20-003492TTS Broward County School Board vs. David R. Manset Status: Closed Recommended Order on Tuesday, March 16, 2021.

Summary: School board has just cause to dismiss elementary school teacher for just cause during the term of his professional service contract, based upon the teacher?s having received three consecutive annual performance ratings of Needs Improvement.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ROWARD C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 3492 TTS

D AVID R. M ANSET ,

Respondent .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge John G.

Van Laningham , Division of Administrative Hearings ( Ñ DOAH Ò ) , for final

hearing by Zoom teleconference on November 1 7 , 20 20 .

A PPEARANCES

For Petitioner: Andrew Carrabis, Esquire

Broward County School Board

600 Sout heast Third Avenue , 11th Floor

Fort Lauderdale , Florida 3 3301

For Respondent: Robert F. McKee, Esquire

Robert F . Mckee, P . A .

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

S TATEMENT OF T HE I SSUE

The issue is whether the district school board has just cause to dismiss

one of its elementary school teacher s for just cause during the term of his

profes sional service contract, based upon the teacherÔs having received three

consecutive annual performance evaluation ratings of Needs Improvement .

P RELIMINARY S TATEMENT

On June 24, 2020 , Petitioner Broward County School Board (the ÑSchool

BoardÒ or ÑDistrictÒ ) issued an Administrative Complaint against Respondent

David R. Manset ( Ñ Manset Ò ) , charging Manset with the disciplinable offense

of having received three consecutive annual performance evaluation ratings

of Needs Improvement , which, under s ection 1012.33(1)(a), Florida Statutes,

constitutes just cause for dismissal during the term of a teacherÔs professional

service contract.

Manset timely requested a formal administrative hearing . B y letter dated

August 6, 20 20, the School Board referred the matter to DOAH for further

proceedings . Upon assignment, the undersigned set the final hearing , which

took place on November 17 , 20 2 0.

At the final hearing, the District called as witnesses Heather Thomson -

Parente, Michelle Garcia, Cynthia W oods, Dawn McMahan, Richard Baum,

and Diego De Rose . Petitioner Ô s Exhibits 1 through 47 were received in

evidence without objection . Manset testified on his own behalf and offered

Respondent Ô s Exhibits 1 through 6, which were admitted without objection .

The final hearing transcript was filed on December 9 , 20 20 . Each party

timely filed a Proposed Recommended Order , and these submissions were

considered in the preparation of this Recommended Orde r.

Unless otherwise indicated, citations to the official st atute law of the state

of Florida refer to Florida Statutes 20 20 , except that all references to statutes

or rules defining disciplinable offenses or prescribing penalties for

committing such offenses are to the versions that were in effect at the time of

t he alleged wrongful acts .

F INDINGS OF F ACT

1 . The School Board is the constitutional entity authorized to operate,

control, and supervise the Broward County Public School System . At all

times relevant, it was Manset Ôs employer.

2 . During the three school years at issue, from 2015 to 2018, Manset

taught second grade at Oak land Park Elementary School (ÑOakland ParkÒ) ,

which had been his work location since November 2012 . Manset had started

teaching in the District in August 2003 .

3 . This case arises from the DistrictÔs decision not to reinstate Manset to

his former teaching position upon MansetÔs return , in 2020, from an

approved, two - year leave of absenc e . As grounds for this decision, the District

relies upon the Ñthree - strikes ruleÒ prescrib ed in section 1012.33, which

(i) makes it a disciplinab le offense , referred to herein as ÑPoor Ratings , Ò 1 for a

teacher to be given three consecutive annual performance rating s of less than

Ef fective , thereby subje cting the guilty party to dismissal for Ñjust causeÒ

during the term of his or her employment contract ; and (ii) authorizes a

district school board not to renew the professional service contract (ÑPSCÒ) Ð

af ter the end of said PSCÔs one - year term Ð of a teacher who has received

three consecutive ann ual performance ratings of less than E ffective .

§ 1012.33 (1)(a), (3)(b), Fla. Stat.

4 . For some background , section 1012.34 requires school districts to

evaluate the performance of every teacher they employ , at least once per

year . Each district must devel op an Ñevaluation systemÒ for this purpose ,

which is required to differentiate between four levels of per formance: Highly

1 Other disciplinable offenses, which , if proved , constitute just cause for dismissal, include

misconduct in office, gross insubordination, and willful neglect of duties . See § 1012.33(1)(a),

Fla. Stat . ÑPoor RatingsÒ Ð which is the undersignedÔs shorth and for the full statutory

definition of the offense, i.e., Ñthree consecutive annual performance evaluation ratings of

needs improvement or a combination of needs improvement and unsatisfactory under

s. 1012.34Ò Ð is thus comparable to, e.g., misconduct in office as a basis for terminating a

teacherÔs employment.

Effective, Effective, Needs Improvement, and Unsatisfactory . § 1012.34(2)(e) ,

Fla. Stat .

5 . At least one - third of a teacherÔs evaluation must be based upon

student performance , and at least one - third upon Ñinstructional practice. Ò

§ 1012.34(3)(a) , Fla. Stat . Accordingly, t he District uses an evaluation system

in which a teacher is given a numeric score of between 1 and 4 for each of

three , separately - weighted indicators of performance: Instructional Practice

(ÑIPÒ) Ð 60% , Student Performance (ÑSPÒ) Ð 35% , and Deliberative

Practice/Growth Plans (ÑDPÒ) 2 Ð 5% . 3 The average of the teacher Ôs three

weighted scores equals his or her Final Sco re for the school year . Because the

SP score takes some time to process, the teacherÔs Final Score for any given

year is usually not available until the fall of the next school year.

6 . The teacherÔs Final Score determines his or her level of performance

according to the following scale:

Label Highly Effective Effective Needs Improvement Unsatisfactory

Details 3.4 Ï 4.0 2.5 Ï 3.399 2.0 Ï 2.499 1.0 Ï 1.999

7 . The IP score , which contributes the most to a teacherÔs Final Score, is

based upon the firsthand knowledge of an eyewitness who has seen t he

teacher in action in the classroom . While observing the teacher instructing

his or her pupils , a n administrator, such as the principal or an assistant

principal, measures the teacherÔs performance against a broad menu of

objective criteria , exercising judgment and discretion in determining how well

the teacher is implementing best practices and strategies . Although arrived

2 The indicator DP, which is relatively insignificant given its low weight of just 5%, is

basically a gimme for which most teachers receive the maximum score. Having no bearing on

the outcome of thi s case, DP will not be discussed in depth .

3 For the 2015 - 2016 school year, indicators IP and DP were weighted a bit differently, at 64%

and 1% respectively. This minor detail is immaterial to the instant case and, thus, will be

ignored hereafter.

at through the application of objective criteria, which confine t he evaluatorÔs

discretion, the IP score is inherently a subjective , empirical assessment

reflecting the evaluatorÔs professional opinion of the teacherÔs actual

performance .

8 . The SP score, in contrast, results from a regression analysis of the

scores of the teacherÔs students on a standardized test or tests . The District

uses a statistical model that is supposed to isolate, from the testing data, a

qua ntum of student growth or academic achievement attributable to the

teacher . The statistician(s) who dete rmine the teacherÔs student achievement

quantum do so based solely up on the numbers, without seeing the teacher in

action . In this sense, the SP score is objective and uninfluenced by any

individualÔs subjective opinion of the teacherÔs performance .

9 . Manset received an annual performance evaluation for each of the

relevant school years, namely 2015 - 2016 (ÑYear 1Ò), 2016 - 2017 (ÑYear 2Ò), and

2017 - 2018 (ÑYear 3Ò) . His respective IP scores for each of these years were

2.809, 2.777, and 2.9 50 , meaning that he was rated as an Effective teacher

under this most telling indicator of performance .

10 . MansetÔs SP score for each of the three subject years, however, was

only 1.5, which translates to a low rating of Unsatisfactory for this significant

performance i ndicator .

11 . MansetÔs Final Scores for the years in question were as follows:

Year 1: 2.253

Year 2: 2.391

Year 3: 2.495

Based on the foregoing Final Scores, which reflect the strong downward drag

of his low SP numbers (worth 35%, remember), Manset received three

consecutive annual performance evaluation ratings of Needs Improvement ,

pursuant to the Final Score Scale (reproduced above in paragraph 6) .

12 . On or about May 16, 2018, some six months before MansetÔs Year 3

Final Score would be known , when it was assumed that Manset would be

returning to Oakland Park the following year, Manset received notification

that he would be recommended for reappointment as an instructional

employee for the 2018 - 2019 school year .

1 3 . Prior to the 2018 - 20 19 school year, however, Manset requested, and

was granted approval to take, p ersonal l eave without pay for a period of one

year, in accordance with School Board Policy 44 09 . His last day of work in the

District was in August 2018 . After that, Manset reloc ated to Maryland, where

he accep ted a teaching position for the 2018 - 2019 school year. W ith his leave

scheduled to end on June 30, 2019 , Manset was required to notify the

District , no later than March 1, 2019 , of his plans for the 2019 - 2020 school

year.

14 . MansetÔs Final Score for Year 3 was ready in or around November

2018 . Had he not been on leave at th at time, Manset would have been subject

to dismissal during the term of his then - current PSC on a charge of Poor

Ratings , pursuant to section 1012.33(1) (a) , because his performance rating of

Needs Improvement for Year 3 was the third such rating in as many years .

As it happened, however, Manset was not subject to dismissal in November

2018, because he was not then working in the District.

1 5 . Moreover, be cause Manset was on leave when his Year 3 evaluation

was complete, the District elected not to provide him the Final Score (and

rating of Needs Improvement) at that time . Rather, it was decided that

Manset would receive h is final evaluation for the 2017 - 2018 school year upon

his return.

1 6 . Manset timely notified the District that he wanted to continue his

p ersonal l eave for another year . T he District approved MansetÔs request ,

which is a little curious, in light of the thre e - strikes rule . 4 This second, one -

year leave would expire on June 30, 2020 . Taking advantage of this

4 No e xplanation for this decision was given at hearing .

additional leave of absence, Manset remained in Maryland and did not teach

in the District during the 2019 - 2020 school year .

1 7 . Before March 1, 2020, Manset timely notified the District that he

w ould be ready to return to work after his two - year leave expired , and he

asked to be reinstated for the 2020 - 2021 school year . Shortly thereafter,

District administrators phoned Manset to inform him that he would not be

permitted to return to his former position due to the three - strikes rule .

1 8 . By letter dated May 27, 2020, the superintendent officially advised

Manset that , under the three - strikes rule, Manset was Ñnot to receive a

contractÒ and, according ly, would not be reinstated within the B roward

County Public Schools . In this letter, the superintendent cited section

1012.33 (1)(a) as supporting authority for his decision . He seems to have had

section 1012.33 (3)(b) in mind , however, which is on point wi th the assertion

that Manset was Ñ n ot to receive a contract. Ò As discussed below, teachers are

Ñstatutorily entitled to renewal of their PSC unless their performance [is]

unsatisfactory. Ò Lewis v. Broward Cty. Sch. Bd. , 298 So. 3d 672, 674 (Fla. 4th

DCA 20 20).

19 . The parties have stipulated that Manset Ñis currently employed as

a teacher pursuant to Section 1012.33, Florida Statutes. Ò J T . P RE - HÔ G S TIP .

at 10 . Ordinarily , as applied to a te acher, the term Ñcurrently employedÒ

would be synonymous with Ñunder contract. Ò There is no evidence, however,

that MansetÔs PSC was renewed for the 2018 - 2019 school year, much less for

any subsequent year . Because Manset was on approved leave without pay

and did not teac h in the District at any time after August 2018 , the

undersigned infers that MansetÔs 2 017 - 2018 contract expired, leaving him

without a PSC afterwards . 5

5 If the District renew ed MansetÔs PSC for 2019 - 2020, then it did so with actual knowledge

that he had previously received three consecutive ratings of Needs Improvement .

20 . Manset Ôs undisputed status as a current employ ee of the District is (as

far as the evidence shows ) a function of the p ersonal l eave that he too k, not

the result of his holding a n unexpired PSC. 6 Consequently , despite the fact

that Manset is still a District employee , the undersigned cannot find, as a

matter of fact, that the District is seeking to dismiss Manset during the term

of his contract, because his last contractÔs term expired some time in 2018.

21 . On June 24, 2020, the District issued an Administrative Compl aint

against Manset, predicated on a charge of Poor Ratings . The District seeks,

pursuant to the complaint, to terminate MansetÔs employment for just cause .

22. In his defense to the Poor R atings charge , Manset disputes the validity

of the SP score that he received for Y ear 1 , but otherwise does not contest the

IP and SP scores he was awarded for the years in question . His main

argument, in brief, is that the Needs Improvement rating for Year 1 should

be tossed out due to the allegedly faulty SP score , thereby compelling the

ultimate determination that Manset , ha ving been given onl y two ,

substantively true consecutive ratings of Needs Improvement , is not guilty of

Poor Ratings .

23 . The fact s forming the ba sis of MansetÔs objection to his Year 1 SP score

are straightforward and not disputed . In February 2016, Manset was injured

in an automobile accident and could not work for more than two months . He

was on approved sick leave for ten weeks starting February 20, 2016 . Thus,

a s a result of the car crash, M anset missed 50 days of class out of a total of

166 Ð or 30% of the school year . Looked at another way, Manset was absent

(with permission) from his classroom for 60% of the spring semester .

6 If Manset had lost his status as an employee by taking leave, then he would have needed

to be rehired (as opposed to reinstated) upon his return, costing him the right to a PSC . See

§ 1012.335, Fla. Stat . No one has suggested that that happened . On the contrary, but for the

three - strik es rule, Manset doubtless would have received a new PSC when he returned from

leave because, under Policy 4409, he was (and, as this is written, still is) employed by the

District, albeit without a current contract.

24 . During most of MansetÔs absence, his second - grade class was taught

by a Ñpool sub,Ò i.e., a substitute teacher who worked only at Oakland Park

and reported to that campus every day . The pool sub was in MansetÔs

classroom for approximately 30 days . Regular certified substitute teachers

covered the balance .

25 . The regression analysis that the District uses to compute a teacherÔs

SP score does not factor in the contributions of substitute teachers as a

predictor variable . Consequently, MansetÔs SP score for Year 1 necessarily

reflects the positive or negative impact, if any, that the substitute teachers

(especially the pool sub) had on student growth or achievement . Manset

argues, in effect, that his SP score for that year is, for that reason, unreliable

and invalid, making his Year 1 Final Score untrustworthy and incapable of

supporting a Poor Ratings charge.

C ONCLUSIONS O F L AW

2 6 . Based upon the fact that Manset does not currently hold a PSC, the

undersigned concludes that the District lacks jurisdiction, u nder sections

1012.33(1)(a) and 1012.33(6)(a), to charge Manset with Poor Ratings (or any

other disciplinable offense) as grounds for a just - cause dismissal, and

consequently that DOAH is without subject matter jurisdiction to entertain a

hearing on the in stant Administrative Complaint . The undersigned,

accordingly, will recommend that the School Board dismiss the

Administrative Complaint for want of jurisdiction . For reasons explained

below, however, the undersigned will take up the merits nevertheless,

re commending an alternative disposition based up on the assumption that

jurisdiction lies .

2 7 . The jurisdictional defect is a product of the statuteÔs plain language .

Section 10 1 2.33(1)(a) provides as follows:

Each person employed as a member of the

instruct ional staff in any district school system shall

È receive a written contract as specified in this

section. All such contracts È shall contain

provisions for dismissal during the term of the

contract only for just cause. Just cause includes, but

is not limi ted 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. 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 negle ct 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.

(Emphasis added.)

28 . Subsection (6) echoes the condition that dismissal be initiated during

the term of a teacherÔs contract:

Any member of the instructional staff, excluding an

employee specified in subsection (4), may be

suspended or dismissed at any time during the term

of the contract for just cause as provided in

paragraph (1)(a) .

§ 1012.33( 6)(a), Fla. Stat. (emphasis added).

29 . The statute is clear an d unambiguous concerning when a district

school board may exercise its authority to dismiss a teacher for good cause . It

may do so Ñat any time during the term of the [teacherÔs] contract. Ò In this

regard, section 1012.33(6)(a) is analogous to section 120.56(3)(a), which

provides that a Ñ petition alleging the invalidity of an existing rule may be

filed at any time during which the rule is in effect. Ò Under the plain language

of section 120.56(3) , which resembles that of section 1012.33(6)(a), DOAH is

without jurisdiction to hear a challenge to a rule that is no longer in existence

because, e.g., it has been repealed . DepÔt of Rev. v. Sheraton Bal Harbour

AssÔn, Ltd. , 864 So. 2d 454 (Fla. 1st DCA 2003) . By like reasoning, DOAH is

without jurisdiction to hear a just - cause dismissal proceeding against a

teacher whose contract is no longer in existence .

30 . Of course, as a general ru le, only those teachers whose contracts

remain in force and effect a re subject to dismissal from employment .

MansetÔs circumstances are exceptional due to the length of the p ersonal

l eave he took and its timing in relation to his receipt of a third consecutive

performance rating of Needs Improvement . Manset is th at odd ins tructional

employee without a current contract . The upshot is that, b ecause Manset

doesnÔt have a contract, he cannot be dismissed during the term of the

contract for just cause .

31 . This does not mean that the District must reinstate Manset . To the

contrary, MansetÔs reinstatement is in jeopardy under the plain language of

section 1012.33(3)(b), which provides in relevant part as follows:

(3) A professional service contract shall be renewed

each year unless:

* * *

(b) The employee receives È three consecutive

annual performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under s. 1012.34.

32 . Nonrenewal under subsection (3)(b) effectively separates the teacher

from his or her em ployment with a school district, to be sure, but the

nonrenewal of a PSC is not a disciplinary action. 7 Unlike a dismissal for just

cause pursuant to subsection (1)(a), more over, which must be carried out

following the procedure prescribed in subsection ( 6), a subsection (3) ( b)

nonrenewal does not trigger a right to a hearing under section 1012.33 . While

7 The Department of Education must be no tified when a teacherÔs contract is not renewed .

See § 1012.34(5), Fla. Stat . This could lead to the bringing of disciplinary charges against the

teacher pursuant to section 1012.795 . Id .

subsection (6)(a)2. specifically authorizes DOAH to conduct a hearing when a

teacher disputes his or her termination for just cause, there is no language in

section 1012.33 conferring jurisdiction upon DOAH to conduct a hearing to

determine whether a teacherÔs PSC should be renewed .

33 . Be that as it may , th e question of whether Manset has a n

administrative remedy to contest nonrenewal under subs ection (3) (b) need

not be decided in this case, because the intended action presently before the

undersigned involves Manset Ôs disciplinary dismissal for just cause pursuant

to section 1012.33(1)(a) .

34 . The bottom line is that neither the District nor DOAH is autho rized to

conduct proceedings to dismiss a teacher for just cause, unless the charges

are made against the employee during the term of his or her contract . The

Administrative Complaint against Manset was not issued during the term of

his PSC . Therefore, the District should dismiss the complaint for lack of

jurisdiction . Such a dismissal, which does not reach the merits, will be

without prejudice to the respective rights and obligations of the parties under

section 1012.33(3), and any other applicable laws, s hould the District

subsequently elect not to provide Manset a new PSC. 8

35 . Having decided that DOAH lacks subject matter jurisdiction in this

matter, the undersigned should refrain from address ing the merits, which he

is not empowered to decide ; ordinaril y , that is what he would do . Here,

however, the parties stipulated that Manset is currently employed , and

neither s ide has questioned DOAHÔs jurisdiction to hear this case . Moreover,

although it is reasonable to infer, as the undersigned has done, that Manset

does not currently hold a PSC during whose term this action was commenced,

there is no direct evidence of this fact . While it seems most likely that Manset

does not curr ently hold an unexpired PSC, the undersigned would be unfazed

to learn of facts outside the record, which show that he does ; for one, it would

8 See Arison Shipping Co. v. Hatfield , 352 So. 2d 539, 540 (Fla. 3d DCA 1977)(Ñdismissal for

lack of subject matter jurisdiction is not an adjudication on the meritsÒ).

explain why the parties have paid no attention to the issue.

36 . Therefore, the undersigned will assume, for argu mentÔs sake, that

DOAH has jurisdiction and, on that basis, make a determination on the

merits , together with a recommend ation that the School Board adopt this

alternative disposition if , in fact, Manset currently holds a PSC whose term is

running.

37 . A d istrict school board employee against whom a disciplinary

proceeding has been initiated must be given written notice of the specific

charges prior to the hearing. Although the notice Ñneed not be set forth with

the technical nicety or formal exactness requ ired of pleadings in court,Ò it

should Ñspecify the [statute,] rule, [regulation, policy, or collective bargaining

provision] the [school board] alleges has been violated and the conduct which

occasioned [said] violation.Ò Jacker v. Sch. Bd. of Dade Cty. , 426 So. 2d 1149,

1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).

38 . Once the school board, in its notice of specific charges, has delineated

the offenses alleged to justify termination, those are the only grounds upon

which dismissal may be predicate d. See Lusskin v. Ag. for Health Care

Admin. , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. DepÔt of Ins. ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. DepÔt of Bus. & ProfÔl

Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d DCA 1993); Delk v. DepÔt of P rofÔl

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. DepÔt of ProfÔl Reg.,

Bd. of Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. den. , 576 So. 2d 295

(Fla. 1991).

3 9 . In an administrative proceeding to suspend or dismiss a member of

the ins tructional staff, the school board, as the charging party, bears the

burden of proving, by a preponderance of the evidence, each element of the

charged offense(s). See McNeill v. Pinellas Cty. Sch. Bd. , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Sublett v. Su mter Cty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995); MacMillan v. Nassau Cty. Sch. Bd. , 629 So. 2d 226

(Fla. 1st DCA 1993).

40 . The instructional staff memberÔs guilt or innocence is a question of

ultimate fact to be decided in the context of eac h 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).

41 . In its Administrative Complaint, the District charged Manset with

Poor Ratings and several other offenses , which are bootstrapped to the

performance evaluations and depend upon MansetÔs being found guilty of

Poor Ratings . In other words, if Manset is not guilty of Poor Ratings, then he

is also not guilty of any other charge brought against him in the

Administra tive Complaint . Conversely, if Manset is guilty of Poor Ratings,

the n the other charges are superfluous, if not multiplicitous , because the

offense of Poor Ratings, if proved, provides just cause for dismissal by itself .

Accordingly, the undersigned will f ocus solely on the charge of Poor Ratings .

42 . MansetÔs defense is premised on the notion that, as he puts it, Ñif any

one of the three Óneeds improvementÔ evaluations is found to be without a

sufficient basis, the n the three - strike rule will not apply. Ò R ESPONDENT Ô S PRO

at 8 . In MansetÔs view, this proceeding affords him the opportunity to contest

the ÑtruthÒ of any or all of his Needs Improvement ratings, presumably by

showing either that he was, in fact, deserving of an Effective (or better)

rating for one or more of the three years at issue, or, alternatively, that one or

more of the subject ratings are legally or factually insufficient and hence

should be invalidated.

43 . For its part, t he District expended considerable e nergy at hearing

attempt ing to prov e the reliability and accuracy of the performance ratings

assigned to Manset . That is, the District sought to prove not only that

Manset had received three consecutive ratings of Needs Improvement, but

also to establish that Manset is not, in fact, an effective teacher . In this way,

t he District acceded, at least tacitly, to the idea tha t it needed to prove the

truth of the matters asserted in MansetÔs evaluations .

44 . The parties have misinterpreted the nature of the Poor Ratings

offense . As defined by the plain language of section 1012.33(1)(a), t he offense

consists of receiving three consecutive, less - than - efficient evaluation ratings,

not the act of committing less - than - efficient teaching for three consecutive

years . Thus, the annual performance e valuation s are not proof of an element;

they are an element Ð really the element Ð to be proved . The charge of P oor

R atings requires proof o nly of the ratings Ô existence . That the existing ratings

are true , which is a separate issue, need not also be proved.

45 . In this respect, Poor Ratings is like the disciplinable offense of being

convicted of certain crimes, which constitutes grounds for penalizing

licensees under many practice acts, including the Education Code . For

example, under section 1012.795(1)(f), the Education Practices Commission

(ÑEPCÒ) may suspend or revoke the educator certificate of any teacher who

has Ñb een convicted or found guilty of, has had adjudication withheld for, or

has pled guilty or nolo contendere to a misdemeanor, felony, or any o ther

criminal charge, other than a minor traffic violation. Ò If a teacher has been

convicted of a felony, the n the EPC may impose discipline against the

certificate upon proof of the felony conviction; it is not necessary to prove, in

addition, that the te acher committed the crime, as a matter of historical fact .

This is because, as the statute defines the offense, a conviction is not just

some proof of a fact material to the charge ; it is t he material fact to be

proved . The certificat e holder might be lieve that he was wrongly convicted

because of ineffective representation, prosecutorial misconduct, ci vil rights

violations, or any number of reason s . Maybe he kno ws he pleaded no contest

to a crime he is certain he didnÔt commit , as an e xpedient to avoid the risk of

imprisonment or financial ruin . N one of this is relevant, even if what the

teacher believes is provabl y true . The administrative charge neither requires,

nor allows, the parties to Ñgo behindÒ the conviction : the mere fact of the

conviction is the offense.

46 . As for performance evaluations, t he time to challenge the validity of a

Needs Improvement rating , if such a rating may be challenged, would be

before the teacher racks up three such ratings in a row . 9 Once the teacher

has received three consecutive Needs Improv ement ratings, the elements of

the offense are met, regardless of whether, in fact, the teacher ÑdeservedÒ a

higher rating in one or more of those years . While this might seem harsh or

unfair, section 1012.33 says what it says . See Gabriele v. Sch. Bd. of Manatee

Cty. , 114 So. 3d 477, 482 (Fla. 2d DCA 2013) (Weighing possible

disadvantages to teachers resulting from the pertinent language of section

1012.33 is Ñfor the legislature, not the courts.Ò) . Fro m the employerÔs

standpoi nt, moreover, three years probably seems like plenty of time for an

employee who receives a Needs Improvement performance rating to step up

his game . A fter all, a teacher who can manage to avoid either back - to - bac k or

two - out - of - three Unsatisfactory rating s needs to garner only one rating of

Effe ctive every three years to avoid termination on the grounds of Poor

Ratings .

47 . Section 1012.33(3)(b) reinforces the foregoing plain - language reading

of subsection (1)(a) , because it authorizes, if not requires, a district school

board not to renew a teacherÔs PSC for the same reasons that support a Poor

Ratings charge . Notably, however, as previously mentioned, no right to a

hearing to contest the nonrenewal of a contract on performance evaluation -

r atings grounds is expressly made available under section 1012.33 . Because

of this, nonrenewal of a teacherÔs contract is a relatively low - cost solution to

9 Section 1012.34(4) requires that a teacher who receives an Unsatisfactory rating be given

notice and an opportunity to correct identified deficiencies during a 90 - day performance

probation . The applicable procedure is spelled out in detail in subsection (4), and it includes

the right to a formal administrative hearing if the teacher wishes to contest a

recommendation that his employment be terminated for failure to correct the noted

performance deficiencies . Based upon the statuteÔs plain language, this procedure is

(probably) not implicated when a teacher receives a rating of Needs Improvement, but the

issue need not be decided here because this case ari ses from the DistrictÔs Administrative

Complaint, not MansetÔs request for a hearing on his Year 1 (or any other) evaluation.

the problem of persistent , poor ratings, as compare d to a dismissal for just

cause, which clearly entitles the te acher to a hearing.

48 . To repeat for emphasis , e ven with the truth of the evaluations being

irrelevant to a charge of Poor Ratings , bringing about a just - cause dismissal

is more burdensome than no t ren ew ing a PSC on grounds of poor ratings ,

because of the teacherÔs right to a hearing to contest dismissal . If, in proving

a Poor Ratings charge in support of a just - cause dismissal , a school district

were obligated to prove ( or defend) the substantive validity of the underlying

evaluations, the n the resulting , wide disparity between the effort needed to

dismiss a teacher pursuant to subsection (1)(a) and that required not to

renew his or her contract under subsection (3) (b) would provide a strong

disincentive to midyear dismissals . We re that the law , m ost districts, rather

than incurring the burden and expense of proving up the evaluations,

presumably would simply wait until the end of the contract term , at which

point the teacher could be released via the far easier method of nonrenewa l .

The downside o f that approach , however, is that the students pay the price ,

because the poorly rated teacher remains in the classroom for a longer period

of time .

49 . Section 1012.33 (6), which prescribes the administrative procedure for

just - cause dismissals under subs ection (1)(a), makes it clear that the

L egislature specifically considered remedies when it enacted this statute .

Therefore, i f the L egislature had intended to make an administrative remedy

available to teachers whos e contracts are not renewed pursuant to

subsection (3) (b) , then it almost certainly would have done so explicitly in

section 1 012.33 . Cf. Gabriele , 114 So. 3d at 482 (ÑWe cannot overlook [section

1012.33]Ôs disparate treatment of teachers under continuing contracts and

teachers under professional service contracts.Ò) . Further, if the L egislature

had contemplated that, in a just - cause dismissal for Poor Ratings under

subsection (1)(a), the substantive validity of the evaluations would be fair

game for de novo review , making such cases h arder for the school district to

win, then it likely would have made an administrative remedy available in

secti on 1012.33 for subsection (3) (b) nonrenewals . W ithout such a remedy to

ÑbalanceÒ the two subsections , subsection (3)(b) would exist as an irresi stible

loop hole . I nstead of prosecuting dismissal proceedings they might lose, school

districts would gravitate towards the no - lose option of us ing nonrenewals to

remove poorly rated teachers , to the detriment , sadly, of students who might

otherwise be assigned better teachers sooner if the poor ones were replaced

immediately . That the L egislature did not create a specific remedy for

contesting subsection (3)(b) nonrenewals suggests both that no such remedy

was intended and that just - cause dismissals fo r Poor Ratings were not meant

to become vehicles for challenging or establishing the validity of the

underlying performance evaluations.

50 . Manset has raised questions about the validity of his Year 1 rating of

Needs Improvement that , although unavailing as a legal defense,

nevertheless deserve to be taken seriously . The District has not persuasively

explained why the regression analysis used to calculate SP scores does not

take into account the contributions to student growth and ach ievement made

by substitute teachers where, as during MansetÔs Year 1, the teacher being

evaluated was absent from the classroom for an extended period . Given that

Manset missed nearly one - third of that school year ( more than half the

second semester) , it is hard to imagine that the substitute teachers who

covered for him had no impact on his studentsÔ performance . 10

51 . Of course, the substitutesÔ net contribution might have been positive Ð

that is, itÔs possible MansetÔs students performed better as a result of the

substitutesÔ involvement , than they would have performed if Manset had

10 Section 1012.35(3) provides that Ñ[d]istricts shall develop performance appraisal measures

for assessing the quality of instruct ion delivered by substitutes who provide instruction for

30 or more days in a single classroom placement. Ò This requirement implicitly recognizes

that a substitute teacher who spends six weeks in a single classroom is likely going to have

an effect on student achievement . The pool sub who taught MansetÔs class for 30 days during

Year 1 met this threshold.

been able to teach the entire year . Indeed, if Manset were as bad a teacher as

the District contends, the n the substitute teachers probably would have been

an improvement . Yet, MansetÔs Year 1 SP score was near rock - bottom at 1.5,

the same as his Year 2 and Year 3 SP scores . Contrary to what one

reasonably might expect , in other words, the substitutes did not move the

needle on student growth and achievement , despite their having taken the

place of (in the DistrictÔs view) one of the worst teachers in the Broward

County schools for a substantial portion of the year. 11

52 . The fact that the substitutes seem to have had no discernible effect on

student achievement suggest s the possibility that other factors besides

teacher competence might explain the relatively poor performance of

MansetÔs students on the standardized test , at least in Year 1 . This is

sp eculat ive , of course, because the District made no attempt to ascertai n the

substitutesÔ effect on student achievement . Is th is uncertainty sufficient to

conclude that Manset should get a pass on Year 1 and be deemed to have

received only two consecutive Needs Improvement ratings thus far? The

undersigned does not have the d iscretion to exercise this sort of leniency , but

the School Board probably does .

53 . The District has carried it burden of proving that Manset received

three consecutive ratings of Needs Improvement, which is all that

11 The District claims that MansetÔs IP scores, as compared to those of the other 12,500 or so

classroom teachers in the county, rank somewhere around the 4th percentile, meaning that

approximately 96% of the DistrictÔs classroom teachers (or about 12,000 employees) have

better IP scores than Manset. Put another way, this means that MansetÔs IP scores bested

only about 500 classroom teachers in the enti re Broward County Public Schools system. In

an attempt to downplay the significance of MansetÔs multiple Effective ratings on the IP

indicator, the District maintains that more than 99% of its teachers are rated as either

Effective or Highly Effective, bas ed on their IP scores. The District argues, further, that

MansetÔs IP scores Ð which translate to a respectable letter grade of B - Ð should more

accurately be labeled Ñlow Effective,Ò if not Ñvery low Effective.Ò In fairness to Manset,

however, the DistrictÔs evaluation system obviously does not rely upon a comparative

analysis, whereby a teacherÔs rating would depend upon his or her performance relative to

her peersÔ performance; if it did, 99% of the teachers would not be designated Effective or

better. Ther efore, it is irrelevant to consider MansetÔs ÑrankÒ in relation to the other

classroom teachers in the school district. The undersigned mentions it here only for the

limited purpose of explaining why MansetÔs Year 1 SP score might be considered unreliable.

subsection (1)(a) requires as proof o f guilt on a charge of Poor Ratings as the

offense is defined therein . Therefore, if Manset currently holds an unexpired

PSC, then the District has established just cause for his dismissal from

employment .

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Broward County School Board enter a final order

dismissing the Administrative Complaint against David R. Manset for lack of

jurisdiction ; alternatively, if Responden t currently holds an unexpired PSC,

then he may be dismissed for just cause during the term of that contract .

D ONE A ND E NTERED this 16th day of March , 202 1 , in Tallahassee, Leon

County, Florida.

S

J OHN G. V AN L ANINGHAM

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of March , 202 1 .

C OPIES F URNISHED :

Andrew Carrabis, Esquire Matthew Mears, General Counsel

Broward County School Board Department of Education

600 Southeast Third Avenue, 11th Floor Turlington Building, Suite 1244

Fort Lauderdale, Florida 33301 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Robert F. McKee, Esquire

Robert F. McKee, P.A. Katherine A. Heffner, Esquire

1718 East 7th Avenue, Suite 301 Robert F. McKee, P.A.

Tampa, Florida 33605 1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

Richard Corcoran

Commissioner of Education Robert W. Runcie, Superintendent

Department of Education Broward County School Board

Turlington Building, Suite 1514 600 Southeast Third Avenue, Tenth Floor

325 West Gaines Street Fort Lauderdale, Florida 33301 - 3125

Tallahassee, Florida 32399 - 0400

N OTICE O F R IGHT T O S UBMIT E XCEPTIONS

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.