that children had

the right (and need) to leave the class to go the reading center

or restroom; other children were supposed to be busy

individually at an assigned center, etc. That is, in a

fifth - grade classroom, all children were not always doing the

same thing at the same time.

34. During the time period that Addison was undergoing the

Strand III process, she received a nu mber of disciplinary

notices. On September 1, 2009, Stocking sent Addison a

memorandum entitled "Conference Summary , " which was a criticism

of Addison's teaching during a class on August 31, 2009 (one

week into the new school year). This memorandum was f ollowed by

a number of other letters and memoranda.

35. The first such letter was on September 9, 2009, just

16 days into the Strand III process. The "Warning of

Unsatisfactory Performance" memorandum issued by Stocking on

that date said Addison had fai led to post targets and had been

teaching outside the stated lesson plans. Thus, rather than

assisting Addison , under the Plan , with this perceived

shortcoming, a disciplinary action was taken.

36. Six days later, on September 15, 2009, a l etter of

r eprim and was issued by Stocking. Again, Addison was accused of

not posting appropriate targets on her board for use by her

students. Then on October 30, 2009, another l etter of r eprimand

was issued, this time for not conducting daily running records

for her s tudents. Addison was doing the running records, but

the records sometimes failed to include a statement by Addison

as to the child's reading status. This was a shortcoming that

could have been addressed as part of the Plan and discussed in

team meetings. Instead, it was handled as a disciplinary

matter. The letter also addressed a concern that one student

was missing a number of grades in the grade book. Addison

suggests there are reasons for that discrepancy, i.e. , the

student only recently transferre d in to her class.

37. These disciplinary letters were followed on

December 3, 2009, with a m emorandum from Stocking addressed to

Addison (although it refers to Addison in the third person)

indicating that Addison ha d not met "district expectations." No

o ne explained at final hearing as to the necessity of on - going

disciplinary reports while Strand III was progressing. Addison

was meeting weekly with Stocking and other team members to

address all issues, including those addressed in the separate

disciplin ary charges. One of the discipline letters initially

recommended a three - day suspension for Addison. A suspension

would be totally inappropriate for someone under Strand III.

The recommendation was changed once this fact was brought to

Stocking's attent ion by the union representative.

38. Interspersed with these disciplinary actions were a

fairly constant exchange of emails between Addison and Stocking,

Monoki, Terry and others. The emails contained concerns about

Addison's teaching and responses fro m Addison. It is clear from

the correspondence between Addison and others that there was

complete disagreement between them as to Addison's teaching

skills.

39. The team meetings to address the Plan attempted to

cover some of the 117 EAPs each week. Comm encing with the

October 5, 2009, meeting, a chart was utilized to compare the

team's focus from the previous meeting to the focus for the

coming week. The chart also included feedback from persons who

had personally observed Addison the prior week and a s tatement

of the specific support to be provided in weeks to come. During

the first several weeks, the "focus from prior week" section of

the chart was fairly brief, while the "feedback from formal

observations" section was quite long. During the last few team

meetings, this trend reversed. It appears that more feedback

and support was being provided in the earliest stages of the

Strand III process than in the later stages. According to the

findings set forth in the team meeting minutes, Addison made

pro gress in some areas and struggled in others. For the most

part, the minutes reflected a "Not Achieved" status for many of

the EA Ps which were addressed.

40. Addison made some attempts to amend the minutes of

team meetings, but inasmuch as the minutes were not meant to be

verbatim transcripts, her requests were generally denied. It is

telling that Addison's selection to the team, Creighton, signed

off on each of the minutes despite Addison's refusal to do so.

However, Creighton maintains that Addison was doing a fine job

teaching , notwithstanding comments in the minutes.

41. Under the Plan, Addison was supposed to receive

guidance, training , and support by administrative and other

designated professionals. There is evidence in the record that

Addison's cl ass was visited on a number of occasions by other

teachers and trainers. However, the preponderance of the

evidence is that the classroom visits more often resulted in

negative reactions to Addison's teaching than assistance and

guidance. The amount of a ctual assistance received by Addison

during the Strand III process is not consistent with the ideals

set forth in the Plan. Nor were there any observations made by

administrative personnel from the School or from the district

office , although the Plan cal led for such observations.

42. Under the Plan, Addison was supposed to be provided

additional planning periods to work on the issues set forth in

the Plan. The additional planning periods were never provided,

but Petitioner could not explain why. Based u pon the size and

breadth of the Plan, it would seem that some extra planning time

would have been absolutely essential .

43. It is clear Addison and Stocking did not particularly

like each other. 4 Their differences could have been based on

differences in t eaching methods, age, years of experience, or

any other factor. Whatever the reason, it is clear from the

record that the two individuals viewed the same facts with very

different interpretations. It is no wonder the Strand III

process was deemed unsucce ssful.

44. On December 15, 2009, Stocking sent a recommendation

to the s uperintendent of Collier County Schools that Addison be

terminated for failing to make significant improvement in the

four original areas of concern. By letter dated January 15,

2010, the s uperintendent notified Addison that a recommendation

would be going to the School Board that Addison's teaching

contract be terminated.

45. The decision to terminate Addison's teaching contract

was made based on the assessment performed during the Strand III

process. Lost in the focus on Addison's abilities or lack

thereof was the issue of her students' performance. At the

conclusion of the 2008 - 2009 school year, 17 of Addison's 19

students were credited with having achieved a year's worth of

grow th. The other two students were deemed unable to achieve a

year's worth of growth for reasons outside of Addison's teaching

abilities. There were more students in the team leader,

Arcand's, class deemed deficient at the end of that year than in

Addison's class. Addison did not complete the 2009 - 2010 school

year, so that particular measurement cannot be used to assess

her abilities.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter o f this

proceeding pursuant to a contract with the Collier County School

Board. The proceedings are governed by Chapter 120.57 and

120.569, Florida Statutes (2009). 5

47. The burden of proof in this proceeding is on

Petitioner to prove, by a preponderance o f evidence, that

dismissal of Addison is warranted under the facts set forth

during the final hearing. See McNeil v. Pinellas County School

Board , 678 So. 2d 476 (Fla. 2d DCA 19 9 6); Sublett v. Sumter

County School Board , 664 So. 2d 1178 (Fla. 5th DCA 1995 ).

48. The School Board's letter dated January 15, 2010, sets

for th the basis for its decision to recommend termination of

Addison's professional services contract. The basis is that

Addison failed to correct the deficiencies set forth in the

Strand III N otice. The School Board is limited to that basis in

the present action, i.e. , it cannot extend the reasons for

recommending termination beyond what it stated in the letter.

Persons against whom such actions are taken have the right to

prior notice and th e opportunity to address all bases relied

upon by the School Board. See Pilla v . School Board of Dade

County, Florida , 655 So. 2d 1312 (Fla. 3rd DCA 1995); Florida

State University v . Tucker , 440 So. 2d 37 (Fla. 1st DCA 1983).

Therefore, in the present c ase, the only issue is the

determination of Addison's completion or fulfillment of the

Strand III process.

49. The s uperintendent of the Collier County School Board

has the authority to supervise instruction and recommend

termination of a teacher's employm ent to the School Board

pursuant to Section 1001.32, Florida Statutes. In assessing a

teacher's performance prior to recommending termination of

employment, a certain process must be followed. S ubs ection

1012.34(3), Florida Statutes, provides:

(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

districtÓs 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

administratorsÓ performance, or any

com bination 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 res ults of

peer reviews in evaluating the employeeÓs

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

as sessment 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 spec ial

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 mainta in 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 distric t

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

employeeÓs performance. The evaluator must

submit a written report of the assessment to

the district school superintendent for the

purpose of reviewing the employeeÓs

contract. The evaluator must submit the

written report to the employee no later than

10 days afte r 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 assistanc e 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

calend ar days, the employee who holds a

professional service contract must be

evaluated periodically and apprised of

progress achieved and must be provided

assistance and inservice training

opportunities to help correct the noted

performance deficiencies. At an y 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 perf ormance 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

evaluatorÓs 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 sch ool

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 superintendentÓs recommendation, the

employee must, within 15 days after receipt

o f the district school superintendentÓs

recommendation, submit a written request for

a hearing. The hearing shall be conducted

at the district school boardÓs 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 superintendentÓs

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

administ rative 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 adm inistrative 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

judgeÓs recommendation. The determination

of the district schoo l board shall be final

as to the sufficiency or insufficiency of

the grounds for termination of employment.

50. Petitioner proved by a preponderance of the evidence

that there were sufficient reasons for placing Addison on

Strand III. Petitioner provide d Addison a notice pursuant to

Subsection 1012.34(3)(d), Florida Statutes, advising Addison

that she had been deemed deficient in four separate EAP areas:

Assessment, Knowledge of Subject Matter, Learning Environment,

and Role of Teacher. The Notice comm enced the process , and all

actions taken during the 90 - day process were done timely.

51. However, the Notice was not sufficient to advise

Addison that she was deemed deficient in the six EAPs , which

were later added by Stocking. Subsection 1012.33(3)(e) , Florida

Statutes, states in pertinent part:

A professional service contract shall be

renewed each year unless the district school

superintendent, after receiving the

recommendations required by s. 1010.34,

charges the employee with unsatisfactory

performan ce and notifies the employee of

performance deficiencies as required by

s. 1012.34. . . .

The Notice provided to Addison on August 24, 2009, was improper

in that it went beyond the "noted deficiencies" set forth in

Addison's annual evaluation.

52. The Co llective Bargaining Agreement between the

Collier County Education Association and the School Board sets

forth the process for placing a teacher on Strand III.

Paragraph 5.03 , entitled CTAS Strands, includes guidelines for

professional service and continu ing contract employees. Under

those guidelines, the teacher has 90 days to correct noted

deficiencies. Specifically, "During the probationary period

[Strand III], the EMPLOYEE will implement the strategies

outlined in the professional assistance plan and will document

his/her performance. The Team will provide support to assist

the EMPLOYEE with the professional assistance plan and gather

data to assist in the final assessment." The manner of support

is partially spelled out in the Bargaining Agreement at

Paragraph 5.f.4.v.1 - 7. The enumerated data - gathering areas

include: Observations, Instructional less on plans, Sample and

examples of pertinent materials, Professional development and

others. The areas of possible support for the teacher are not

limit ed.

53. The School Board implemented some of the areas of

support. There was an effort to observe measure and critique

Addison while she was teaching. There were indications of

in - class support being provided, but the evidence is clear that

such support was minimal. There is nothing in the CTAS

guidelines allowing for on - going disciplinary actions against a

teacher who is trying to complete the requirements of his or her

Plan. There is no prohibition against such actions, but it

intuitively seems counte rproductive to do so.

54. The Collective Bargaining Agreement also states that,

"After ninety (90) calendar days, the Lead Administrator will

assess the EMPLOYEE. Ten or more EAP areas must be rated at the

professional level and no EAP may be at the inade quate level.

EMPLOYEES not meeting this criteria [sic] will be recommended

for termination." In the instant action, the assessment did not

find Addison to be at the professional level in ten or more EAP

areas.

55. However, the manner in which Addison's S trand III

process was conducted cannot be said to have given her a fair

opportunity to obtain a professional level on the EAP areas. By

burdening Addison with seven un - noticed EAP areas and failing to

provide adequate assistance and extra planning time, P etitioner

violated the process. Further, the change from first - grade

teaching, where Addison was comfortable, to fifth - grade

teaching, an entirely new experience, during a Strand III

process was counterproductive. The process as administered had

the prob able outcome of failure.

56. When measuring Addison's abilities based on the

success of her students, it appears she did as well as , or

better than , her fifth - grade teacher peers. Such success

militates against a finding that Addison failed to satisfy the

EAP levels, especially when the Strand III process appears to

have been flawed.

57. It may very well be that Addison was in need of the

kind of assistance proposed by the Strand III process. However,

as administered, the process was not fair or consisten t with the

stated guidelines for Strand III. Therefore, any measure of

Addison's abilities based on the Strand III would necessarily be

flawed and , thus , lack an adequate basis for recommending

dismissal or termination of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Collier County School Board , finding that although there was

ample evidence to support placing Respondent, Peggy Addison, on

Strand I II, the process was flawed and cannot be used to justify

termination of Addison's employment contract.

DONE AND ENT ERED this 17th day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Adm inistrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of September , 2010 .

ENDNOTES

1/ At the end of the 2008 - 2009 school year, the School moved

from a C to a B - level school.

2/ The concept of running records is not new, but there was a

concerted focus on it by Stocking for the 2008 - 2009 school year.

Teachers with experience were expected to know how to do running

records.

3/ The School Board presented extensive evidence concerning

Addison's perceived or actual shortcomings during the 2008 - 2009

school year. However, the issue in this proceeding actually

addresses whether Addison adequately completed the Strand III

process by showing improvement in the enumerated areas of

concern during the 2009 - 2010 school year.

4/ Addison had joined the ten - teacher grievance filed against

Stocking in 2008 - 2009. Further, she had individually filed two

grievances against Stocking.

5/ Unless specifically stated to the contrary herein, all

references to Florida Statutes shall be to the 2009 version.

COPIES FURNISHED :

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

Dr. Dennis L. Thompson

Superintendent of Schools

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109 - 0919

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

Jon D. Fishbane, Esquire

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109

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.