11-004422PL Dr. Eric J. Smith, As Commissioner Of Education vs. Edna Bowman Status: Closed Recommended Order on Thursday, January 19, 2012.

Summary: Petitioner proved by clear and convincing evidence that Respondent is incompetent, in violation of section 1012.795(1)(c). Recommend revocation.

STATE OF FLORIDA

DI VISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 11 - 4422PL

)

EDNA BOWMAN, )

)

Respondent. )

___________________ ____________ )

RECOMMENDED ORDER

On October 31 and November 18, 2011 , a duly - noticed hea ring

was held by video teleconference in Jacksonville and Tallahassee ,

Florida , before Lisa Shearer Nelson , an Administrative Law Judge

assigned by the Division of Administrative Hearings .

APPEARANCES

For Petitioner: J. David Holder, Esquire

J. David Holder, P.A.

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

For Respondent: Edna Bowman, pro se

1043 Talbot Avenue

Jacksonville, Florida 32205

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent has

violated section 1012.795(1)(c) and (j), Florida Statutes (2007),

and Florida Administrative Code Rule 6B - 1.006(3)(a) and (5)(e),

as alleged in the Administrative Complaint, and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On April 19, 2011, Petitioner, Dr. Eric Smith as

Commissioner of Education (Petitioner), filed a four - count

Administrative Complaint against Respondent, Edna Bowman

(Respondent or Ms. Bowman), alleging that she violated section

1012.795(1)(c) and (j), and r ule 6B - 1.006(3)(a) and (5)(e). On

May 23, 2011, Respondent filed an Election of Rights form

disputing the allegations in the Administrative Complaint and

requesting a hearing pursuant to section 120.57(1), Florida

Statutes. On August 31, 2011, the matter was referred to the

Division of Administrative Hearings for assignment of an

Administrative Law Judge.

On September 13, 2011, a Notice of Hearing was issued

scheduling the case for hearing on October 31, 2011, by video

teleconference. The case proceeded as scheduled, but could not

b e completed in one day. The remainder of the case was scheduled

for and completed on November 18, 2011.

At hearing, Petitioner presented the testimony of Addison

Davis, John Williams, and Leslie Sarjea nt. Petitioner's Exhibits

1 - 10 and 12 - 72 were admitt ed into evidence. Respondent chose not

to testify, but Respondent's Exhibits 2 - 6, 8 - 13, 15, 24 - 27, 29 -

31, 35, and 43 were admitted into evidence. Ruling on the

admissibility of Respondent's Exhibit 1 ( e xcerpts from Duval

County School District 's C ollecti ve B argaining A greement) was

deferred for ten days after the final day of hearing in order to

enable Respondent to submit a complete exhibit. On November 23,

2011, Respondent filed a portion of the Collective Bargaining

Agreement, marked as P - 22, with a p artial list of Exhibits from

the Prehearing Statement in Duval County School Board v. Bowman ,

Case No. 09 - 3004 (Fla. DOAH Jan. 12, 2010; DCSB Mar. 15, 2010).

She explained in her filing that she was not able to obtain a

certified copy of the relevant Coll ective Bargaining Agreement,

but was submitting a copy of the School Board's exhibit from her

hearing related to her termination of employment from the Duval

County School District (DCSD) . Respondent's Exhibit 1 is

admitted.

On December 9, 2011, the two - volume transcript of the

proceedings was filed with the Division. Both parties timely

filed P roposed R ecommended O rders, which were carefully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a teacher licensed by the State of

Florida, and has been issued Florida Educator's Certificate

400054. Her certification covers the areas of history, physical

education, social science , and middle grades, and is valid

through June 30, 2014.

2. Respondent was employed by t he DCSD since 1981, and

taught at several different schools during her employment.

During the 2007 - 2008 school year, she was employed as a geography

teacher at Jefferson Davis Middle School (Jefferson Davis).

During the 2008 - 2009 school year, she taught geography at

Southside Middle School (Southside).

3. The allegations in this proceeding concern Respondent's

behavior during and professional evaluations with respect to the

2007 - 2008 and 2008 - 2009 school years.

4. During this period, the DCSD used t he Teacher Assessment

System (TAS) as the authorized method of evaluating teacher

performance. The TAS measures teaching performance based on nine

identified "competencies," which are as follows:

A. Promotes student growth and performance;

B. Evaluates instructional needs of

students;

C. Plans and delivers effective instruction;

D. Shows knowledge of subject matter;

E. Utilizes appropriate classroom management

techniques, including the ability to

maintain appropriate discipline;

F. S hows sensitivity to student needs by

maintaining a positive school

environment;

G. Communicates with parents;

H. Pursues professional growth; and

I. Demonstrates professional behaviors.

5. A teacher's evaluation wa s based upon two formal

classroom observations performed by a school administrator, which

wa s usually the principal or an assistant principal. The teacher

wa s afforded a pre - observation conference at which time the date

for the observation wa s selected and the lesson plan to be taught

during the observation was discussed. After the observation,

there was a post - observation conference where the administrator's

observations, which were recorded on a Teacher Assessment

Instrument (TAI) were discussed. In addition to the for mal

evaluations, administrators also could use informal, unannounced

observations of teachers in forming their opinions regarding

performance.

6. In the final evaluation conference with a teacher, a

form entitled Evaluation of Professional Growth of a Te acher was

used to document the instructor's final rating in each competency

area and to record the teacher's overall performance rating for

the school year.

7. If a teacher demonstrate d deficient performance in one

or more compete ncy areas, a "success pl an" wa s developed for the

teacher in an effort to assist the teacher in improving

performance. The elements of the success plan wer e developed by

a success team, typically composed of the teacher, school

administrators, teachers with expertise in the rele vant subject

matter area, and resource teachers or "coaches." These elements,

which we re developed with input by the teacher being assisted,

identifie d weaknesses by competency category, set out objectives

to address these weaknesses, and provide d timelin es to meet the

identified objectives.

8 . Addison Davis was the principal at Jefferson Davis from

December 2005 through August 2009. He was the principal

responsible for evaluating Respondent's performance during the

2007 - 2008 school year.

9. On Aug ust 28, 2007, Mr. Davis conducted an informal

"walk through" of Ms. Bowman's classroom. He observed that

although the students had been instructed to read, 16 out of 23

of them did not have a book and were doing nothing. Ms. Bowman

did nothing to provide these students with a book, and after 21,

31, and 37 minutes of class time respectively , Mr. Davis noted

that no instruction had yet taken place. During the "mini -

lesson," Ms. Bowman was asking questions and the students were

yelling out unison responses , a practice which is not considered

an effective teaching method. Mr. Davis's notes regarding the

walk - through observation included the following observations:

Instructor informed that "the quieter the

class, the more hall passes were given out."

I nst ructor asked questions and students were

talking about unrelated topics . . . No

evidence of learning taking place.

No daily objectives were extended.

Essential questions and vocabulary were not

extended.

Standards were not introduced.

I asked t he instructor for a lesson plan and

one was not provide. [sic] Instructor said,

"I don't have one."

Student called Mrs. Bowman Ms. Bowwow.

I had to address the class about gross

respect.

10. Mr. Davis observed no implementation of b est practices

and saw significant classroom management problems.

11. Mr. Davis conducted a formal observation of Ms. Bowman

on September 20, 2007, for which appropriate prior notice had

been provided. The TAI completed for this observation indicated

tha t all competencies were satisfactory with the exception of one

area: p lans and d elivers e ffective i nstruction.

12. Mr. Davis met with Ms. Bowman on September 26, 2007 , to

go over her TAI. He also spoke to her about calling him a

dictator in the teache r's lounge at some point before the

meeting. During this conversation, Mr. Davis spoke to Ms. Bowman

about developing a success plan for her. Although Ms. Bowman

signed her TAI, she informed Mr. Davis that she felt she was

being targeted.

13. A success plan meeting was scheduled for Wednesday,

October 24, 3007. On October 22, 2007, Mr. Davis went to the

cafeteria to remind Ms. Bowman , out of the hearing of students,

of the meeting scheduled for later that week . Ms. Bowman stated

that she did not have adequate time to arrange for a union

representative, and while the two left the cafeteria, continued

to express her feeling that she was being targeted. By the time

Ms. Bowman and Mr. Davis reached the front office, she was

yelling at Mr. Davis in the pre sence of students and staff, and

accusing him of harassing her. When Mr. Davis advised her that

she was acting unprofessionally, Ms. Bowman called him a liar.

14. Approximately 30 minutes later, Mr. Davis called

Ms. Bowman to his office to counsel her r egarding her

professional responsibilities. Ms. Bowman continued to claim she

was being harassed, and Mr. Davis told her they needed to move

forward. In response, Ms. Bowman told Mr. Davis she was not

going to "kiss his ass" and walked out, still yelling at him. As

a result of these incidents, Ms. Bowman received a written

reprimand on October 23, 20 07, considered step two discipline for

the DCSD . Step o ne d iscipline had been imposed for a prior

incident during the 2007 - 2008 school year.

15. Ms. Bowma n did not attend the success plan meeting

scheduled for October 24, 2007.

16. Despite her refusal to participate, Respondent was

placed on a success plan which was implemented on or about

November 3, 2007. Ms. Bowman made it clear that she would no t

participate in completing the success plan, despite repeated

encouragement to do so . She refused to attend meetings and

completed none of the identified objectives. A revised success

plan dated January 18, 2011, was prepared, which reflected that

none of the strategies were completed. Ms. Bowman refused to

sign the revised success plan and continued to claim that she was

being targeted.

17. On December 10, 2007, Mr. Davis conducted an

observation of Ms. Bowman, for which she had received notice

Novem ber 27, 2007. As a result of this observation, Mr. Davis

found that Ms. Bowman did not meet the competencies for p romotes

s tudent g rowth and p erformance ; p lans and d elivers e ffective

i nstruction ; and s hows k nowledge of s ubject m atter. Mr. Davis

was espec ially concerned that during his observation, two

students were sleeping, and a third was wearing a hood on her

head, which is prohibited. In addition, a significant portion of

class time was focused on Sojourner Truth and the role she played

in America's history. Teaching about Sojourner Truth, while

relevant to geography in terms of cultural change, did not align

with the pacing guide for teaching middle school geography at

th a t point in the semester .

18. On January 1 8, 2008, Ms. Bowman met with Mr. Da vis

regarding her December 10, 2007 , observation, which they had

discussed previously on January 2, 2008. A success team meeting

was scheduled to occur after Ms. Bowman's meeting with Mr. Davis.

During this initial meeting, Mr. Davis provided to Ms. Bowm an a

Notice of Potential Unsatisfactory Evaluation. Ms. Bowman became

very upset during the meeting with Mr. Davis. She started

yelling and could be heard by those staff members in the office

area, calling Mr. Davis a liar and insisting that he was

targe ting her.

19. Ms. Bowman refused to participate in the success plan

meeting, continuing to insist that she was being targeted and

harassed. Shortly after the meeting, Ms. Bowman returned to the

office to say that she was leaving because she did not fe el well.

She called Mr. Davis a "son of a bitch" and said that "If I go

down, then I am taking him with me."

20. As a result of her behavior on January 18, 2008, on

February 4, 2008, Ms. Bowman received another written reprimand

as step three of the pro gressive discipline plan employed by the

DCSD , and the Office of Professional Standards was notified.

Ms. Bowman refused to sign the letter of reprimand. 1/

21. An additional formal observation was conducted on

January 30, 2008, by Tiffany Torrence, an a ssistant principal at

Jefferson Davis. The TAI prepared for the observation indicated

that competencies were not demonstrated for the following areas:

p romotes s tudent g rowth and p erformance; e valuates i nstructional

n eeds of s tudents; p lans and d elivers e ffective i nstruction; and

d emonstrates p rofessional b ehaviors.

22. On March 3, 2008, Ms. Bowman received an unsatisfactory

evaluation for the 2007 - 2008 school year. The evaluation

reflected unsatisfactory ratings for the competencies of

p romot ing s tu dent g rowth and p erformance; planning and delivering

e ffective i nstruction; and demonstrating professional behaviors .

She received a "needs improvement" for the c ompetency of

e valuat ing i nstructional n eeds of s tudents.

23. On May 7, 2008, John Williams, Director of Professional

Standards for the DCSD , notified Ms. Bowman that, consistent with

DCSD p olicy, in light of her unsatisfactory evaluation she had

the right to elect to stay at Jefferson Davis or be reassigned to

another school for the following sc hool year. Failure to make an

election by May 16, 2008, on the form provided would result in

the automatic transfer to another school.

24. Ms. Bowman did not submit the form and was transferred,

consistent with DCSD policy, to Southside Middle School fo r the

2008 - 2009 school year.

25. The principal for Southside during the 2008 - 2009 school

year was LaTanya McNeal. In light of Ms. Bowman's unsatisfactory

evaluation the previous year, and her own preliminary

observations of Ms. Bowman, she initiated a p rofessional

d evelopment p lan for Ms. Bowman on August 28, 2008.

26. The plan identified four areas of focus: 1) to

effectively create and maintain a standards - based bulletin board;

2) to effectively create and maintain a standards - based classroom

enviro nment; 3) to consistently develop plans based on student

data; and 4) to effectively maintain student portfolios with work

that meets the outlined standards according to the department

checklist. The p lan also provided certain goals and timelines

for comp leting these goals, including the continued maintenance

of daily lesson plans that reflect the workshop model.

27. Ms. Bowman refused to sign the p rofessional d evelopment

p lan.

28. Ms. Bowman was informally observed on September 5,

2008, and September 24, 2008, with notice provided prior to t he

observations. Neither observation could be characterized as

successful. The Teacher Observation Follow - up Form completed on

September 25, 2008, included the following:

- Teacher must have daily lesson plans and

workshop model for social studies on her

board.

- Must have daily writing prompts

- P ortfolios (student) must be maintained

consistently .

- P er teacher has a problem with the support

(amount ) that is provided [Instructional

coach, Department chair, Professi onal

Development Facilitator and administrator].

29. On October 22, 2008, Ms. McNeal conducted a formal

observation of Ms. Bowman , for which notice was provided. The

TAI prepared as a result of the observation indicated in part

that there was no evid ence of student portfolios and that the

students ' folders were empty. There was no evidence of

differentiated instruction or use of data to guide instruction;

portfolios show ed no evidence of work artifacts. The form also

indicated that one student was s leeping, and Ms. Bowman yelled at

him to wake up once someone came to retrieve him from class. In

addition, the class was in disarray with Ms. Bowman engaging in

shouting matches with the students. It was noted that Ms. Bowman

had not initiated any paren t/teacher conferences for academic or

behavioral reasons.

30. The TAI indicated deficiencies in the following

competencies : p romotes s tudent g rowth and p erformance ; e valuates

i nstructional n eeds of s tudents; p lans and d elivers e ffective

i nstruction ; u ti lizes appropriate c lassroom m anagement

t echniques, i ncluding the a bility to m aintain a ppropriate

discipline ; shows sensitivity to s tudent n eeds by m aintaining

p ositive s chool e nvironment; c ommunicates with p arents; and

d emonstrates p rofessional b ehaviors. Ms. Bowman did not accept

the TAI, and wrote on it that "principal did not tell the truth

and was unfair and misleading."

31. On October 28, 2008, Ms. Bowman was provided a Notice

of Potential Unsatisfactory Evaluation, with competencies A, B,

C, E, F, G and I listed as needing improvement. The Notice

notified her that a success plan would be developed with her

input and collaboration, with a conference to be held on

November 3, 2008. Ms. Bowman refused to sign the Notice.

32. On November 3, 2008, th e success team met with

Ms. Bowman in attendance, and a success plan was developed. The

success plan included the concerns outlined in the p rofessional

d evelopment p lan and focused on data - driven instruction, use of

student portfolios, assessment of stude nt needs, measurement and

explanation of student progress, and use of the CHAMPS program,

which is a classroom management program used throughout DCSD .

3 3 . Consistent with DCSD policy, a success team was created

that included Principal McNeal, other admi nistrators, Ms. Bowman,

a reading coach, and an instructional coach.

34 . In contrast to the experience at Jefferson Davis,

Ms. Bowman at least attended the success plan meetings.

Consistent with the objectives outlined in the success plan,

Ms. Bowman wa s provided training and technical support for

Compass Odyssey and F C AT Explorer, which are computer programs

used to assess student needs and to track student progress.

However, Ms. Bowman did not u se the programs in her teaching and

rejected the concept of individualized instruction based on

student needs. She did not implement a portfolio system and

declined to observe another teacher conducting a parent - teacher

conference. As of January 30, 2009, Ms. Bowman had not submitted

a five - day lesson plan, wh ich is required of all teachers,

despite that fact that the school year was over half - way

completed. While Ms. Bowman claimed that she knew how to conduct

parent - teacher conferences, Ms. McNeal had received numerous

calls from parents upset about the grad es received in

Ms. Bowman's classes, and the lack of contact with Ms. Bowman.

3 5 . Ms. Bowman continued to complain that she was being

singled out and that the success plan was merely a pretext to

justify her termination. Although the success plan was de emed

"completed" on February 25, 2009, Ms. Bowman did not incorporate

the concepts identified in the success plan into her classroom

instruction. To the contrary, it appears that Ms. Bowman's

instructional methods did not change at all.

36 . Ms. McNeal c onducted another formal observation of

Ms. Bowman on March 11, 2009, in the afternoon. FCAT testing had

taken place earlier in the day and Ms. Bowman thought it unfair

to be observed on that day. However, she designated the date for

observation during he r pre - observation conference on March 6,

2011. The TAI indicates that competencies were not satisfactory

for the following competencies: p romotes s tudent g rowth and

p erformance; e valuates i nstructional n eeds of s tudents; u tilize s

a ppropriate c lassroom m a nagement t echniques; s hows s ensitivity to

s tudent n eeds by m aintaining p ositive s chool e nvironment ; and

c ommunicates with p arents.

37 . Ms. McNeal noted on the TAI that a recent grade

printout show ed high levels of D's and F's for Ms. Bowman's

students. For example, the printout dated March 5, 2009,

indicated that out of 16 students in her first period class, five

students had F's and two had D's. Of the 24 students in her

second period class, 13 were failing and two had D's.

38 . Ms. Bowman was off ered significant assistance to

improve her performance. Ms. Bowman attended training

opportunities on 14 school days where substitutes were arranged

to handle her teaching duties. She was also offered the

assistan ce of instructional and reading coaches, which she

consistently rejected.

39 . On March 13, 2009, Ms. McNeal issued an Evaluation of

Professional Growth of Teacher for Ms. Bowman. The overall

evaluation resulted in an unsatisfactory rating, with

unsatisfactory ratings in the following competenc ies: promotes

student growth and performance; evaluates instructional needs of

students; utilizes appropriate classroom management; shows

sensitivity to students by maintaining positive school

environment; and communicates with parents. Ms. Bowman was ra ted

as needing improvement in the areas of planning and delivering

effective instruction and demonstrating professional behaviors.

40 . Ms. Bowman signed the evaluation but indicated that she

did not accept it, noting that her observation was conducted on a

day of FCAT testing. Ms. Bowman attacked the credibility of the

principals at both Jefferson Davis and Southside , stating that

they were targeting her and retaliating against her. However, no

credible evidence was presented to show any basis for Mr. D avis

or Ms. McNeal to retaliate against her. Moreover, as noted in

the Recommended Order in Duval County School Board v. Bowman ,

Case No. 09 - 3004 (Fla. DOAH Jan. 1 2 , 2010; DCSD Mar. 15, 2010),

Respondent's work history indicates a pattern of blaming other s

for poor evaluations.

41 . On May 5, 2009, Respondent was notified by the

Superintendant of Schools for DCSD , that based upon her two

successive unsatisfactory evaluations, he was recommending that

her employment be terminated. Ms. Bowman requested a hearing

pursuant to chapter 120, and the case was referred to the

Division of Administrative Hearings for assignment of an

administrative law judge. After completion of a hearing, on

January 12, 2010, a Recommended Order was issued recommending

terminati on of Ms. Bowman's employment in Duval County School

Board v. Bowman , Case No. 09 - 3004. A Final Order adopting the

Recommended Order and terminating Ms. Bowman's employment was

entered by the Duval County School Board on March 12, 2010.

CONCLUSIONS OF LAW

42 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1) , Florida

Statutes (2011).

43 . This is a proceeding to discipline Respondent's

educa tor certificate. Because disciplinary proceedings are

considered penal in nature, Petitioner is required to prove the

allegations in the Administrative Complaint by clear and

convincing evidence. Dep't of Banking and Fin. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

44 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), (quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

45 . The Administrative Complaint alleges the following

facts as a basis for imposing di scipline:

3. During the 2007 - 2008 school year, the

Respondent engaged in inappropriate and

unprofessional behavior. Specifically:

(a) in October of 2007 the Respondent

yelled, used profanity and called the school

principal a liar in the presence of stu dents,

parents and school employees. The Respondent

received a letter of reprimand for her

conduct;

(b) on or about January 18, 2008, the

Respondent shouted at the principal, referred

to the principal as a "son of a bitch" and a

liar, and used profanity while at a staff

meeting. The Respondent received a letter of

reprimand for her conduct; and

(c) throughout the school year the

Respondent refused to participate in several

meetings and activities related to her

performance, including refusing to take part

in the Success Plan implemented in November

of 2007.

4. During the 2007 - 2008 school year,

Respondent's performance was evaluated and

found to be deficient in several areas.

Specifically:

(a) on a Teacher Assessment Instrument

issued September 20 , 2007, the Respondent was

rated "less than satisfactory" in the area of

"Plans and Delivers Effective Instruction;"

(b) on a Teacher Assessment Instrument

issued December 10, 2007, the Respondent was

rated less than satisfactory" in the areas

of:

(i) Promotes student growth and

performance;

(ii) Plans and delivers effective

instruction; and

(iii) Shows Knowledge of subject matter.

(c) on a Teacher Assessment Instrument

issued January 30, 2008, the Respondent was

rated "less than satisfactory" in the areas

of:

(i) Promotes student growth and

performance;

(ii) Evaluates instructional needs of

students;

(iii) Plans and delivers effective

instruction; and

(iv) Demonstrates professional

behaviors.

(d) for the Respondent's annual evaluation

for the 2007 - 2008 school year, the Respondent

failed to meet performance expectations and

was rated "less than satisfactory" in the

areas of:

(i) Promotes student growth and

performance;

(ii) Evaluates instructional needs of

students;

(iii) Plans an d delivers effective

instruction; and

(iv) Demonstrates professional

behaviors.

5. At the beginning of the 2008 - 2009 school

year, the Respondent was transferred to

Southside Middle School.

6. During the 2008 - 2009 school year, the

Respondent's perform ance was evaluated and

found to be deficient in several areas.

Specifically:

(a) On a teacher Assessment Instrument

issued October 22, 2008, the Respondent was

rated "less than satisfactory" in the areas

of:

(i) Promotes student growth and

performanc e;

(ii) Evaluates instructional needs of

students;

(iii) Plans and delivers effective

instruction; and

(iv) Demonstrates professional

behaviors.

b. On a Teacher Assessment Instrument issued

March 11, 2009, the Respondent was rated

"less than satisf actory" in the areas of:

(i) Promotes student growth and

performance;

(ii) Evaluates instructional needs of

students;

(iii) Utilizes appropriate classroom

management techniques, including the ability

to maintain appropriate discipline;

(iv) Shows sensitivity to student needs

by maintaining a positive school environment;

and

(v) Communicates with Parents.

(c) for the Respondent's annual evaluation

for the 2008 - 2009 school year, the Respondent

failed to meet performance expectations and

was rat e "less than satisfactory" in the

areas of:

(i) Promotes student growth and

performance;

(ii) Evaluates instructional needs of

students;

(iii) Plans and delivers effective

instruction;

(iv) Utilizes appropriate classroom

management techniques, in cluding the ability

to maintain appropriate discipline;

(v) Shows sensitivity to student needs

by maintaining a positive school environment;

(vi) Communicates with Parents; and

(vii) Demonstrates professional

behaviors.

7. On or about May 5, 2009, D uval County

Superintendent of Schools recommended that

the Respondent be terminated from her

employment. After a formal hearing, on or

about March 2, 2010, the Duval County School

Board issued a Final Order adopting the

recommendation that she be terminat ed from

her position.

8. The Respondent is in violation of Section

1012.53(1), Florida Statutes, in that the

Respondent has failed to work diligently and

faithfully to help students meet or exceed

annual learning goals.

9. The Respondent is in violati on of Section

1012.53(2), Florida Statutes, in that

Respondent failed to perform duties

prescribed by the rules of the district

school board.

46 . Petitioner has proven the factual allegations in

paragraphs three through eight by clear and convincing evi dence.

47 . Petitioner did not prove, however, the allegation in

paragraph nine. While substantial evidence was presented

regarding Respondent's behavior, no rule of the district school

board was submitted into evidence. Without evidence of a rule,

ther e can be no determination that Respondent violated one.

48 . Counts 1 and 2 of t he Administrative Complaint charge

Respondent with violating sub section s 1012.795(1)(c) and (j) ,

respectively, which provide:

Education Practices Commission; authority to

disc ipline. Ï

(1 ) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3) for

up to 5 years, thereby denying that person

the right to teach or otherwise be employed

by a district school board or public school

in any capacity requiring direct contact with

students for that period of time, after which

the holder may return to teaching as provided

in subsection (4); may revoke the educator

certificate of any person, thereby denying

that person the r ight to teach or otherwise

be employed by a district school board or

public school in any capacity requiring

direct contact with students for up to 10

years, with reinstatement subject to the

provisions of subsection (4); may revoke

permanently the educato r certificate of any

person thereby denying that person the right

to teach or otherwise be employed by a

district school board or public school in any

capacity requiring direct contact with

students; may suspend the educator

certificate, upon an order of t he court or

notice by the Department of Revenue relating

to the payment of child support; or may

impose any other penalty provided by law, if

the person:

* * *

(c) Has proved to be incompetent to teach or

to perform duties as an employee of the

public school system or to teach in or to

operate a private school.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

P rofession prescribed by State Board of

Education rules.

4 9 . Incompetency has been defined by ru le 6B - 4.009 as

follows:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of ineffici ency or

incapacity. . . . Such judgment shall be

based on . . . 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) repeate d

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

communica te 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.

50 . Petitioner has proven Count I by clear and convincing

evidence.

51 . Finding a violation of Count 2 is dependent on finding

a viola tion of Count 3 or 4. As discussed more fully below,

Petitioner has also proven a violation of Count 2 by clear and

convincing evidence.

5 2 . Count s 3 allege s that Respondent violated rule 6B -

1.006(3)(a) and Count 4 alleges a violation of rule 6B - 1.006

( 5)(e). Rule 6B - 1.006 provides in pertinent part :

6B - 1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual :

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental and/

or physical health and/or safety.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(e) Shall not make malicious or

intentionally false statements about a

colleague.

5 3 . Respondent not only rejected attempts to assist her

with improving her skills, but failed to communicate with parents

w hose children were failing her classes. The evidence shows that

Respondent's students were not engaged in the learning process,

were not receiving consistent instruction , and were not receiving

instruction aligned to clearly delineated standards. Petitio ner

has proven Count 3 by clear and convincing evidence.

5 4 . Finally, by calling Mr. Davis a liar and a " son of a

bitch, " and telling Mr. Davis she was not g oing to "kiss his

ass," in front of staff and students, Respondent has violated the

provisions of rule 6B - 1.006(5)(e), and thus Count 4 of the

Administrative Complaint.

5 5 . The range of penalties identified in rule 6B - 11.007 for

the violations found include suspension to revocation. The

undersigned has carefully considered whether the conduct alleg ed

and proven in this case warrants the ultimate penalty, as opposed

to a lesser penalty with a recommendation of rehabilitative

efforts. However, the evidence indicates that Respondent has

consistently rejected offers to assist her or to update her

skill s. Given her consistent rejection of att e mpts to assist her

and insistence on blaming others, it seems futile to continue

offering what Respondent adamantly refuses to accept. Under

these circumstances, Petitioner's request for revocation of

Respondent's teaching certificate seems appropriate. Whether

that revocation should be permanent should be left to the

discretion of the Commission.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Education Practices Commission enter a Final Order

finding that Respondent has violated the section 1012.795(1)(c)

and (j), Florida Statutes, and Florida Administrative Code Rule

6B - 1.006(3)(a) and (5)(e), and revoking her educator's

certificate.

DONE AND ENTERED this 19 th day of January, 20 12 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19 th day of January, 201 2 .

ENDNOTE

1/ Evidence was presented to show that th ere were possible

procedural deficiencies affecting Respondent's due process rights

with respect to a 3 - day suspension imposed by DCSD as part of

step three discipline under the DCSD Collective Bargaining

Agreement. While these procedural irregularities m ay been

relevant to proceedings taken by DCSD re lated to Respondent's

employment rights, this case is focused on whether Ms. Bowman's

conduct should result in discipline against her professional

teaching certificate. What notice and opportunity for hearin g

afforded to her with respect to the DCSD's step three discipline

is not relevant to whether her conduct should result in

discipline against her teaching certificate.

COPIES FURNISHED:

J. David Holder, Esquire

J. David Holder, P.A.

40 Grand Flora Way

S anta Rosa Beach, Florida 32459

Edna Jane Bowman

1043 Talbot Avenue

Jacksonville, Florida 32205

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallaha ssee, Florida 32399 - 0400

Charles M. Dean, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

within 15 days from the date of this recommen ded order. Any

exceptions to this recommended order should be filed with the

agency that will issue the final order in this case.