11-005052PL Dr. Eric J. Smith, As Commissioner Of Education vs. Lucille Stuart Foster Status: Closed Recommended Order on Friday, November 30, 2012.

Summary: Despite efforts of School District to assist her. Respondent failed to perform her work duties and denied deficiencies in her performance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5052PL

)

LUCILLE STUART FOSTER , )

)

Respondent . )

)

R ECOMMENDED ORDER

Pursuant to notice , an evidentiary hearing was conducted in

this case on May 16 through 17, 2012, in Naples, Florida, before

J. D. Parrish, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Pe titioner: Todd P. Resavage, Esquire

A. Dean Johnson, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee , Florida 32301

For Respondent: Peter James Caldwell, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent, Lucille Stuart Foster (Respondent) ,

violated provisions of Florida law governing teachers and , if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On May 11, 2011, an Administrative Complaint was issued

against Respondent that alleged violations o f

s ections 1012.53(1), 1012.53(2), 1012.795(1)(c) and/or

1012.795(1)(g), Florida Statutes (2010). More specifically,

Petitioner, Eric J. Smith, as Commissioner of Education

(Petitioner), alleged that Respondent was incompetent to teach

or to perform duti es as an employee of the public school system

and/or had been guilty of personal conduct that seriously

reduced her effectiveness as an employee of a district school

board. Petitioner maintained that Respondent had failed to work

diligently and faithfully to help students meet or exceed annual

learning goals , and had failed to perform duties prescribed by

the rules of the district school board. Respondent timely

challenged the allegations of the complaint and sought a formal

administrative hearing.

The ca se was forwarded to DOAH for formal proceedings on

September 29, 2011. Thereafter , the parties sought continuances

of the hearing on several occasions before the hearing was

finally conducted. At the hearing, the parties presented

testimony from witness es , and documentary evidence was received

as reflected in the T ranscript of the proceedings that was filed

with DOAH on June 28, 2012.

Thereafter the parties sought and were granted extensions

of time within which to file their p roposed r ecommended o rder s.

The parties timely filed such orders on October 3, 2012. The

proposed orders have been fully considered in the preparation of

this Recommended O rder.

FINDINGS OF FACT

1. Petitioner, as the Commissioner of Education, is

responsible to investigate and prosecute complaints against

persons who hold a Florida Educational Certificate , and are

alleged to have violated provisions of law related to the

education profession in the State of Florida. See §§ 1012.79

and 1012.795, Fla. Stat. (2010).

2. Responde nt holds a teaching certificate in Florida,

Certificate Number 383630, that covers the areas of reading,

mathematics, and music. Respondent's certificate is valid

through June 30, 2015.

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

Respondent was employed by the Collier County School District

(District) and worked as a music teacher at the elementary

school level.

4. Prior to the allegations encompassed within this case ,

Respondent had not been disciplined by the District. Respondent

was em ployed by the District from 1976 through the 2009 - 2010

school year. With the exception of one year, Respondent's

performance evaluations ha ve been acceptable until the

allegations of this matter arose.

5. Prior to the 2008 - 2009 school year, Respondent wa s

assigned to one school on a full - time basis. Beginning in 2008 ,

Respondent was assigned to be an "itinerant" teacher. As such ,

Respondent was directed to teach at three different elementary

schools and to move among the schools during the school week , as

her schedule dictated.

6. The three schools were Corkscrew Elementary, Golden

Terrace Elementary, and Big Cypress Elementary. An

administrator at each of the schools was assigned supervision

and evaluation duties for Respondent's job performance.

7. All of the administrators required that Respondent

prepare and submit lesson plans for review. All of the

administrators observed Respondent in the class setting. All of

the administrators found deficiencies in Respondent's job

performance.

8. At th e conclusion of the 2008 - 2009 school year , the

District returned Respondent from her continuing contract status

to an annual contract. More critical to this case, however, is

the fact that the District put Respondent on a prescriptive plan

for improvement so that she could address the deficiencies in

her work performance. The District offered support services to

encourage Respondent to make the improvements needed.

9. Respondent did not acknowledge , and does not

acknowledge, that her work performance dur ing the 2008 - 2009

school year was unacceptable. Respondent maintained that one of

the administrators harassed her and then wrongly sought to

discipline her.

10. When the 2009 - 2010 school year began , Respondent was

directed to complete remediation so that the problem areas of

her job performance could improve. Specifically, Respondent was

to prepare and timely submit appropriate lesson plans. She was

to follow the plans in the teaching of her students. She was to

maintain classroom decorum so that stude nts would remain on task

and not disrupt or interfere with the learning experience.

11. In recognition of the difficulty of teaching at three

different schools, Respondent was allowed to prepare one lesson

plan that could be implemented at all three loc ations. It was

expected that music students would prepare for and publicly

perform at designated school functions. In the past , Respondent

successfully led her students in many performances that

demonstrated an appreciation for music and musical achievem ent.

12. During the 2009 - 2010 school year, however,

Respondent's ability to focus on the improvements sought by her

administrators diminished. As her frustration level grew , her

civility toward one of the administrators waned. Respondent was

convinced that efforts to assist her were not genuine.

13. Principal Lettiere, Respondent's supervisor at Big

Cypress Elementary School, identified the following deficiencies

in Respondent's job performance:

A. Failure to have lesson plans;

B. Failure to timel y submit adequate lesson

plans;

C. Insufficient delivery of lesson plans to

the class;

D. Failure to tie the lesson plan to the

lesson taught;

E. Failure to timely report for work; and

F. Failure to provide an accommodation for

a student with disab ilities during the music

lesson.

14. Principal Lonneman, Respondent's supervisor at

Corkscrew Elementary School, identified the following

deficiencies in Respondent's job performance:

A. Failure to keep students engaged during

class time;

B. Failure t o include musical instruments

into the music curriculum;

C. Failure to timely prepare lesson plans;

and

D. Failure to incorporate the music

curriculum within lesson plans.

15. Principal Glennon, Respondent's supervisor at Golden

Terrace Elementary Sc hool, observed Respondent multiple times

during the 2008 - 2009 school year. Principal Glennon documented

the following deficiencies in Respondent's job performance:

A. Failure to keep students on task;

B. Lack of classroom management skills;

C. Failur e to have a structured lesson; and

D. Failure to follow adequate lessons.

16. Principal Glennon tried to meet with Respondent to go

over the deficiencies , but Respondent did not timely comply with

his requests for a conference. Instead, Respondent ha s

steadfastly and resolutely claimed her teaching skills to be

adequate , if not superior.

17. In February 2009, Principal Glennon cited Respondent

for failure to report to work ; failure to provide a classroom

management plan , as he had requested ; and fail ure to redirect

students who engaged in off - task behaviors.

18. In March 2009, Respondent was advised that she would

be returned to annual contract status at the end of the school

year. Respondent received a contract for the 2009 - 2010 school

year , but began the year with a plan for her improvement in the

classroom. Respondent was afforded 90 days within which to

improve her performance. Mr. Glennon hoped that by outlining

the areas that needed to be improved, Respondent would soldier

on and make the n ecessary corrections.

19. When Respondent failed to address the concerns

outlined by her improvement plan, her school administrators,

with the consent and authorization of the District

superintendent, removed her from the schools. Respondent was

placed i n the status of "pool" teacher and completed the 2009 -

2010 school year in that assignment with benefits and salary.

At the end of the year, Respondent's contract was not renewed.

20. Respondent is a talented musician who played with a

local symphony fo r many years. Early in her career , Respondent

was effective as a music teacher. Respondent was praised by

former administrators who worked with her during those times.

None of the former administrators observed Respondent during the

periods of time crit ical to this case.

21. It is unknown whether during those earlier years the

requirements regarding lesson plans, classroom management, and

curriculum were the same or similar to the requirements of the

2008 - 2009 and 2009 - 2010 school years.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the parties to and the

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

1012.795, Fla. Stat. (2010).

23. Section 1012.795(1), Florida Statutes (2010), provides

in pertinent part:

(1) The Education Pr actices 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

right to teach or otherwise be e mployed 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

educator certificate of any person the reby

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 the court or notice by the

Depar tment 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 tea ch in or to

operate a private school.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that personÓs effectiveness as an

employee of the district school board.

24. Section 1012.53, Florida Statutes (2010) , provides:

(1) The primary duty of instructional

personnel is to work diligently and

faithfully to help students meet or exceed

annual learning goals, to meet state and

local achievement requirements, and to

master the skills required to graduate f rom

high school prepared for postsecondary

education and work. This duty applies to

instructional personnel whether they teach

or function in a support role.

(2) Members of the instructional staff of

the public schools shall perform duties

prescribed by rules of the district school

board. The rules shall include, but are not

limited to, rules relating to a teacherÓs

duty to help students master challenging

standards and meet all state and local

requirements for achievement; teaching

efficiently and fait hfully, using prescribed

materials and methods, including technology -

based instruction; recordkeeping; and

fulfilling the terms of any contract, unless

released from the contract by the district

school board.

25. Petitioner bears the burden of proof in t his cause.

Petitioner must establish by clear and convincing evidence that

Respondent committed the violations alleged in the

Administrative Complaint. See Dep't of Banking & Fin., Div. of

Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

19 96); and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

26. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 75 3 (Fla. 1997). Evidence that is credible, denoted

by precise facts and information that a witness distinctly

remembers, is sufficient to support the burden of clear and

convincing evidence. See In re Davey , 645 So. 2d 398 (Fla.

1994), and Slomowitz v. Wa lker , 429 So. 2d 797 (Fla. 4th DCA

1983).

27. Count I of the Administrative Complaint alleged that

Respondent 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. With the exception of

Respondent's self - serving account of the incidents of the school

years in dispute, Respondent offered no credible explanation for

the deficiencies related by her former administrators. In

contrast, three credible school administrato rs detailed the

Respondent's inadequate performance : l ack of appropriate and

timely submitted lesson plans ; l ack of classroom management ; and

l ack of improvement after notice of the deficiencies. All of

these identified concerns contributed to disciplina ry action

against Respondent by the District. Simply stated , Respondent

failed to perform her duties as an employee of the District.

That failure led, ultimately, to the non - renewal of her contract

to teach.

28. Count II of the Administrative Complaint alleged that

Respondent had been found guilty of personal conduct that

seriously reduces that personÓs effectiveness as an employee of

the district school board. In this case, Respondent's personal

conduct was her failure to address job deficiencies. As

previously stated, Respondent's conduct resulted in the

District's non - renewal of her contract. Had Respondent's

performance been effective during the 2008 - 2009 school year, she

would have remained on continuing contract. Because her

performance proved i neffective , Respondent was returned to

annual contract status. Had Respondent's performance been

corrected during the 2009 - 2010 school year, she could have

remained on annual contract. Instead, Respondent lost her

employment with the District. There is no evidence that

Respondent has been employed by any school district since the

2009 - 2010 school year.

29. Respondent's long teaching career was highlighted by

many successes. Respondent had the respect and appreciation of

former administrators , whose opi nion of her work during the

times they supervised her was encouraging. Nevertheless , as it

relates to the allegations of this case, Respondent's work must

be reviewed not by the standard of former successes but by the

reality of current performance. Peti tioner has established by

clear and convincing evidence that Respondent's work performance

during the 2008 - 2009 and 2009 - 2010 school years proved

ineffective , and that Respondent failed or otherwise refused to

make the corrections needed to improve her per formance.

30. Should Respondent seek to teach in the public schools

of Florida, the current standards for lesson plans, classroom

management, and implementation of plans must be observed.

Teachers in Florida bear the responsibility of keeping current

w ith the educational standards related to their fields of

instruction. No teacher can rest on past success. The students

of 2012 are not the students of 1976. Just as technologies have

evolved, teachers must stay current with the requirements of

their pr ofession. Regrettably, Respondent failed to do so.

More regrettable was Respondent's failure to recognize the need

to make the corrections recommended by her District.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is r ecommended that Respondent's teaching certificate be

suspended for a period up to one year during which time

Respondent be required to successfully complete continuing

education courses to address Respondent's deficiencies in

classroom management, lesson p lans, and professionalism.

DONE AND ENT ERED this 30th day of November , 2012 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 30th day of November , 2012 .

COPIES FURNISHED :

Peter James Caldwell, Esquire

Florida Education A ssociation

213 South Adams Street

Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew K . Foster, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Flori da 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 hav e 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.