10-001152TTS Pinellas County School Board vs. Eric W. Ferrier Status: Closed Recommended Order on Thursday, July 29, 2010.

Summary: School Board failed to prove uncorrected performance deficiency under Section 1012.34, but proved incompetence, failure to discharge duties of position, and just cause in the form of ongoing performance deficiencies sufficient to dismiss teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-1152

)

ERIC W. FERRIER, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Largo, Florida, on June 16-17, 2010.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas County School Board

301 Fourth Street Southwest

Largo, Florida 33779-2942

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 US Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

The issues are whether Petitioner may terminate the

employment of Respondent for a failure to correct performance

deficiencies, pursuant to Section 1012.34, Florida Statutes;

just cause in the form of ongoing performance deficiencies,

pursuant to Section 1012.33, Florida Statutes; or noncompliance

with School Board policies authorizing adverse employment action

for incompetence, failure to perform the duties of his position,

insubordination, and harassment of coworkers and students.

PRELIMINARY STATEMENT

By Request for Approval (ID #2271) dated February 23, 2010,

the Superintendent proposed to Petitioner the dismissal of

Respondent on the grounds stated immediately above.

On March 9, 2010, Respondent filed a written request for a

hearing. On March 16, 2010, the hearing was set for April 23,

2010. On March 22, 2010, the parties filed a Joint Motion to

Continue Hearing and Change Hearing Location. Both sides stated

that they needed additional time to prepare and offered June 16

or June 17, 2010, as available dates. By Order entered

March 30, 2010, the Administrative Law Judge granted the joint

motion and reset the final hearing for June 16, 2010. On

June 8, 2010, the Administrative Law Judge issued an Amended

Notice of Hearing extending the hearing to a second day,

June 17.

On June 14, 2010, the parties filed a Pre-Hearing

Stipulation restating the grounds for dismissal contained in the

Request for Approval. As stated in the Pre-Hearing Stipulation,

the grounds for dismissal are:

1. Whether Respondent corrected the

performance deficiencies identified by his

evaluator and, if not, whether the

superintendent's recommendation of

termination under Section 1012.34, Florida

Statutes, should be upheld.

2. Whether Respondent has failed to meet

minimum performance expectations or

otherwise failed to discharge the required

duties of his position and, if not, whether

such failure warrants dismissal under School

Board Policy 3140(A)9.

3. Whether Respondent has discharged the

required duties of his position and, if not,

whether such failure warrants dismissal

under School Board Policy 3140(A)9.a.

4. Whether Respondent corrected the

performance deficiencies previously

identified and, if not, whether such failure

warrants dismissal under School Board Policy

3140(A)19.

5. Whether Respondent failed to obey

directives given to him by his supervisors

and, if so, whether dismissal is warranted

under School Board Policy 3140(A)20.

6. Whether Respondent's harassed coworkers

and students and, if so, whether such

harassment warrants dismissal under School

Board Policy 3140(A)12.

7. Whether Respondent's continued

performance deficiencies constitute "just

cause" for termination under Section

1012.33, Florida Statutes.

At the hearing, Petitioner called 19 witnesses and offered

into evidence 29 exhibits: Petitioner Exhibits 1-29.

Respondent called no witnesses and offered into evidence five

exhibits: Respondent Exhibits 1-5. All exhibits were admitted

except Petitioner Exhibit 27.a, which Petitioner did not offer

into evidence.

The court reporter filed the transcript on July 8, 2010.

The parties filed proposed recommended orders by July 23, 2010.

FINDINGS OF FACT

1. Petitioner hired Respondent as a substitute teacher in

August 2002 and as a regular teacher in December 2002. During

the 2002-03 school year, Respondent worked at Rawlings

Elementary School. The record contains little about

Respondent's teaching at Rawlings Elementary School except that,

on April 26, 2005, Petitioner assigned Respondent a professional

service contract.

2. Starting in the 2006-07 school year, Respondent was

assigned to teach at Pinellas Park Middle School. He taught

sixth grade science, math, and geography during his three years

at Pinellas Park.

3. While at Pinellas Park, Respondent decided that

administrators were underreporting student discipline problems

at the school. Respondent had met the then-superintendent while

shadowing him for a graduate class in education leadership that

Respondent had taken. Believing that he had a special

relationship with the superintendent, Respondent informed staff

at Pinellas Park that he intended to notify the superintendent

of unspecified "shady practices" at their school. The present

record does not support a finding of a special relationship

between Respondent and the then-superintendent or "shady

practices" at Pinellas Park.

4. On the other hand, the record supports a finding that

Respondent's performance at Pinellas Park was barely acceptable.

On a scale of 1-4, with 1 the lowest acceptable score,

Respondent earned a 1 his first year and a 2 his second year at

Pinellas Park. In his third year, he did not earn even a 1 and

received an unsatisfactory evaluation.

5. As Respondent notes in his Proposed Recommended Order,

these evaluations at Pinellas Park are flawed by a failure to

incorporate meaningful information about student performance.

Even so, Respondent's performance at Pinellas Park was marked by

ineffective classroom teaching, repeated failures to respond to

parents' communications, disorganization, and poor attendance at

meetings. The record portrays a disturbing lack of insight by

Respondent into his problems, although this is partially

attributable to the failure of the administrators at Pinellas

Park to deal competently with the task of teacher assessment.

In a particularly painful moment, the assistant principal at

Pinellas who assumed primary responsibility for evaluating

Respondent admitted that the second-year evaluation was more an

act of encouragement than honest evaluation.

6. Respondent lacked insight into his professional

shortcomings. For the 2007-08 and 2008-09 school years, for

instance, the Pinellas Park principal had to insist, over

Respondent's objections, that he refrain from taking on coaching

duties, so he could focus on his teaching duties. Respondent

also ignored a suggestion that he obtain assistance from the

district's professional development program.

7. The first day of the 2008-09 school year, Respondent

appeared mid-day, missing a number of important meetings, and

"explained" that he did not know when school started for

teachers. As the year progressed, Respondent was late to

school, missed class, failed to record grades correctly,

appeared at parent conferences late and unprepared, and failed

to respond timely to parents who tried to contact him. Although

the principal found Respondent's classrooms to be satisfactory

and that he had the "best intentions," she determined that

Respondent could not overcome his lack of organization to

perform the duties of teaching and failed to accept

responsibility for his shortcomings.

8. By the end of Respondent's third year at Pinellas Park,

due to Respondent's repeated disregard of his responsibilities

at parent-teacher conferences, the principal had instructed her

staff to document when Respondent missed a meeting, arrived

late, or was unprepared. Respondent chafed at this treatment,

which he wrongly believed was unfair.

9. At one parent-teacher conference, Respondent told a

guidance counselor that he knew what the principal and assistant

principal were up to, although it was unclear what he meant. At

another conference, two teachers arrived late--one with

permission due to a conflict--and Respondent demanded that the

guidance counselor include these teachers in her report to the

principal documenting Respondent's longstanding problems with

parent-teacher conferences.

10. The guidance counselor felt intimidated by

Respondent's impolitic behavior and broke down in tears while

telling the principal about Respondent's mistreatment of her.

Three teachers who had attended one of the conferences reported

the matter to Petitioner's Office of Professional Standards,

which properly concluded that Respondent had not harassed the

guidance counselor, but suggested that he "should" refrain from

further contact with the three teachers for what little remained

of the school year. Upon learning that he had been exonerated

of harassment, Respondent sent a message to all of the teachers

and staff, including those with whom he was directed to avoid

contact, that the allegations "were proven to be untrue." For

this, Respondent was reprimanded.

11. While the conclusory nature of the guidance

counselor's testimony precludes a finding of harassment and the

advisory language of the Office of Professional Standard's

recommendation precludes a finding of insubordination,

Respondent's announcement to the school teachers and staff

betrays poor judgment and a remarkable lack of insight.

12. Respondent was involuntarily transferred to Seminole

Middle School for the 2009-10 school year. Through counsel, as

Respondent did not testify, Respondent claims that the new

principal was biased against him, so as to deny him a fair

chance to succeed at his new school. The principal denies this

charge.

13. The Seminole principal assigned Respondent to honors

classes. This act may have reflected confidence in Respondent,

or it may have reflected the needs of the school for an honors

teacher. It is not inconceivable that the principal, who

presented himself as a capable, businesslike professional, may

have assigned Respondent to the visible position of an honors-

class teacher to raise the stakes and require Respondent either

to teach or be fired. This does not constitute bias: after six

and one-half years, Respondent should have been able to teach a

middle-school honors science class. In the end, though, the

charge of bias is irrelevant because, even if the Seminole

principal had been assigned the task of doing what the

administration at Pinellas Park had failed to do--fire an

incompetent teacher--Respondent provided the principal with

ample reason to do so, as detailed below.

14. Respondent started off on two wrong feet. First, he

missed the initial teachers' meeting and was late to a second,

which was immediately prior to an open house that marked the

start of the school year. At this meeting, the principal told

the teachers to be positive and upbeat with the parents at the

open house.

15. Respondent's second misstep was the open house itself.

Badly misreading his audience and ignoring the advice of the

principal, if Respondent were even aware of it, Respondent

reduced his vision of the upcoming school year to one of the

administration of firm, but fair, discipline. Despite the fact

that Respondent was teaching an honors class, in which

disciplinary issues were relatively few, and had little, if any,

familiarity with his students, he warned the honors parents that

they needed to discipline their children at home. When invited

by a parent to discuss the scope of the curriculum for the

eighth-grade science class, Respondent responded it would be

broader than what was required--and quickly returned to his

topic of choice, discipline. Lending his presentation what

would otherwise have been an appealing specificity, had he been

addressing academics, Respondent complained in particular about

students who loudly crumbled paper during class, denouncing this

behavior for a full five minutes of his presentation.

16. As significant were the omissions from Respondent's

open house presentation. Respondent never showed the parents a

syllabus, because he did not have one, nor did he discuss the

textbook, which he said he might not use. Haplessly, Respondent

forged in the memory of the parents the unfortunate evening with

two sound bites, as he assured them: "If you can teach in the

Park [i.e., Pinellas Park Middle School], you can teach

anywhere" and "If I can teach in the Park, I can put up with the

crap here."

17. The parents in attendance at the open house were not

assured. Some contacted the school to demand that the principal

transfer their children to another class. Others thought that

Respondent might have been nervous or had had a bad night. A

broadly shared concern was that Respondent's students might not

acquire the foundational information that they would need the

next year for high school science.

18. Respondent's performance in class quickly lent

credence to the more ominous of these concerns. He spent an

inordinate amount of time--ranging from five minutes to the

entire class period--discussing discipline and class rules. He

hanged posters dealing with discipline and classroom behavior.

Long after he had exhausted these topics, Respondent continued

to hector the students about behavior, down to how they were to

walk into the classroom. Nothing in the record suggests that

this emphasis on discipline was necessary or even reasonable.

Respondent's obsession with classroom behavior was to avoid

teaching.

19. Respondent engaged in other practices to avoid

teaching. Many classes at Seminole begin with "bellwork," which

is a brief assignment to be done at the start of class.

Teachers use bellwork for a quick refresher of material

previously covered. But Respondent used it for much longer

periods of time--sometimes, nearly the entire class period--

again, to avoid the necessity of teaching. For the same reason,

Respondent relied excessively on classroom videos. The better

of them focused on earth and space science, which, even though

off-topic, as Respondent taught physical science--were at least

informative. More frequently, Respondent played episodes of

"Mythbusters," which is a television show that features

scientific debunking of common beliefs. Perhaps appropriate as

a one-time motivational device, "Mythbusters" instead was a

time-waster for Respondent and his class.

20. Respondent assigned homework and tests, but his

assignments were confused and confusing. Students turned in

what they believed the assignments were, but Respondent

routinely lost the work or returned it without a grade. Tests

were misadministered. Many times, Respondent revised the

directions even after having given out the tests. Like the

homework, tests were sometimes ungraded, misgraded, or lost.

21. Petitioner maintains a website called "Parent

Connect." By this means, a parent tracks her child's academic

progress through the course of a term, as the teacher uploads

grades for each assignment and test. Many times, parents of

Respondent's students found erroneous information, including

ungraded assignments or tests that had been completed by the

student, excessively low grades, or sometimes excessively high

grades.

22. Many parents contacted the school with their concerns.

The administration routinely referred these parents to the

teacher, if they had not already spoken to the teacher, but it

quickly became apparent that Respondent was not responding to

parents' messages to contact them. The principal himself had to

speak to Respondent on several occasions to tell him to get back

with parents, but these directives had little effect.

23. In the critical area of parental communications,

Respondent's pattern at Seminole conformed to his pattern at

Pinellas Park. At both schools, Respondent routinely claimed

that he had not received the phone or email message to contact a

parent. When a parent succeeded in scheduling a conference,

Respondent often came late and almost invariably came

unprepared.

24. In late September, the Seminole principal conducted a

formal observation of Respondent--the first of three that he

conducted for all teachers whom he evaluated. The principal

found an unusually high number of areas that needed improvement.

The principal found time-wasters, such as taking attendance

without the use of a seating chart. The principal saw that

Respondent failed to inform the class of the objective of each

day's lesson. The principal watched Respondent conduct a lab

that involved an appropriate subject--how much weight a bridge

could hold--but was inappropriately simple because Respondent

had obtained it from the sixth-grade science teacher, who had

taught the same lab to the same students two years earlier.

25. Due to concerns raised by this observation, the

principal claims that he looked into Respondent's background and

learned that his concerns about Respondent were similar to

concerns that the Pinellas Park principal had had the previous

school year. The Seminole principal then placed Respondent on a

90-day probation period on September 28, 2009, with a "success

plan" designed to help Respondent eliminate his various

performance deficiencies.

26. From Respondent's perspective, his counsel argues, the

principal acted too quickly, after only 20 class days, and this

is further evidence of his bias against Respondent. Again, it

is unnecessary to determine such matters as whether the

principal learned of Respondent's background after the first

observation. Given Respondent's poor performance, the

principal's actions were not hasty. From the students'

perspective, 20 days is four weeks, or nearly ten percent, of

the school year--a substantial period of time. From the

principal's perspective, 20 class days is a long time to

maintain a teacher who is not teaching, especially given his

failings in responding to parental inquiries and complaints.

27. The day after Respondent was placed on probation, the

district supervisor for secondary science, who is an experienced

science teacher, observed Respondent. She found his class

disorganized. Respondent was unable to find a test that one

student had taken. He twice changed the directions, mid-stream,

for an assignment, leaving at least two students obviously

confused. The classroom walls were bereft of student work or

subject-related materials. After class, the supervisor asked

Respondent to show her his lesson plan, and he took her to the

computer and showed her some ancillary materials tied to the

textbook, not a lesson plan.

28. Later, the same supervisor informed all secondary

science teachers to forward to her certain standardized testing

information by December 15. She did not receive the information

from Respondent until January 6.

29. On October 2, the principal conducted a walkthrough,

which is shorter and less structured than an observation.

During this class, Respondent tried to hand out a test for the

class to take, but he could not pull it off. At first,

Respondent could not find the test. Then, one of the tests that

he handed out had blank pages. The students became frustrated.

Finally, Respondent said that he would not count the test, but

would give them a new one the following Monday. On the

appointed day, the principal walked through to see Respondent

give the test, but instead found him conducting a review class.

30. On October 22, the principal conducted another

walkthrough. He found Respondent preoccupied with a student who

was sitting on his foot, which was not, according to the

principal, a classroom-management issue with which Respondent

should have been engaged. Despite having been told by the

principal to do so, Respondent had not written on the board an

objective for the day's class. Telling the class that they

would be covering two key terms, Respondent wrote on the board

three key terms.

31. The principal conducted another observation on

October 28. He observed Respondent ask the students to take out

graph paper, but had obviously failed to inform them in advance

that they needed graph paper for this class because no one had

any. Respondent planned a good experiment showing a chocolate

bar transition from solid to liquid under heat, but, after

starting the experiment, failed to return to it by the end of

class, demonstrating an inability to manage time in class.

32. The principal conducted another walkthrough on

November 5 and found Respondent trying to hand out a test.

Again, he could not find the test at first. When he handed

tests out, students stated that they had not covered the

material on the test. One student held her hand in the air for

five minutes before Respondent recognized her and learned that

he had not given her a test. By the time that Respondent had

gotten tests to all of the students, there were only 15 minutes

left in the class. At this point, the principal left.

33. On November 17, the principal conducted another

walkthrough and found Respondent teaching a lesson without an

objective posted on the board. Posing a question about

distance, time, and speed, Respondent, unwittingly, posted the

wrong answer from a student. Posing a second question,

Respondent set up the formula incorrectly--a mistake pointed out

by a student. After class, the principal asked Respondent about

these mistakes, and Respondent said that he had been nervous

because the principal had been in the classroom.

34. On December 1, the principal conducted another

observation, which went better than the prior observations or

walkthroughs, although Respondent had set the bar fairly low on

these earlier occasions. One major problem, though, was that

Respondent again failed to manage classroom time. The class

featured student comments on the classroom material, but time

ran out before Respondent could correct any erroneous comments,

leaving the possibility that uncorrected comments might mislead

the students.

35. On December 7, the principal conducted a walkthrough

and found Respondent devoting 20 minutes to bellwork--an

excessive amount of time to this teaching device.

36. On January 13, the principal conducted the final

observation. On this date, Respondent returned a graded test to

the students, but failed to review the material with the

students or provide them with other feedback on the test.

37. All through the probationary period, the principal

continued to receive negative comments from parents and

students. Many of the complaints pertained to grades shown on

Parent Connect. After analyzing the information for one

student, the principal met with Respondent and found that he did

not fully understand his own grading. One grade was obviously

triple weighted, but, when asked why, Respondent acted as though

he had not realized that the grade was triple weighted. In

another case, Respondent had assigned a student an A for

homework based on her reputation, not the assignment, which

Respondent had apparently mislaid. Discrepancies existed

between Respondent's mid-term and final grades. The principal

correctly determined that Respondent's grades contained many

mistakes and were unreliable. Losing some of the homework and

tests and unable to grade competently that which remained,

Respondent resorted to assigning grades that were, at best,

approximations, and, at worst, random.

38. Other parental complaints pertained more generally to

the lack of instruction taking place in Respondent's classroom.

One particularly poignant complaint involved a child who had

secretly removed a workbook from the classroom, so she could

self-teach and prepare herself for high school science. Many

complaints were based on Respondent's failure to hand out

textbooks. The principal repeatedly told him to do so and

ensured that each student of a complaining parent in fact

received a textbook. At no time did Respondent ever tell the

principal that there were not enough textbooks, but, still

receiving such complaints through mid-January, the principal

finally commanded Respondent to follow through on this directive

and ensure that each student received a textbook.

39. On January 19, the principal conducted the final

evaluation of Respondent and found that he had not corrected the

performance deficiencies identified at the start of the

probation period and, for a second consecutive year, had earned

an unsatisfactory evaluation. By letter dated January 20, 2010,

to the superintendent, the principal identified Respondent's

deficiencies and recommended termination of his employment.

Petitioner then proceeded with dismissing Respondent for the

grounds stated above, including a failure to correct performance

deficiencies.

40. There is one important feature that the 2009-10

evaluations at Seminole share with the three evaluations done at

Pinellas Park--they are not based on measurements of student

achievement. The Seminole principal at least tried to insert an

element of student achievement by offering raw data of the

results of a standardized test administered early in the 2009-10

school year, but the only point of comparison seems to be

between the students in Respondent's class and the students in

another science teacher's class. Petitioner offered no

statistical interpretation of the raw data, so it is difficult

to determine if the data show that the other teacher's students

knew more than Respondent's students and, if so, why. Either

way, these data fail to show the performance, over time, of

Respondent's students, so as to provide an indication of

Respondent's performance as a classroom teacher. Betraying a

misunderstanding shared by the Pinellas Park assistant

principal, the Seminole principal felt that the ultimate burden

was on the teacher to produce evidence of student performance,

even though this burden in the ensuing dismissal proceeding

based on student-performance deficits would be on Petitioner.

41. Although the Seminole principal failed to provide the

capstone to Petitioner's case in the form of a lack of student

performance, he did in terms of Respondent's utter lack of

insight into his professional responsibilities and, more

specifically, the seriousness of his situation during the

probationary period. On January 22, the principal received an

email from Respondent stating that he and the students would not

be well served by a switch in teachers mid-year, agreeing to

work with more experienced teachers on lesson plans, time-

management skills and responding to parental concerns, and

offering to "turn this around starting now." The principal had

made these and other recommendations three months earlier, and

Respondent's final chance to implement them and turn things

around started then--not at the end of the probationary period.

42. This final lack of insight underscores the fact that,

for four years, Respondent had continually failed to understand

that he was underperforming as a teacher. When asked, the

Pinellas Park assistant principal could not tell if he had been

insubordinate or incompetent. The Seminole principal, who had

nothing else favorable to report about Respondent, conceded that

he did not "fight" the principal during their interactions and

was never insubordinate. After examining the record, it appears

likely that Respondent lacks the insight necessary to form the

defiance implicit in an act of insubordination. His failure to

recognize his many shortcomings as a teacher, especially when

coupled with his disorganization and apparent lack of effort or

dedication, preclude subordination and insubordination alike.

43. As noted above, Petitioner failed to prove harassment

or intimidation by Respondent at Pinellas Park. The only

evidence of harassment at Seminole involves students in

Respondent's class. The scant evidence on this point suggests

that Respondent engaged in unseemly back-and-forth exchanges

with some students, whom he could no longer control due to his

failures at classroom management and instruction. However,

these incidents were insubstantial and do not rise to the level

of harassment or intimidation.

44. As discussed in the Conclusions of Law, Petitioner

failed to prove a case of uncorrected performance deficiencies

under Section 1012.34, Florida Statutes.

45. Petitioner has proved that Respondent is incompetent.

It is impossible to devise a definition of incompetence that

would exclude Respondent's performance during the 2009-10 school

year, as well at least the preceding school year at Pinellas

Park.

46. Petitioner has also proved that Respondent failed to

perform the duties of his position. The professional duties of

a classroom teacher are almost completely described by the

following: preparing for class, teaching, managing the

classroom and the clock, giving out homework and tests, grading

students' work, maintaining and delivering the homework

assignments, tests and grades, communicating with parents, and

attending meetings with teachers and parents. During the 2009-

10 school year, as well as at least the preceding school year at

Pinellas Park, Respondent did not consistently perform any of

these duties--and, most, if not all, of them, he routinely

failed to perform.

47. Lastly, Petitioner has proved that it has just cause

to dismiss Respondent for ongoing performance deficiencies. As

recited in the preceding paragraph, for several years,

Respondent demonstrated ongoing performance deficiencies that--

even without the presence of corroborating evidence of student-

performance deficits--constituted just cause for his dismissal

due to the scope and depth of these deficiencies.

48. Through counsel, Respondent attempted to cast doubt

upon his portrayal by students, parents, and administrators

because of some sort of feedback loop in which each's

dissatisfaction with Respondent reinforced the dissatisfaction

of the others--implicitly without regard to the facts. This is

a case of an untalented teacher, who stumbled through his

previous three years at another school, running into a buzzsaw

of a no-nonsense principal, a core of involved parents, and a

wide array of motivated students, some of whom may have seized

on the relatively rare opportunity to flunk a teacher. (One

schoolhouse lawyer among them even kept a folder that he marked,

contemporaneous with the events described above, "evidence.")

The result was regrettable for all concerned, including

Respondent, who surely embarked on his teaching career in

Pinellas County with high hopes for more success than he has

experienced. Although mutual feedback may have resulted in some

amplification of Respondent's shortcomings, it did not create

them or substantially distort the ultimate findings--for which

no contrary evidence exists--that Respondent was incompetent and

failed to perform the duties of his position and that Petitioner

has just cause to dismiss him due to his ongoing performance

deficiencies.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1),

and 1012.34(3)(d)2.b.(II), Fla. Stat. (2009).

50. Section 1012.33(1)(a), Florida Statutes, provides that

Respondent's contract shall authorize dismissal during the term

of the contract for "just cause." Section 1012.33(1)(a) defines

"just cause" to include "incompetency," "gross insubordination,"

and "willful neglect of duty."

51. Florida Administrative Code Rule S6B-4.009 defines

"incompetency" and "gross insubordination," including "willful

neglect of duty," as follows:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. 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.

* * *

(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.

52. Section 1012.34(3), Florida Statutes, authorizes the

termination of contracts for the failure to correct performance

deficiencies. Section 1012.34(1) and (2) requires each school

district to develop assessment instruments for all teachers and

administrators and establish procedures for school districts to

follow in identifying a teacher's performance deficiencies and

giving the teacher a chance to correct them. Section 1012.34(3)

provides:

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 apprised of

progress achieved and must be provided

assistance and inservice 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.

* * *

53. Petitioner's Policy 3140(A) provides in relevant part:

The Superintendent retains the right and the

responsibility to manage the work force.

The School District generally follows a

system of progressive discipline in dealing

with deficiencies in employee work

performance or conduct. Progressive

discipline may include, but is not limited

to, written counseling/conference summary,

caution, reprimand, suspension without pay,

and dismissal defined as follows:

A. Written Counseling/Conference Summary--

This is a written memorandum or letter

memorializing an area of concern involving

the performance or conduct of the employee.

It is the first step in progressive

discipline and is intended to counsel and

advise the employee of best practices.

B. Letter of Caution--A letter of caution

is given to an employee who has demonstrated

problematic behavior or performance. It is

the second step in progressive discipline

and is intended to alert the employee that a

problem has been identified and needs to be

corrected.

C. Reprimand--A written reprimand is more

serious than a caution. It is a formal

censure or admonition given to an employee

who has engaged in unacceptable behavior or

demonstrated unacceptable performance.

D. Suspension Without Pay--A suspension

without pay is the temporary release from

duty of an employee for a stated number of

calendar days without pay and applies when a

violation or repetition of violations of

policies, contractual provisions, laws, or

District expectations are serious enough to

warrant suspension.

E. Dismissal--This is the final step in

progressive discipline and applies in cases

where the employee misconduct is severe or

in cases where the misconduct or

unacceptable behavior or performance is

repetitive and the progressive discipline

procedures have not corrected the problems.

The severity of the problem or employee

conduct will determine whether all steps

will be followed or a recommendation will be

made for suspension without pay or

dismissal. When there is a range of

penalties, aggravating or mitigating

circumstances will be considered. The

following offenses are subject to the

penalties described below:

A. Offense B. Penalty Range

* * *

9. Incompetence as Reprimand-

evidenced by inability Dismissal

or lack of fitness to

discharge the required

duty

9.a. Failure to perform Reprimand-

the duties of the position Dismissal

* * *

12. Harassment or Caution-

discrimination which Dismissal

interferes with an

individual's performance

of professional or work

responsibilities or with

the orderly processes of

education or which creates

a hostile, intimidating,

abusive, offensive, or

oppressive environment

* * *

19. Failure to correct Conference

performance deficiencies Summary-

Dismissal

20. Insubordination, Caution-

which is defined as a Dismissal

continuing or intentional

failure to obey a direct

order, reasonable in

nature, and given by and

with proper authority

* * *

54. Petitioner is required to prove the material

allegations by a preponderance of the evidence. Dileo v.

School Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

55. The Pre-Hearing Stipulation predicates Respondent's

dismissal on five issues: 1) a failure to correct a performance

deficiency, under Section 1012.34, Florida Statutes, and Policy

3140(A)(19); 2) incompetence, under Policy 3140(A)9; 3) a

failure to perform the duties of the position, under Policy

3140(A)9.a; 4) insubordination, under Policy 3140(A)20;

5) harassment of coworkers and students, under Policy 3140(A)12;

and 6) ongoing performance deficiencies, under Section 1012.33,

Florida Statutes, which authorizes dismissal for "just cause."

56. As noted above, Petitioner has failed to establish as

grounds for dismissal harassment, insubordination, or a failure

to correct a performance deficiency, as provided by Section

1012.34, Florida Statutes.

57. Much of the focus of the hearing was on whether

Petitioner proved an uncorrected performance deficiency, within

the meaning of Section 1012.34. This statute assigns a

prominent role, in establishing a performance deficiency, to

student achievement. The first sentence of Section 1012.34(3)

states that the assessment instrument must be based "primarily"

on student performance. The second sentence of this subsection

acknowledges that the assessment instrument is not required to

be limited to student performance, but may include other

criteria. Leaving no doubt, though, Section 1012.34(3)(a)

states that the assessment instrument "must primarily" use

student data. These provisions require no elaboration and are

entirely consistent with each other: for the purpose of

establishing an uncorrected performance deficiency as the basis

for terminating a teacher, a school district must assess the

teacher based primarily, but not exclusively, on student

performance, which is measured by state tests and, where not

available, local tests.

58. Petitioner's effort to terminate Respondent for the

failure to timely correct a performance deficiency, under

Section 1012.34, fails due to the absence of the necessary

student-performance data.

59. Respondent mistakenly contends that Section 1012.34 is

the sole means of dismissing a teacher for incompetence. This

argument suggests that the enactment of Section 1012.34

implicitly repealed vast, but undefined, swaths of state and

local law governing the dismissal of teachers and termination of

their contracts. However, the language of Section 1012.34 does

not support Respondent's broad reading of the scope of this

statute.

60. Section 1012.33(1)(a) authorizes dismissal for just

cause, which this statute defines illustratively, not

exhaustively. Subject to judicial review, school boards may

determine exactly what constitutes just cause for dismissal.

Mitchell v. School Board of Miami-Dade County , 972 So. 2d 900

(Fla. 3d DCA 2007) (per curiam); Dietz v. Lee County School

Board , 647 So. 2d 217 (Fla. 2d DCA 1994) (per curiam) (Blue, J.,

concurring). Cf. Packer v. Orange County School Board , 881 So.

2d 1204 (Fla. 5th DCA 2004). Nothing in Section 1012.34 changes

the law of just-cause dismissals.

61. Either Section 1012.34 provides another illustration

of just cause within Section 1012.33, or Section 1012.34

coexists in peaceful harmony with Section 1012.33. There is no

practical reason to treat the enactment of Section 1012.34 as

the repeal of unspecified portions of preexisting law, and there

are practical reasons not to do so. First, it would be

necessary, in the absence of legislative guidance, to determine

what should be repealed. If the rubber-to-the-road quality of

Section 1012.34 is so compelling, perhaps Respondent would

contend that it implicitly repeals, not merely the incompetency

criterion of Rule 6B-4.009, but also other dismissal criteria,

such as misconduct in office, gross insubordination, immorality,

and the commission of a crime of moral turpitude. Second, if

Respondent were not to argue for such a broad repeal, he would

be unable to find anything in Section 1012.34 that provides the

extent of the implicit repeal--again, because Section 1012.34

does not repeal anything implicitly.

62. Respondent's argument also means that the enactment of

Section 1012.34 has repealed local attempts to impose teacher-

performance standards, such as by means of collective bargaining

agreements that authorize dismissal for conduct unbecoming an

employee of the school district or, as here, by Petitioner's

adoption of a rule that authorizes dismissal for a failure to

perform the duties of the position. If something more is

required to show incompetence, as contrasted to a mere failure

to perform the duties of the position, then Respondent's

argument would add the difficult task of differentiating between

local provisions, in contracts or rules, that "impermissibly"

fall within the scope of competence and those that do not.

63. The proper role of Section 1012.34 is clear when

compared to the operation of the predecessor statutory framework

for not renewing the professional service contracts of teachers-

which framework continues to apply to such contracts in

existence on July 1, 1997. In 1997, the legislature amended

former Section 231.36, Florida Statutes (1996), which set forth

the grounds for the nonrenewal of professional service contracts

at the end of a school year. The new law introduced what is

essentially the termination framework contained in Section

1012.34 to professional service contracts issued after July 1,

1997. Laws of Florida, Chapter 97-310, §§ 1 and 2.

64. Teachers with professional service contracts issued on

or before July 1, 1997, continue to be governed by the old

framework, which is now set forth at Section 1012.33(3)(f),

Florida Statutes. Teachers with continuing contracts are

discussed below.

65. The old statutory framework established a more

involved statutory process for not renewing professional service

contracts at the end of a school year. Under this law, the

school had to give the teacher timely notice, prior to the end

of the school year, of "deficiencies" and an opportunity to

correct the deficiencies by the end of the following school

year. This statutory framework for nonrenewal due to

deficiencies existed beside all of the other provisions, such as

incompetency, that continue to exist today for the immediate

dismissal of a teacher with a professional service contract.

This coexistence between the more-involved provisions for

nonrenewal and the immediate provisions for dismissal are

explicit when applied to teachers holding continuing contracts.

§ 1012.33(4)(b) and (c), Fla. Stat.

66. When compared to its predecessor, the new statutory

framework, as now contained in Section 1012.34, reveals a

legislative intent to make it easier to remove ineffective

teachers with professional service contracts, as reflected by

the grandmothering in of teachers with continuing contracts or

professional service contracts prior to July 1, 1997. The new

statutory framework simplified the notice requirements, reduced

the probationary or corrective period from one school year to 90

days, and focused on the output of student performance, not the

input of the teacher's effort or conformance to recognized

professional standards.

67. Respondent's implicit-repeal argument is consistent

with one subtle change in the new statutory framework. Prior to

1997, termination for performance deficiencies was technically a

nonrenewal of the professional service contract at the end of a

school year, and mid-term dismissal was reserved for the more

dramatic events of incompetency, gross insubordination,

misconduct, immorality, and the like. When the legislature

shortened the probationary or corrective period from one school

year to 90 days, it also transformed the adverse employment

action from a nonrenewal at the end of a school year to a

termination mid-year (except in the rare case when the end of

the 90 days coincides with the end of the school year).

68. However, the current statutory framework for

termination for uncorrected performance deficiencies continues

to share with the predecessor statutory framework a focus on the

more subtle shortcomings--still termed "deficiencies"--rather

than the more dramatic failures inherent in gross

insubordination, misconduct, immorality, or even incompetency.

The former statutory framework established an orderly process

for the routine identification of relatively subtle performance

deficiencies that were amenable to correction and a measured

opportunity for the tenured teacher to correct them. The same

is true under the current statutory framework, although the

brief 90-day probationary period is not inconsequential in terms

of its effect of the process. Under both the old and current

statutory frameworks, though, if a teacher were guilty of more

dramatic failings that required or supported more urgent

interventions, a school district could dismiss the teacher

without delay. This is why Section 1012.34 does not implicitly

repeal any of these other provisions.

69. Petitioner has proved incompetence, a failure to

perform the duties of the position, and just cause in the form

of ongoing performance deficiencies. The last of these three

grounds obviously borrows from Section 1012.34, and Petitioner

has failed to justify termination under Section 1012.34 due to

the absence of student-performance data. However, Section

1012.34(3)(a)1.-7. enumerates important skills for a teacher to

possess, and Respondent proved, over time, to be deficient in

nearly all of these skills--which, given the material impact of

his deficiencies on instruction, constitutes just cause for

termination.

70. Nothing about Respondent's shortcomings as a teacher

was subtle. They permeated every aspect of the task of teaching

and did so on a remarkably consistent basis, as Respondent

lacked even intermittent insight into the extent and intensity

of his problems. Respondent's failings interfered dramatically

with student instruction and the administration's ability to

maintain credibility with, and the support of, the parent

community. In retrospect, Respondent's failures constituted a

cessation of instruction--best described as a failure to perform

the duties of his position--that justified immediate dismissal,

without notice, an opportunity to correct the failures and

assistance and without the recourse to progressive discipline,

given the enormity of Respondent's shortcomings.

71. A failure to identify daily instructional objectives,

an excessive reliance on classroom videos, a mishandling of

grades, a misadministration of homework assignments or tests, or

a failure to attend teacher meetings or respond to parental

communications: in isolation, these may be merely performance

deficiencies that, lacking sufficient materiality to justify

immediate dismissal, can result in termination only after

compliance with all of the requirements of Section 1012.34. But

all of these failures, and more, occurring as often as they did

constitute more than mere performance deficiencies and call for

urgent action, as much as does gross insubordination or

misconduct in office. A teacher who ceases to instruct is not

entitled to notice that he is not teaching, a 90-day opportunity

to resume instruction and assistance in resuming his academic

duties, nor is he entitled to return to the classroom because a

school district has neglected to prove, by state or local

testing, a deficit in student performance.

RECOMMENDATION

It is

RECOMMENDED that the Pinellas County School Board enter a

final order terminating Respondent's professional service

contract and dismissing Respondent on the grounds of the failure

to perform the duties of his position, incompetence, and just

cause in the form of ongoing performance deficiencies.

DONE AND ENTERED this 29th day of July, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 2010.

COPIES FURNISHED:

Dr. Julie M. Janssen, Superintendent

Pinellas County School Board

301 4th Street, Southwest

Largo, Florida 33770-2942

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

Laurie A. Dart, Esquire

Pinellas County Schools

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

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.