10-003399TTS James F. Notter, As Superintendent Of Schools vs. Sean Gentile Status: Closed Recommended Order on Monday, May 23, 2011.

Summary: Teacher's poor job perfomance and failure to compy with reasonable directives from administrators justified the termination of her employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES F. NOTTER , AS )

SUPERINTENDENT OF SCHOOLS , )

)

Petitioner, )

) Case No. 10 - 3399

vs. )

)

SEAN GENTILE , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on February 1 5 and 1 6 , 2011 , by video teleconference

between Tallahassee and Lauderdale Lakes , Florida, before

Administrative Law Judge Claude B. Arrington of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Philip Michael Cullen, Esquire

621 South Federal Highway, Suite 4

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether the School Board of Broward County, Florida (School

Board) has just cause to terminate Respondent ' s employment based

on the allegations set forth in the Administrative Complaint

dated May 13, 2010 .

PRELIMINARY STATEMENT

Acting on a recommendation submitted by James F. Notter, as

Superintendent of Schools (Petitioner) , the School Board , voted

on June 15, 2010, to suspend Respondent ' s employment as a

classroom teacher with a professional service contract and to

terminate that employment, subject to her due process rights.

The grounds for Petitioner ' s recomme ndation were set forth

in an Administrative Complaint dated May 13, 2010. The

Administrative Complaint contained factual allegations

pertaining to Respondent ' s job performance as a reading teacher

at Arthur Robert Ashe, Jr. Middle School (Ashe Middle Scho ol)

and, based on those factual allegations , alleged that she had

failed to correct performance deficiencies (Count I); was

incompetent (Count II); was guilty of gross

insubordination/willful neglect of duty (Count III); and was

guilty of misconduct in off ice (Count IV).

Respondent timely requested a formal administrative hearing

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

referred to DOAH, and this proceeding followed.

Respondent filed an Answer to the Administrative Complaint

on June 29, 2010, denying the material allegations in the

Ad ministrative Complaint. An Amended Answer to the

Administrative Complaint was filed by Respondent on October 8,

2010. The Amended Answer admitted certain facts alleged in the

Administrative Complaint. Tho se admitted allegations are

incorporated as findings of fact to the extent the admitted

facts are relevant to the issues of this proceeding.

At the final hearing, Petitioner presented the testimony of

Deborah Peeples ( p rincipal of Ashe Middle School ), Devon O ' Neil

(former acting sixth grade assistant principal at Ashe Middle

School), Lauren Brown (a reading coach at Ashe Middle School),

Willie J. Dudley, Jr. (a consultant at Ashe Middle School),

Elpidio Muniz (a former assistant principal at Ashe Middle

School), Dr. Cathy Kirk (a personnel evaluation coordinator

employed by School Boar d), and Tere nce X. Hart (a former

assistant principal at Ashe Middle School). Petitioner offered

the following pre - marked exhibits, each of which was admitted

into evidenc e: 1 - 16, 18, 21 - 25, 28, 30, 31, 35, 39 - 45, 48, 50,

and 52.

Respondent testified on her own behalf and offered two

sequentially - numbered exhibits, both of which were admitted into

evidence.

A Transcript of the proceedings consisting of four volumes

(but ine xplicably in a total of seven binders) was filed on

March 30, 2011 .

The part ies filed Proposed Recommended Order s , which ha ve

been duly considered by the undersigned in the preparation of

this Recommended Order.

All statutory references are to Florida Stat utes (2010).

FINDINGS OF FACT

1. At all times material hereto, the School Board was the

constitutional entity authorized to operate, control, and

supervise the public schools in Broward County, Florida.

2. At all times material hereto, the School Board e mployed

Respondent as a classroom teacher pursuant to a professional

service contract. At all times relevant to this proceeding,

Respondent was assigned to Ashe Middle School where she taught

reading and language arts .

3. Respondent holds a Florida educa tional certificate that

has both reading and gifted endorsements.

4. During the time Respondent taught at Ashe Middle

School, the school was considered a low performing school.

There was a high level of student turnover and a relatively high

number of fo reign students who did not speak English.

5. Respondent had an advanced reading class that read on

grade level. Most of her other students read below grade level . 1

6 . Pursuant to a collective bargaining agreement (CBA)

with Broward Teachers Union and applicable law, which will be

discussed in the Conclusions of Law section of this Recommended

Order, School Board has adopted a system to assess teachers

known as Instructi onal Personnel Assessment System (IPAS).

7. Subsection (F)(1)b of Article 18 of the CBA contains

the following guiding principle:

b. The School Board and BTU [Broward

Teachers Union] acknowledge that the

assessment process should recognize the

profession al nature of teaching and

supervision. Educational research has not

identified a single uni - dimensional

construct called " effective teaching. "

Teachers must pursue a variety of models of

effective teaching. It is recognized,

moreover, that the education al environment

is complex and variable and great weight

should be placed on teacher judgment to

guide the activities of student learning.

8. Subsection F(2) ( e ) of Article 18 of the CBA requires

that the principal, director, or his/her designee evaluate e ach

employee at least once a year utilizing IPAS.

9. Rating criteria are defined on the IPAS form in the

following categories :

1. Instructional Planning

2. Lesson Management

3. Lesson Presentation

4. Student Performance Evaluation

5. Communication

6 . Classroom Management

7. Behavior Management

8. Records Management

9. Subject Matter Knowledge

10. Other Professional Competencies

10. The evaluator rates the employee as to each criterion

and for overall performance. The rating can be " satisfactory " ,

" needs improvement " , or " unsatisfactory. "

11. Subsection F of Article 18 of the CBA describes IPAS.

Pursuant to the CBA, the assessment system requires a teacher,

whose performance has been deemed deficient in one or more areas

by an appro priate school administrator, to be placed on a

Performance Development Plan (PDP). A school administrator

develops the plan and monitors the employee ' s progress in

completing the plan.

12. Subsection F(2)(m)2 of Article 18 of the CBA provides

as follows as to the use and implementation of a PDP :

Use and implementation of this plan requires

a. identification of deficiencies,

b. definition of strategies for

improvement,

c. definition of an assistance timeline,

d. definition of expected outcomes,

e. definition of possible consequences for

failure to remediate,

g. completion of assistance activities, and

h. documentation.

13. Subsection ( F )( 2 ) f of Article 18 of the CBA provides

as follows:

The following five (5) techniques are used

to gather data on employee performance.

Assessors use multiple techniques to

understand actual performance and develop

performance ratings.

1. Informal classroom observations:

Informal observations are made periodically

by the principal or designee. A follow - up

conf erence is not required subsequent to an

informal classroom observation if

performance is deemed satisfactory.

2. Formal classroom observations: Formal

observations are primarily initiated by the

principal or designee. Employees may,

however, request a formal observation.

These are not less than 30 minutes in

duration and are conducted by the principal,

director or his/her designee. The 30 minute

time period may be shortened by mutual

agreement between the principal and the

affected employee. All obse rvations of

employees for the purpose of assessment

shall be conducted with the full knowledge

of the employee. A conference is conducted

after each formal observation. The FPMS

[Florida Performance Measurement System] or

other educationally sound observ ation

instruments which may be used for formal

observation. [sic]

3. Observations in non - classroom

situations: Principals use opportunities

outside the classroom to observe the

performance of employees. A follow - up

conference is not required subsequent to

this type of observation if performance is

deemed satisfactory.

4. Review of records and data: Principals

review a variety of work samples prepared by

the employee. These may include lesson

plans, reports, grade card comments,

discipline referral do cuments, etc. In

addition, specific records or plans may be

requested for review. A follow - up

conference is not required if performance is

deemed satisfactory.

5. Review of performance portfolio: The

principal or designee and the employee may

mutually decide that a performance portfolio

is needed to provide additional information

for the completion of the assessment

ratings. The design of a portfolio is

determined by the principal and employee. A

follow - up conference is not required if

performance is deemed satisfactory.

14. A teacher placed on a PD P is given 90 calendar days,

excluding school holidays and vacations, to correct the

identified performance deficiencies. If, at the end of the 90 -

day probation period, the performance of the employee re mains at

an unsatisfactory level for one or more of the assessment

criteria, a rating of U (for u nsatisfactory) is given. At that

juncture, the administrator can extend the PDP period, or he/she

can refer the matter to the Office of Professional Standards for

further proceedings.

15. Mr. Luciani was the principal and Mr. Muniz was an

assistant principal at Ashe Middle School during the 2006 - 07

school year .

16. On December 11, 2006, Mr. Muniz wrote a memo to

Respondent . The memo is quoted verbatim becaus e it targeted

problems that continued throughout Respondent ' s tenure at Ashe

Middle School. The memo is as follows:

This correspondence is to document the last

few week ' s [sic] events when it was

determined that your job performance has

been less than satisfactory in the following

areas:

* Behavior M anagement - managing student

behavior

* Records Management - management of data

* Communications

* Instructional Planning

On December 7, while doing a classroom visit

that lasted 31 minutes I noticed a lack of

classroom management. It took almost seven

minutes to get the class under control to

start your lesson. While there were only 11

students in your room, yet, only five

students were on task. You continued to do

your lesson despite the disruptions. I am

not sure if you were aware or just ignored

the disruptions. In the last few weeks you

have banished, kicked out, or attempted to

kick out students everyday for almost twelve

consecutive days. In the past Mr. Hart,

Assistant Principal, and I have mentioned

that the students should be accompanied by

an escort or if you have a receiving teacher

you should wait at the door until the child

is situated. In at least five occ asions

your students have been caught wandering the

halls because you have kicked them out.

There have been many times while on hall

duty that I noticed you kicking students out

and the class has not yet started. This is

unacceptable. You are responsibl e for the

students in your class. When they are

unescorted the possibility of injury exist

[sic] due to your negligence. The students

have not sat down and you attempt to remove

them from class. This is also unacceptable.

Prior to our recent data confe rence it was

12:15 in the afternoon and you requested to

find out what data you needed at the

conference. I directed you to Ms. J.

Shakir [,] reading coach [,] who assisted you

in securing minimal data for the conference.

Please note that there had been fo ur data

presentations regarding preparation for the

data conferences conducted by Mr. Fleisher

and Ms. Lumpkin form c - net. Ms. Shakir and

Ms. Pickney also conducted data

disaggregation workshops in the previous

weeks. While at the conference itself you

a ppeared to know very little with regard to

your student data. You were not familiar

with your BMA results or the progress your

individual students or classes had made.

There was no attempt made at providing

categorical breakdowns of students which

needed prescriptive strategies to address

their needs.

The confrontational manner with which you

speak to children is a direct factor in the

lack of classroom management. Your lack of

communication skills has led to referrals on

ma n y students which have led to major

consequences for students after the

referrals led to escalated verbal

confrontations.

During various grade level meetings, I have

requested that all teachers provide me with

emergency lesson plans every two weeks. To

date I have not received any o f these plans.

Our expectations for each of the above

listed concerns are: First and foremost,

resolve the discipline problems in

compliance with the policies of the school,

rules of the District School Board and [sic]

the State Board and Florida Statute s. Next,

maintain consistency in all application of

policy and practice by:

a) Establishing routines and procedures

for the use of materials and the physical

movement of students.

b) Formulating appropriate standards for

student behavior.

c) Iden tifying inappropriate behavior and

employing appropriate techniques for

correction.

You must prepare for your students all day

every day. Lesson plans must be meaningful

and relevant to your content area. Studies

show that students who are authentically

engaged are less prone to deviant [sic]

behavior. You must maintain complete order

in your classroom. The Principles of

Professional Conduct for the Education

Profession in the State of Florida requires

that the educator make reasonable efforts to

prote ct the students from conditions harmful

to learning, and/or to the students ' mental,

and/or physical health and/or safety.

In the next few weeks you will be provided

with assistance from behavior specialists,

reading/curriculum coach and c - net personnel

t o assist you in meeting expectations.

17. In February 2007 Respondent was placed on a PDP.

Mr. Muniz monitored Respondent ' s progress and opined that she

had not successfully completed the PDP. Mr. Luciani disagreed

and instructed Mr. Muniz to give Respondent a satisfactory

evaluation, which he did. 2

18. Mr. Luciani was the principal and Mr. Hart was an

assistant principal at Ashe Middle School during the 2007 - 08 and

2008 - 09 school years.

19. Mr. Hart received a written complaint from a student

that on October 1, 2008, Respondent told the student that the

student ' s mother was unfit and did not know how to raise the

student.

20. In response to that complaint, on October 3, 2008,

Mr. Hart issued Respondent a letter addressing the inappropriate

manner in which she had addressed students, which included the

following:

On numerous occasions you have been

counseled regarding your inappropriate

comments/behavior towards students. This

behavior includ es embarrassing, disparaging,

and/or awkward comments and/or actions. It

has recently been brought to my attention

that, once again, you have exhibited this

behavior.

* * *

I am directing you to cease and desist all

actions/comments of this nature immediately.

You are to speak to students in a

respectful, professional manner at all

times.

21. Mr. Hart, Respondent, and the student ' s parent met to

discuss the alleged statements made by Respondent to the

student. During that conference, Respondent became angry and

left the meeting.

22. Later, Mr. Hart met with Respondent to give her a copy

of his letter dated October 3. Respondent took the letter and

walked out of the meeting without signing the acknowledgment

that she had received the letter. R espondent slammed the door

as she left Mr. Hart ' s office.

23. Mr. Hart received numerous complaints from parents

and, as a result, transferred several students from Respondent ' s

class to another class.

24. On February 5, 2009, Mr. Hart observed Respondent

arguing with a student in her classroom. He admonished her in

writing to not be confrontational with students. Respondent ' s

conduct on February 5, 2009, was inconsistent with Mr. Hart ' s

admonishment to he r on October 3, 2008.

25. In an undated memorandum subsequent to January 20,

2009, Mr. Hart set forth the following issues that continued to

be of concern despite his previous discussions with Respondent :

* Parent phone calls from her classroom

* Comple ting assignments

* Checking emails

* Inputting grades into Pinnacle

(a computer database )

* Being prepared for instruction

26. On February 18, 2009, Mr. Hart issued a written

reprimand to Respondent for her failure to inp ut student grades

into Pinn acle.

27. Respondent was placed on a PDP on February 13, 2009.

Noted under the categories " Lesson Manageme nt " and " Lesson

Presentation " were the failures to meet the following criteria:

* Orients students to classwork, specifies

purposes of activities and relationship to

the objectives;

* Prepares the classroom materials and

equipment for the presentation of the

lesson;

* Selects and uses appropriate instructional

techniques including available materials and

technology which support learning of the

spec ific types of knowledge or skills; and

* Asks questions which are clear and require

students to reflect before responding.

28. During the PDP period that began February 13, 2009 ,

Respondent was offered appropriate services designed to

remediate her deficient performance areas.

29. On May 28, 2009, Mr. Hart completed an IPAS evaluation

that rated Respondent unsatisfactory overall and as to the

following five categories : " Lesson Management " , " Lesson

Pres entation " , " Student Performance Evaluation " , " Classroom

Management " , and " Behavior Management. " Mr. Hart rated

Respondent satisfactory as to the remaining five categories.

30. Mr. Hart placed Respondent on a second PDP that

extended into the 2009 - 10 scho ol year.

31. At the end of the 2008 - 09 school year, Mr. Luciani

retired. Before the start of the 2009 - 10 school year,

Ms. Peebles became principal of Ashe Middle School.

32. Respondent failed to enter grades and other data for

students during the first marking period of the 2009 - 10 school

year . That failure hindered the assessment of each student ' s

needs and made it more difficult to monitor each student ' s

progress .

33. On November 19, 2009, Ms. Peebles conducted an IPAS

evaluation for Respondent as to the PDP Mr. Hart had placed her

on at the end of the 2008 - 09 school year. Ms. Peebles found

Respondent to be deficient in the same five categories as

Mr. Hart ' s evaluation , and she rated Respondent ' s overall

performance as unsatisfactory.

34. During the PDP period that began May 28, 2009 ,

Respondent was offered appropriate services designed to

remediate her deficient performance areas.

35. After her evaluation of November 19, 2009, Ms. Peebles

had the options of referring Respondent to the Office of

Pro fessional Standards for further proceedings or placing

Respondent on another PDP. Ms. Peebles elected to place

Respondent on another PDP (the last PDP) because Ms. Peebles was

new to the school and she wanted to give Respondent another

chance to prove her self.

36. At the conclusion of the last PDP, Ms. Peebles

conducted an IPAS evaluation, which was dated April 19, 2010.

Respondent remained unsatisfactory in the same five categories

as the previous evaluations by Ms. Peebles and Mr. Hart, and her

overall evaluation remained unsatisfactory.

37. Throughout her employment at Ashe Middle School,

Respondent exhibited a pattern of being absent on Fridays and

Mondays. Respondent failed to correct th at deficiency after

having been counseled by administrators.

3 8. During the 2009 - 10 school year, Respondent repeatedly

failed to timely provide or leave appropriate lessons after

having been counseled by administrators to do so. Respondent

was instructed to give her lesson plans to Ms. Brown, the

Reading Coach and Reading Department Chairperson , during that

school year. Respondent never provided Ms. Brown a complete set

of lesson plans the entire year.

39. During the 2009 - 10 school year, Respondent repeatedly

failed to demonstrate that she could control her classroom. She

made multiple calls to security on near ly a daily basis and she

continued to kick students out of class, which left them in the

hallways, unsupervised.

40. The Benchmar k Assessment Test (BAT) is a county

created test that is administered twice a year in September and

again in November. The test is designed to measure the

progress, if any, the student has made between the testing

dates. The test is also used as a predic tor for the Florida

Comprehensive Achievement Test (FCAT). The vast majority of

Respondent ' s student ' s test scores depict either no growth or a

regression in all classes.

41. A M ini - BAT is an assessment tool used to develop and

provide effective lesson p lans as well as student growth. The

teacher is responsible for administering the assessment tool to

her students and thereafter inputting the results in the

computer database. During the 2009 - 10 school year,

approximately half of Respondent ' s students ei ther were not

tested or had no score inputted after being tested.

42. The DAR Assessment is a two - part standardized test

designed to measure a student ' s ability at word recognition and

all reading frequency. The test is administered twice a year,

once in September and again in January. Ms. Brown administered

the tests at Ashe Middle School during the 2009 - 10 school year.

Ms. Brown score d the tests and g ave the score results to

Respondent , who was required to input the scores in the computer

database. The Florida Department of Education (DOE) requires

that 90 percent of the students complete the tests, which gives

a 10 percent leeway for students who are absent on test days.

Students are placed in reading classes based on their test

result. The tests also measure each student ' s progress, or lack

thereof, between the test dates. Forty - five percent of

Respondent ' s students had no scores. Nineteen percent of those

with scores had no gain.

43. Mock FCATs are periodically administered to students

followi ng Mini - BATs. The Mock FCATs administered to

Respondent ' s students during the 2009 - 10 school year were

created by Ms. Brown . Ms. Brown utilized previous iterations of

the FCAT that had been released by DOE in an effort to simulate

the actual FCAT process in terms of difficulty and complexity.

The tests are graded by computer and the scores are given to the

teacher to input into the computer database . The results of the

Mock FCATs are used to develop instructional plans for students.

Sixty - three of Resp ondent ' s 111 students (or 57 percent ) had no

score inputted in the computer database. Nine students who did

receive a score made no progress between the dates of the two

tests.

44. School Board entered into a contract with a consulting

firm named Evans N ewton, Inc. (ENI) to assist schools in need of

improvement. In 2009 - 10 school year, ENI provided an assessment

test that teachers were to use to monitor students ' progress.

Respondent administered the assessment test to her class , gave

the results to Ms. Brown to score, and recorded the scores in

the computer database after receiving the scored results from

Ms. Brown. More than 40 percent of Respondent ' s students had no

score recorded for the assessment test. Ms. Brown testified,

credibly, that she returned all scored results to Respondent.

The lack of a score for over 40 percent of her class can only be

explained by Respondent ' s failure to do her job. Respondent

either did not administer the test to th ose students, she did

not give the test result s to Ms. Brown to score, or she did not

input the scores in the computer database after receiving the

results from Ms. Brown.

45. The FCAT Reading Learning Gain is the document through

which DOE reports test score results to school districts.

During the 2009 - 10 school year, DOE required a 60 percent

learning gain. Respondent ' s students did not achieve that goal

during that school year. For three of the four years she taught

at Ashe Middle School, Respondent ' s classes failed to achieve

their FCAT goals.

46. The administrators at Ashe Middle School followed all

applicable procedures in formulating and implementing the PDPs

and IPASs at issue in this proceeding.

47. After her IPAS evaluation of April 19, 2010,

Ms. Peebles referred Respondent ' s case to the Office of

Professional Standards, which resulted in the termination

proceedings at issue.

CONCLUSIONS OF LAW

48 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

case pursuant to s ections 120.569 and 120.57(1), Florida

Statutes .

49 . Because Petitioner seeks to terminate Respondent ' s

employment and this case does not involve the loss of a license

or certification, Petitioner has the burden of proving the

allegations in its Administrative Co mplaint by a preponderance

of the evidence, as opposed to the more stringent standard of

clear and convincing evidence. See McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd.

of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3 d DCA 1990); Dileo v.

Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

50 . The preponderance of the evidence standard requires

proof by " the greater weight of the evidence, " Black ' s Law

Dictionary 1201 (7th ed. 1999), or evidence that " more like ly

than not " tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

5 1. Pet itioner alleged that Respondent failed to correct

performance deficiencies (Count I); was incompetent (Count II);

was guilty of gross insubordination/willful neglect of duty

(Count III); and was guilty of misconduct in office (Count IV).

52. This i s a de novo proceeding designed to formulate

agency action as to the matter at issue. See Hamilton Cnty.

Comm ' rs v. Dep ' t of Envtl. Reg . , 587 So. 2d 1378, 1387 (Fla. 1st

DCA 1991); Young v. Dep ' t of Cmty. Affairs , 625 So. 2d 831, 833

(Fla. 1993); and McDonald v. Dep ' t of Banking and Fin. , 346 So.

2d 569, 584 (Fla. 1st DCA 1977).

53 . Pursuant to section 1012.33(6)(a), Florida Statutes, a

teacher on a professional service contract may be suspended

during the term of the contract for " just cause " as def ined by

section 1012.33(1)(a), which provides, in relevant part, as

follows:

. . . 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, gro ss 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.

54 . By including in the definition of the term " just

cause " the phrase " includes, but is not limited to , " the

Legislature made clear that the items listed in the definition

were not intended to be exhaustive and that other wrongdoing may

also constitute " just cause " for suspension or dismissal. See

Dietz v. Lee Cnty. Sch. Bd. , 647 So. 2d 217, 218 - 19 (Fla. 2d DCA

1994).

55. Florida Admin istrative Code R ule 6B - 4.009, contains

the following definitions:

(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 testi mony 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; (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

expe rience; 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.

* * *

(3) Misconduct in office is define d as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so serious as to

impair the individual ' s effectiveness in the

school system.

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority .

56 . Section 1001.32(2) confers the following authority on

district school boards:

(2) DISTRICT SCHOOL BOARD. - In accordance

with the provisions of s. 4(b) of the State

Constitution, district school boards shall

operate, control, and supervise all fre e

public schools in their respective districts

and may exercise any power except as

expressly prohibited by the State

Constitution or general law.

5 7. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 1012.22(1)(f), and 1012.33(6).

58 . Section 1012.34(3) 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 a ssigned 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

followin g 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 u nder

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 compet encies,

responsibilities, and requirements as

established by rules of the State Board of

Education and policies of the district

school board.

5 9. The performance of a teacher ' s students, based on

valid data, is the primary consideration in evaluating a

teacher. See Sherrod v. Palm Beach Cnt y . Sch . Bd . , 963 So. 2d

251 (Fla. 4th DCA 2006), and Young v. Palm Beach Cnty . Sch . Bd . ,

968 So. 2d 38 (Fla. 4th DCA 2006).

60 . Petitioner proved by a preponderance of the evidence

that Respondent failed to correct p erformance deficiencies

following three back - to - back PDPs. The same five categories

were found deficient by two separate administrators. Petitioner

established the violation alleged in Count I of the

Administrative Complaint.

61 . Petitioner proved by a preponderance of the evidence

that Respondent repeatedly failed to correct performance

deficiencies, repeatedly failed to input student data , and

repeatedly failed to prepare lesson plans. The vast majority of

Petitioner ' s classe s failed to make academic progress as

measured by standardized tests. These failures establish that

she was incompetent as a result of inefficiency within the

meaning of Florida Admin istrative Code R ule 6B - 4.009(1).

62. Count III of the Administrative Co mplaint charged

Respondent with gross insubordination or willful neglect of

duty. Petitioner proved by a preponderance of the evidence that

Respondent repeatedly was instructed to correct her performance

deficiencies, to input student data, to prepare les son plans, to

stop being confrontational with students, and to stop kicking

students out of class without supervision. Petitioner

repeatedly failed to comply with those instructions. Based on

those failures, Respondent is guilty of the violation alleged in

Count III.

6 3 . Count IV of the Administrative Complaint, alleging

misconduct in office, alleged that Respondent ' s acts violated

the Code of Ethics of the Educational Profession as adopted in

Florida Admin istrative Code R ule 6B - 1.001 and the Principles of

Professional Conduct for the Educational Profession in Florida

as adopted by r ule 6B - 1.006. Count IV also alleged that the

acts were so serious so as to impair her effectiveness in the

school system.

6 4 . The Code of Ethics of the Education Profession in

Florida, found at Florida Admin istrative Code R ule 6B - 1.001,

includes the following:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

6 5 . Rule 6B - 1.006(3)(a)imposes the following obligation on

Respondent and all other teachers:

(3) Obligation to the student requires that

the individual:

(a) shall make a responsible effort to

protect the student from conditions harmful

to learning and/or to the student ' s mental

and/or physical health and/or safety.

6 6 . T he definition of " misconduct in office " requires a

two - pronged analysis. The first prong is whether the educator

violated the Code of Ethics of the Education Profession or the

Principles of conduct for the Education Profession in Florida.

The second prong is whether the breach is so serious as to

impair the individual ' s effectiveness in the school system.

6 7 . Petitioner proved by a preponderance of the evidence

that Respondent repeatedly was instructed to correct her

performance deficiencies, to input stu dent data , to prepare

lesson plans, to stop being confrontational with students , and

to stop kicking students out of class without supervision .

Petitioner repeatedly failed to comply with those instructions ,

thereby failing to adhere to the obligations imposed upon her by

r ule 6B - 1.006(3)(a) . Those failures constitute misconduct in

office as alleged in Count I V of the Administrative Complaint

and within the meaning of rule 6B - 4.009(3). In reaching this

con clusion, the undersigned has concluded that Respondent ' s

effectiveness in the school system has been impaired.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board of Broward County

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 terminate Respondent ' s

employment.

DONE AND ENTERED this May 23, 2011 , in Tallahassee, Leon

County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of May, 2011 .

ENDNOTES

1 The STAR Reading Test is an assessment device that gives each

student three different scores which are then listed in a

summary report. The first score compares a student ' s national

percentile ranking. The second score compares the student ' s

grade level equivalency. The third score compares the student ' s

independent reading level. The scores reflect that the vast

majo rity of Respondent ' s students not in the advance d reading

group were below average in all three scores. In making the

findings and reaching the conclusions set forth in this

Recommended Order, the undersigned has considered that

Respondent ' s teaching assi gnment was a difficult one.

2 A teacher who is on a PDP at the end of a school year cannot

be transferred to another school during the summer. Petitioner

asserted the argument that Mr. Luciani gave Respondent a

satisfactory evaluation so he could transfer her to another

school. That argument is r ejected as being speculative.

COPIES FURNISHED :

James F. Notter, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3 1 25

Lois Tepper, Acting 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

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Philip Michael Cullen, Esquire

621 South Federal Highway, Suite 4

Fort Lauderdale, Florida 33301

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 tha t

will issue the Final Order in this case.