11-004310TTS Brevard County School Board vs. Mark Ostermeier Status: Closed Recommended Order on Monday, June 25, 2012.

Summary: Respondent demonstrated incompetence by failing to improve his teaching practices despite assistance. Termination of employment is warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4310TTS

)

MARK OSTERMEIER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice , a final hearing was conducted in this

case on April 19 and 20, 2012 , in Viera, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joseph R. Lowicky, Esquire

Glickman, Witters and Marrell, P.A.

The Centurion, Suite 1101

1601 Forum Place

West Palm Beach, Florida 33401 - 8104

For Respondent: Robert Charles McClain, Esquire

4910 Flora Drive

Melbourne, Florida 32934 - 7845

STATEMENT OF THE ISSU E

The issue in this case is whether just cause exists to

terminate Respondent ' s employment with Petitioner based on

alleged incompetence under section 1012.33, Florida Statutes

(2011), 1/ as defined by Florida Administrative Code Rule 6A - 5.056 ;

and/or wheth er termination of employment is warranted because

Respondent failed to correct performance deficiencies under

section 1012.34(3).

PRELIMINARY STATEMENT

On July 27, 2011, Brian T. Bing g eli, Ed. D ., s uperintendent,

notified Respondent, Mark Ostermeier, that t ermination of his

employment was being recommended to the Brevard County School

Board (the " Board " ). At its meeting on August 9, 2011, the Board

terminated Respondent ' s employment and canceled his professional

service contract. Respondent timely requeste d a formal

administrative hearing to contest the decision.

The Board forwarded the Petition to the Division of

Administrative Hearings ( " DOAH " ) on August 11, 2011, citing

Respondent ' s request for a formal administrative hearing. At the

final hearing, the Board called the following witnesses: Mark

Ostermeier; Robin Novelli, principal at Bayside High School

( " Bayside " ); Susan Santell, art teacher; Joseph Capalbo, guidance

counselor; Leah Butler, teacher; Jasmine DeLaughter, dean at

Bayside; Jennifer Sulliva n, career academy coordinator; John

Small, assistant principal; Janice Frye, teacher; Margaret

O ' Connor, teacher; Norma Hostetler, principal at Lockmar

Elementary School ( " Lockmar " ); and Joy Salamone, director of

human resources at Bayside. 2/ The Board ' s Exhibits 1 through 45,

48 through 64, and 66 through 68 were admitted into evidence.

Respondent testified on his own behalf and called the following

additional witnesses: J.M., parent of a student; G.K., parent;

John Hays, peer mentor teacher; and John T uttle, principal at

Heritage High School. Respondent offered Exhibits 1, 2 and 164

into evidence, each of which was accepted. (All hearsay evidence

was admitted subject to corroboration by competent, non - hearsay

evidence. To the extent such hearsay was not corroborated or not

used to substantiate other competent evidence, it will not be

used as a basis for any finding herein.)

The parties advised the undersigned that a transcript of the

final hearing would be ordered. The parties requested and were

gi ven 30 days from the date the transcript was filed at DOAH to

submit proposed recommended orders (PROs). The T ranscript was

filed at DOAH on May 15, 2012. The Board timely submitted its

PRO on June 14, 2012; Respondent ' s PRO had not been filed as of

the date of this Recommended Order. The Board ' s PRO was given

due consideration in the preparation of this Recommended Order.

FINDING S OF FACT

Based upon the evidence and testimony presented at final

hearing, the following F indings of F act are made:

1 . The B oard is responsible for hiring, firing, and

overseeing all employees at Bayside, Lockmar, and other schools

in Brevard County.

2 . At all times relevant hereto, Respondent was an art

teacher i n the Brevard County school system. Respondent worked

at severa l different schools in Brevard County, including

Bayside, Lockmar, Sea Park Elementary, Endeavor Elementary, and

Indialantic Elementary. He taught at Bayside from 2003 until

2010, and then was transferred to Lockmar for the 2010 - 2011

school year. Respond ent was given an annual evaluation each year

at the school where he was teaching. Annual evaluations are used

for the purpose of reviewing and critiquing a teacher ' s

performance in the classroom. An annual review determines

whether the teacher is " effect ive, " " needs improvement, " or

" unsatisfactory " for the school year at issue.

3 . While at Bayside, Respondent ' s annual evaluations were

generally " effective, " meaning he was teaching in a fashion

deemed satisfactory by the administrators. Mr. Tuttle, the

principal, considered him an effective teacher, but he did not

personally perform Respondent ' s evaluations. The evaluation for

school year 2007 - 2008 was somewhat restrained in nature,

describing Respondent as " an effective art teacher who satisfies

all te acher competencies " and that he " demonstrates an acceptable

level of knowledge of the subject matter. "

4 . In the 2008 - 2009 school year at Bayside, the new

principal, Mr. Nov elli, began to have doubts about Respondent ' s

teaching abilities and also about his mental health. Several

incidents were reported to Novelli concerning Respondent that

made Novelli very concerned. As a result, Novelli began to keep

an eye on Respondent and did more frequent " walk - throughs " of

Respondent ' s classroom. Walk - throughs by administrators are an

accepted means of gathering information about the teacher and his

or her teaching practices.

5 . At the end of the 2008 - 2009 school year, Respondent was

given an evaluation that deemed him " effective " as to his overall

performance as a teacher. The evaluation describes Respondent in

exactly the same words used in the prior year ' s evaluation form.

The effective evaluation was issued despite an incident that

occurred at the end of the school year, to wit: The parent of a

student co ntacted Novelli and reported that Respondent had kept

the student ' s art project, refusing to return it to the student.

Respondent told Novelli that he kept the project because the

student had failed to pay for a canvas; Novelli found that excuse

to be ina ccurate. The parent said Respondent had asked the

female student to pose for him after school and had given the

student his cell phone number. Novelli ordered Respondent to

return the art project, which he did. Respondent then allegedly

began asking oth er students if the art student was pregnant.

When Novelli asked Respondent about the student, Respondent

became " very hostile, very loud, very emotional, and [he] started

yelling, ' I ' m not a pedophile; I don ' t sleep with my students; I

don ' t do drugs, you can call the American Fence Company and ask

them. I ' ve had a drug test with them. '" These unsolicited,

random comments by Respondent caused Novelli even greater concern

about Respondent ' s mental well - being.

6 . The next school year, 2009 - 2010, Novelli did an interim

evaluation of Respondent. Interim evaluations are done when

administration believes a teacher is struggling or having serious

issues which impede his or her performance. The interim

evaluation was done at the end of October 2009 and indic ated

several areas of unsatisfactory performance by Respondent,

including: Planning; Instructional Organization and Development;

Presentation of Subject Matter; Responsibilities; and Student

Evaluation. Respondent refused to sign the evaluation form , eve n

though a signature does not equate to acceptance of the

evaluation, it simply acknowledges that the evaluation has been

discussed with the teacher (which it had been).

7 . Principal Novelli observed Respondent ' s classroom on

several occasions and found t he activities going on to be

inconsistent with the lesson plans for that day. Respondent

explained that the words he had written on the white board (in

one case, the words " Van Gogh " ) were his lesson plan for the day.

That was not acceptable , because les son plans should be

sufficient for another teacher to utilize to teach the class in

the regular teacher ' s absence.

8 . Some of the problems in the area of responsibilities

noted in the interim evaluation were: failing to timely provide

administration with a list of students who could be identified as

advanced placement candidates; failing to provide acceptable

contributions of his students ' art work for a poster design

contest; and failing to submit art work for a proposed field trip

timely and appropriate ly.

9. Respondent was found to have a difficult time

communicating with school administrators, guidance personnel, and

fellow teachers. It became abundantly clear at final hearing

that Respondent would be as uncooperative and recalcitrant as

possible whe n talking to people he did not like. His demeanor

demonstrated a strong resentment of his principal and others from

Bayside.

1 0 . In the area of student evaluations, Respondent was

found to have failed to provide daily participation grades to his

student s , despite saying he would do so in his course outline.

All of his students received an " A " grade for one nine - week

period. Novelli found those grades to be inconsistent with the

observations he had made in the classroom.

1 1 . As for instructional organiz ation, Novelli observed no

substantive instruction going on during his classroom visits.

Respondent explained that students were free to stay busy working

on projects discussed in prior classes, so it might appear to an

outside observer that they were not being instructed. However,

there was insufficient evidence produced to substantiate

Respondent ' s position in that regard.

1 2 . A Professional Development Assistance Plan (PDAP) was

created for each of the areas of concern set forth in the interim

evaluat ion. PDAPs are tool s used to assist struggling teachers

to find a way to overcome their shortcomings and improve i n the

areas of concern. On January 7, 2010, Novelli met with

Respondent to go over the PDAPs and discuss Respondent ' s

progress. Respondent refused to sign the PDAP forms.

Thereafter, although he was given additional time to comply with

the PDAPs ' requirements, Respondent failed to follow all of the

recommendations set out in the plans.

1 3 . For example, one of the recommendations for assist ance

involved Respondent going to observe another art teacher in their

classroom. Novelli wanted Respondent to observe an art teacher

selected by the d istrict r esource t eacher, but Respondent

preferred to observe a teacher (Leah Andritz) with whom he

alre ady had a friendship. Novelli felt that Respondent ' s

observing his friend teach would not be as helpful as watching

someone Respondent did not know. Novelli offered Respondent paid

time off to observe the school - chosen art teacher. Ultimately ,

Responden t went to observe Andritz on his own time , rather than

accept Novelli ' s offer.

1 4 . Respondent ' s annual evaluation was completed on

February 12, 2010. Three areas (also called " strands " ) were

graded as unsatisfactory: Instructional Organization and

Develo pment; Presentation of Subject Matter; and Student

Response. The evaluation also graded Respondent as Needs

Improvement in the areas of Planning and Responsibilities. The

overall evaluation was unsatisfactory.

1 5 . A meeting was set for February 18, 201 0, to discuss the

evaluation. Assistant P rincipal Capalbo, whom Respondent

trusted, was sent to escort Respondent to Novelli ' s office for

the meeting. On the way from Respondent ' s classroom to the

principal ' s office - - which took three or four times longer than

usual , because Respondent was making phone calls along the

way -- Respondent called and spoke to his union representative.

The representative then came to the meeting as well. Respondent

made numerous derogatory remarks and complaints about Novelli o n

the way to the meeting. He said Novelli had tried to have him

arrested, had vandalized his car, and had attempted to engage in

sexual relations with a married teacher. 3/ There is no credible

evidence that any of the allegations were true, but they made

Capalbo wonder if Respondent was having mental issues.

1 6 . At the meeting, Respondent accused Novelli of recording

a prior meeting by way of a USB pen. Respondent angrily

threatened to file a lawsuit against Novelli and report him to

the s uperintendent o f schools. Each of the attendees at the

meeting who testified at final hearing said Respondent became

very agitated and angry. The union representative (who did not

testify at final hearing) was ultimately able to get Respondent

under control and persuad ed him to leave the meeting. No

credible evidence was provided to prove the existence of a USB

pen or that meetings had been recorded. Respondent again refused

to sign the evaluation form.

1 7 . As a result of Respondent ' s conduct at the meeting,

Novelli p laced him on paid administrative leave pending a review

of his mental health and fitness for duty. He was on leave for

about one week and returned after undergoing a psychological

evaluation.

1 8 . A significant dispute arose between Respondent and

Novelli concerning an event known as National Portfolio Day. The

event was a special opportunity for art students that allowed

them to have their art reviewed and to speak with representatives

from several colleges and art schools. Respondent had taken

students to the event in prior years. In the 2009 - 2010 school

year, Respondent requested permission to take a number of his

students and students from other schools to the event. His

request was preliminarily approved by administration, pending

several details be ing worked out. However, the permission was

ultimately withdrawn , and no students from Bayside were allowed

to attend.

19 . Respondent claims that the event was a valuable tool

for students and had allowed many students to obtain significant

scholarships to colleges in prior years. Novelli found out that

the students from other schools who were going to the event were

Advanced Placement (AP) students. Bayside did not have an AP

program or any AP students. 4 / Novelli asked Respondent to put

together port folios for the students he wanted to attend, and

Novelli would get the artwork examined by an expert to see if the

students were viable candidates for the event , even if they were

not technically AP students. Respondent was given a deadline to

get the stu dent art portfolios to Novelli so they could be taken

to the district office by a date certain. Respondent missed the

deadline. Instead, Respondent personally hand - delivered the

portfolios to the district office on the day they were due. The

artwork was reviewed by an art expert who deemed the work to be

inadequate for inclusion in the National Portfolio Day event.

She rated the art at the lowest level of a five - tiered rating

system.

2 0 . As a result of the art expert ' s review, Respondent was

advised tha t no students from Bayside would be going to the

event. Notwithstanding that decision being communicated to

Respondent, he continued to act as if Bayside students would

still be attending. He continued making transportation

arrangements and notifying stu dents ' parents of the impending

event. There were several unexplained emails admitted in

evidence that show some continuing dialogue about the portfolio

trip. The emails addressing this issue create some confusion as

to whether Bayside students would be able to attend, but

ultimately none attended.

2 1 . At the end of the 2009 - 2010 school year, Respondent was

transferred to Lockmar. Although he had requested a transfer

from Bayside, Respondent was extremely upset about the transfer.

According to Respond ent, he wanted to go to another high school

where his former principal, Tuttle, was now the principal. The

director of H uman R elation s S ervices, however, was told by

Respondent ' s union representative that Respondent wanted to go to

an elementary school. Tuttle said that his school ' s position had

already been filled anyway.

2 2 . The principal at Lockmar (Hostetler) did not know at

the time of the transfer that Respondent had received an

unsatisfactory performance evaluation for his last year at

Bayside. Wh en she found out, she issued a memorandum (dated

August 5, 2010) informing Respondent that he was on probation for

a period of 90 days. The probation status, also called

performance review, is essentially the same thing as a procedure

called NEAT, except that a performance review is supposed to be

completed within 90 days. That is, the teacher has 90 days to

show improvement in the delineated areas of concern. It is not

uncommon for a teacher to be placed on performance review

following an unsatisfactory annual evaluation.

23 . As part of the performance review process, Hostetler

frequently went into Respondent ' s classroom to observe his

teaching style. Her visits would last the majority of the class

period. She would visit classes of different grade lev els and

students in order to see how Respondent handled various age

groups. After approximately eight weeks of reviewing Respondent,

Hostetler issued an interim evaluation. That evaluation rated

Respondent unsatisfactory in four areas and needs improveme nt in

another area.

2 4 . Once again , Respondent was deemed to have

unsatisfactory lesson plans. His instructional organization and

development was again deemed deficient, as well as his

presentation of subject matter. Further, he was found to be

unsatisfa ctory in the area of responsibilities under the

professionalism strand. The overall evaluation for Respondent

was unsatisfactory.

2 5 . The evaluation was reviewed with Respondent on

October 1, 2010, but he refused to sign it. On that same date, a

number o f PDAPs were created to help Respondent address his

deficiencies. Respondent was given until December 10, 2010, to

take steps to improve in the various areas. Later, when it

became clear that he would not be able to meet that deadline, the

PDAPs were ext ended to February 18, 2011, then to March 18, 2011,

and then extended again to March 23, 2011. At least one of the

extensions was done because Respondent was preparing his classes

for an upcoming art show.

2 6 . On March 23, 2011, Hostetler completed Resp ondent ' s

annual evaluation. It included three unsatisfactory scores and

two scores of needs improvement. The overall evaluation was

unsatisfactory, his second unsatisfactory evaluation in two

years. Once again, Respondent refused to sign the evaluation

form.

2 7 . There was considerable testimony and evidence presented

at the final hearing concerning Respondent ' s tenure at

Indialantic Elementary School from 1998 - 2002, some ten years

prior to the final hearing. In his last performance evaluation

at Indiala ntic, P rincipal Strong had given Respondent an overall

unsatisfactory ranking. Although Respondent ' s performance at a

different school so many years prior to the instant allegations

may not be dispositive of anything in this case, it is noted that

Respond ent ' s administrators at that time had many of the same

concerns as those raised by Novelli and Hostetler years later.

2 8 . Besides the on - going issues with less than satisfactory

performance ratings, Hostetler had other concerns about

Respondent as well. O ne issue had to do with Respondent sending

children outside the classroom and instructing them to " look for

dinosaurs. " His intention was to keep the children from

disrupting the class by their bad behavior. The instruction to

look for dinosaurs was just a way of making the student sit and

contemplate their behavior. Respondent claims to have learned

the technique during training he took through a program called

Sun Coast Area Teacher Training. Respondent maintains that he

kept visual surveillance of th e children when they were outside;

the teacher in the adjoining classroom said he could not really

do that and maintain contact with his other students.

Nonetheless, it does appear that the children were belittled by

their peers when they were sent outsid e to look for dinosaurs.

29 . Lockmar had been asked to take part in a contest

sponsored by the local police department. Students were to draw

pictures within certain parameters that would allow the pictures ,

if chosen, to be converted to magnets or other items. Respondent

was supposed to have the children draw pictures related to a

theme of policemen as peace keepers, then select appropriate

pictures to submit for consideration by the judges of the

contest. Respondent did have his children make drawings, but

almost all of them failed to meet the stated size and content

parameters. He then asked personnel in the front office to voice

their opinion as to which drawings he should submit. Feeling

uncomfortable making a decision such as that, the staff hande d

the drawings over to Hostetler. She ultimately found only three

or four worthy of submission for the contest.

3 0 . Hostetler received complaints from other teachers that

their students were not ready to leave the art classroom in a

timely fashion. They complained that Respondent did not have

them ready to go when the art period ended. Hostetler issued a

memorandum to Respondent about addressing that issue

appropriately.

3 1 . During the period of time Respondent was under

performance review and addressing the PDAPs, he was assigned a

peer mentor teacher, John Hays, to assist him deal with

deficiencies. Hays worked with Respondent from September 2010

through May 2011, including approximately 15 on - site visits to

the classroom and one visit with Respondent to another school ' s

art classroom. Respondent made a few improvements during the

time Hays worked with him, including upgrading the kiln, putting

student drawings in the front office, and becoming more

cooperative with others.

3 2 . However, Hays found that the classroom , as managed by

Respondent , was not conducive to learning. The lesson plans did

not comport with what was going on in the classroom, even though

Respondent usually had an explanation for that, e.g., a special

project was coming up and studen ts needed to pay more attention

to it than to what the lesson plan described. Hays seemed to

doubt whether Respondent ' s reasons or explanations were entirely

truthful. All in all, Hays did not see significant improvement

by Respondent in most of the prob lem areas that were being

addressed. 5 /

3 3 . When Respondent left Lockmar, he was given the

opportunity to retrieve all his personal property. At the

beginning of the next school year, the new teacher in the art

room discovered several pictures belonging to Respondent in the

pod (office area) adjacent to the classroom. Some of the

pictures were somewhat disturbing to the new teacher , so she

turned them over to her principal, who turned them over to the

School Board security office. The pictures depicted a person who

looked much like Respondent and contained words and images that

were not appropriate for elementary school - age d children (and

possibly not even high school - age d children). Respondent

testified that some of his high school students had made the

drawings, but he would not say that the pictures were supposed to

depict him (despite one being labeled " The Mighty O . " Respondent

was often referred to by students and teachers as " O. " )

Respondent admitted that the drawings were not appropriate for

view ing by young children. There is, however, no evidence that

any elementary school children ever saw or had access to the

pictures.

3 4 . Respondent made some extremely unusual allegations

about his prior principals, Strong and Novelli. He said Strong

was re sponsible for Respondent's girlfriend having a miscarriage,

that Strong had intentionally caused that to happen, and that he

was afraid Strong may do the same thing to someone else. He said

Strong had tried to poison him by placing contaminated mulch

arou nd his portable classroom building. He said Novelli had

caused him to be arrested by sabotaging Respondent ' s car so that

he would be pulled over by police and illegally searched. He

made the allegation about Novelli secretly recording meetings.

He alleg ed that Novelli was involved in either killing or

damaging the career s of teachers he did not like. Respondent

requested leave to pursue a doctorate degree, but the leave was

denied. Immediately thereafter, Respondent re - filed his leave

request, citing m edical issues. He said he used the leave to, in

part, pursue his doctorate, but did not adequately explain the

suspicious request for medical leave. The leave request was

supported by a note from a chiropractor indicating Respondent had

back problems. T he note did not verify Respondent ' s allegation

that Strong was poisoning him at Indialantic (a claim raised in

Respondent's deposition and final hearing testimony).

3 5 . There was no credible evidence to support the various

claims Respondent made against hi s administrators, leaving the

impression that the allegations are baseless. However, there was

no direct showing by the School Board as to how these incredible

stories directly affected Respondent ' s capabilities as a teacher.

3 6 . Respondent showed that he could be evasive and

obstinate concerning the admission of even the least significant

facts. He seemed reluctant to engage in conversation that was

not full of innuendo, suggestion, or intrigue. For example, when

asked whether he really believed his pri ncipal would vandalize

his car (as Respondent had alleged), Respondent answered,

" Because other teachers in the district, you know the Greek

mythology Cassandra, how Cassandra would foretell the future?

Other teachers in the district, as the Greek mytholo gist

Cassandra, would forewarn me of Mr. Novelli ' s prior actions. "

When asked repeatedly if he believed another principal was

interfering with his purchase of a building, Respondent replied,

" I was very cautious with the information. " When asked what tha t

meant, he said, " It was worth investigating and finding out

more. " When asked if P rincipal Strong was responsible for

Respondent ' s girlfriend losing her baby, he responded, " My answer

to that is it ' s an unfortunate situation " and " I have a child

that I wish was born and because of the politics, it is not

here. "

3 7 . Other than Tuttle ' s restrained endorsement of

Respondent, no fellow teachers or administrators were presented

to prove or suggest that Respondent could work well with others.

Hays said Respon dent was cordial to him, but he was not a

co - worker or administrator.

3 8 . Respondent seems to be very eager to assist his

students as they prepare for life after grade school. He seems

to enjoy teaching and wants to return to the classroom. At least

tw o parents of his former high school students endorsed

Respondent as an important reason for their child ' s success.

Respondent said he had helped some students obtain scholarships

to assist with their college education, although there was no

substantive pr oof of that fact. In his written response to the

2009 - 2010 evaluation, Respondent stated he would " produce over

$300,000 . . . i n independent scholarships for [his] students. "

Although he testified several times about the scholarships he

could generate f or his students, there was no credible evidence

to support his assertion. (The response to his evaluation was

well written and rational. It was not comparable to Respondent ' s

way of orally expressing himself, at least as evidenced by his

testimony at the final hearing.)

CONCLUSIONS OF LAW

39 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to a contract with the Brevard County School

Board. The proceedings are governed by s ections 120.57

and 120.569, Florida Statutes.

4 0 . The s uperintendent of s chools for Brevard County has

the authority to recommend to the School Board that an employee

be suspended or dismissed from employment for just cause.

§§ 1012.22(1)(f) & 1012.33(6) .

4 1 . The burden of proof in this proceeding is on the School

Board to prove, by a preponderance of the evidence, that just

cause exists to suspend or terminate the employment of

Respondent. McNeil v. Pinellas Cnty . Sch . Bd. , 678 So. 2d 476

(Fla. 2d DCA 1996); Dileo v. Sch . Bd. of Dade Cnty . , 569 So. 2d

883 (Fla. 3d DCA 1990).

4 2 . The School Board has discretion to set standards which

subject an employee to discipline. See Dietz v. Lee Cnty . Sch .

Bd . , 647 So. 2d 217 (Fla. 2nd DCA 1994). Nonetheless, ju st cause

for discipline must rationally and logically relate to an

employee ' s conduct in the performance of the employee ' s job

duties and be concerned with inefficiency, delinquency, poor

leadership, lack of role modeling, or misconduct. State ex rel.

Hat haway v. Smith , 35 So. 2d 650 (Fla. 1948); In re Grievance of

Towle , 665 A. 2d 55 (Vt. 1995).

4 3 . Section 1012.33(1)(a) states in part:

[J]ust cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Educatio n: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34 ,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s. 1012.34 , gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

4 4 . Rule 6 A - 5.056 sets out the criteria for suspension or

dismissal of a teacher. The rule describes incompetency as

" inability or lack of fitness to discharge the required duty as a

result of inefficiency or incapacity. " The rule goes on to

define inefficiency, i n part, as " repeated failure to perform

duties prescribed by law . . . . "

4 5 . Specifically, the School Board is alleging that

Respondent is not a competent teacher and that his students were

not receiving the minimal education required by Florida law. It

proved that fact by showing that Respondent was found to have

unsatisfactory annual performance evaluations for two consecutive

years. Further, despite various assistance provided to him ,

Respondent did not improve significantly in the areas cited as

def icient teaching practices.

4 6 . Florida Administrative Code Rule 6 B - 1.001 provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizen ship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the stu dent ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

4 7 . The fantastic and bizarre allegations made by

Respondent against fellow teachers and administrators indicate

unwillin gness on his part to work well with others. That sort of

behavior by Respondent constitutes just cause for termination of

his employment. Further, his refusal to follow direct orders and

meet deadlines is evidence of his insubordinate behavior.

4 8 . Court s have also found just cause to support discharge

of an employee where the employee violates a universal standard

of behavior that an employer has the right to expect from its

employees. See Autoliv ASP, Inc. v. Dep ' t of Workforce Servs. ,

29 P.3d 7 (Utah Ct. App. 2001). The description of Respondent by

his former principals and co - workers indicate a deviation from

the standard of behavior that schools in Brevard County have a

right to expect.

RECOMMENDATION

Based on the foregoing Findings of Fact and Co nclusions of

Law, it is RECOMMENDED that a final order be entered by

Petitioner, Brevard County School Board, terminating the

employment of Respondent, Mark Ostermeier , for just cause .

DONE AND ENTERED this 25th day of June , 2012 , in

Tallahassee, Leon Coun ty, Florida.

S

R. BRUCE MCKIBBEN

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.s tate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June , 2012 .

ENDNOTE S

1/ Unless stated otherwise herein, all references to Florida

Statutes will be to the 2011 version.

2/ The deposition transcript of Mario n Strong, former principal,

was introduced in lieu of live testimony.

3/ The latter allegation was supposedly corroborated by the

teacher's husband, who was a pilot. The husband supposedly flew

an airplane over his house and saw Novelli preparing to hav e sex

with the husband's wife.

4 / One of the reasons Bayside did not have an AP program was that

Respondent had been dilatory in providing names of students who

might be potential candidates for an art AP program.

5 / It should be noted that Hays was c alled as a witness by

Respondent; his somewhat damaging testimony was thus given more

weight than had he been called as a School Board witness.

COPIES FURNISHED:

Dr. Brian Binggeli, Superintendent

Brevard County School Board

2700 Judge Fran Jamieson Way

Viera, Florida 32940 - 6601

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Joseph R. Lowicky, Esquire

Glickman, Witters and Marrell, P.A.

The Centurion, Suite 1101

1601 Forum Place

West Palm Beach, Florida 33401 - 8104

Robert Charles McClain, Esquire

4910 Flora Drive

M elbourne, Florida 32934 - 7845

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.