11-006064PL Dr. Eric J. Smith, As Commissioner Of Education vs. Diane Cecelia Hothan Status: Closed Recommended Order on Tuesday, August 7, 2012.

Summary: Permanent revocation for teacher who was on four Professional Development Plans in two successive years and failed to correct numerous incompetencies in lesson plans, student performance evaluation and classroom management.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, as )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 6064PL

)

DIANE CECELIA HOTHAN , )

)

Respondent . )

)

RECOMM ENDED ORDER

On April 10 - 12, 2012, Robert E. Meale, Administrative Law

Judge, conducted the final hearing by videoconference in

Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T . Whitelock, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Jeff rey Sirmons, Esquire

Johnson & Sirmons, LLP

Suite 309

510 Vonderbur g Drive

Brand on, Florida 33511

STATEMENT OF THE ISSUE S

The issues are whether Respondent is guilty of incompetenc e

in teaching, in violation of s ection 1012.795(1)(c), Florida

Statutes, or personal conduct that seriously reduces her

effe ctiveness as an employee of the School Board, in violation

of section 1012.795(1)(g), and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 11, 2011, Petitioner

alleged that Respondent, while teaching secon d grade at Norcrest

Elementary School (Norcrest) during the 2007 - 08 school year,

received an uns atisfactory overall evaluation with

" unsatisfactories " in lesson preparation, student performance

evaluation, and classroom management.

During the fall of 200 8, while teaching sixth grade at

Lyons Creek Middle School (Lyons Creek) , Respondent allegedly

failed to attend several meetings for the purpose of preparing a

Professional Development Plan (PDP) , but was nonetheless placed

on a PDP for deficiencies in les son preparation, student

performance evaluation, and classroom management. During the

2008 - 09 school year, Respondent received a reprimand during a

school year in which she allegedly used inappropriate language

and disciplinary measures, about which sever al parents

complained, and Respondent received a reprimand in January 2009.

While on a PDP , in spring 2009, Respondent allegedly failed

to take student attendance properly, issued 37 student

disciplinary referrals, failed to record and report student

grade s properly, incorrectly told one student that he was

failing, and gave only three assignments during a nine - week

period. In May 2009, Respondent allegedly received an

unsatisfactory overall evaluation with " unsatisfactories " in

lesson preparation, student performance evaluation, and

classroom management.

On March 20, 2010, the Broward County School District

(District) allegedly informed Respondent that it intended to

terminate her employment. On October 5, 2010, Respondent

allegedly resigned.

The Admi nistrative Complaint alleges that Respondent has

failed to work diligently and faithfully to help students meet

or exceed annual l earning goals, in violation of s ection

1012.53(1), Florida Statutes; failed to perform duties

prescribed b y the school board, in violation of s ection

1012.53(2); proven herself incompetent to teach, to perform the

duties of an employee of the school district, or to teach in or

operate a p rivate school, in violation of s ection

1012.795(1)(c); and been guilty of personal conduct th at

seriously reduces her effectiveness as an employee of the school

board, in violation of s ection 1012.795(1)(g). The organization

of the Administrative Complaint suggests that Petitioner

intended to predicate liability on the alleged violation of

sectio n 1012.795(1)(c) or (g) only. This interpretation is

confirmed by the Joint Prehearing Stipulation and Petitioner ' s

proposed recommended order.

The Administrative Complaint seeks a wide range of

remedies , ranging from reprimand to permanent revocation.

Respondent timely requested a formal hearing.

At the start of the hearing, Respondent requested a

continuance so she could replace her current attorney with

another attorney, Edward Jennings, who is her brother.

Mr. Jennings explained that he needed time to retain one or more

expert witnesses. The Administrative Law Judge denied the

request, but allowed Mr. Jennings to remain to assist

Respondent ' s counsel. Shortly after this ruling, Mr. Jennings

left the hearing room.

At the hearing, Petitioner called e ight witne sses and

offered into evidence 35 exhibits : Petitioner Exhibits 9 - 24,

26 - 36, 38 - 39, and 52 - 57 . Respondent called one witne ss and

offered into evidence 40 exhibits : Respondent Exhibits 1 - 14,

16 - 19, 24 - 26, 28, 45, 48 - 52, 55, 57, 60 - 62, 67 - 68, 70 - 71, and

73 - 75 .

By agreement of the parties and with leave of the

Administrative Law Judge, Petitioner took the post - hearing

deposition of Heather Parente and filed the deposition

transcript on June 25, 2012 , as a late - filed, unnumbered

exhibit . By agre ement of the parties and Administrative Law

Judge, Respondent timely filed Respondent Exhibit 75 following

the hearing.

By agreement of the parties and with leave of the

Administrative Law Judge, Petitioner had ten days following the

filing of the Parente deposition transcript to file Petitioner

Exhibits 52 - 57. (Tr., pp. 534 and 886 - 87.) Petitioner never

filed these exhibits, so they are deemed withdrawn.

Subject to the deemed withd rawal of Petitioner Exhibits

52 - 57, a ll remaining exhibits were admitted into evidence,

except for Respondent Exhibits 11 - 12, 19 (which was admitted,

but not for the truth of its contents), and 73. Respondent

proffered all exhibits excluded in whole or in part.

The court reporter filed the transcript on June 25, 2012.

Each party filed a p roposed recommended o rder on August 3, 2012 ,

and Respondent filed an amended proposed recommended order on

August 6, 2012 .

FINDING S OF FACT

1. Respondent holds Florida educator ' s certificate number

545766, which is valid through June 30, 2015 . She is certified

in elementary education and English speakers of other languages

(ESOL).

2. After graduating from college, Respondent was hired as

a permanent teacher in 1984 by the District. Respondent taught

middle school until 2003. From Oc tober 2003 through June 2006 ,

Respondent transferred to Si lver Shores Elementary School

(Silver Shores) , where she taught third grade and later reading.

3 . For each of the school years from 1997 - 98 through

2006 - 07, Respondent earned " satisfactory " annual evaluations,

which is the highest available rating. But her performance was

not entirely satisfactory during the lat t er part of this period.

4 . By memorandum dated October 3, 2003, the Silver Shores

principal documented that Respondent had not taught w riting

daily as required, had not appeared punctually at all school

functions and events, and had no t conformed to other school or

D istrict policies regarding teaching.

5 . By memorandum dated March 7, 2006, the Silver Shores

principal warned Respondent about her routine tardiness.

Although she was required to work from 7:30 a.m. to 3:00 p.m.,

Respondent had reported to work from five - to - 20 minutes late on

22 days from January 19 through March 7, 2006. Several times,

after 7:30 a.m., the principal saw R espondent talking on the

cellphone in the parking lot, rather than in her classroom or

office . During one discussion about tardiness, Respondent

replied to the principal that she was lucky that Respondent was

at school at all.

6 . Late in the 2005 - 06 sc hool year, the Silver Shores

principal told Respondent that, due to a loss of the reading

program, Respondent would be required to teach second grade the

following school year. At about the same time, the District

informed Respondent ' s principal that her school was under -

enrolled and would have to release a number of teachers in a

process known as " surplusing. " In this process, if a school

finds itself with too many teachers, the principal asks for

volunteers to transfer to other schools, and, if an exces s

remains after these transfers , " surpluses " the excess number of

teachers, releasing first the least - senior teachers. When the

principal asked if any teachers would accept a transfer,

Respondent volunteered. By this means, Respondent found herself

teach ing at Norcrest at the start of the 2006 - 07 school year.

7 . Respondent ' s first year at Norcrest was unremarkable.

To help Respondent adjust to her new assignment, the Norcrest

principal , who evidently was aware of Respondent ' s problems at

Silver Shores, created a class that was unusual in that it did

not contain any students with severe behavioral problems,

significant reading difficulties, or exceptionally high academic

achievement. The principal also assigned to Respondent a

reading coach, who helped R espondent set up her classroom ,

organize her reading groups, and learn how Norcrest teachers

were expected to teach reading . The principal assigned another

teacher to show Respondent how Norcrest teachers were expected

to teach math.

8 . Respondent taught at a satisfactory level during the

2006 - 07 school year. She had some problems with classroom

clutter and following the prescribed curriculum, but, at the end

of the year, Respondent received a " satisfactory " on her annual

evaluation.

9 . The period cov ered by the Administrative Complaint

starts with the 2007 - 08 school year, during which Respondent ' s

performance deteriorated. For this year, the Norcrest principal

assigned Respondent the same mix of students that the other

second grade teachers received.

10. In late September 2007, the principal complained to

Respondent that she was not reading her email twice daily as

required, failed to inform the office promptly when two

nonrostered students appeared in her classroom on the first day

of school, and did not maintain order among her students as they

proceeded to their dismissal locations. Respondent countered

these relatively minor concerns by asking whether the principal

had issued similar directives to other teachers.

1 1 . More serious problems bega n to emerge the next month.

After a walk - through and formal observation on separate days in

October, the principal met with Respondent on November 1 and 2,

2007, to discuss numerous issues. As witnessed by the

principal, R espondent used a calendar math k it that was

incomplete, District narrowcasts of materials that were

irrelevant to the curriculum, stale writing center materials,

vague speech when talking to the class, procedures that were

ineffective at maintain ing on - task behavior by the students

durin g instructional time, ineffective techniques to review

homework assignment s with the class, and obsolete reading data

to form tiered reading groups. The principal saw that

Respondent had not posted a class schedule, had allowed

classroom clutter to impede learning and student access to

supportive materials, and was teaching outdated materials

instead of District - approved math and reading materials. At

this time, the principal learned that Respondent had failed to

administer each quarter the required Devel opment Reading

Assessment (DRA) , failed to maintain effective communications

with parents, and reported reading levels with a specificity not

supported by available data.

12 . Respondent denied many of the principal ' s findings,

but Respondent ' s denials wer e implausible. For instance, on

October 30, the writing center still featured Christopher

Columbus, whose holiday is in early October -- even though updated

curriculum materials were readily available to Respond ent

through the lesson plans contained in the Broward Educational

Enterprise Portal (BEEP) . Claiming that her procedure s for

reviewing homework were effective, Respondent failed to

understand that her general statements -- such as " everybody gets

that, right? " -- may have discouraged students who did not

understand the lesson from identifying themselves in front of

the entire class. Denying that her class was out of control,

Respondent evidently failed to understand that such practices as

encouraging unison responses prevented her from identifying

which students were not grasping the material and posed risks of

off - task behavior.

13 . Respondent also complained of inadequate materials or

equipment -- particularly, that Respondent ' s computer did not work

and her calendar math kit was incomplete. Ungrounde d, these

complaints also revealed a lack of effort by Respondent. The

principal directed the tech specialist to check Respondent ' s

computer, and she found that its en ergy - saving switch was on,

so, when unused for a set period of time, the computer was

mer ely entere d a sleep state and required little to restart it.

The principal directed another teacher to chec k Respondent ' s

calendar math kit , and the teacher found that the only component

missing was an expendable counting tape that was routinely

replaced each year.

14 . Even worse, Respondent admitted that she had not

administered the DRA in the first quarter of the 2007 - 08 school

year, as required, but instead had reported the DRA scores from

the final quarter of the previous year. The current DRA resul ts

were required for the organization of reading groups by

achievement level. Lacking this data, Respondent admitted that

she had organized her reading groups based on the Stanford

Achievement Test results from the preceding school year.

Persuading no on e except perhaps herself, Respondent claimed

that obsolete test data supported her current reading groupings,

ignoring the fact that very young children often undergo vast

changes in reading skills over the summer.

15 . Suggestive of another problem with the clutter that

Respondent had packed into her classroom, Respondent admitted

that, a t Halloween, she used seasonal ly appropriate math

materials demonstrating three - digit multiplication problems.

The problem was that three - digit multiplication is beyond the

grade level that Respondent was teaching, so the students gained

no educational value from the materials and were possibly

confused by them. Rather than tacitly admit her indolence, when

confronted about this incident , Respondent unwisely chose to

de fend this practice, seemingly unaware of her failure to

reinforce the current curriculum by using grade - appropriate

materials .

16 . By memorandum dated November 5, which documented the

discussions between the principal and Respondent arising out of

the w alk - through and observation, the principal mentioned the

assistance that Respondent had received the preceding school

year in the form of a reading coach and the help that she had

received already in the current school year in the form of a

" few weeks " of assistance in " instructional organization,

student performance, presentation of subject matter, behavior

management, components of the reading block, and physical

organization . . . of the learning environment. " The November 5

memorandum warns that, if Re spondent fails to eliminate these

deficiencies, the principal will place her o n a PDP .

17 . Illustrative of Respondent ' s lack of response to the

November 5 warning is her failure to deal with her cluttered

classroom. P hotographs of Respondent ' s classroom on or about

November 5 reveal layers of materials, some boxed and some

loose, resting upon e very horizontal surfac e formed by carts,

bookshelve s, filing cabinets and tables . Exacerbating the

situation, most of the materials, l ike the Halloween materials

d escribed above, were utterly useless. These materials

consisted of folders containing student work back to 1993, books

and materials from other schools, middle - school ESOL materials,

Spanish materials, materials for kindergarten, newspapers dating

back to 1986, a nd a 1964 book on the use of bulletin boards.

18. The principal ordered Respondent ' s team leader to help

Respondent reorganize her classroom, but Respondent rejected her

offers of assistance. After a couple of deadlines for the

removal of the c lutter had passed, the principal set a final

deadline of November 21, after which custodial staff would

transfer the materials to Respondent ' s vehicle for her. On the

day that the custodians were to move the materials, Respondent

called in sick, so the pr incipal had them move the materials to

a storage room.

19. Respondent ' s team leader witnessed other problems

besides a cluttered classroom. Respondent continuously needed

help accessing her computer and o ther everyday teaching aids and

did not even kee p the classroom calendar on the current month.

20 . After observations on November 16 and 20, the

principal met with Respondent on November 27 and 29 to discuss a

half dozen issues. First and foremost , the principal noted that

Respondent had failed to c omplete a Child Study Team p acket ,

despite several requests to do so by the principal and the

guidance counselor. This is a critical requirement that must be

completed by the classroom teacher to permit the evaluation of

student for exceptional student ed ucation (ESE) services to

proceed. Displaying t he same lack of candor that she had

displayed when she reported the previous year ' s DRA scores in

place of the current DRA scores , as discussed above, R espondent

claimed that the guidance counselor had never requested the

packet. When shown a copy of the request, Respondent quickly

changed tactics to say that she had turned it in on time , which

is clearly untrue .

21 . Notwithstanding the previous directive to use the

calendar math kit, Respondent was still failing to use this

valuable teaching resource. When confronted with this fact,

Respondent again stated that she did not have a complete kit and

added that she had seen another teacher ' s kit, which was neatly

organized. The principal went to Respondent ' s room and examined

the kit, parts of which were still wrapped in plastic , meaning

that Respondent had not even bothered to open them . The

principal explained that the other kit was organized because the

teacher had organized it.

22 . Displaying a profou nd lack of teaching competence ,

Respondent demonstrated confusion between the lesson plans

contained in the BEEP and the actual reading curriculum

materials, which was the Harcourt Trophies reading series. The

principal had to tell Respondent that the Tro phies series is the

text , and the BEEP lesson plans are the means by which, day to

day, Respondent may teach the Trophies series .

23 . After this troubling exchange, t he principal assigned

the reading coach to help Respondent learn how to teach the

Trophie s series. Although BEEP had been available for

elementary school grades for three or four years and Respondent

had taught second grade the previous school year, Respondent was

unfamiliar with the BEEP lesson plans.

24. T he reading coach guide d Respondent to the relevant

BEEP materials and showed her how to retrieve them from the

District online database. Then, f or five days, the reading

coach taught the Trophies series to Respondent ' s class to show

Respondent the proper way to teach this curriculum using the

BEEP lesson plans . After teaching Respondent ' s class for five

days, the reading coach observed Respondent teach the Tr ophies

series for five days. When the reading coach tried to provide

Respondent with feedback, Respondent replied that she did not

need the reading coach ' s help. Relations between the two

educators became strained , and , w hen the reading coach tried to

help Respondent reorganize her cluttered classroom, Respondent

became so loudly oppositional that t he principal had to

intervene to ca lm Respondent.

25 . Not surprisingly, the reading coach shared the team

leader ' s concerns about Respondent ' s teaching ability. As the

principal had found, the reading coach found Respondent was very

difficult to follow during a lesson, and her students of ten did

not understand or were disengaged. Respondent failed to satisfy

the needs of second graders for consistency and follow - through.

Instead of sticking to a lesson plan, Respondent would futilely

try to engage her students with irrelevant stories. W hen

Respondent tried to use BEEP lesson plans, she skipped mandatory

elements in the plans , apparently failing to understand herself

the relative importance of different parts of the plans .

Ultimately, the reading coach justifiably concluded that

Responde nt ' s incompetence was depriving her students of an

educational environment .

26 . B y memorandum to Respondent dated December 6, 2007,

the principal placed Respondent on a 90 - day probationary period.

The memorandum advises that, pursuant to section 1012.34,

Florida Statutes, the principal will conduct formal performance

evaluations during this period on a specified evaluation form

and will prepare and administer a PDP, which will list

Respondent ' s specific areas of unsatisfactory performance, a

time period f or correction, and suggestions for corrective

action. The memorandum states that, within 14 days after the

end of the 90 days, the principal will determine whether

Respondent has corrected the performance deficiencies and

forward a recommendation to the S uperintendent, who will notify

Respondent within 14 days whether she has corrected the

performance deficiencies. The memorandum warns that, if the

Superintendent determines that Respondent has failed to correct

the performance deficiencies, he will recomm end to the School

Board that it terminate Respondent ' s contract. In boldface, the

memorandum itemizes three performance deficiencies: lesson

presentation, classroom management, and student performance.

27 . When the principal tried to assign staff to hel p

Respondent, as required by the PDP, Respondent insisted that the

principal find educators not working at Norcrest to provide the

required assistance. The PDP process was slowed by the amount

of time that it took to find such educators and by Respondent ' s

numerous absences on days schedule d for assistance or

PDP - related meetings.

28 . By memorandum to Respondent dated February 11, 2008,

the principal documented the discussion at a meeting on

February 6, which largely covered what, if any, progress was

be ing made in finding persons who could provide assistance to

Respondent. By now, Respondent had suggested a young teacher,

but she was unwilling to become involved in the PDP process.

29. I n the interim, though, Respondent ' s work was still

plagued with pr oblems. For instance , despite the clear emphasis

on the importance of conducting timely DRA tests, Respondent had

failed to conduct the DRAs that were to have been completed by

the end of January and had failed to conduct the Stanford

Assessment Test, whi ch also had to be administered. As

confirmed by the principal, although Respondent was " improving "

in classroom management, she remained " unsatisfactory " in lesson

presentation and student performance evaluation.

30 . As the end of the 90 days approached, Respondent felt

growing stress and began to miss school due to what was

eventually diagnosed as neurocardiogenic syncope, which is a

form of fainting related to stress. Respondent ' s use of sick

leave was pronounced f rom March 13 through April 9, 2008 .

31 . On the days that she was at school , Respondent

continued to teach, meet with administrators , and generally fail

to perform her basic duties . For example, o n March 25, 2008,

the guidance counselor met with Respondent and tried , literally

for the tenth t ime , to explain her responsibilities in the

preparation of the Child Study Team p acket. Failing again, t he

guidance counselor correctly concluded that Respondent would

never produce a satisfactory packet.

32 . The principal conducted another observation o n

March 18, which was followed by a meeting between the principal

and Respondent on March 28. The principal noted that Respondent

was not using a vocabulary - building program called " Word Wall, "

even though she had been given a packet of these activities

previously. Likewise, the writing center showed no signs of

recent use. R espondent failed to follow the BEEP lesson plan

that she had adopted for the day.

33. Instead of using the Trophies intervention series for

students reading substantially below g rade level, Respondent

used the Trophies grade - level series without informing the

guid ance counselor or reading coach. When asked about this

practice, Respondent claimed that these students could meet the

challenge with extra support. The principal direc ted Respondent

to use the Trophies intervention materials until the students '

assessments demonstrated that th ey could handle the Trophies

grade - level materials .

34 . On April 9, 2008, the principal issued a formal

evaluation assessment to Respondent. Res pondent received

" satisfactories " in instructional planning, lesson management,

communication, behavior management, records management, subject

matter knowledge, and other professional competencies. She

received " unsatisfactories " in lesson presentation, student

performance evaluation, and classroom management. Pursuant to

the collective bargaining agreement, a single " unsatisfactory, "

which is the lowest rating, causes the overall evaluation to be

" unsatisfactory. "

35 . On April 9, Respondent appeared at a scheduled meeting

with the principal and several other administrators to discuss

her situation. However, as soon as she entered the room and saw

the seven or eight persons sitting around the table waiting for

her, Respondent felt faint and instead wa lked outside, where she

sat for several minutes until she had recovered sufficiently to

drive herself home. On that or the following day, Respondent

went on medical leave for the rest of the school year.

36 . Although Respondent had met some benchmarks among the

three deficient areas listed in the PDP, mainly in classroom

management, seri o us deficiencies remained. Lesson presentation

and student performance evaluation remained poor. For instance,

a t the end of the school year, administrators learned th at

Respondent had failed to ensure that her students use an

important reading diagnostic computer, which customized lessons

for each student based on his reading weaknesses.

37 . Because Respondent had slowed the PDP process, as

described above, the Norcre st principal determined that

Respondent had not received all of the assistance that she had

been promised in the PDP. T he principal therefore elected to

place Respondent on another PDP , rather than commence the

dismissal process . By memorandum to Respond ent dated April 9,

2008, the principal pl aced Respondent on a second PDP. The

second PDP was substantially the same as the first PDP, except

that it had a new deadline.

38 . After missing the remainder of the 2007 - 08 school

year, Respondent reported for duty at the start of the 2008 - 09

school year. Evidently due to Respondent ' s extended absence, b y

memorandum dated September 3, 2008, the Norcrest principal

drafted a third PDP. The third PDP was substantially the same

as the first and second PDPs, excep t that it had a new deadline.

39 . The principal and Respondent discussed her 2007 - 08

evaluation and the proposed third PDP at meetings on

September 3, 5, and 12. Respondent disagreed with the third PDP

and again refused assistance fr om any personnel a t Norcrest.

Agreeing with one of Respondent ' s objections to the draft PDP,

t he principal agreed to delete the DRA benchmarks from the third

PDP because Respondent had eventually met them the previous

school year.

40 . On September 12, 2008, the principa l revised the draft

of the third PDP to incorporate some changes from her

discussions with Respondent . As finalized, the third IEP notes,

f or lesson presentation, that Respondent fails to select and use

appropriate instructional techniques, pose clear que stions that

require students to reflect before responding, and give explicit

instructions with confirmation of students ' understanding.

Among the listed strategies are attending a specific training

program (for which a substitute teacher will be provided) ,

collaborating with the team in implementing the Treasures

reading series , observing another teacher implementing the

Treasures reading series , using appropriate assessments to

determine reading groups, posing questions to the class within

the curriculum and responding to student responses (for which

Respondent will be observed twice so she can obtain feedback on

her techniques), and impl ementing all components of the calendar

math kit .

41 . For student performance, the PDP states that

Respondent fails t o monitor student progress in attaining

achievement standards and use test data to diagnose student

weaknesses. Among the listed strategies are using the

Successmaker Enterprise (SME) computer program to assess student

achievement, place students in appro priate reading groups, and

determine suitable instructional strategies; administering DRAs

to place students in appropriate reading groups and determine

suitable instructional strategies; and accepting assistance from

the reading coach and team leader to e nsure the proper use of

reading assessments and groupings.

42 . For classroom management, the P DP states that

Respondent failed to create and maintain an organized and

pleasant working environment in the classroom and use

appropriate procedures to refer in dividual students for further

assessment or intervention. Among the listed strategies are

identifying locations for required visual elements with separate

areas for the Word Wall, posted student work, and lesson

presentation, preparing a list of needed ma terials used by other

second grade teachers, collaborating with the team to develop a

class schedule that incorporates a 90 - 120 minute reading block

and adequate time for other subjects, and reviewing existing

Child Study Team packets with the guidance cou nselor, who will

help in their completion by Respondent.

43 . Before the Norcrest principal could sign the new PDP,

the District directed her to surplus a number of teachers. When

the principal asked for volunteers, Respondent said that she

would accept a transfer . Due to Respondent ' s status as a

teacher with a PDP, Respondent ' s voluntary transfer had to be

approved by the District, which did so. F or the second time in

as many years, Respondent surplused herself out of a

deteriorating professional situat ion.

44 . Arriving at Lyons Creek, Respondent learned from the

principal that she was to teach reading and sixth - grade scien ce .

Respondent asked to switch from science to social studies, and,

after obtaining the consent of the teacher who had been assig ned

to teach social studies, the principal reassigned Respondent to

teach social science, instead of science. As ordered by the

District, the principal discarded the third PDP, so that

Respondent c ould start at Lyons Creek with a clean slate.

45 . Respond ent ' s slate did not long remain clean, though.

B ased on two observations that he performed in October, the

principal concluded that this was one of the worst classr ooms

that he had ever observed. In social studies, Respondent was

misinforming the student s. In reading, Respondent was not

collecting crucial fluency data and, when she c ollected it, it

was unusable. By mid - November, t he Lyons Creek principal began

preparing a fourth PDP for Respondent. Again, the PDP process

was slowed by Respondent ' s lack of cooperation. Several

attempts to schedule meetings were unsuccessful due to

Respondent ' s refusal to accept hand - delivered notice s , claims of

a lack of notice of previously scheduled meetings, and absence s

from school due to illness.

46 . On January 12 , 2009, the principal presented to

Respondent her fourth PDP, which addresses the three

deficiencies addressed previously: lesson presentation, student

performance evaluation, and classroom management. The deadline

for elimination of the itemized deficie ncies is April 23, 2009.

Any protestation to the contrary notwithstanding, it appears

from the similarity of the third and fourth PDPs that the

principal or his staff consulted the third PDP in the

preparation of the fourth PDP; however, the fourth PDP wa s

entirely appropriate in its contents.

47 . The deficiencies listed for lesson presentation are

the failure to use appropriate instructional techniques,

including available materials and technology that support

learning of the specific knowledge and skill s; ask clear

questions that require students to reflect before responding;

give brief, explicit directions and check for understanding; and

provide timely and specific written or verbal feedback on

student work. Strategies include meeting with the departm ent

chair regularly to implement the required curriculum on a daily

basis and obtain feedback based on the chair ' s observations;

meeting with the New Educator Support System (NESS) coach, who

will model appropriate presentation techniques; and

collaboratin g with the reading coach to incorporate vocabulary

into the lesson, teach words in context, and use techniques from

9 High Yield Strategies.

48 . The deficiencies for student performance evaluation

are the failure to monitor student progress in meeting

ach ievement standards and to use test data to diagnose

individual student weaknesses and strengths. Strategies include

working with the reading coach to under stand and use Virtual

Counselor; working with the testing coordinator to obtain the

students ' test s cores; under the guidance of the department

chair, regularly testing the students; and, in cooperation with

the department chair, determining which students need

remediation and acceleration.

49 . The deficiencies for classroom management are the

failure t o create and maintain an organized and pleasant working

environment in the classroom, to encourage students to

participate and contribute to class activities, and to use

appropriate procedures to refer individual students for further

assessment or interven tion by other professionals. Strategies

include working with the NESS coach to implement classroom

procedures that are conducive to learning, observing other

teachers implement effective classroom management practices, and

view ing videotapes portraying ef fective classroom management.

50 . At the mid - point of the 90 - day period, the principal

scheduled a meeting, as is customary. He set it for 10:00 a.m.

on February 24 and arranged for coverage of Respondent ' s

classes. Instead of attending the meeting at i ts scheduled

starting time, Respondent spent an hour caucusing with her union

representative and a private attorney, trying to decide which of

them would represent her. Finally, at 11:00 a.m., Respondent

entered the meeting with her union representative. At that

time, the principal advised her that, based on his most recent

observation on February 19, she was still deficient in lesson

presentation, student performance evaluation, and classroom

management.

51 . Respondent ' s performance deteriorated after s he

received the fourth PDP . In January, Respondent failed to enter

her students ' interim scores. The next month, Respondent failed

to record grades for students ' reports. For the second term ' s

grades, Respondent had only three or four graded items, and they

were all in the same month. For one entire grading period,

Respondent administered no quizzes or tests. Respondent could

not meet the District deadline for reporting grades without

relief from other duties. Before long , Respondent ' s grades bore

no correspondence to student performance .

52 . An important reading test, known as the San Diego

assessment, requires three administrations to report each

student ' s growth during the year. The Lyons Creek principal

described it as an " ordeal " to get Respon dent even to administer

the test. When she finally entered data, it was unusable. Just

as she had done the previous year with the DRA data, Respondent

entered the same data for the second and third administrations,

making it impossible to determine if a student had grown or was

in need of remediation and, if the latter, to identify the

specific curriculum that would assist the student. Just as was

the case with the reporting of obsolete DRA data, the reporting

of the same San Diego data for the second an d third assessments

also made it less likely for others to notice that Respondent

was not performing important job duties.

53 . Respondent continued to misinform her class. One day,

while the principal was observing her, Respondent told the class

that the y would have three hours to complete the upcoming FCAT.

In fact, they would have only 80 minutes.

54 . Within three months of her arrival at Lyons Creek,

Respondent and her classes were coming apart. Respondent called

a gir l in one class a " vicious dog. " (T he student claimed that

Respondent called her a " bitch. " ) Respondent routinely yelled

at the class.

55 . The principal was inundated by c ascading c omplaints

from parents covering poor teaching, unreliable grading , failure

to respond to parent communic ations, inappropri ate comments to

students, and classrooms in chaos. The beleaguered team leader

implored the principal to assign an administrator to

Respondent ' s parent - teacher conferences due to their

explosiveness.

56 . On May 5, 2009, the principal pr epared a formal

evaluation of Respondent. He assigned her " unsatisfactories " in

lesson presentation, student performance evaluation, and

classroom management and, thus, on overall rating of

" unsatisfactory. " The principal recommended to the

superintenden t that Respondent ' s contract be terminated .

Respondent eventually retired in September 2010 .

57 . After presenting to Respondent the 2008 - 09 evaluation ,

the principal relieved her of her teaching duties and assigned a

substitute teacher to finish the re maining weeks of school. In

preparing to discharge her duties, the substitute teacher found

boxes of ungraded papers and assignments.

CONCLUSIONS OF LAW

58 . The Division of Administrative Hearings has

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

Fla. Stat .

59 . Section 1012.795(1) provides:

The Education Practices Commission may

suspend the educator certificate . . . for

up to 5 years . . . ; may revoke the educ ator

certificate of any person . . . for up to 10

years, with reinstatemen t subject to the

provisions of subsection (4); may revoke

permanently the educator certificate of any

person . . . ; may suspend the educator

certificate, upon an order of the court or

notice by the Department of Revenue relating

to the payment of child sup port; or may

impose any other penalty provided by law, if

the person:

* * *

(c) Has pr oved to be incompetent to

teach . . ..

* * *

(g) . . . has been found guilty of

personal conduct that seriou sly reduces that

person ' s effectiveness as an employee of the

district school board.

60 . Petitioner must prove the material allegations by

clear and convincing evidence. Dep ' t of Bank. & Fin. v. Osborne

Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996) and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

61. It is unlikely that Respondent is guilty of personal

conduct that seriously reduces her effectiveness as a District

employee. Nearly all of the evidence portrays a teacher who is

either incapable of t eaching or incapable of making the effort

to teach. The little evidence of intentional wrongdoing on

Respondent ' s part, which consists of the reporting of obsolete

reading achie vement data on two occasions, is incidental to the

incompetence and probably i nsufficient to prove a case of

seriously reduced effectiveness. In any event, it is

unnecessary to address this alleged violation.

62 . Petitioner has met its burden of proving by clear and

convincing evidence that Respondent is incompetent to teach.

Res pondent ' s incompetence is startling in its width , de p th, and

persistence .

63. Both proposed recommended orders merit discussion, if

only to reject the analysis contained in each. Respondent

treats this as a dismissal case and bases her argument on the

s hortcomings in Petitioner ' s case under section 1012.34. This

section addresses teacher - evaluation instruments and a teacher ' s

failure to timely correct performance deficiencies -- neither of

which is at issue or alleged here. This section is reserved for

d ismissal proceedings (and does not necessarily preclude

reliance on incompetence, as another aspect of " just cause "

under section 1012.33) -- which is not at issue here. In fact,

section 1012.34(5) requires superintendents to report to the

Department of Edu cation certain under - performing teachers, so

that the department may decide whether to take disciplinary

action under section 1012.795.

6 4 . In his proposed recommended order, Petitioner requests

discipline of a five - year revocation followed by three yea rs '

probation. This request is supported by one fact: the absence

of any other discipline over Respondent ' s long teaching career .

Several facts support harsher discipline.

65 . For two years, the consequences of Respondent ' s

incompetence have been bor ne by every student entrusted to her,

their parents, Respondent ' s administrators at two school s, and,

not least of all, Respondent ' s teaching peers at two schools .

66 . Among students, those most vulnerable to neglect have

suffered the most. Respondent ' s failure to prepare Child Study

Team packets for students suspected of having disabilities has

delayed the work of other professionals in identifying students

with disabilities and implementing specialized instruction and

related services to help these st udents obtain educational

benefit . Respondent ' s failure to administer and report

standardized reading achievement data has delayed the work of

other professionals in identifying students with reading problems

and implementing remedial reading programs to help these students

access the remainder of their curriculum .

67 . For two years, Respondent has not only ignored her

incompetence, despite the best efforts of two principals to help

her recognize and eliminate her many specific weaknesses. Rather

than accept personal responsibility for dealing with these

problems , Respondent has instead: 1) blamed other persons,

faulty technology, and incomplete materials; 2) tried to conceal

her shortcomings by misreporting evaluative data; and 3)

disrupted the PDP pr ocess by a series of evasions and

irresponsible behavior s .

68 . Respondent ' s tactics are especially troubling given the

extent to which the needed corrective action required no more of

Respondent than modest effort. After the Norcrest principal

ordered he r to use the calendar math kit, Respondent did not even

both to open all of the packets within the kit to investigate

thoroughly its use. When confronted a second time about her

failure to use the calendar math ki t , Respondent complained that

her kit lack ed the organization of an other teacher ' s kit --

failing, again, to have sufficiently familiarized herself with

the resource to realize that the other teacher had taken the time

to organize her kit. Respondent complained about a " broken "

computer when the sm allest effort on her part would have meant

summoning the tech specialist to discover that the computer was

merely in a sleep state and only slightly more effort would have

consisted of checking out the computer herself.

69 . The full dimensions of the ho arded materials defy much

analysis on this record. But laziness appears at least partly to

blame for this behavior too. Sparing herself the effort of

finding a grade - appropriate Halloween handout, Responden t instead

grabbed from a box a grade - i nappropria te Halloween handout , not

caring about the missed opportunity to use a suitable handout to

reinforce the current curriculum or the confusion that some

students might experience from exposure to math that they had not

yet been taught.

70 . A complete lack o f effort, coupled with a disturbing

lack of competence, explain Respondent ' s confusion about the BEEP

lesson plans pertaining to the reading curriculum. It is

difficult to say how much time and thought it would have taken

for Respondent, without assistanc e, to examine the BEEP lesson

plans and Trophies reading series and discern that the BEEP

materials are means of teaching the Trophies curriculum

material s. O bviously, Respondent never invested the required

time and thought to figure out this simple relat ionship. Perhaps

worse, again s eeking the easiest path, Respondent taught under -

achieving students with the same Trophies series used for

students who were reading on grade level, relying on her

deficient teaching skills to make these more advanced materi als

accessible to the under - performing readers.

71 . A complete lack of effort, coupled with a disturbing

level of incompetence and effort at concealment, explain

Respondent ' s misreporting of obsolete reading achievement data

from standardized tests on two separate occasions over two years.

Rather than invest the time and effort to figure out how to

admin i ster the tests and enter the resulting data on the proper

database, Respondent chose to carryover prior test results and

avoid detection for awhile .

72 . Some of Respondent ' s more prosaic shortcomings might

prove most resistive to change. Respondent ' s disorganized lesson

presentation, inability to engage her students, and vague (and

sometimes incorrect) statements to her class are critical flaws

whose e limination would require considerable effort -- effort that,

on this record, Respondent is unprepared to make.

73 . In the final analysis, Respondent herself is

responsible for the rejection of Petitioner ' s lighter discipline.

Respondent ' s success in frus trating the efforts of two principals

to have her perform her basic duties and, failing that, to impose

accountability for these failures necessitate the rejection of

Petitioner ' s proposed discipline. The permanent revocation of

Respondent ' s certificate e liminates the risk that another school

and another school district will have to endure what these

schools and District have endured , which is the mis use of a

certificate to interfere with the educational process and

undermine the education profession .

RECO MMENDATION

I t is RECOMMENDED that the Education Practices Commission

enter a final order finding Respondent guilty of incompetence,

in violation of s ection 1012.795(1)(c), Florida Statutes, and

permanently revoking her educator certificate.

DONE AND EN TERED this 7th day of August, 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, 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 7th day of August, 2012 .

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Ed ucation Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim 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

Jeffrey S. Sirmons, Esquire

Johnson and Sirmons, LLP

Suite 309

510 Vonderburg Drive

Brandon, Florida 33511

[e-mail]

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

[e-mail]

NOTICE OF RIGHT T O 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.