15-007091PL Pam Stewart, As Commissioner Of Education vs. Mark Ostermeier Status: Closed Recommended Order on Thursday, June 30, 2016.

Summary: Resp.. failed to correct deficiencies outlined in not fewer than 3 teacher evaluations. Despite assistance from his principal, Resp's performance did not improve. Revocation of Respondent's certificate appropriate under the circumstances of this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 15 - 7091PL

MARK OSTERMEIER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice on May 5, 2016, in Viera, Florida, a

hearing was cond ucted before J. D. Parrish, an Administrative

Law J udge with the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Robert Charles McClain, Esquire

4910 Flora Drive

Melbourne, Florida 32934

STATEMENT OF THE ISSUE S

Whether Respondent, Mark Ostermeier, violated Sections

1012.79 5(1)(c), (1)(g), and/or (1)(j), Florida Statutes (2011) ,

and/or Florida Administrative Code Rule 6A - 10.081(3)(a), as

alleged by the Administrative C omplaint dated October 14, 2014;

and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The ins tant case was referred to DOAH for formal

proceedings on December 16, 2015. The factual allegations of

the case mirror the allegations of a matter that emanated from

Brevard County, Florida. RespondentÓs employment with the

Brevard County School District was terminated in 2012.

Subsequent to a two - day administrative hearing and consideration

of the Recommended Order (DOAH Case No. 11 - 4310TTS) issued in

that proceeding, the Brevard County School Board terminated

RespondentÓs employment with the school dis trict. In this

action Petitioner, Pam Stewart, as the Commissioner of

Education, issued an Administrative Complaint and alleged

Respondent violated Florida law and is thereby subject to

disciplinary action imposed by the Florida Educational Practices

Comm ission. Petitioner seeks the revocation of RespondentÓs

teaching certificate.

The Administrative Complaint alleged:

Statute Violations

COUNT 1: The Respondent is in violation of s ection

l012.795 (l)(c), Florida Statutes, in that Respondent has

proved t o be incompetent to teach or to perform duties as an

employee of the public school system or to teach in or to

operate a private school.

COUNT 2: The Respondent is in violation of s ection

1012. 795 ( 1 )(g), Florida Statutes, in that Respondent has been

fo und guilty of personal conduct which seriously reduces

effectiveness as an employee of the school board.

COUNT 3: The Respondent is in violation of s ection

1012.795(l)(j), Florida Statutes, in that Respondent has

violated the Principles of Professional C onduct for the

Education Profession prescribed by State Board of Education

rules.

Rule Violations

COUNT 4: The allegations of misconduct set forth herein are

in violation of Rule 6A - 10.081(3)(a), Florida Administrative

Code, in that Respondent has faile d to make reasonable effort to

protect the student from conditions harmful to learn ing and/or to

the student's mental health and / or physical health and / or safety.

Respondent maintains he did not act inappropriately in his

tenure with the Brevard County Sc hool District and that his

teaching certificate should not be revoked. Respondent timely

sought an administrative hearing to challenge the proposed

action and the matter was scheduled for trial.

After requests for continuances were granted , the case was

ultimately scheduled for hearing for May 5 - 6, 2016. The

partiesÓ Joint Pre - hearing Stipulation was filed on April 25,

2016. The stipulation provided, in part:

3. Petitioner and Respondent agree to the

admission of the hearing transcript,

including admi tted exhibits, in Brevard

County School Board vs. Mark Ost ermeier,

DOAH Case No. ll - 4310TT (the "school

district case"). Petitioner and Respondent

agree and request that the Administrative

Law Judge make findings of fact and

conclusions of law based upon the testimony

of the witnesses and the admitted exhibits

in the school district case, and any

testimony given and exhibits admitted at the

hearing in this case.

4. On or about June 25, 2012, the Division

of Administrative Hearings entered a

Recommended O rder, recommending that the

Brevard County School Board enter a Final

Order terminating the Respondent's

employment.

5. On or about July 10, 2012, the Brevard

County School Board entered a Final Order

adopting the recommendation of the

Administrative Law Judge and terminated the

Respondent from employment as a teacher with

the Brevard County School District,

effective August 9, 2011.

The case was transferred to the undersigned on April 26,

2016, and the case was heard on May 5, 2016. As listed in the

Tr anscript of the underlying case (DOAH Case No. 11 - 4310TT S ),

Petitioner presented the testimony of the following witnesses:

Mark Ostermeier, G. K., Robin Novelli, Susan Santell, Joseph

Capalbo, Diane Butler, Jasmine DeLaughter, Jennifer Sullivan,

John Small , Janice Frye, Margaret OÓConnor, Norma Hostetler, and

Joy Sal amone. PetitionerÓs Exhibits 1 through 45, 48 through

64, and 66 were admitted. PetitionerÓs Exhibit 68 was admitted

as a joint exhibit for the parties. Respondent testified on his

own behalf a nd offered testimony from J. M., John Hays, and John

Tuttle. Mr. Tuttle also testified during the school board case.

RespondentÓs Exhibits 1 and 2 were admitted into evidence.

The Transcript of the case was filed with DOAH on May 18,

2016. Thereafter t he parties requested and were given one

extension of the time within which to file their proposed

recommended orders. The parties timely filed proposed orders

that have been fully conside red in the preparation of this

O rder.

On June 8, 2016, Respondent also filed a Motion to Reopen

RespondentÓs Cause Based Upon Newly Discovered Evidence

Subpoenaed but Not Produced a t Final Hearing. The motion failed

to identify when, what , or who failed to produce the Ðnewly

discoveredÑ evidence. The documents attached to the motion did

not represent new evidence that was not readily available to

Respondent prior to the hearing. Moreover, RespondentÓs

Exhibit 3 (marked and attached to the motion for identification)

would be cumulative and offers no probative factual i nformation

not already in the record. It is undisputed Respondent holds a

valid teaching certificate effective through June 30, 2016. The

parties previously stipulated to that fact. Adding a copy of

RespondentÓs teaching certificate (RespondentÓs Exhibi t 3

attached to the motion) adds no new information. Similarly , all

attachments to the motion were available to Respondent in

advance of the hearing and provide no new or unknown

information. The record already details the referrals to the

Employee Assis tance Program (EAP) referenced by other

attachments to RespondentÓs motion. The referrals were

documented and addressed in the school board case , as well as

the RespondentÓs testimony in the instant matter. RespondentÓs

claim that he was targeted for dis ciplinary action by his

principal is fully addressed by the record. Accordingly,

RespondentÓs motion to reopen the case is denied.

FINDING S OF FACT

1. Petitioner, Pam Stewart, as Commissioner of Education,

on behalf of the Florida Educational Practices Commission, is

authorized by Florida law to investigate and prosecute cases

against teachers with Florida teaching certificates. See §§

1012.315, 1012.795, and 1012.796, Fla. Stat.

2. Respondent, Mark A. Ostermeier (Respondent), holds a

Florida educatorÓ s certificate, Certificate N o. 662488, covering

the subject area of art, grades kindergarten through 12.

RespondentÓs teaching certificate is valid through June 30,

2016.

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

Respondent was employed b y the Brevard County School District

(District) and worked as an art teacher at the high school and

elementary school levels.

4. Except for the school year ending 2002, the District

issued acceptable evaluations to Respondent . From the time

Respondent was assigned to Bayside High School (Bayside) until

the 2008/2009 school year Respondent received acceptable

evaluations.

5. For the school years 2008/2009 and 2009/2010 Respondent

was assigned to Bayside . The principal at Bayside during the

relevant ti me span was Robin Novelli.

6. While at Bayside , Respondent was responsible for

instructing students in grades 9 through 12 in the area of art.

During the 2008/2009 school year , Mr. Novelli became concerned

regarding RespondentÓs classroom management, p lanning, and

instruction. Although he signed off on the evaluation for that

year (performed by another school administrator), Mr. Novelli

decided he would assume the role of evaluator for Respondent for

the following school year.

7. Before 2008/2009 , Re spondent received acceptable

evaluations. The principal at Bayside during those years was

John Tuttle , who signed off on all of RespondentÓs evaluations ,

but did not personally evaluate Respondent. Mr. Tuttle believed

Respondent to be a competent instruc tor.

8. In May 2009 , Respondent exhibited unacceptable behavior

and Mr. Novelli received complaints from a parent and student

that Respondent had refused to return the studentÓs artwork.

The student withdrew or did not re - enroll in RespondentÓs art

cla ss , and Respondent took one of the studentÓs paintings to his

home. When the student and parent demanded the return of the

painting, Respondent refused to return it. When Mr. Novelli

intervened , Respondent relented and eventually returned the

studentÓs p ainting. The student believed Respondent was

refusing to return the painting in an effort to get the student

to re - enroll in RespondentÓs class. Respondent denied the

allegation but did not have a valid reason for not returning the

studentÓs art.

9. Ba yside did not have an advanced placement (AP) art

program. Respondent was desirous of establishing such a program

and sought to do so. One of the activities that would enhance

an AP art program was a field trip Respondent proposed for

students to attend a National Portfolio Day conference.

Respondent attempted to pitch the field trip for his art

students , but did not follow directives in order to get the trip

approved. Mr. Novelli did not approve the trip. Respondent did

not have art students who met t he requisite level of proficiency

to warrant an AP level class. Nevertheless , Respondent

continued to fuel the studentsÓ desire to attend the conference.

10. When Respondent failed to meet the prerequisite

criteria to have the field trip approved , he b lamed Mr. Novelli.

11. In October 2009 , Mr. Novelli observed Respondent and

gave him an interim evaluation that marked him as overall

unsatisfactory. Five categories were unsatisfactory and one

category needed improvement. Thereafter, Mr. Novelli gave

Respondent prescriptive plans for improvement. The Professional

Development Assistance Plans (PDAP s ) itemized what Respondent

needed to do to improve his performance. The plans provided

specific strategies and acts for Respondent to do to improve.

Resp ondent did not follow the PDAPying to communicate with

Respondent proved difficult , as his interpretation of what was

needed to improve differed from the directives of the PDAP.

12. Respondent did not improve , and it became

Mr. NovelliÓs opinion t hat students in RespondentÓs art classes

had been deprived a minimum educational experience.

Mr. NovelliÓs expectations of Respondent were based upon his

years as a trained administrator to evaluate teachers in all

courses. Because Respondent continued to provide deficient

classroom management, planning, and instruction , Mr. Novelli

evaluated Respondent as unsatisfactory.

13. As the end of the school year approached , RespondentÓs

performance did not improve to any significant degree. Rather

than contin ue at Bayside, RespondentÓs union representative,

acting on his behalf, sought a transfer for Respondent to

another school. That transfer was granted by the District.

14. Respondent made several false accusations against

Mr. Novelli and/or other school administrators. At one time or

another Respondent stated he had been recorded with a USB

recording pen; had been falsely arrested because of a false

claim made by a District employee; had been poisoned due to an

environmental hazard that Respondent was fo rced to endure; lost

a child because of District treatment; and had his car

vandalized by a school administrator. None of the accusations

were accurate.

15. Respondent started the 2010/2011 school year with a

PDAP at Lockmar Elementary School (Lockmar). While at Lockmar ,

Respondent was supervised by the principal , Ms. Hostetler.

Respondent respected Ms. Hostetler and acknowledged she had

worked to assist him.

16. Nevertheless , despite her efforts to give Respondent

constructive help to meet the crite ria and to improve

deficiencies, Ms. Hostetler evaluated Respondent as

unsatisfactory. The issues with planning, classroom management,

and ability to provide effective instruction to students

continued.

17. In October 2010 , Ms. Hostetler gave Respondent an

interim evaluation that scored him as unsatisfactory in four

categories and needs improvement in one. Ms. Hostetler noted

that (as in the past) Respondent failed to have adequate lesson

plans, failed to provide meaningful instructions to students in

an organized, efficient manner, and failed to manage his

classroom to assure that all students were appropriately engaged

in the lesson. Additionally, Ms. Hostetler noted that

Respondent did not have his classroom ready for instruction when

students arrived for class and did not timely release the

students back to their teachers at the conclusion of the art

session. This was a problem because the classroom teachers were

delayed or inconvenienced by RespondentÓs behavior. Despite

counseling for this issue , RespondentÓs deficiencies at the

beginning and conclusion of class continued.

18. It came to Ms. HostetlerÓs attention that Respondent

was sending disruptive students outside his classroom to Ðlook

for dinosaurs.Ñ His belief that this technique for beh avior

management was acceptable was erroneous. Ms. Hostetler did not

approve the practice and opined that it placed students at risk.

Respondent did not accept Ms. HostetlerÓs authority as

definitive on the issue. Respondent maintained that his

techniqu e was an acceptable strategy that should have been

allowed.

19. Ms. Hostetler next evaluated Respondent in February of

2011. Noting little improvement , the February evaluation found

the RespondentÓs teaching practices remained unsatisfactory.

Respondent failed to use 21 st Century equipment as Ms. Hostetler

had requested. Additionally, he did not use art materials

appropriately, did not control the classroom, and did not

differentiate course work by age and grade. Nevertheless,

Ms. Hostetler gave Respo ndent more time to improve and again

issued a PDAP that was designed to give Respondent specific

directives.

20. At the conclusion of the school year, Ms. Hostetler

evaluated RespondentÓs performance as unsatisfactory. He was

given a contract for the f ollowing school year in error. The

District eventually caught the mistake and notified Respondent

that his employment with the schools would be terminated.

21. Subsequent to a two - day administrative hearing, the

DOAH Administrative Law Judge issued a Re commended Order that

found the DistrictÓs action was supported by the weight of the

evidence presented.

22. RespondentÓs teaching was unacceptable during the

2010/2011 school year and failed to provide students with a

meaningful educational opportunity. Respondent was incompetent

to comply with directives , which were reasonable and tailored to

help Respondent meet the mandates of the PDAP s . RespondentÓs

art student s were deprived a minimum educational experience.

CONCLUSIONS OF LAW

23. Pu rsuant to s ecti ons 120.569 and 120.57(1), Florida

Statutes (2015) , DOAH has jurisdiction over the subject matter

of and the parties to this proceeding.

24. Section 1012.795, Florida Statutes, provides, in

pertinent part:

(1) The Education Practices Commission may

sus pend the educator certificate of any

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

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact w ith students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district scho ol board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person t he right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(c) Has proved to be incompetent to teach

or to perform duties as an employee of the

public school system or to teach in or to

operate a private schoo l.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that personÓs effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

25. In order to take action against the RespondentÓs

teaching certificate , Petitioner must establish by clear and

convincing evidence that Respondent committed the acts

complained of in the Admini strative Complaint. Petitioner bears

the burden of proof as to all allegations. See DepÓt of Banking

& Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); and Pou v. DepÓt of Ins. & Treasurer , 707 So. 2d

941 (Fla. 3 rd DCA 1998).

26. ÐClear and convincing evidenceÑ as described in Evans

Packing Co. v. DepÓt of Agric. & Consumer Servs. , 550 So. 2d

112, 116 n. 5 (Fla. 1 st DCA 1989):

requires that the evidence must be found to

b e credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797,800

(Fla. 4 th DCA 1983).

27. During the 2009/2010 and 2010/2011 school years, w hile

employed with the District, Respondent failed to competently

perform his duties as an art teacher. He received multiple

unsatisfactory performance evaluations and failed to comply with

the performance improvement options provided to him. Two

princip als worked to assist Respondent with the remediation of

his deficient areas of performance. Respondent was given PDAP s

for all areas shown to be deficient. When RespondentÓs union

representative sought a school transfer to give Respondent a

fresh start a t another school, the District accommodated the

request.

28. Respondent was asked to draft or improve lesson plans

but failed to follow them when drafted. Respondent was asked to

use 2 1st Century t echnology available in his classroom , but

failed to do so. Respondent was a sked to impart discernible,

age - appropriate lessons to his classes. Respondent routinely

presented the same lesson to all his elementary classes.

Respondent was asked to be mindful of his peers , yet continued

to disturb his neighbori ng classroom. Respondent was asked to

keep his class time limited to the minutes he was afforded , but

routinely caused other teachers to be inconvenienced by not

having his classroom ready for the studentsÓ arrival or ready

for departure at the end of cla ss. Respondent was counseled in

this regard several times , yet he failed or refused to conform

to the schedule all teachers were required to keep.

29. Also troubling, Respondent disregarded the safety of

elementary students by sending them outside Ðto look for

dinosaurs.Ñ Respondent used an unapproved behavioral strategy

not authorized by his school principal to give disruptive

students a time - out while they perused the outside area for

dinosaurs. Respondent was unaware that such isolation could,

and did, cause students to be subjected to peer disparagement.

Telling in this instance is RespondentÓs lack of candor in

acknowledging the error. Respondent maintained he was following

an appropriate strategy and placed his opinion of how he handled

the beh avioral problems exhibited by disruptive children above

the guidance provided by others.

30. Respondent has an abundance of confidence in his

abilities and manner of performance of his teaching duties and

failed, or otherwise refused, to conform to the dictates of his

principals. Based upon the record in this case, when presented

with a Ðbattle of the wills , Ñ it is unlikely Respondent would

submit to authority and comply with improvement directives no

matter how accurately or inaccurately perceived by R espondent.

While quick to suggest his issue at Bayside stemmed from the

principal there and their personal conflicts, there was no such

conflict at the elementary school. Ms. Hostetler gave

Respondent every opportunity to improve and extended his time to

improve in an abundance of fairness. Respondent had no conflict

with Ms. Hostetler yet failed to comply with her suggestions.

31. Respondent made inaccurate and unprofessional

statements regarding Principal Novelli and other administrators

to others. Many of RespondentÓs statements to others were

unsubstantiated by the reality of the situations. For example,

Mr. Novelli did not use a USB pen recording device at any time

and did not attempt to record Respondent using one. Mr. Novelli

did not attempt to have Respondent arrested on false or trumped -

up charges. Mr. Novelli did not damage RespondentÓs motor

vehicle. No District employee Ðkilled his babyÑ as Respondent

claimed. And finally and perhaps most telling is the closing

statement Respondent mad e to the undersigned. Respondent asked

to make a statement at the conclusion of the case and, over

PetitionerÓs objection, was allowed to do so. Respondent wanted

the undersigned to know:

Okay. For the record with fact, when I was

young the same people that went after

Mr. WalshÓs son came after me. They were a

terrorist group called The Hand of Death.

While teaching at the Brevard County School

System I had a female teacher come up to me

and pull her hair back and show me a bone

that said The Hand of Death. She said that

I had to watch out for my job. IÓm

informing you that I have informed the FBI

to the best of my ability about those facts

and those findings. Therefore, I appreciate

you being here. But with fact and with a

good heart and good soul , I am the only

living witness, the only one who can testify

that those terrorists are out there, those

child - snatchers are out there. I have given

the FBI to the best of my ability all that

knowledge, all that fact, all that

information. One of the reas ons for me not

pursuing going back into teaching was to

find out one hundred percent factually who

those people are, where they were, and what

they were doing.

32. Petitioner has established by clear and convincing

evidence that Respondent lacked fitness to discharge the duties

of his job to provide his art classes with a minimum educational

experience. As such , Respondent is subject to discipline in

accordance with law. Respondent repeatedly failed to perform

duties prescribed by his evaluators. Respo ndentÓs evaluations

document the areas needing remediation. RespondentÓs PDAP s

document the efforts made by the District to assist Respondent.

Respondent failed or otherwise refused to improve his

performance.

33. As to each count of the Administrativ e Complaint ,

Petitioner has established by clear and convincing evidence

Respondent violated provisions of law and/or rule.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is recommended that the Educational Practices

Commission enter a final order revoking Respondent's teaching

certificate.

DONE AND ENTERED this 30th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Adminis trative 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 30th day of June, 2016 .

COPI ES FURNISHED:

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Ron Weaver, Esquire

Post Office Box 770088

Ocal a, Florida 34477 - 0088

(eServed)

Robert Charles McClain, Esquire

4910 Flora Drive

Melbourne, Florida 32934

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32 399 - 0400

(eServed)

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

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l 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.