93-003963 Dade County School Board vs. Kenneth Ingber Status: Closed Recommended Order on Wednesday, January 12, 1994.

Summary: Dismissal of teacher suffering from alcoholism, who failed to maintain lesson plans or a gradebook, was absent excessively, & wore a knife visibly.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3963

)

KENNETH INGBER, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on October 22, 1993,

in Miami, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Dade County

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: William DuFresne, Esquire

DuFresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One

Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations

contained in the Notice of Specific Charges filed against him, and, if so, what

action should be taken against him, if any.

PRELIMINARY STATEMENT

By correspondence dated July 8, 1993, Petitioner notified Respondent that

it was suspending Respondent from his employment and initiating dismissal

proceedings, and Respondent timely requested a formal hearing regarding that

determination. This cause was thereafter transferred to the Division of

Administrative Hearings to conduct the formal hearing. Petitioner filed its

Notice of Specific Charges on July 23, 1993, and clerical errors in that Notice

were corrected at the commencement at the final hearing in this cause without

objection.

Petitioner presented the testimony of Lillian Coplin, Edith Norniella,

Glenda Harris, and Joyce Annunziata. Respondent testified on his own behalf and

presented the testimony of Yvonne Perez, Howard Fabian, Gerry Di Roberto, and

Shirley Ingber. Additionally, Petitioner's Exhibits numbered 1-41 were admitted

in evidence.

Both parties submitted post-hearing proposed findings of fact in the form

of proposed recommended orders. A specific ruling on each proposed finding of

fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent Kenneth Ingber has been

employed by Petitioner and assigned under a continuing contract to West Little

River Elementary School.

2. During Respondent's 23 years of employment by Petitioner, he

resigned/retired twice. He was rehired by Petitioner after each resignation,

the last rehiring taking place for the 1985/86 school year. His then-principal,

Glenda Harris, hired him with the knowledge that he was an admitted recovering

alcoholic. He told her that he was under control. She told him that she would

give him a chance but that he would have to meet the expectations that all

teachers have to meet.

3. From the 1985/86 school year through the 1990/91 school year, Harris

rated Respondent acceptable on his annual evaluations; however, during the

1989/90 school year, Respondent had an attendance problem when he began drinking

again. Harris tried to get Respondent to obtain help, but he felt he could do

it on his own. He deteriorated during that year but improved during the 1990/91

school year.

4. During the time that Harris supervised Respondent, she had a problem

with his not having lesson plans. He felt that he did not need them.

5. For the 1991/92 school year, Respondent came under the supervision of

Principal Lillian Coplin. Coplin was never advised of Respondent's alcoholism.

6. On January 29, 1992, Respondent left school early without permission.

He also failed to attend a Global Awareness Workshop scheduled for that day.

Coplin discussed these failures with him on January 30, 1992.

7. On January 31, 1992, Respondent arrived at work late and left early.

The official working hours are from 8:15 a.m. to 3:20 p.m., but Respondent only

worked from 9:47 a.m. to 2:50 p.m. On February 7, 1992, Coplin directed

Respondent to observe the working hours set by the collective bargaining

agreement between the Dade County Public Schools and the United Teachers of Dade

(Labor Contract).

8. On February 27 and March 2, 1992, Respondent failed to have lesson

plans.

9. On February 27, 1992, Assistant Principal Edith Norniella observed

Respondent smoking outside of his classroom, but within view of his students.

Prior to that date, Norniella had observed him smoking on school grounds on

August 30, 1991, November 14, 1991 and February 18, 1992. On each of these

occasions, she told him not to smoke on school grounds. Coplin had also told

him several times not to smoke on school grounds.

10. On March 3, 1992, Coplin directed Respondent to adhere to Petitioner's

non-smoking rule. Norniella saw him smoking on school grounds at least two more

times after that.

11. On March 3, 1992, Coplin also directed Respondent to develop lesson

plans according to the Labor Contract.

12. On March 27, 1992, all teachers were given a site directive to turn in

parent logs, gradebooks, and daily schedules before leaving for spring-break on

April 3, 1992.

13. On April 3, 1992, Respondent reported to work at 9:25 a.m. in spite of

the directive given on February 7, 1992. On that same date, Respondent also

failed to comply with the directive to turn in parent logs, gradebooks, and

daily schedules. Moreover, by April 22, 1992, he still had not complied with

that directive.

14. On April 22, 1992, a conference-for-the-record was held with

Respondent to discuss his attendance problems and other failures to comply with

School Board rules, Labor Contract provisions, and administrative directives.

During the conference, he stated that he lost the gradebook but that the

principal would not like it anyway. He also admitted that he did not maintain a

parent log. Respondent was warned that any further violation of directives

would be considered gross insubordination. He was also issued a written

reprimand and directed to comply with School Board rules, Labor Contract

provisions, and site directives. He was advised of the School Board's Employee

Assistance Program (EAP), a program which offers assistance to employees in

overcoming personal problems that may be affecting their work. Respondent

declined the assistance and treated the matter as a joke by posting the EAP

referral on his classroom door.

15. On May 27, 1992, Respondent was formally observed in the classroom by

Norniella, using the Teacher Assessment and Development System (TADS).

Respondent was rated unacceptable in preparation and planning and in assessment

techniques. He did not have lesson plans, student work folders with tests, or a

gradebook. It was impossible to assess his students' progress.

16. Respondent was given a prescription to help him correct his

deficiencies. Prescriptions are activities which the employee is directed to

complete. He was directed to write detailed lesson plans and to turn them in to

Norniella weekly. He was to prepare two teacher-made tests and submit those to

Norniella for review. He was also to complete some activities concerning

assessment techniques from the TADS prescription manual. His prescription

deadline was June 16, 1992.

17. On June 2, 1992, Respondent was wearing a "pocket-knife" on his belt.

Both Coplin and Norniella considered the pocket-knife to be a weapon in

violation of the School Board rule because, although Respondent did not

physically threaten anyone with the knife, the wearing of such a knife was

intimidating to students and to Coplin. The matter had come to Coplin's

attention through a complaint from the parent of a student. In addition, both

administrators believed that wearing a knife set a bad example for the students

and did not reflect credit upon Respondent and the school system.

18. On June 3, 1992, a conference-for-the-record was held to address the

knife incident. Respondent was issued a written reprimand and directed to cease

and desist from bringing the pocket-knife to school. He was further advised

that any re-occurrence of that infraction would result in additional

disciplinary action.

19. On June 5, 1992, a conference-for-the-record was held to address

Respondent's performance and his future employment status. During the

conference, he admitted to not having had a written lesson plan during the May

27 observation. He was told of the Labor Contract provision which requires

weekly lesson plans reflecting objectives, activities, homework, and a way of

monitoring students' progress. He was also warned that if he did not complete

the prescription from that observation, he would be placed on prescription for

professional responsibilities and given an unacceptable annual evaluation.

20. On June 19, 1992, a conference-for-the-record was held with

Respondent. He had failed to correct his deficiencies and had failed to

complete his prescription. Moreover, he still had not turned in his gradebook,

parent log, and daily schedule, as directed on March 3, 1992. He was given an

unacceptable annual evaluation because of his deficiencies in professional

responsibility. Respondent verbally disagreed with that decision stating that

the unacceptable evaluation was for simple paper-pushing requirements.

21. The prescription for professional responsibilities required Respondent

to review from the faculty handbook School Board policy on grading criteria, to

submit his gradebook on a weekly basis to Coplin, to maintain a gradebook and a

log of parent conferences, to maintain daily attendance, to submit student

assessment records to Coplin for review prior to submission of the nine-week

grade report, and to complete the prescription from the May 27 observation by

September 15, 1992.

22. Respondent's annual evaluation for the 1991/92 school year was overall

unacceptable and was unacceptable in the category of professional

responsibility.

23. On September 20, 1992, a conference-for-the-record was held with

Respondent because he was still wearing a "pocket-knife" in spite of the prior

directive. He was directed not to wear the knife or the knife case. Respondent

stated that he would not do as directed.

24. On October 9, 1992, Respondent was formally observed in the classroom

by Coplin and was rated unacceptable in preparation and planning and in

assessment techniques. He did not have a lesson plan, student work folders,

tests, or a gradebook. It would not be possible to evaluate the students'

strengths and weaknesses. Moreover, if an administrator were called upon to

explain to a parent why a student got a particular grade, the administrator

would not have been able to do so.

25. Respondent was prescribed activities to help him correct his

deficiencies. He was directed to write detailed lesson plans and to turn them

in to Norniella weekly. He was directed to complete specific activities in the

TADS prescription manual dealing with lesson planning and assessment techniques

and to prepare two teacher-made tests and to submit all to Coplin for review.

The prescription was to be completed by October 30, 1992.

26. By November 13, 1992, Respondent was exhibiting a pattern of excessive

and unauthorized absences. The absences were unauthorized because he failed to

call the school prior to his absences as required by directives contained in the

faculty handbook. He was advised that his absences were adversely impacting the

continuity of instruction for his students and the work environment. He was

given directives to report his absences directly to the principal, document

absences upon return to the worksite, and provide lesson plans and materials for

use by the substitute teacher when he was absent.

27. On November 13, 1992, it was noted that Respondent had not met the

prescription deadline of October 30, 1992. Coplin gave Respondent a new

prescription deadline of November 30, 1992. In addition, she made a supervisory

referral to the EAP because of Respondent's excessive absences, unauthorized

disappearance from work, poor judgment, and failures to carry out assignments.

28. By the end of November, 1992, Respondent had accumulated 21 absences.

While he was absent, there were no gradebook, lesson plans or student folders

for the substitute teacher. The substitute teacher was told to create a

gradebook, lesson plans, and student work folders. All was in order when

Respondent returned to work.

29. On December 11, 1992, Respondent was formally observed in the

classroom by Norniella and was rated unsatisfactory in preparation and planning,

in techniques of instruction, and in assessment techniques. Because his

techniques of instruction were also rated unacceptable, Respondent recognized

for the first time that his teaching performance was being criticized. He had

dismissed the prior criticisms as simply problems with creating a "paper-work

trail".

30. Respondent was rated unacceptable in preparation and planning because

he did not have a lesson plan. Norniella gave him a chance to turn in the

lesson plans the following Monday, but he failed to do so.

31. Respondent was unacceptable in techniques of instruction because he

used the same materials and methods for all students regardless of their

individual needs. Respondent failed to establish background knowledge before

beginning the lesson. The sequence of the lesson was confusing to Norniella.

Respondent covered three different subjects (vocabulary, science, and math), all

within a period set aside for language arts.

32. Respondent was given a prescription to help correct his deficiencies.

He was directed to write lesson plans and to turn them in to Norniella on

Fridays. He was to observe a reading/language arts lesson by another sixth-

grade teacher. He was directed to maintain at least two grades per week in each

subject for each student. He was also directed to complete specific activities

in the TADS prescription manual relating to preparation and planning, techniques

of instruction, and assessment techniques. He was directed to complete the

prescription by January 15, 1993. He failed to complete any of the prescription

activities.

33. On January 4, 1993, a conference-for-the-record was held with

Respondent to address his performance and future employment. His absences and

reporting procedures were also discussed as was his failure to comply with his

prescription and prior directives. During the conference, Respondent was rude,

agitated, and disrespectful. He yelled at the principal. His behavior did not

reflect credit upon himself and the school system. He treated the conference as

a joke.

34. As of January 20, 1993, Respondent still had no gradebook. On January

25, 1993, he was notified that upon his return to the school site, there would

be a conference-for-the-record to deal with his noncompliance with the

directives to maintain a gradebook and to complete his prescription activities.

35. A conference-for-the-record was held with Respondent on March 3, 1993.

It was noted that because of his absences, he had failed to meet the

prescription deadline on January 15, 1993. Coplin gave him a new deadline of

March 11, 1993.

36. Respondent failed to meet the March 11, 1993, prescription deadline.

Moreover, he still had not completed his prior prescription for professional

responsibility. Because of these failures, Coplin extended the 1992

professional responsibility prescription through June 1993.

37. On March 26, 1993, Respondent was formally observed in the classroom

by Coplin and was rated unsatisfactory in preparation and planning and in

assessment techniques. While Respondent had some lesson plans, he did not have

one for each subject taught during the day. The student folders contained no

tests.

38. Respondent was prescribed activities to help him correct his

deficiencies. He was directed to develop weekly lesson plans and to submit them

on Wednesdays for the principal to review. He was also to complete an

assessment techniques activity from the TADS prescription manual and was to

submit the activity to Coplin for review. His prescription was to be completed

by April 23, 1993.

39. On April 1, 1993, Respondent was placed on prescription for

professional responsibilities for failure to comply with School Board rules,

Labor Contract provisions, and school site policies and directives concerning

lesson plans, student assessment, record keeping, and maintaining a gradebook.

He was directed to develop weekly lesson plans for each subject taught and to

submit those to the principal for review. He was directed to read Article X of

the Labor Contract and to submit a summary to the principal for review. He was

directed to review the section of the faculty handbook concerning maintaining a

gradebook. He was directed to maintain an updated gradebook with at least two

grades per week per subject and to label the grades. He was directed to

maintain a parental conference log in the gradebook. He was directed to submit

his gradebook to the principal for weekly review.

40. On May 12, 1993, Coplin advised Petitioner's Office of Professional

Standards (OPS) that Respondent had failed to comply with the directive of

November 13, 1992, concerning procedures for reporting absences. He had been

absent on April 13, 16, 23, 27, and May 5, 6, 7, 10, and 11, 1993, without

calling the principal in advance. Respondent claims that he called the school

secretary at her home before 7:00 a.m. every time he was absent, except for one

time. Although the secretary told him he would have to speak directly to the

principal, he chose not to call the school when Coplin was there. Calling the

secretary does not absolve him from his responsibility to comply with the

principal's directive to speak to her personally.

41. On May 19, 1993, Respondent was sent a letter directing him to

schedule a conference at OPS. Respondent did not do so. On that same day,

Coplin was advised by EAP that EAP was closing Respondent's case due to his

noncompliance with the program.

42. Respondent was absent without authorized leave from April 23 - June

17, 1993. Moreover, he had 106 absences for the school year. Nine of these

were paid sick leave, and 97 were leave without pay. The school year has 180

student contact days.

43. Because of Respondent's absences and failure to follow leave

procedures, Coplin was not able to secure a permanent substitute teacher.

Respondent's students were subjected to frequent changes in substitute teachers

and a lack of continuity in their education.

44. Respondent's annual evaluation for the 1992/93 school year was overall

unacceptable and unacceptable in the categories of preparation and planning,

assessment techniques, and professional responsibility. Because of Respondent's

absences, the usual conference-for-the-record could not be conducted, and

Respondent's annual evaluation was sent to him by mail.

45. Respondent failed to complete all prescriptions given him by Coplin

and by Norniella.

46. By letter dated June 15, 1992, OPS notified Respondent that he was

willfully absent from duty without leave. He was given an opportunity to

provide a written response and was advised that failure to do so would result in

the termination of his employment.

47. On July 6, 1993, a conference-for-the-record was conducted by Dr.

Joyce Annunziata at OPS. The conference was held to discuss the pending

dismissal action to be taken by Petitioner at its meeting of July 7, 1993.

During the meeting, Respondent was extremely disoriented, turned his back on

Annunziata, did not take the meeting seriously, made irrelevant comments,

carried a stuffed purple animal which he talked to and through, and had watery,

bloodshot eyes. He also wore his "pocket-knife" to the conference.

48. Petitioner suspended Respondent and took action to initiate dismissal

proceedings against him on July 7, 1993.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has jurisdiction over the

parties hereto and the subject matter hereof. Section 120.57(1), Florida

Statutes.

50. Section 231.36(4)(c), Florida Statutes, provides that a member of the

instructional staff may be suspended or dismissed at any time during the school

year for misconduct in office, incompetency, gross insubordination, and willful

neglect of duty. Count I of the Notice of Specific Charges filed in this cause

alleges that Respondent is guilty of gross insubordination and willful neglect

of duty, defined by Rule 6B-4.009(4), Florida Administrative Code, as follows:

(4) Gross insubordination or willful neglect

of duties is defined as a constant or

continuing intentional refusal to obey a

direct order, reasonable in nature, and given

by and with proper authority.

51. Petitioner has met its burden of proving that Respondent is guilty of

gross insubordination and willful neglect of duties. Respondent, on a constant

and continuing basis, refused to obey reasonable orders properly given him by

his principal. For in excess of one year, Respondent refused to prepare lesson

plans, maintain a gradebook and student folders, and keep a log of parent

contacts. He refused to stop smoking on school grounds. He refused to follow

his principle's orders regarding reporting his absences and regarding coming to

work on time and staying at work for the entire work day.

52. The dispute regarding Respondent's "pocket-knife," alone, reflects the

willful and intentional nature of his refusal to comply with directives given to

him by his principal. Respondent did not carry what he calls a "pocket-knife"

in his pocket; rather, he wore a knife in a knife case on his belt. Although

Respondent correctly argues that he did not wield his knife so as to intimidate

or threaten others, the reason for wearing a knife on one's belt for all to see

is to intimidate and threaten others. When Principal Coplin properly ordered

Respondent to cease wearing a knife and knife case on his belt, he told her he

would not comply. Although he eventually ceased wearing the knife, he defiantly

continued wearing the knife case, taking the position that the knife case was

not a dangerous weapon. Since one could not just look at Respondent's knife

case and ascertain that it did not contain a knife, the continued wearing of the

knife case by Respondent was behavior intended to intimidate and threaten

others, in open defiance of the authority of Coplin.

53. Count II of the Notice of Specific Charges alleges that Respondent is

guilty of incompetency due to inefficiency and/or incapacity as defined by Rule

6B-4.009(1), Florida Administrative Code, as follows:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. . . .

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience. . . .

(b) Incapacity: (1) lack of emotional

stability. . . .

Petitioner has met its burden of proving that Respondent is guilty of

incompetency due to both inefficiency and incapacity.

54. Section 231.09, Florida Statutes, directs teachers to perform those

duties required by School Board rules relating to teaching efficiently and

faithfully, using required materials and methods, complying with recordkeeping

requirements, and fulfilling contractual obligations. Respondent has violated

School Board rules establishing a tobacco-free workplace, the maintaining of

parent contact logs, the procedures for properly evaluating student progress and

for obtaining approval for leave time, and forbidding the possession on school

property of weapons including pocket-knives used to threaten other individuals.

Respondent has repeatedly violated similar provisions in the Labor Contract

between the School Board of Dade County and the teachers' union. The evidence

further reveals that Respondent's excessive absences interfered with his

students' continuity of education, and there is some evidence that his students

may have been deprived of a minimum educational experience. Lastly,

Respondent's lack of emotional stability is evidenced by his chronic alcoholism

which he has not controlled and his blatant defiance of authority.

55. Count III of the Notice of Specific Charges alleges that Respondent is

guilty of misconduct in office, as defined by Rule 6B-4.009(3), Florida

Administrative Code, as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

56. Respondent has shown a lack of professional concern for his students

and has failed to maintain the respect and confidence of his colleagues, as

required by the Code of Ethics. Additionally, he has failed to protect his

students from conditions harmful to their learning in that he has caused a lack

of continuity in the education of students assigned to his class and has taught

students, by his conduct, that wearing a knife on one's belt is appropriate

behavior. Such behavior does violate the Principles of Professional Conduct.

Petitioner has, accordingly, proven Respondent guilty of misconduct in office.

57. Count IV of the Notice of Specific Charges alleges that Respondent is

guilty of willful absence without leave, in violation of Section 231.44, Florida

Statutes. That statute provides that the employment of any School Board

employee who is willfully absent from duty without leave shall be subject to

termination by the School Board. Respondent refused to follow the procedures

established for him to report his absences, and the evidence is clear that such

absence from his duties without authorized leave was willful. Petitioner has

proven that Respondent's employment should be terminated not only pursuant to

Section 231.44 but also pursuant to Section 231.36(4)(c), Florida Statutes,

because Respondent's willful absence without leave also constitutes willful

neglect of duty and gross insubordination, misconduct in office, and

incompetency under the facts of this case.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered sustaining Respondent's

suspension without pay and dismissing Respondent from his employment with the

School Board of Dade County, Florida.

DONE and ENTERED this 12th day of January, 1994, at Tallahassee, Florida.

___________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER

DOAH CASE NO. 93-3963

1. Petitioner's proposed findings of fact numbered 1, 3-27, and 29-56 have

been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 2 has been rejected as

not constituting a finding of fact but rather as constituting a conclusion of

law.

3. Petitioner's proposed finding of fact numbered 28 has been rejected as

being irrelevant to the issues under consideration in this cause.

4. Respondent's proposed findings of fact numbered 1-4 and 7-9 have been

adopted either verbatim or in substance in this Recommended Order.

5. Respondent's proposed findings of fact numbered 5 and 14-16 have been

rejected as not constituting findings of fact but rather as constituting

argument of counsel, conclusions of law, or recitation of the testimony.

6. Respondent's proposed finding of fact numbered 6 has been rejected as

being irrelevant to the issues under consideration in this cause.

7. Respondent's proposed findings of fact numbered 10-13 have been

rejected as not being supported by the weight of the evidence in this cause.

COPIES FURNISHED:

William DuFresne, Esquire

Du Fresne & Bradley

2929 S.W. 3rd Avenue, Suite 1

Miami, Florida 33129

Madelyn P. Schere, Esquire

Dade County School Board

1450 N.E. 2nd Avenue

Miami, Florida 33132

Mr. Octavio J. Visiedo, Superintendent

Dade County School Board

1450 N.E. 2nd Avenue

Miami, Florida 33132

The Honorable Doug Jamerson

Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.