13-002404TTS Miami-Dade County School Board vs. Michael Bishop Status: Closed Recommended Order on Friday, January 31, 2014.

Summary: Petitioner failed to establish by a preponderance of the evidence that just cause existed to terminate Respondent's employment for incompetency. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 2404TTS

MICHAEL BISHOP ,

Respondent .

/

RECOMMENDED ORDER

This case came before Administ rative Law Judge Todd P.

Resavage for final hearing by video teleconference on October 21,

2013, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Heather L. Ward, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Branden M. Vicari, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19, North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Respondent ' s employment as a teacher by the Miami -

Dade County School Board should be terminated for the reasons

specified in the letter of notification of suspension and

d ismissal dated June 20, 2013, and the Amended Notice of Specific

Charges filed on October 2, 2013.

PRELIMINARY STATEMENT

On June 19, 2013, at its scheduled meeting, Petitioner,

Miami - Dade County School Board, took action to suspend

Respondent, Michael Bish op, without pay and initiate proceedings

to terminate his employment. Respondent was notified of same via

correspondence dated June 20, 2013, and of his availability to

challenge the school b oard ' s action.

Respondent timely requested a formal administrati ve hearing,

and, on June 26, 2013, Petitioner referred the matter to the

Division of Administrative Hearings ( " DOAH " ), where it was

assigned to the undersigned.

On July 29, 2013, Petitioner filed its Notice of Specific

Charges alleging Respondent should be suspended without pay and

dismissed due to his failure to correct performance deficiencies

and incompetency due to inefficiency.

The final hearing initially was set for August 28, 2013. On

August 9, 2013, Respondent filed a Motion to Continue and

Resched ule Final Hearing. The motion was granted, and the cause

was re - scheduled for final hearing on September 25, 2013. On

September 18, 2013, Petitioner filed a Motion to Continue and

Reschedule Final Hearing. The motion was granted, and the cause

was re - sc heduled for final hearing on October 21, 2013, and then

upon j oint m otion to October 23, 2013.

On October 2, 2013, Petitioner filed a Motion to Amend

Notice of Specific Charges. The motion was granted on October 3,

2013. Petitioner ' s Amended Notice of Sp ecific Charges alleges

Respondent should be suspended without pay and dismissed solely

for incompetency due to inefficiency and incapacity .

On October 15, 2013, the parties filed a Joint Pre - hearing

Stipulation and stipulated to certain facts contained in

Section E of the Joint Pre - hearing Stipulation. To the extent

relevant, those facts have been incorporated in this Recommended

Order.

The final hearing went forward as scheduled. On December 4,

2013, Petitioner filed an U nopposed Motion for Extension of Time

to File Proposed Recommended Orders. The motion was granted , and

the parties were ordered to submit proposed recommended orders o n

or before December 20, 2013.

The final hearing Transcript was filed on December 2, 2013.

The identity of the witnesses and exhibits and the rulings

regard ing each are as set forth in the Transcript. Petitioner

and Respondent timely filed proposed recommended orders, which

were considered in preparing this Recommended Order. Unless

otherwise indicated, all rule and statu tory references are to the

versions in effect at the time of the alleged violation.

FINDING S OF FACT

The Parties

1. Petitioner is a duly constituted school board charged

with the duty to operate, control, and supervise all free public

schools within the School District of Miami - Dade County, Florida,

pursuant to Florida Constitution Article IX, section 4(b), and

section 1001.32, Florida Statutes.

2. At all times relevant to this proceeding, Respondent was

employed as a special education ( " SPED " ) teacher a t Mandarin

Lakes K - 8 Academy ( " Mandarin Lakes " ) , a public school in the

Miami - Dade County Public School District, pursuant to a

professional services contract.

3. At all times relevant to this proceeding, Respondent ' s

employment with Petitioner was gover ned by Florida law,

Petitioner ' s policies and procedures, and the collective

bargaining agreement between Miami - Dade County Public Schools and

the United Teachers of Dade.

Respondent ' s Classification

4. During the 2012 - 2013 school year, it is undisputed that

Respondent was classified as a SPED teacher. Petitioner ' s

Amended Notice of Specific Charges avers that Respondent was

employed as a SPED " inclusion teacher. " Respondent, in his

P roposed R ecommended O rder, also maintains that, during the 2012 -

2013 s chool year, he was a SPED inclusion teacher. Petitioner ' s

witnesses, however, presented conflicting evidence regarding

whether Respondent, for the 2012 - 2013 school year, was charged

with the duties and responsibilities of an inclusion teacher or a

" co - tea cher. "

5. Inclusion teaching occurs where " two or more teachers

are assigned to a group of students, but one of the teachers is

responsible for only one student or a small group of students in

the classroom. " See § 1003.03(5)(c)2. , Fla. Stat. " Co - teachi ng "

is when " two or more teachers are assigned to a group of students

and each teacher is responsible for all of the students during

the entire period. " See § 1003.03(5)(c)1 ., Fla. Stat . Moreover,

in the co - teaching setting, " each teacher is responsible for

planning, delivering, and evaluating instruction for all students

in the class or subject for the entire period. " Id.

6. The undersigned ultimately finds that, during the 2012 -

2013 school year, Respondent was a SPED inclusion teacher. As

such, Respo ndent was responsible for providing support to a small

group of special education students within the general education

classroom. 1/

The Events Giving Rise to this Proceeding

7 . Petitioner alleges, in its Amended Notice of Specific

Charges, that, " [d]uring the 2012 - 2013 school year, school

administrators observed Respondent in his capacity as a S PED

inclusion teacher and noticed issues with his teaching ability. "

8 . In April 2013, Angela Fleites, the p rincipal of Mandarin

Lakes, formally observed Responden t in the classroom. Principal

Fleites broadly enumerated Respondent ' s responsibilities to

include : ( 1) ensuring the children were on point; ( 2) following

and processing instruction; and ( 3) having success in the

particular lesson.

9 . Principal Fleites observed that Respondent was not

focused on the task at hand and was not paying attention to the

needs of the special education students. Specifically, she

observed Respondent " walking aimlessly " around the room without

direction or specific purpose.

1 0 . During the April 2013 formal observation, Respondent

provided Principal Fleites with a copy of his lesson plans.

While the lesson plans were appropriate, Principal Fleites,

without offering any specificity, opined Respondent was not

implementing the le sson plans. Principal Fleites also observed

Respondent failing to re - direct off - task behavior of special

education students. Based on the facts rec ount ed above,

Principal Fleites opines that Respondent did not address the

individual learning needs of his SPED students.

1 1 . In a follow - up formal observation conducted in

May 2013, Principal Fleites observed that Respondent was paying

more attention to the primary teacher than the needs of the

special education students. Again, Principal Fleites observed

R espondent walking around the classroom aimlessly and providing

very little, if any, redirection to the students d emonstrating

off - task behavior.

1 2 . Respondent, as requested, provided his lesson plans to

Principal Fleites during the May 2013 observation. Again, she

opined that while the lesson plans were appropriate, Respondent

failed to implement the same. Principal Fleites, however, could

provide no greater detail on this point other than " the lesson

plan clearly talked about the individual needs of st udents

and meeting those individual needs, and that was not

happening . . . . " Based on the above observation, Principal

Fleites opined Respondent was not addressing the academic needs

of his students.

1 3 . Principal Fleites is familiar with Petitioner ' s

p rocedure regarding a fitness - for - duty exam. 2/ Despite her

familiarity, she never asked or requested that a fitness - for - duty

determination be conducted for Respondent. She did however, on

two occasions, recommend Respondent to the Employee Assistance

Prog ram; however, Respondent did not present himself to same.

14 . In December 2012, Renita Lee, an a ssistant p rincipal at

Mandarin Lakes, formally observed Respondent in the classroom.

During this 30 - minute observation, Ms. Lee recalled Respondent

simply st anding in a corner in the back of the classroom. On

that occasion, Respondent did not have lesson plans available for

review.

15 . During this observation, Ms. Lee noticed several

students who were off - task; however, Respondent did not address

the behavi or. Ms. Lee ' s recollection was that at least two of

the off - task students were special education students. Based

upon the aforementioned facts, Ms. Lee opined that Respondent

failed to address the students ' individual learning needs during

the 30 - minute observation period.

16 . Ms. Lee again observed Respondent in the classroom in

January 2013. On this occasion, Ms. Lee observed, over a two -

hour period, Respondent walking aimlessly around the room. She

testified that Respondent neither assisted nor re - directed the

students. Based on the above - observation, Ms. Lee opined that

Respondent did not address the academic needs of his students.

17 . Ms. Lee noted that Respondent was " supposed to focus on

students that are in need of assistance for a particul ar

benchmark. " A benchmark, as defined by Ms. Lee, is " a set of

objectives that students are expected to know to where they were

going to actually be tested on for FCAT. " Ms. Lee acknowledged

that , through testing and available test results, one can

dete rmine whether Respondent ' s students have met the particular

benchmarks.

18 . At times, Ms. Lee observed that Respondent had fallen

asleep while sitting upright in a faculty meeting.

19 . Kenneth Williams, an a ssistant p rincipal at Mandarin

Lakes during t he 2012 - 2013 school year, formally observed

Respondent in the classroom in March 2013. Mr. Williams observed

that Respondent was " in a daze " and not paying attention to the

needs of the learners. Mr. Williams testified that Respondent

did not redirect tw o students who were displaying off - task

behavior. 3/

2 0 . During the same observation period, Mr. Williams

received a piece of paper from Respondent; however, the same was

not a typical lesson plan in that the document did not outline

Respondent ' s duties and instructions for the SPED students on

that occasion.

2 1 . John Soderholm, an eighth - grade science teacher at

Mandarin Lakes, perceived Respondent as a " co - teacher " in his

classroom. With that belief, Mr. Soderholm was critical of

Respondent ' s engagem ent with the classroom population as a whole.

Specifically, on two occasions Mr. Soderholm requested Respondent

to lead the entire class; however, Respondent did not accept the

invitation. Concerning the special education students, Mr.

Soderholm observed Respondent making " minimal attempts to walk

around and be in the classroom " ; however, he opined that

Respondent never truly engaged.

2 2 . Haronique Durham, an eight - grade teacher at Mandarin

Lakes, perceived Respondent ' s role as an inclusion teacher and a

co - teacher in her classroom. According to Ms. Durham, Respondent

did not interact with the students, but rather, " usually walked

back and forth in the back of the room pacing and he either looks

up to the sky and covers his mouth and walks back and for th. "

According to Ms. Durham, Respondent never helped the students in

her class and never taught a lesson. Ms. Durham acknowledged

that special education students have an Individual Education Plan

( " IEP " ), which, among other things, sets forth specific g oals for

the individual student.

2 3 . Ira Gardner, a physical education teacher at Mandarin

Lakes during the 2012 - 2013 school year, on more than one occasion

observed children " hanging out of the third floor window " of a

classroom. On one such occasion, upon entering the classroom, he

observed that Respondent was the only teacher in the classroom,

and admonished Respondent that " [y]ou got to look at everybody "

and that " [t]hese kids are all over the place. "

24. Mr. Gardner, Assistant Principal Williams, Assistant

Principal Lee, and Principal Fleites credibly testified that

Respondent, on one or more occasions, appeared to be engaged in

a n audible conversation with himself.

CONCLUSIONS OF LAW

25 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 1012.33(6), 120.569,

and 120.57(1), Florida Statutes. Pursuant to section 120.65(11),

Petitioner has contracted with DOAH to conduct these hearings.

26. Petitioner seeks to terminate Respondent's employment.

In order to do so, Petitioner must prove by a preponderance of

the evidence that Respondent committed the violations as alleged

in the Amended Notice of Specific Charges. McNeill v. Pinellas

Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch.

Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

27. The preponderance of the evidence standard requires

proof by " the greater weight of the evidence " or evidence that

" more likely than not " tends to prove a certain proposition. See

Gross v. Lyons , 763 S o. 2d 276, 280 n.1 (Fla. 2000).

28. Any member of the instructional staff in a district

school system may be suspended or dismissed at any time during

the term of his or her employment contract for just cause, as

provided in section 1012.33(1)(a). § 1012 .33(6)(a), Fla. Stat.

29. The term " just cause " :

[I]ncludes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: 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. 101.34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvem ent 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.

§ 1012.33(1)(a), Fla . Stat.

30. In its Amended Notice of Specific Charges, Petitioner

avers Respondent's alleged incompetency constitutes just cause

for his dismissal. Whether Respondent is guilty of incompetency

is a question of ultimate fact to be decided in the context o f

the alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491

(Fla. 1st DCA 1995).

31. Section 1001.02(1), Florida Statutes, grants the

State Board of Education authority to adopt rules pu rsuant to

sections 120.536(1) and 120.54 to implement provisions of law

conferring duties upon it.

32. Consistent with its rulemaking authority, the State

Board of Education has defined " incompetency " to implement

section 1012.33(1)(a) via Florida Adminis trative Code

Rule 6A - 5.056. Rule 6A - 5.056(3) provides, in pertinent part, as

follows:

(3) " Incompetency " means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) " Inefficiency " means one or more of the

following:

1. Failure to perform duties prescribed by

law;

2. Failure to communicate appropriately with

and relate to students;

3. Failure to communicate appropriately with

and relate to colleagues, administrators,

subordinates, or parents;

* * *

(b) " Incapacity " means one or more of the

following:

1. Lack of emotional stability;

Failure to Communicate Appropriately and Relate

33. Petitioner first seeks to terminate Respondent's

employment on the grounds of incompetency due t o inefficiency.

Petitioner alleges in its Amended Notice of Specific Charges , and

argues in its P roposed R ecommended O rder , that Respondent was

inefficient under rule 6A - 5.056(3)(a)2. by his failure to

communicate appropriately with and relate to his SPED students;

and rule 6A - 5.056(3)(a)3. by his failure to communicate

appropriately with and relate to his colleagues, administrators,

subordinates, or parents.

34. To establish incompetency, Petitioner is first required

to prove one or more of the charged inefficiencies. 4/ Secondly,

assuming, arguendo, that Petitioner has proved one or more of the

charged insufficiencies, it is incumbent upon Petitioner to

present sufficient evidence to establish the " required duty " at

issue to be discharged. As a matter of logic and plain reading

of the subject rule, " the required duty " cannot be equivalent to

the charged inefficiency, as such a construction would render the

phrase " the required duty " a nullity or superfluous.

35. Thereafter, Petitioner must provide t he nexis between

the proven inefficiency and the non - discharge of the established

required duty. Petitioner may succeed by establishing that, as a

result of the proven inefficiency, Respondent had (1) an

inability; (2) lacked fitness; or (3) failed to dis charge " the

required duty. "

36. Assuming, without deciding, that Petitioner established

Respondent's failure to communicate appropriately and relate with

students, Petitioner must further prove that said inefficiency

resulted in Respondent's failure to discharge the required duty. 5/

37. Ostensibly, to set forth the required duty, Petitioner

presented several witnesses who opined that Respondent did not

address the " academic needs of his students " due to his

communicational and relational shortcomings. As noted in the

Findings of Fact, as a SPED inclusion teacher, Respondent was

responsible for a small group of special education students in a

general education classroom.

38. Recognizing that the academic needs of special

education students are often unique to the students themselves

and reflected in their respective IEPs, the witnesses displayed

no insight into those particular student's academic needs or to

the IEP s themselves. Indeed, Petitioner failed to present any

evidence concerning the academi c needs of any special education

student under Respondent's charge, or how Respondent's alleged

failure to communicate appropriately or relate to the special

education students resulted in a failure to meet those students'

individual academic needs.

39. Assuming, without deciding, that Petitioner established

Respondent's failure to communicate appropriately and relate with

colleagues or administrators, Petitioner must further prove that

said inefficiency resulted in Respondent's failure to discharge

the required duty. Petitioner failed to present any evidence to

establish the " required duty " at issue to be discharged vis - à - vis

the failure to communicate appropriately and relate with

colleagues or administrators.

40. Accordingly, Petitioner did not est ablish that

Respondent failed to discharge the required duty as a result of

the above - charged inefficiencies and, therefore, failed to

establish incompetency due to inefficiency, pursuant to

rule 6A - 5.056(3)(a)2. and 3.

Failure to Perform Duties Prescribe d by Law

41. Petitioner alleges in its Amended Notice of Specific

Charges, but does not argue in its P roposed R ecommended O rder,

that Respondent was inefficient under rule 6 A - 5.056(3)(a)1. by

his failure to perform duties prescribed by law.

42. Section 1 012.53, titled " Duties of Instructional

Personnel, " provides as follows:

(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 requir ements, and to master

the skills required to graduate from 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 o f

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 teacher's

duty to help students master challenging

standards and meet all state and local

requ irements for achievement; teaching

efficiently and faithfully, 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.

43. Applying the same analysis contained in the previous

section, Petitioner is first required to prove the charged

inefficiency. Here, Petitioner failed to reference or present

evidence concerning any specific duty prescribed by law that

Respon dent allegedly failed to perform. Accordingly, Petitioner

has failed to prove that Respondent is incompetent due to

inefficiency, pursuant to rule 6A - 5.056(3)(a)1.

Incapacity

44. Petitioner alleges in its Amended Notice of Specific

Charges, but does no t argue in its P roposed R ecommended O rder,

that Respondent was incompetent due to incapacity under

rule 6A - 5.056(3)(b)1. by his lack of emotional stability.

Petitioner presented the credible testimony of several witnesses

who perceived that Respondent, on several occasions, was engaged

in a conversation with himself. The evidence also supports a

finding that Respondent displayed unusual mannerisms and behavior

in and outside the classroom. Despite Respondent ' s unusual

behavior, Petitioner did not seek a fitness - for - duty

determination be conducted for Respondent.

45. The undersigned concludes that the evidence presented

is insufficient to establish, by a preponderance of the evidence,

that Respondent lacked emotional stability . Accordingly, the

undersi gned concludes Petitioner failed to establish that

Respondent is incompetent due to incapacity, pursuant to

rule 6A - 5.056(3)(b)1.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Miami - Dade County S chool Board

enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 31st day of January , 2014 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Admin istrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January , 2014 .

ENDNOTE S

1/ While the role and responsibilities of an inclusion teacher

may vary considerably based upon the inclusive model of support

Respondent was assigned to provide, neither party presented

conclusive evidence concerning the same, and, therefore, t he

undersigned has not made any findings of fact or conclusions of

law based on such distinctions.

2/ Joyce Castro, the d istrict d irector for the Office of

Professional Standards for Miami - Dade County Public Schools,

explained that a fitness - for - duty det ermination can be requested

when there is a concern regarding a teacher ' s emotional stability

in the classroom.

3/ The record is void concerning whether the off - task students

were general education students or special education students.

4/ The subject rule fails to define or otherwise provide guidance

to the terms " communicate appropriately " and " relate, " which by

their very nature are relative and highly subjective. As such,

an objective standard is necessary to gauge whether Respondent

failed to com municate appropriately and relate under the facts

and circumstances at issue. Without a neutral principl e to

apply, the undersigned would be simply advancing his personal

opinion as to whether Respondent communicated inappropriately or

failed to relate wi th students, colleagues, and administrators.

Here, Petitioner neither proved nor argued for the existence of

such a standard of conduct.

5/ The record is void of any competent evidence that Respondent

had an inability or lacked fitness to discharge the required

duty.

COPIES FURNISHED:

Heather L. Ward, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

Branden M. Vicari, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19, North , Suite 110

C learwater, Florida 33761

Alberto M. Carvalho, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 912

Miami, Florida 33132 - 1308

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 We st Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.